The Winning Essay in the 1999 Marie Wanek
Asian Studies Essay Competition
“Human Rights in Hong Kong: Freedom of Expression
in Hong Kong under Chinese Sovereignty”
Ben Wiseman
On July 1, 1997, the British Commonwealth of Hong Kong was
handed back to China. There was an
immediate concern that the citizens of Hong Kong would be denied their basic
human rights. The Bangkok Declaration
reaffirmed China’s and other Asian countries’ responsibility to uphold human
rights. While the constitution of the
People’s Republic of China guarantees many unalienable rights to the Chinese
people, the fate of human rights is still undeterminable.[1] An observer must look past these legal
documents to fully understand the idea of human rights in China. One must look at the history of the republic
and the values of its people.
Confucianism
has ruled China’s moral system for centuries and today it plays a major role in
the understanding of human rights in China.
One of the main ideas in Confucianism is the idea of justice. Justice is not only perceived as an ethical
tool, but as a political code of law as well.
Justice is related to the regulating and controlling of the common
people.[2] Confucianism does not promote
democracy. Even though Confucius
promoted the idea of family, he also indicated the necessity of a ruling
class. The idea of a government “for
and by” the people is foreign to Chinese history.[3]
The problem with human rights began in
1949 with the establishment of the communist People’s Republic of China. Mao Zedong, a self-styled Marxist, was
elected chairman of the republic and modeled China after the Russian socialist
revolution. Mao believed that human
rights were a bourgeoisie notion that did not apply to the Chinese
proletariat. He argued that human
rights were a concept that did not account for class differences, and that
collective rights took precedence over individual rights.[4] Deng Xiaoping, Mao’s successor, while opening
dialogue with the West and loosening certain economic restrictions, nonetheless
continued totalitarian rule.[5]
The Democracy Wall Movement of 1989
incited a longing for human rights.
After the June 4, 1989 Tiananmen Square tragedy, the communist Chinese
government finally began to accept international human rights documents.[6] The situation in present day China remains
shaky however, as human rights are still denied.
In 1997, on the eve of the handover of
Hong Kong to China after ninety-nine years of British rule, human rights
activists worried that the Beijing government would place in jeopardy the
rights of the Hong Kong citizens. The
greatest concern was that freedom of the press and freedom of expression would
be denied to the previously free citizens of Hong Kong.
Ten years before the handover of Hong
Kong to Chinese rule, negotiations began concerning the legal system that would
be implemented in Hong Kong after the transition.[7] On April 4, 1990, the Seventh People’s
Congress of the People’s Republic of China passed the third and final text of
the Basic Law. The Basic Law was
written to provide a legal basis for the Special Administration Region (SAR)
government of Hong Kong. The Basic Law
introduced a “one country, two systems” principle for the new China. While Hong Kong would be legally a part of
China, it would be run by a more democratic capitalistic system.[8] The Chinese government believed that this
principle along with the Basic Law gave enough liberties to the people of Hong
Kong while maintaining control.
However, the document fell short of many international human rights
standards. The communist government
declared that it would restore several old repressive colonial laws and
ordinances that had been largely ignored by the British which would potentially
limit a citizens right of freedom of expression. By July 1, 1997, only insignificant changes had been made to the
Basic Law and China took sovereignty over Hong Kong with the issue of freedom
of expression still at risk.[9]
Almost two years after the handover,
freedom of expression is still alive in Hong Kong. Those who believed that the freedom of Hong Kong citizens and the
media would be quickly vanquished by harsh punishment were proven wrong. While the new administration has returned to
a more centrally controlled government, there have been few reports of harsh
restrictions on freedom of expression.
Beijing has thus far decided not to interfere with Hong Kong human
rights issues.[10] It has been tolerant of the media and the
lifestyle of the citizens of Hong Kong.
However, while freedom of expression is alive, it is still questionable
and concerns many.
The commitment of the SAR to the rule of
law has on more than one occasion faltered since the handover. Certain principles concerning civil liberty
have been overlooked in order to appease the central Chinese government. This situation poses a treat to human rights
because the SAR is not acting independently and certain restrictive regulations
concerning human rights could be passed to please China. Outside observers became aware of the
problem in early 1998, when the Secretary of Justice for the SAR decided not to
prosecute the owner of a newspaper for fraud.
While three other members of the paper were charged, the owner, who was
a member of the Chinese People’s Political Consultative Conference, was
released by the secretary.[11] In another case, a Chinese news agency was
not prosecuted even though the official forty-day registration period for
organizations had past. The agency
and other central government bodies appear to have been exempted from the law
by the SAR.[12] In response to these instances, the Hong
Kong Human Rights Monitor stated that while the administration “aimed to
preserve most of Hong Kong’s ways of life, where Beijing’s wishes conflict with
this, those wishes will come first, even where this involves breaking the law.”[13]
The judiciary has also faltered in its
role to protect the law of the citizens of Hong Kong. In 1997, when David Ma Wai-kwan, a local human rights activist,
stated that the provincial legislature was unconstitutional, challenging its
legality, the Hong Kong courts ruled that there could be no inquiry concerning
decisions from China.[14]
In a more recent case, Cheung
Tze-keung, a Hong Kong gangster, who committed most of his crimes in Hong Kong,
was handed over to the mainland for prosecution rather than being tried in Hong
Kong. The Washington Post reported on
January 13, 1999, that a woman who poisoned five people in Hong Kong would
stand trial in the mainland as well.
Both the Basic Law and the Joint Declaration (a Sino-British agreement
on Hong Kong) stated that the criminal law of China is not related to the law
of Hong Kong and that the courts of Hong Kong are independent from the mainland
and have the power of final judgment in its jurisdiction. These cases pose a threat to all citizens of
Hong Kong. People justifiably fear that
certain legal acts in Hong Kong, such as demonstrating or criticizing the
Chinese government, might make them vulnerable to civil or criminal prosecution
on the mainland.[15] Concern is also growing that if the
judiciary in unable to defend its jurisdiction, freedom of expression cases
might be tried in China, resulting in unfair and repressive rulings.
Concerns also exist about the public’s
access to information about both civil and criminal trials. The judiciary has
been contemplating the issue of openness in the courts and is considering not
allowing live television cameras in the courtroom. Activists are worried that in cases where there are political
implications, closed-door trials would pose a threat to the defendant if the
Chinese government felt it had been harmed.
In 1995, although reforms were made that ensured that verdicts in cases
would be held in the open, a court may still decide to close its doors for a
majority of the trial.[16]
The legal basis for freedom of
expression has also diminished in Hong Kong.
The SAR has not yet implemented the law reform program. The 1998 Hong Kong Journalists Association’s
annual report stated, “The legal framework for the protection and enjoyment of
the rights to freedom of expression has moved several steps backward since July
1, 1997”.[17] The SAR has returned to pre-retrocession
laws, instead of trying to reform them as proposed during the establishment of
the SAR. The SAR was mandated to reform
laws from the outdated British colonial statute rather than creating an entirely
new legal system. The laws from the
British colonial statute were considered inconsistent with international human
rights standards. Three of these laws
that caused the most concern were the Official Secrets Ordinance, the Emergency
Regulations Ordinance, and the Interception and General Clauses Ordinance. All three of these ordinances limit a
person’s right to freedom of expression.
The Official Secrets Ordinance would leave journalists subject to arrest
if they released information that was deemed a secret, even if the secret was
published elsewhere. The Emergency
Regulations Ordinance would allow the government to order a state of emergency
where all independent publications would be immediately stopped. The definitions for a state of emergency are
neither detailed nor well described.
The Interception and General Clauses Ordinance would permit the police
to search for and seize journalists’ materials if the government believes that
national security has been breached.
Ordinances such as these must be revised to guarantee the right of
freedom of expression in Hong Kong. The
SAR has failed to reform any of these laws and the longer they are ignored the
greater chance they will be used unfairly and arbitrarily.[18]
***
With pressure from China, two revised
ordinances concerning national security were ratified only days before the
retrocession. These amendments
introduced new restrictive rules about public protest and the formation of
citizen organizations. The former
Provincial Legislator (The pre-handover government) rushed to pass the revised
Public Order and Societies Ordinances on June 14, 1997. Human rights activists believed that the
bills were ratified in order to tighten social control and prevent any future
protests relating to “Anti-China activities”.[19] The Public Order Ordinance required that
demonstrators must register for a license in order to protest and that the
police have the absolute authority to refuse any application. The Societies Ordinance required that new
organization must register within one month of its founding. The Ordinance also cited certain cases were
registration could be denied because of the political activity of a group.[20]
On July 19, 1997, The Hong Kong
commissioner of police released, “Guidelines on ‘National Security’ in the
Public Order Ordinance.” In this
document he stated that the “advocacy of independence for Taiwan or Tibet” were
grounds for banning an organization or any demonstrations it might hold.[21] While the police have denied only one
request for a demonstration license thus far, most protests are confined to
small areas and are outnumbered by the surrounding police. In September 1997, at the World Bank
meetings, protesters were forced to demonstrate in a small area far from where
the conferences were being held and were virtually engulfed by the police for
the entire day.[22]
In another incident in late 1997, police
played classical music over loudspeakers to drown out the demonstrators during
Chinese Prime Minister Li Peng’s visit to Hong Kong. These new security rules have in effect allowed the police to
ban organizations or demonstrators who protest against the Chinese
Government. In response, the Hong Kong
Human Rights Monitor stated, “(the police are) no longer just monitoring behavior
but policing people’s political opinions.”[23]
***
“The Hong Kong Special Administrative
Region shall enact laws on its own to prohibit any acts of treason, secession,
sedition, subversion against the Central People’s Government…”
-
Article 23 of the Basic Law of the Hong
Kong SAR of the People’s Republic of China.[24]
Article 23 of
the Basic Law presents the greatest concern for many human rights
activists. The broad wording of the
article leaves room for the SAR Government to abuse the Basic Law and deny
freedom of expression. The Legislative
Council in 1997 officially defined treason and sedition as “a proven intention
of causing violence or creating public disorder or a public disturbance”, but
even this definition is too broad and can be used arbitrarily by the government
to curtail freedom of expression.[25] Human rights activists’ worry that the
restrictive principles in China concerning treason and sedition may exert undue
pressure on the SAR government.
Before the
transition to Chinese rule, the notions of subversion and secession had been
ignored in Hong Kong. These offences
had never been introduced into the Hong Kong jurisprudence. Martin Lee, a leading Chinese human rights
activist in Hong Kong wrote, “Subversion is a communist law concept which will
be imposed on our common law system, and which will unavoidably undermine the
non-political nature of the Hong Kong courts.”
He and other activists believe that that the crimes outlined in Article
23 will be applied in a broad and potentially repressive manner. Although the SAR government has not yet
officially drafted laws against sedition as prescribed by Article 23 of the
Basic Law, the pressure from Beijing to move forward on its passage is great.[26]
Almost two years after the transition to
Chinese rule, freedom of the media in Hong Kong continues to survive. Many citizens of Hong Kong believed that
the Chinese government would try to interfere immediately after the handover
with Hong Kong’s media coverage of issues dealing with the Mainland. In 1996, human rights activists were
concerned when Lu Ping, Beijing’s chief spokesman on Hong Kong, stated that the
media would be prohibited from advocating for the freedom of Taiwan and Tibet
or the two Chinas system. He later
added, “If someone advocates, it is not a matter of press freedom: it is an
action.” Later in October 1996, Qian
Qichen, Chinese Vice-Premier, asserted, “Hong Kong should not hold those
political activities which directly interfere in the affairs of the mainland…
(The media can) put forth criticism, but not rumors or lies… or personal
attacks on Chinese leaders.”[27]
In spite of these apparent threats to
democratic freedoms, The Chinese government has thus far been relatively
tolerant of the Hong Kong media since the handover. Major political events have been allowed to air even though they
may present anti-China ideas. Radio
programs have continued to carry sensitive news about the Chinese
government. Talk shows have also been
operating freely, criticizing the Chinese government and its policy towards
Hong Kong. Newspapers have also been
able to report on issues that contain information potentially critical of the
central government.[28]
There have, however, been some negative
aspects of Chinese rule. There have been
numerous isolated reports of cases of the government infringing on the freedom
of the press. In March 1999, The
Committee to Protect Journalists reported that 20 Hong Kong Journalists were
detained in Shantou, China, for no apparent reason while trying to cover a
murder story. The journalists were held
for an hour of questioning by the police and then released.[29] There have been other similar cases where
reporters were briefly detained before being allowed to continue to cover their
stories.
In spite of Beijing’s tolerance of the
Hong Kong media since the handover, the specter of a government crackdown on
the media has resulted in excessive self-censorship. An editor from China Television News has accused the station of
withholding a documentary on an independence movement in China. The documentary was approved originally by
the chief editor at the station but was withdrawn because it contained
politically sensitive material. The
station stated that the documentary was not shown because of lack of
material. In 1997, Marie Claire, a woman’s fashion magazine, withdrew an article about
Tibet from the Hong Kong edition because the editorial director was concerned
about the mainland’s response. The
author later wrote in an Amnesty International newsletter, “Though the year
1997 has not yet ended, many sensitive stories were turned down including the
feature story on Tibet which (we) originally decided to buy. The reason was that the content might
contain viewpoints which the ruling class may fear…” In major newspapers of
Hong Kong there have been many similar cases of self-censorship motivated by
fear of government reprisals.[30]
***
Two years after the handover, freedom of
expression in Hong Kong still perseveres, but is dangerously threatened. The SAR government has failed to reform or
eliminate repressive colonial laws that had long been ignored but are now being
revived to ensure Beijing’s supremacy.
Reinstating these antiquated measures poses a serious threat to freedom
of expression in the future. These
ordinances can be used as tactics by the Chinese government to curtail the
political views and expressions of the citizens of Hong Kong.[31] Under pressure from China, the SAR
government may interpret the laws according to Article 23 of the Basic Law to
form a more authoritarian regime.
Overtly, the media has been left alone by the mainland, yet
self-censorship driven by fear of government intrusion still destroys freedom
of expression.
The European Union, the United States,
and the United Nations are dedicated to preserving human rights, particularly
freedom of expression, in Hong Kong.[32] Frank Welsh, a renowned historian, declares
in his historical book, A History of Hong Kong, “The history of the
colony is indissolubly linked with that of China’s relations with the West, and
the development of the West’s attitudes towards China.”[33] Freedom of expression will never be fully
guaranteed in a Chinese Hong Kong without the constant vigilance of human
rights activists both in Hong Kong and the West. While individual human rights and freedoms still exist in Hong
Kong, its future remains clouded with doubts and reservation.
[1] Wacks, Raymond ed., Human Rights in Hong Kong, Oxford, Oxford University Press, 1992
[2] Davis, Michael ed., Human Rights and Chinese Values, Oxford: Oxford University Press,
1995.
[3] Wacks, 176-178
[5] Davis, 133-139
[6] ibid.
[7] “People’s Republic of China, Hong Kong S.A.R. human Rights One Year On: No Room for Complacency,” Amnesty International Annual Report, June 1998.
[8] Varennes, Fernand ed., Asia-Pacific Human Rights Documents and Resources, Boston: Martinus Nijhoff Publishers, 1998.
[9] “People’s Republic of China, Hong Kong S.A.R. human Rights One Year On: No Room for Complacency,” 1-2
[10] Lai Pui-yee, Carol ed. “Questionable Beginnings,” The 1998 Annual Report of the Hong Kong Journalists Association, June 1998.
[11] Ibid., 4-5
[12] Is1.hk.super.net/~hkhrc/post97hr.htm, Hong Kong Human Rights Situation after the Change of Sovereignty: Online. Internet. 24 April 1999.
[13] “Questionable Beginnings,” 4-6
[14] Ibid.
[15] Lee, Martin, Long Arm of China’s Law: Online. Internet. 24 April 1999
[16] “Questionable Beginnings,” 12-13
[17] Ibid., 7
[18] Ibid., 8
[19] “People’s Republic of China, Hong Kong S.A.R. human Rights One Year On: No Room for Complacency,” 1-2
[20] Is1.hk.super.net/~hkhrc/post97hr.htm, Hong Kong Human Rights Situation after the Change of Sovereignty, 1-3
[21] “People’s Republic of China, Hong Kong S.A.R. human Rights One Year On: No Room for Complacency,” 1-2
[22] “Questionable Beginnings,” 9
[23] Ibid.
[24] Varennes, 25-36
[25] “People’s Republic of China, Hong Kong S.A.R. human Rights One Year On: No Room for Complacency,” 1-2
[26] Lee, Martin, Long Arm of China’s Law, 2-3
[27]
Lai Pui-yee, Carol ed. “The Die is Cast: Freedom of Expression in Hong Kong on
the Eve of the Handover to China,” The 1997 Annual Report of the Hong Kong
Journalists Association, June, 1997
[28] “Questionable Beginnings,” 14-15
[29] “People’s Republic of China, Hong Kong S.A.R. human Rights One Year On: No Room for Complacency,”
[30] “Questionable Beginnings,” 14-16
[31] Lee, Martin, Long Arm of China’s Law:1-3
[32] Europa.eu.int/comm/dg01/chinip3.htm, Human Rights: Dialogue Backed by Action: Online. Internet. 17 April 1999.
[33] “Hong Kong Human Rights, Law and Autonomy: the Risks of Transition,” Amnesty International Newsletter, February 1997.