China Offers No Subtlety, No Options

The emblem of the new Special Administrative Region of Hong Kong is the bauhinia flower, a swirling design of five petals in a red circle. It is graceful, elegant and restrained. The emblem adorns the cover of a “consultation document” on civil liberties and social order, issued on April 9 by the Chinese-appointed chief executive-designate, Tung Chee-Hwa.

Whether the bauhinia should be there at all is problematic in constitutional terms, since the special region does not exist yet and will not until July 1. That’s not the only problem. There is no mention of the suffix “-designate”; instead, the document emanates from the “chief executive’s office.” It proposes legal changes that are designed to take effect at midnight on June 30, after approval by a provisional legislature sitting across the border in Shenzhen, China, which has no discernible basis in law and coexists with the democratically elected Legislative Council that continues to sit in Hong Kong. And although it describes itself as a “consultation document,” it presents no options for discussion. To borrow a Chinese phrase, it appears that “the rice is cooked.”

Far from being constrained by diplomatic niceties, the “consultation document” is a pointed assertion of power by the new sovereign, phrased as if the reversion from colonial rule already had taken place. The document is graceless in its presentation, ham-fisted in its legal arguments and aggressive in its show of political intent.

There has been considerable public outcry in Washington, Hong Kong and elsewhere over the measures Tung has proposed. These include a requirement for prior police approval of peaceful public demonstrations; registration of nongovernmental organizations, and a ban, in the name of “national security,” on “ties” between domestic and foreign “political” bodies.

But general expressions of alarm are not enough. There are precise legal arguments that the United States and others should be making, as forthrightly as possible and at the highest level, to both the new region’s authorities and the Chinese government. These arguments should illuminate the tremendous misunderstanding that Tung’s proposals display of Hong Kong’s common-law tradition and the nature of international treaty obligations concerning human rights.

A number of points are crucial here:

* The basic rationale for the proposals is that Hong Kong’s existing statutes on these matters contravene the Basic Law, the miniconstitution for Hong Kong that was adopted by China’s National People’s Congress in April 1990. No official has spelled out how this is so or given satisfactory answers to questions on the subject. The plain fact is that there is nothing in current regulations or ordinances that contradicts the Basic Law.

* As the Hong Kong Bar Assn. and many others have pointed out, there is no need for new measures. Existing legislation has been perfectly adequate to maintain social order and tolerate a healthy level of public political activity, and there is no remote threat to national security on Hong Kong’s horizon.

* As used here, such nebulous terms as “political,” “national security” and “foreign ties,” together with the Basic Law’s prohibition of “sedition” and “treason,” have no recognizable meaning in either the common law or international human rights law. Rather like words in the mouth of the Mad Hatter, the fear is that they will mean whatever the future regional authorities wish them to mean.

* Perhaps most egregious is the misunderstanding or misuse of international human rights law. Tung’s office invokes the International Covenant on Civil and Political Rights, claiming that this allows governments to impose sweeping restrictions on human rights. This displays a misunderstanding of international law so profound that it might be comical if the consequences were not so serious.

It is hard to tell whether this is the result of ignorance or cynicism. First of all, it is hard to take this talk seriously when China has not signed the covenant and has said it has no intention of reporting on Hong Kong to the Human Rights Committee, which monitors compliance with the treaty. Second, the proposals totally misconstrue what the covenant says about restrictions. Its intent is to interpret human rights expansively, allowing governments to limit them only on narrow and clearly defined grounds. Reading the covenant as a license for governments to trample on freedom of association and assembly is a little like reading the marriage vow “till death us do part” as a permit to kill one’s spouse.

It is always dangerous to talk of litmus tests in politics, since they tend to be the refuge of ideological zealots. But in this case it is appropriate to use the term.

Tung’s proposals are sure to be widely condemned by the Hong Kong legal community. If the future Special Administrative Region ignores the results of its consultation on civil liberties, its intentions on all aspects of the rule of law should be universally mistrusted. The consequences of this for Hong Kong, and for the stable transition and future prosperity that China says it wants, would be disastrous.