National Security and Fundamental Freedoms: Hong Kong's Article 23 under Scrutiny (review)

There's a war out there, old friend, a world war, and it's not about who's got the most bullets. It's about who controls the information—what we see and hear, how we work, what we think—it's all about the information.¹

Just when you thought it was safe to go back into Hong Kong, the government of Hong Kong, led by then-Chief Executive Tung Chee-hwa, and operating under instructions from Beijing, began a hard push for implementation of Article 23 of the Hong Kong Basic Law.² Article 23 reads:

The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.

In 2002 this provision (to some innocent, to others draconian) suddenly became an urgent necessity, and the public debate over it, culminating in a march by a half-million persons through the streets of Hong Kong, caught the attention of the world. This book of thirteen chapters by practicing lawyers, legal scholars, and a media professor brings together an international and comparative-law perspective that raises grave concerns about the rule of law, "One Country, Two Systems" (OCTS) and the "One China" policy, globalization, freedom of expression, judicial independence, democracy, the survival of the common law, and the possible futures for Hong Kong within the context of "Greater China" (including Taiwan).³ It will not be long—but a generation—until 2047, the sunset date of the Basic Law. OCTS is proposed as the solution to the "Taiwan problem." Hence, what happens in Hong Kong with regard to such seminal issues as Article 23 is of enormous concern to all who are concerned with security in the region, the rule of law, and the future of democracy in Greater China.

Not all of the contributors to this volume are situated in Hong Kong, and not all are of the same mind legally, politically, or ethically. This diversity creates a three-dimensional view of the subject and ensures that the book is not a mere polemic—a real risk with a subject so fraught with emotion. The fear expressed by a number of the authors is that the proposed Article 23 legislation would open a "connecting door" to PRC notions of law, as well as enmity toward human rights, that might in fact become a floodgate.⁴ Fortunately, the Article 23 project has been shelved for the time being, but it will come around again.

At bottom the source of the fear is a huge gap of mistrust toward the Peking regime, the Hong Kong regime, and (sadly) the Hong Kong courts. This mistrust is not without justification. In its brief, eight-year history, the record of the Hong Kong Special Administrative Region and the mainland's dealings with it have not been calculated to instill much trust. What is probably the worst aspect of this mistrust is that the Hong Kong courts have not uniformly fared well as defenders of individual rights—a reality made clear in the 1999 "right of abode" debacle⁵ and the later "flag desecration" cases.⁶ Interference from Beijing, the sense of promises broken or ignored, and the realization that the Basic Law already has fatal "connecting doors" built into it have all led to a sense of disillusionment and of having been "duped." The Article 23 saga brought much of these realities into sharp relief.

The anchor of this book is Carole Petersen's thorough introductory chapter 1, "Hong Kong's Spring of Discontent: The Rise...