Chinese Communist Party Hypocrisy and Article 23
Updated: Feb 17, 2020
Recently a number of Chinese Central Government officials have expressed the Communist Party's desire that Hong Kong (HK) enact Article 23 legislation. It is not the first time that this legislation has been floated for the SAR. It seems every opportunity authorities get to talk with the HK Chief Executive (CE), the matter is raised. Whenever some event occurs in HK that challenges the authority and status of the CCP or Central government the need for the legislation is frequently raised by local pro-Beijing legislators, or cadres of the mainland government itself. Some legislators have variously made it their personal mission to get Article 23 legislation passed in HK, ignoring any claims that existing statutes on HK's law book, like the Societies Ordinance, already provide some legislative cover.
Anyway, since HK is meant to be an autonomous region of China, and according to the Joint Declaration, the mainland government is primarily concerned with HK's defence and foreign affairs matters. It is not right for the CCP to be pressuring the HK government to enact legislation that runs counter to the interests of its citizens. The CCP and pro-Beijing supporters in HK are trying to use coercion against HK people in an attempt to make them agree to legislation of Article 23. In a previous blog we wrote about how coercion under the United Nations CAT is a form of torture (see our blog 'Coercion is torture...').
There is a massive and growing gap between HK's rule of law and China's rule by law. This is China's problem, it is not a problem for HK people or the British government!
Before China does anything more in HK it is suggested that:
It must first correct it's breaches of the Joint Declaration;
It must ensure all existing legislation, policies and practices are aligned with all existing international and domestic obligations of HK specifically obligations under the Universal Declaration of Human Rights, ICCPR and ICESCR and other Treaties.
The HK government routinely say the territory's legislature is required to pass Article 23 of the territory's post-colonial constitution, known as the Basic Law. Back in July 2003, just six years after its return to Chinese rule, HKers objected to Article 23 legislation so strongly that 500,000 took to the city streets in angry protest. Citizens' objection to the legislation stem largely from concerns about restrictions being placed on the rights and freedoms enjoyed in the city. Under Beijing's "one country, two systems" model of governing the territory a high level of autonomy for Hong Kong from China is meant to be guaranteed. It was feared that Article 23 legislation would give police the power to conduct searches without a warrant and impose a ban on disclosing state secrets. Furthermore, local groups, such as political parties, with ties to any organisation banned by the communist authorities in mainland China could be outlawed in HK. Many felt the extent of the proposed legislation went beyond protecting Central government, to the detriment of human rights in HK.
People were concerned that provisions of the proposed law targeted freedom of expression, freedom of the press and freedom of association - all of which are specifically mentioned in the Basic Law (Ch 3, Fundamental Rights and Duties of the Residents Article 27). The same freedoms and rights are also enshrined in the 1984 Sino-British Joint Declaration (Article 3.5). As if to underline the importance of these rights and freedoms, Article 39 of HK’s Basic Law also expressly states that the provisions of the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) shall remain in force through the legal system of the SAR (see our blogs about China's Breach of the Joint Declaration, and Human Rights failings there and in Hong Kong).
Under the Joint Declaration the Basic Law was written by China's National Peoples Congress - it was not written by the British. It is up to China to meet it's obligations under the Joint Declaration.
The insecurities of the CCP seem highly exposed given their wishes to pass Article 23 legislation in HK. The CCP seems hypocritical in wishing to prosecute and imprison others for Article 23 offences (see below) when its own track record seriously undermines government and business in other countries as well as their own. Much like a virus their power-hungry intentions spread with fervour and malice, their unfriendly actions being tantamount to war. To give but a few examples:
+ The work of the CCP's United Front which has Chinese students studying overseas acting incognito for China's interests
+ Long-running Chinese Government campaigns using hackers to steal technology data from U.S. firms such as NASA and IBM
+ The recent Equifax scandal involving four members of Chinese military charged with stealing financial records data of 150million U.S. citizens from credit-rating agency Equifax
+ CCP espionage operations that attempt to influence the outcome of elections in Taiwan and elsewhere
+ The gathering of intelligence by spies such as Wang Liqiang who recently defected to Australia
+ The tit for tat detention of foreign citizens on flimsy grounds, such as the arrest of two Canadian citizens accused of espionage used to put pressure on their governments
+ Use of Chinese fishing boat fleet to supplement the efforts of the Chinese navy around contested islands in South China Sea
+ Forced technology transfers are giving Chinese businesses an unfair advantage
+ The ongoing controversy concerning Huawei and doubts about obligatory information sharing between private businesses, state-sponsored business and government
In the Covid-19 virus outbreak which began in Wuhan we can see a clear example of why people should be able to speak out freely. Dr. Li Wenliang shared information with other doctors about the outbreak online as local government officials refused to acknowledge the seriousness of the coronavirus outbreak. He was later arrested for spreading rumours and has since died after contracting the virus himself. The mayor of Wuhan is on record as saying that Chinese Central government needed to approve the release of sensitive information, and its governance is to blame due to the ongoing lack of transparency.
It's not clear whether the Covid-19 outbreak in mainland China will have any impact on Beijing's aims to pass Article 23 legislation in HK. In the SAR there is greater opposition to it than ever before, so it would seem that any forceful measure to introduce it would be further destabilising. While HK is a part of China, it can become quite a problem for the SAR if its status as an autonomous region is weakened, and its government is reduced to being a puppet kowtowing to the CCP. Under the Basic Law Article 109 states "The Government of the HK Special Administrative Region shall provide an appropriate economic and legal environment for the maintenance of the status of HK as an international financial centre." HK financially relies upon it's financial services sector which requires a high degree of autonomy and a high rule of law so stakeholders maintain trust in its operation.
Being able to speak your mind and share information, even if you are a whistleblower, is at the heart of accountability. The CCP and its government bureaucracy must be held accountable and are not a law unto themselves.
What are the typical Article 23 offences?
Under Article 23 legislation, anyone found guilty of acts of treason, sedition, secession or subversion against mainland China could be jailed for life.
Treason: instigation of foreign invasion, assisting a public enemy at war with the People's Republic of China (PRC), or joining foreign armed forces at war with the PRC.
Secession: use of war, force or serious criminal means to split the country.
Subversion: use of war, force or serious criminal means to overthrow or intimidate the Central People's Government, or to disestablish the basic system of the state
Sedition: inciting others to commit treason, subversion or seccession, or inciting others to engage in violent public disorder that would seriously endanger the stability of the PRC.
For more information on Article 23 legislation see our blog
See also our blog on the passing of Dr. Li Wenliang
Our blogs on Human Rights matters may also be of interest