Sedition Revisited

According to news reports, Zhang Dejiang, Chairman of China’s National People’s Congress, who is visiting Hong Kong this week, will have a 40-minute meeting on 18 May with selected members of Legco. Among those invited are pan-democrats Alan Leong, Civic Party leader, Emily Lau, Democratic Party chairwoman, Cyd Ho, Labour Party, and health services representative Joseph Lee. So-called pro-Beijing Legco members are also on the list.

As of this writing there is some doubt over the attendance of Cyd Ho, who has publicly raised doubts about the value of such a short encounter, preferring instead a proper working meeting, which, whatever that may mean, is not apparently on offer.

Zhang Dejiang’s visit is focused on economic issues and seeks to avoid confrontation and controversy, to which end 6,000 police officers are being deployed to forestall any disruptions to the visit or possible evidence of the absence of a warm welcome from sectors of the local population.

Irrespective of who attends the meeting, there will be no meeting of minds.

Beijing is clearly deeply concerned about the emergence of localist/indigenous/independence parties in Hong Kong, reflecting wider community concerns about the HKSAR’s evolving relationship with mainland China. The goals of those contemplating a Hong Kong future independent of China are clearly in contradiction of Article 1 of the Basic Law that states Hong Kong is an ‘inalienable part’ of China. However, despite the clarity of Article 1, there is no provision for prosecuting those who seek to deny it.

Present legislation, a hangover from our colonial past (see below), is more concerned with protecting the interests of Her Majesty the Queen, who is unlikely to feel threatened by developments in this part of Asia, no matter how rude she perceives Chinese officials to be.

Given China’s longstanding concern about its territorial integrity, this is not a situation it is likely to tolerate. Official thoughts will be turning to Article 23 of the Basic Law that states the HKSAR shall ‘on its own’ enact laws to prohibit treason, secession, sedition or subversion against the Central People’s Government, together with various other provisions in defence of State security.

The pan-democrats, on the other hand are more concerned with Article 22 that stipulates no department of the central government, no province, autonomous region or municipality directly under central government control ‘may interfere’ in the affairs of Hong Kong; an Article they believe was ignored in the recent case of the of the booksellers. Further, they have expressed a wish to raise the issue of democratic development as set out in Article 45, modified under Annex 1 of the Basic Law. And just to avoid any possibility of a misunderstanding, they will wish to record their abhorrence of C Y Leung, his governance, and any prospect of his serving a second term of office. It is worth noting in passing that legislation, drafted in line with Article 45 and Annex 1 to allow for general suffrage in the 2017 HKSAR Chief Executive election, was defeated in 2015 in Legco with the pan-democrats overwhelmingly voting against it, thereby depriving Hong Kong people of any voice in whether or not C Y Leung is awarded a second term.

Most people have some idea what treason involves. Sedition, by way of contrast, is a more slippery concept, albeit one with a long history in Hong Kong. Dictionaries and reference books offer varying definitions. What they have in common is a reference to ‘incitement’ to resistance against lawful government. Such incitement can be purely verbal or acts. Indeed, Britain made use of sedition laws in Hong Kong to control the press.

The first Ordinance to control Hong Kong’s press was introduced in 1844, although experts suggest that the press were relatively free to comment on public issues until early in the 20th century. In 1907 the Chinese Publications (Prevention) Ordinance was introduced prompted by the fear that ‘seditious matter published in the Colony’ could incite crime in China. The Attorney General stated as the Bill’s objectives the need ‘to prevent Hong Kong becoming a place where seditious pamphlets be printed and circulated with a view to distribution in China’ and ‘to prevent this Colony being made a centre for seditious publications’. Sounds familiar.

The first comprehensive Seditious Publications Ordinance was introduced in 1914. This was followed by further legislation in 1938, 1951 with amendments in 1970 and finally in 1997, just before the reversion of sovereignty. Its focus is entirely upon those who incite hatred, contempt or cause disaffection against the person of Her Majesty, her heirs or successors.

Thus the introduction of legislation under Article 23 will not be a massive break with the past. What makes it unpalatable is the widespread suspicion in Hong Kong that either through its provisions, or interpretations thereof, it will be both repressive and inimical to the territories’ freedoms, protected by the Basic Law though they may be. The preamble to the Government’s 2002 consultation document is not reassuring.

It is probably too late to avoid new sedition legislation in Hong Kong. The non-meeting of minds between the pan-democrats and the Beijing government looks irreconcilable; the views of the separatists too extreme.

From the point of view of Beijing, the progression from the Article 23 protest march by 500,000 people on 1 July 2003, through the Occupy Central incident to the creation of parties favouring independence must look dangerous. And for a regime whose instinctive reaction to opposition is to crush it, the present situation must be alarming.

Some suggest – those pan-democrats again – that a fresh face as Chief Executive in 2017 with a more emollient style than C Y Leung might cheer everyone up and calm the choppy seas of popular discontent. Possible but unlikely. Too little, too late. The concepts of a high degree of autonomy and one-country two systems have been tested to breaking point. The public reaction to fresh discussion of Article 23 will likely be more extreme than it was in 2003.

Footnote: I am indebted to Professor H L Fu of Hong Kong University’s Law Department for permission to cite his excellent paper on the history of sedition law in Hong Kong.

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