Hong Kong's Crisis Over Proposed Anti-Subversion Legislation:
Why It Implicates Not Only Political Freedoms, but Also China-Hong Kong Tensions

By PETER K. YU

Thursday, Jul. 24, 2003

For the past five years, the people of Hong Kong have been celebrating the anniversary of the city's return to China on July 1. This year, however, the anniversary was marked by a 500,000-person protest march.

This demonstration was the largest public protest in Hong Kong since 1989, when the local residents marched in support of the democracy movement in Beijing. The protesters had two major targets: the proposed anti-subversion legislation and the current ineffective government.

The authority of the proposed legislation came from Article 23 of the Basic Law, Hong Kong's mini-constitution. According to Article 23, Hong Kong "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."

If enacted, the law would impose jail sentences, including life imprisonment, on those who commit crimes of subversion, secession, and sedition - as well as those who leak state secrets. Since the July 1 demonstration and the subsequent resignation of a cabinet member, consideration of the bill has been postponed.

To be certain, the present controversy will have serious implications for the future of civil liberties in Hong Kong. However, the recent demonstrations and ensuing events also reflect the inherent tension within the "one country, two systems" framework--the six-year-old blueprint under which the people of Hong Kong must live under Chinese sovereignty and leadership.

The Inherent Tension within the "One Country, Two Systems" Framework

Under the unprecedented "one country, two systems" framework, Hong Kong will retain for 50 years its distinctively different economic, social, and political systems. It exercises "a high degree of autonomy and enjoy executive, legislative and independent judicial power." In addition, the region will retain its capitalist system, way of life, independent finances, and the rule of law until at least 2047.

However, Hong Kong lacks sovereign independence, and autonomy over its own foreign affairs and defense. Moreover, to make things worse--at least from the perspective of the people of Hong Kong --the Chief Executive is appointed by and accountable to the Central People's Government. And the National People's Congress, the Chinese legislature, retains the power to interpret or amend Hong Kong's Basic Law.

Under this framework, conflict is bound to arise when the interests of the central government do not coincide with those of the people of Hong Kong. Consider the controversy over the anti-subversion legislation, for example. The Chinese government supports it, based on its worry that Hong Kong might be used as a base from which to subvert Communist rule on the Mainland. But the people of Hong Kong are concerned that the proposed legislation would erode political freedoms in the region, thus - among other effects - jeopardizing the region's international reputation.

The People of Hong Kong Seek Reform, Not Separation from China

Since 1997, Hong Kong's economy has been badly hit by the Asian financial crisis. The real estate market collapsed, with prices fallen by more than 60%. Hundreds of thousands of people were laid off or unemployed, while the local government faced its largest budget deficit in years. Although the Hong Kong government introduced plans to nurture growth in information technology, herbal medicine, and multimedia, none of these plans has brought much success.

As a result of repeated policy blunders and indecision by the government, the people of Hong Kong have lost confidence in the region's economic future. And most recently, the outbreak of the SARS virus, and the government's inability to cope with the epidemic, have forced people to stay at home for months - worrying about their own health and the well-being of their families, relatives, coworkers, and friends.

Under these conditions, it is no wonder that the people of Hong Kong have had strong reactions when their government insisted on enacting the anti-subversion legislation despite contrary public opinion--or that they increasingly demand direct elections of the Chief Executive and the legislature. Significantly, however, their reactions do not mean that the people of Hong Kong are rejecting the Chinese government. Indeed, their sentiments are quite to the contrary.

Most of Hong Kong's people welcome greater economic integration with China and understand the need to maintain a cordial relationship with the authorities on the Mainland. Many retirees own homes in China and commute to the city on a regular basis, while others travel to the Mainland for food, shopping, and entertainment. In fact, surveys have shown that many people in Hong Kong are interested in "going north" to study and to look for jobs.

To strengthen economic ties between the two regions, Hong Kong and China recently signed the Closer Economic Partnership Arrangement, which removes trade and investment barriers Hong Kong firms face when they conduct business on the Mainland. As a result, Hong Kong companies, especially those in the service industries, will gain greater access to the huge Chinese market. Many analysts believe this arrangement will provide Hong Kong with a much-needed boost to combat the city's ailing economy.

The people of Hong Kong want the best of both worlds. They would prefer that the Chinese government not to interfere with the Hong Kong government. But, at the same time, they also expect the Mainland government to assist with the economic integration of the two regions. They want "one country" just as much as they want "two systems"--although sometimes in different contexts.

The Dilemma of the Chinese Leadership: Remove Tung Chee-hwa, or Keep Him?

Since the July 1 demonstration, commentators have suggested that Tung Chee-hwa's days as the Chief Executive may be numbered, but that prediction overlooked some important factors.

It is true that Chinese leaders have expressed reservation about Tung's governance. For instance, two years ago, then-Premier Zhu Rongji criticized the Hong Kong government for its indecision. He commented, "We cannot always discuss without decisions, make decisions without execution. Once a decision is made, everyone should make full efforts and move forward."

Nonetheless, the Chinese leadership remains supportive of Tung and his government. Earlier this month, Chinese leaders uncharacteristically demonstrated their unity in pledging support for the embattled Chief Executive.

To many Chinese watchers, their reaction was expected, for three reasons.

First, Tung Chee-hwa was a Jiang Zemin appointee. As we learned from the recent SARS episode, in which the Chinese health minister and the Beijing mayor were dismissed, it is possible for the new leaders to "remove" Tung. However, the political costs would be very high, especially at a time when the new leaders are trying to consolidate their power. Moreover, the new leaders would be very reluctant to make too many concessions, including Tung's removal, lest they be criticized for being "soft" and weak.

Second, China has always promoted Hong Kong as a model for modernization. The "one country, two systems" framework has also been proposed as a master plan for China's reunification with Taiwan. Thus, the Chinese leadership would unlikely admit the failure of the present model. Such an admission not only would have substantial ripple effects throughout China, but also would reflect badly on its past and present leaders, including the widely respected Deng Xiaoping.

Finally, and the most important of all, the recent demonstrations were a display of "people power" - which, in many ways, was similar to the democratic efforts made during the Polish Solidarity movement. Although many of the new Chinese leaders are reformers, none of them wants to be seen as succumbing to "people power." If they were to do so, and remove Tung, they would likely be confronted with similar protests and demands for reforms on the Mainland. In fact, as some commentators have noted, the recent events in Hong Kong might have created setbacks for political liberalization in China.

The Fall of Hong Kong: It's China, but It's Not Politics

Today, Hong Kong is no longer the "goose that lays golden eggs"--or the indispensable gateway to China, as it used to be. Ironically, though, none of the city's problems was caused by China's interference with the Hong Kong government. Rather, they were caused by China's own rapid economic development, and Hong Kong's loss of competitiveness vis-a-vis cities like Shanghai and Beijing.

Commentators have widely criticized Hong Kong's Basic Law for its shortsightedness. For instance, the Basic Law does not incorporate the political reforms introduced by Governor Chris Patten in his final years. However, the Basic Law's biggest weakness is simply its failure to anticipate China's rapid economic growth and transformation in the late 1990s and the resulting change of relations between China and Hong Kong.

In the years to come, China will pose an even greater threat to Hong Kong, as it makes its transition into the World Trade Organization. By that time, one can only hope that Hong Kong will have reinvented itself, and be able to compete with China.


Peter K. Yu is Assistant Professor of Law and the founding director of the Intellectual Property and Communications Law Program at Michigan State University-DCL College of Law. He also holds appointments at the College of Communication Arts & Sciences at Michigan State University and the Programme in Comparative Media Law & Policy at the University of Oxford. Born and raised in Hong Kong, he is currently writing a book on the U.S.-China intellectual property policy. His other writings on China can be found on his Web site

FindLaw Career Center


      Post a Job  |  View More Jobs

    View More