Commentary: Is the Sun Setting on Hong Kong's Freedom?

Proposed curbs on free speech and political action are harsher than on the mainland

By Mark L. Clifford and Pete Engardio

After Hong Kong released its proposal for tougher national-security laws on Sept. 23, only a dozen people showed up at a protest rally. That complacency now is giving way to a firestorm of criticism. As they digest the details, political activists and business, media, and legal professional associations are sounding alarms.

What a relief. The controversy has revived the feisty, freedom-loving Hong Kong that seemed to be disappearing amid the recession and absorption into China. If only Hong Kong can use this flap to retrieve its freedoms, all of Asia could benefit.

The debate is emerging as a defining moment for Hong Kong and its future as one of Asia's most open societies. It is a crucial test for the Beijing-backed Administration of Chief Executive Tung Chee-hwa. If Tung and Beijing are wise, they will listen to the criticism and tone down the worst aspects of the legislation, which could crimp Hong Kong's value as an international business center. If corporations and foreign governments with stakes in Hong Kong are wise, they will start complaining as well, both privately and publicly.

At issue is how Hong Kong lives up to Article 23 of the Basic Law, which China and Britain negotiated in the 1980s in view of the 1997 handover. It states that Hong Kong must prohibit "treason, secession, sedition, subversion against [China], or theft of state secrets." The Basic Law doesn't define these offenses; it simply says Hong Kong must enact the needed legislation "on its own."

Hong Kong could have taken a minimalist approach by modifying its existing laws, leaving civil liberties intact. Instead, the Tung government consulted Beijing and concocted chilling measures that Democratic Party Chairman Martin Lee calls "the last nail in the coffin" of political freedoms. Hong Kong probably won't make public its draft of the legislation until January. But measures in the consultation paper would make it a criminal offense to obtain or publish "unauthorized and damaging disclosure of protected information." The new law would let authorities ban activities whenever they believe that doing so is "in the interests of national security or public safety or public order."

Critics fear Hong Kong's controls on speech and political activity will be like China's. In fact, says Yuen Ying Chan, head of the University of Hong Kong journalism department, the proposed laws "are more restrictive than on the mainland." Journalists in China, for example, have been jailed for publishing "state secrets" as banal as unreleased economic data. In Hong Kong, they could be prosecuted merely for "unauthorized possession" of information.

Foreign business organizations are concerned. "The free flow of information is one of the major attractions for business here," says American Chamber of Commerce Chairman James E. Thompson. AmCham is likely to call for a full debate on the draft bill itself.

There are signs Hong Kong's leaders are becoming less deaf to complaints. Officials say the Article 23 bill presented to the legislature, probably in January, may be more lenient than the consultation paper. "The key issue is whether we're prepared to listen to objections and amend our proposals," says Security Secretary Regina Ip. Officials also assure that the worst fears are unwarranted. "Clamping down on press freedom is the last thing we want," says Solicitor-General Robert Allcock. "These will be Hong Kong rules administered by Hong Kong courts."

Well-intentioned public servants come and go. Rule of law means putting justice in the hands of statutes and courts, not the discretion of whoever is in power. What Hong Kong needs is clear laws that meet international norms for freedom of information and association--but comply with Article 23. It is not too late for Tung's government as well as Beijing to back off from some of the most draconian ideas. Besides, five years after the handover, Hong Kong remains remarkably stable despite a feisty press and opposition parties. Leaders in both Hong Kong and Beijing must realize an open society is one guarantee of the city's continued prosperity.

Read a Letter to the Editor about this story.

Clifford manages the Hong Kong bureau. Engardio is a senior news editor in New York.

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