The Humanist November 1, 1997
Richard Klein
While the world watched the fireworks and celebrations occurring in Hong Kong on
July 1, 1997, a far sadder event was, in fact, unfolding. The people of Hong
Kong, most of whom had originally fled from China -- the country which was now
taking over -- have simply never experienced the basic human right of
self-determination. Rule was shifting from a colonial power which had denied the
people of Hong Kong their basic human rights for virtually all of its 155-year
administration, to a country which, immediately upon assuming sovereignty, made
it clear that democracy would remain but a dream.
Almost immediately after the British seized Hong Kong Island in 1842 as a response to China's refusal to allow the British to import opium into its country, Britain passed laws in its newly acquired colony to restrict the freedoms of the Chinese living there. Permits issued by the English governor were required for any meeting of Chinese people, curfews were passed which applied only to the Chinese, and those Chinese who were granted a "night pass" were required to carry lit lanterns so that they could be readily spotted by the British police. The police were authorized to shoot with intent to kill any Chinese person suspected of being out improperly and who refused to respond to police inquiry. The British were empowered by law to enter at any time, without a warrant, any house or boat which was "wholly or partly inhabited or manned by Chinese." Criminal ordinances provided for fines if a violation was committed by an English person, but "if the offender shall be a Chinaman," flogging was authorized as additional punishment. In fact, police court records reveal that there was proportionately more flogging in Hong Kong than in any country in the world. Death was occasionally the result of these "legally inflicted" beatings.
In many ways, British rule
over Hong Kong was analogous to the system of apartheid in South Africa Museums,
for example, could be visited by the Chinese only in the mornings, after which
time the museums would be cleaned and reopened for exclusively European
attendance. The British regarded the Chinese as filthy and dishonest and made
the Peak--the elevated, cool hilltop area with a panoramic view of the water,
hills, and islands of the colony--their exclusively white residential area. The
Europeans were transported by four Chinese coolies up to the Peak on sedan
chairs which were covered to protect the passenger from the sun. When in 1888 an
electric tram to the Peak became operational, the British became fearful that
the Chinese might attempt to live there. So legislation was passed prohibiting
Chinese from residency at the height above sea level at which the Peak began.
When a loophole permitted a Eurasian to move to the Peak, the British governor
defined a Chinese as "including a person of Chinese race on the side of one
parent only." The British enacted similar legislation to ensure that, even on an
island where only white people vacationed, the "semi-civilized" Chinese "race"
would be prohibited from residing.
The British responded to challenges to their domination by using some of the
same tactics that Communist China has utilized. When Chinese seafarers went on
strike, the colonial government responded by declaring martial law, outlawing
the union, paying informers, censoring newspaper coverage and mail, sentencing
strikers to imprisonment with hard labor and flogging, and closing schools at
which there was support expressed for the strike.
Whereas in some authoritarian regimes those in power overtly act in disregard of
the law, the British--desiring to claim to be adhering to the "rule of
law"--simply enacted legislation to deal with dissent and demonstrations. Since
members of the Legislative Council were appointed by the colonial government
until 1991, the passage of any desired legislation presented no obstacle. The
Expulsion of Undesirables Ordinance provided for the expulsion from Hong Kong of
any person merely suspected "of being likely to cause a disturbance of the
public tranquility." Sedition: the Federal crime of advocacy of insurrection
against the government or support for an enemy of the nation during time of war,
by speeches, publications and organization. Sedition usually involves actually
conspiring to disrupt the legal operation of the government and beyond
expression of an opinion or protesting government policy. Sedition is a lesser
crime than "treason," which requires actual betrayal of the government or
"espionage. Ordinance was used to close down newspapers which contained
"writings likely to promote discontent or disaffection against the Government."
The solicitor general explained that free speech would not be tolerated if there
was any representation made that the government or its officials were acting
maliciously. Prison sentences of up to ten years were authorized for those
violating the Inflammatory Speeches Ordinance; incarceration was also provided
for those possessing inflammatory posters. Speech was deemed "inflammatory" if
it was considered likely to cause disaffection with the administration of
justice or to promote ill will between different races in Hong Kong. When the
government believed the public might be embarrassed by court proceedings, an
ordinance was created empowering any judge to exclude the public from court.
The Emergency Regulations Law empowered the colonial government to declare
immediately effective any regulation whatsoever considered to be in the public
interest, and to suspend or amend any existing law. Battalions of troops would
be brought into Hong Kong as needed to assist the regularly stationed British
soldiers in dealing with unrest. At times, the objects of military and police
responses were schools which were perceived to be anti-British. Schools were
raided, headmasters, teachers, and students were arrested and charged with
inflammatory speech. Military use of bayonets and submachine guns, reinforcing
the more commonplace police use of tear gas and riot guns, was particularly
prominent in government attacks against union offices and headquarters.
Laws identified with those of Communist China were, in fact, used by the British
in Hong Kong. The Emergency Deportation and Detention Regulations empowered the
government, whenever a conviction for any specific crime could not be obtained
due to insufficient evidence, to simply detain an individual for a (renewable)
one-year period. There was no requirement for this colonial
administration--which so championed the need for China to follow the rule of law
after July 1, 1997--to even show that there was reasonable cause for the
detention or to inform the detainee why he or she was being detained.
How strong can freedoms be if people can't even "officially" speak their own
language? An ordinance frankly entitled Regulation of Chinese prohibited the
posting of any notice near any street if it were "in the Chinese language." A
three-month jail sentence was authorized for any violator. Under the laws, until
a process of translation which was begun in earnest only several years ago, were
written in English only, and the use of Chinese in any official capacity was
prohibited. No member of the Legislative Council, even if Chinese, was permitted
to speak in Chinese during a legislative session. There was no permanent Chinese
interpreter present in civil courts, thus those Chinese desiring to bring suit
in this monolingual legal system were often unable to do so. It was not until
the 1974 Official Language Ordinance that Chinese was declared along with
English as an official language for government use. And not until August
1997--one month after the British left Hong Kong--did the first jury trial held
entirely in Chinese occur. Freedom of religion? Under British rude,
blasphemy--denying the truth of Christianity, the Holy Bible, the Book of Common
Prayer, or the existence of God--was a misdemeanor. The marriage law, until the
turn of the century, had allowed for civil marriages before the register general
only if one of the partners was a Christian.
It was in 1984 that Great Britain entered into the treaty with China that
provided for Hong Kong's return to Chinese rule this past July. At that time,
there were no popularly elected members of the legislature, and it was not until
1991 that Britain allowed a Bill of Rights to be enacted for Hong Kong, thereby
leading to the repeal of much of the legislation discussed above. The last
British-appointed governor of Hong Kong, Christopher Patten, constantly maligned
China for moving to thwart what the British had deemed "democracy." (Even in the
last year of British rule, only twenty of the sixty members of the legislature
had been directly elected.) His criticism came after twenty-seven prior
governors had refused to permit any democratic reforms or to hear any input from
the Hong Kong Chinese concerning their future.
Britain's "last-minute" democratic reforms in anticipation of handing over Hong
Kong caused great consternation in China The traditional form of colonial
rule--authoritarian control of government--was what China had envisioned,
desired, and expected in Hong Kong; the democratic trappings were not part of
the house China bought in 1984. In order to counter these reforms, China acted
immediately upon resuming sovereignty.
First to go was the elected legislature--the first ever fully elected one in
Hong Kong's history. It mattered not that the legislators had been elected in
1995 to four-year terms extending through 1999. The 1995 elections were a
disaster for China: of the twenty directly elected seats, the pro democracy
parties had won sixteen; the major pro-Beijing party elected only two
legislators, and the chair and vice-chair of that party were themselves
defeated. In response, China declared that the legislature's term would end
immediately upon its retaking control of Hong Kong. China formed a 400 person
Selection Committee, which proceeded to name a new sixty person Provisional
Legislature to take office July 1, 1997. Several of the sixty had actually been
candidates in 1995 who were defeated by the voters. Despite widespread criticism
within Hong Kong for China's clearly anti-democratic move, the newly appointed
legislature took power at the same site as the official Chinese annexation of
Hong Kong. Britain displayed its disapproval by having British Prime Minister
Tony Blair leave the site before the swearing in transpired; U.S. Secretary of
State Madeleine Albright did the same.
It's not that any legislature would really pose a threat to China. The Basic
Law--the constitution written by China for the Hong Kong Special Administrative
Region--clearly provides for the China-appointed chief executive to be in rather
full control. Few expect the legislature to do anything but rubber-stamp bills
presented to it by the chief executive. In fact, Article 74 of the Basic Law
prohibits legislators from introducing any bill themselves which might impact
upon public expenditures or government policy. Tung Chee-hwa, the
Beijing-appointed chief executive, has repeatedly stated that the business of
Hong Kong is not politics; it is the making of money.
It is those who have made money who have been appointed to the legislature. The
wealthiest in Hong Kong have traditionally been unconcerned, intolerant, and
even antagonistic toward democratic principles. The very low maximum tax rate of
15 percent has not only aided the accumulation of fortunes but failed to provide
funding for welfare, health care, and social security. Democracy, in the eyes of
some business tycoons, would mean increased taxes to provide aid for the ill,
disabled, unemployed, and elderly. Instability and uncertainty are dreaded by
the Hong Kong business establishment, which fears investors might then be scared
away. Subservience to British authoritarian control has been easily transferred
to an acquiescence toward China and, although it is a gross generalization, it
is nevertheless the case that, the higher one's income is in Hong Kong, the more
likely one is to adopt the view that nonconfrontation and complete acceptance of
China's rule is both required and desirable.
Fortunes in Hong Kong are tied to China Years of joint ventures between Hong
Kong tycoons and China have taught that only if you play ball according to
China's rules do you thrive. Hong Kong companies are a vital source of
investment in China, employing over five million Chinese in the neighboring
Guangdong province alone. For years now, "Hong Kong" factories have actually
been located in China so as to exploit the cheap and abundant Chinese labor. It
is not just one way, however. The largest investors in Hong Kong are no longer
the British, the Americans, or the Japanese. The People's Republic of China now
rules the day.
China, for its part, will certainly do what is required to aid its business
allies in Hong Kong. A fascinating series of events began in late June 1997. For
a century and a half of British rule, there had been minimal legislation to
protect workers rights. Rather, obstacles were imposed by the government to
thwart the growth of large unions. There was no minimum wage or unemployment
insurance. Then, in the final two weeks of British rule, among the last-minute
reforms passed by the legislature were seven labor bills, one of which provided,
for the first time, a statutory right to collective bargaining. Another bill
gave protection against dismissal for union activities, and a third prohibited
age discrimination.
It was expected that Hong Kong business associations would lobby against these
proposed laws, and they did. But so did Tung Chee-hwa, who had yet to take
office as chief executive. As soon as China's appointed provisional legislature
took office, the laws were suspended. China, a country controlled by the
Communist Party and founded on the principle of workers' supremacy, would not
tolerate laws that might lessen the profits of the businesses in its newly
acquired land. The China-controlled government in Hong Kong made it clear from
the beginning where its sympathies lay--and it was not with the working class.
The leftists in Hong Kong, ironically those historically most friendly to the
communists in Beijing, have been ignored and totally absent from the group of
advisers to the chief executive.
Both China and the business leaders in Hong Kong believe that economic and
political freedoms are completely separable. To be sure, the Hong Kong elite
have had unparalleled economic liberties; the colony has often been considered
one of the world's purest laissez-faire economies. An interesting conflict has
developed since the Chinese annexation of Hong Kong. Hong Kong businesses united
to oppose what they perceived to be possible state intervention in the market
economy when it was rumored that Tung advocated subsidies to bring high tech
companies into Hong Kong. Whereas the business leaders supported executive
control of the government and the legislature, when it came to matters affecting
the economy with possible direct impact on them, they wanted the state to keep
its hands off.
On the day Britain handed over Hong Kong. China wanted to make absolutely sure
that everyone knew who was in control. Four thousand troops of the People's
Liberation Army entered Hong Kong at daybreak, along with an arsenal of weapons
which included armored personnel carriers complete with machine guns and grenade
launchers. The troops were deployed in some of Hong Kong's busiest, densest
areas, and the question asked by many in Hong Kong was: from whom are these
troops supposed to protect us? The PLA has become more to the Chinese in Hong
Kong than a symbol of the Tiananmen Square massacre; the army is a huge business
conglomerate controlling scores of companies and has a reputation of being even
more corrupt than China as a whole.
By far the most controversial issue in Hong Kong these last months has been
China's insistence on reinstating two laws which had previously existed under
British rule but had been repealed recently because they were found to be in
conflict with the 1991 Bill of Rights. The Societies Ordinance requires all
organizations, including political parties, to register with the government and
thus to have their activities monitored. The memorandum presented by Tung
rationalizing the need for the law explained that "we must take steps to prevent
Hong Kong from being used for political activities against China." The question,
of course, is: what will be considered "anti-China"? Will advocacy of human
rights protections or demonstrations in support of greater democracy be so
characterized? What law shall govern the annual commemoration ceremonies on June
4 in remembrance of Tiananmen Massacre? One specific provision precludes any
registered group in Hong Kong from forming links with foreign organizations,
such as (presumably) Amnesty International and Human Rights Watch.
Of even greater concern is the Public Order Ordinance. The sponsors of any
demonstration of more than thirty people must apply to the commissioner of
police for permission--deemed a "Notice of No Objection"--for the event. The
government has broad, unguided discretion to determine when a proposed
demonstration might challenge national security. National security has been
defined as the "safeguarding of territorial integrity and the independence of
the People's Republic of China. It has been clearly stated by the new Hong Kong
government that no protests in support of independence for Tibet or Taiwan would
be permitted. Other factors to be considered when assessing an application for a
Notice of No Objection are the projected number and "emotional level" of the
participants.
The fact that, for most of its rule, the British had even harsher controls on
protests than China wanted to institute, did not prevent Britain from issuing in
its final days a twenty-three-page, point-by-point critique of China's new
legislation. The document emphasized that "almost any public procession could be
prohibited because it may cause inconvenience. Even London jumped in to play the
new role of spokesperson for democracy and human rights for Hong Kong. The
Foreign Office proclaimed that there was absolutely no justification for
reducing civil liberties and, as though the popular will of the people in its
colony had always determined British policy there, added: "it's patently not the
case that the proposed amendments to civil legislation have the support of the
Hong Kong community." The British protests, of course, went unheeded. China next
proceeded to enact the legislation required in Article 23 of its Basic Law for
Hong Kong: to prohibit "any act of treason, secession, sedition, or subversion
against the Central People's Government." In light of this, it seems rather
certain that the celebration which takes place every year in Hong Kong on Double
Ten Day--the Nationalist Government in Taiwan's celebration of the 1911 founding
of the Republic of China--will be considered "subversive."
Annexation Day in Hong Kong--July 1, 1997--was in many ways surreal. History was
distorted, truth was ignored, it rained much of the day, and the waiting for the
evening fireworks display gave it all an Independence Day, carnival like
atmosphere. The night before. Britain's Prince Charles, in what was sort of a
warning to China that it had better allow democracy to exist in Hong Kong,
perhaps won the all time prize for revisionism when he told four thousand
honored guests, "Britain learned long ago that Hong Kong people know best what
is good for Hong Kong." Just how long ago did Britain realize this? The same
Britain not only refused to seek input from the Hong Kong people about the plan
to give the colony over to China on that very day but had not even revealed to
the Hong Kong residents that negotiations lasting two years about the future of
the colony were taking place. Did Prince Charles not know that, for almost all
of Britain's 155-year colonial rule, the Hong Kong people had no say whatsoever
in the policies and laws by which they were governed?
Even the generally well-grounded British governor of Hong Kong lost touch when,
thinking he was putting the fears of the people to rest, he told them not to
worry because Britain would monitor events in the post-annexation Hong Kong. Not
only was Britain widely distrusted by the Hong Kong Chinese but Britain's claim
to be the historical champion of the rights of the Hong Kong people and its
desire to continue in that role certainly were suspect. The governor's statement
was received with utter incredulity.
Not that China did any better. Chief Executive Tung said in his inauguration
speech that "for the first time in history, we, the people of Hong Kong, will be
masters of our destiny." Did he mean to imply that control of Hong Kong will not
lie in the Beijing regime? Did he forget that the elected legislature had that
very day been thrown out of office and replaced with one selected by the
People's Republic of China? Did he not understand that being the master of one's
destiny means that one chooses who is to govern, and that precludes being ruled
by a chief executive chosen, appointed, and imposed on the Hong Kong people by
Beijing
China's treatment of the British on Annexation Day was remarkably benign. There
were few condemnations, little rhetoric, and almost a forgiving, thankful
sentiment permeating the proceedings. Such generosity was not, however, present
in Beijing, where President Jiang Zemin was exploiting the Chinese annexation of
Hong Kong to build unity and increase his following as the replacement of the
recently deceased Deng Xiaoping. In Jiang's July 1 address to the huge crowds
gathered in the Beijing Workers' Stadium, he referred to Britain's occupation of
Hong Kong as "the epitome of humiliation China suffered in modern history" and
said that "the vast land of China is a scene of jubilation." The Atlas of Shame,
published in and distributed widely throughout China presented a documentation
of British abuses in Hong Kong.
There seemed little doubt among most in Hong Kong that China had achieved a
major coup. It was politically correct, even for those most outspoken against
and concerned about China s rule, to proclaim their satisfaction that the era of
colonial administration was over and their sense of pride that at least Chinese
people will be governing Hong Kong. The leaders of the democratic opposition to
Tung and his policies did not attempt to protest at the site of the annexation
celebrations nor to be disruptive elsewhere. The major controversy was whether
the ousted legislators could speak to sympathizers in the early morning hours of
July I from the balcony of the legislature or merely from a raised platform.
In the "Declaration of the Democratic Party," distributed to passers-by that day
in the central business area Party Chairman Martin Lee said: "The flame of
democracy has been ignited and is burning in the hearts of our people. It will
not be extinguished. Nay, it will only grow stronger." The only problem is, one
wonders, just who is listening? It's clear that China has both the will and the
tools to put out the fire which has been burning for such a tragically short
time.
Richard Klein is a professor of law at Touro Law School in
Huntington. New York and has been a visitor at the law faculty of the University
of Hong Kong. He has written numerous articles on the legal history of Hong Kong
and is soon to be working near the Tibet border pursuing his interest in
international human rights.