Urgent Business: Hong Kong, Freedom of Expression and 1997
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Subversion as a concept is alien to the present Hong Kong legal system. There is some confusion, therefore, as to what criteria the SAR legislature can draw on to "enact laws on its own" to prohibit such an act. The unavoidable conclusion seems to be that the SAR will be required to "prohibit whatever [China] considers to be subversion", since, even if the legislature on its own attempts to provide a definition, the Standing Committee of the NPC under the Basic Law's Article 17 is conferred with the power to invalidate any law enacted by the legislature which it considers to be inconsistent with the Basic Law.
Under Chinese criminal law, subversion is a "crime of counter-revolution", such a crime being an act "committed with the goal of overthrowing the political power of the dictatorship of the proletariat and the socialist system".? It is important to recall that it was for political offences such as the "counter-revolutionary subversion of the People's Government" that students and others were arrested and imprisoned following the suppression of the pro-democracy movement in Beijing in June 1989. The Chinese authorities continue to label as subversive the Hongkong Alliance in Support of the Patriotic Democratic Movement in China for its role in lending moral and financial support to that movement in China.
10
The inclusion in the Basic Law of a provision prohibiting subversion was in fact a direct result of the events of June 1989, though the term had been considered for an earlier draft of the Basic Law but had been dropped.1o The reaction in Hong Kong to the massacre provoked a strong fear in the Chinese leadership that the territory was potentially a "subversive base against the mainland", and was capable of undermining, particularly through the action of freedom of expression, Beijing's authority both in Hong Kong and, more importantly, within the mainland itself.
The International Commission of Jurists noted that the term subversion could be applied to calls for a "change in the ideology or system of government which is a legitimate exercise of the democratic process"." Indeed one observer has remarked, that "to introduce the offence of subversion into the law of the Hong Kong SAR is to secure the diminution of the political rights and the freedom of speech of its inhabitants to the same level as these now exist in China."12
8
Supra note 3, Chapter XIV, at 114.
Articles 90-104 of the Criminal Law of the PRC cover counter-revolutionary crimes. See Albert H Y Chen, "Human Rights in China", in Raymond Wacks (ed.), Human Rights in Hong Kong (Hong Kong: Oxford University Press, 1992), 191.
10 There is no counterpart to subversion in the Joint Declaration.
11
Supra note 3, Chapter XIV, at 111.
12
Dr Nihal Jayawickrama, "One Country, Two Systems: Illusion or Reality?", a paper given at the international conference "China and Hong Kong at the Crossroads: Prospects for the 21st Century", on 5 Sept. 1990.
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