SRPS VOLUME 35 ISSUE 1 Spring 2012

THE HONG KONG STUDENT REVIEW OF

POLITICAL SCIENCEVOLUME 35 ISSUE 1 (SPRING 2012)

王永平教授訪問

Hong Kong’s Political Culture Revisited: Apathy or Activism?

Article 23 – What is the Best Way Forward?人權拉鋸戰

Politics and Public Administration Association SSS HKUSU The Hong Kong Student Review of Political Science

Content

02 王永平教授訪問

06 理想香港 -反思過去審視未來政治及公共行政博覽 2012 回顧

08 Hong Kong’s Political Culture Revisited: Apathy or Activism? Jake C.H. Chan

16 Article 23 – What is the Best Way Forward? Matthew L.C. Choi

24 人權拉鋸戰東喜

26 Reforming the European Court of Human Rights Conrad H.Y. Wan

27 Do You Want to Vote? Soo Min Lee

29 Functions Review

30 Notes

32 Acknowledgements

The Editorial BoardThe Editorial Board of The Hong Kong Student Review of Political Science (SRPS), formerly known as the Bulletin, was founded in 1977. it is a sub-committee under the Executive Committee of Politics and Public Administration Association SSS HKUSU, The University of Hong Kong.

Editor-in-chiefCHAN Lik Ki, Ricky

The Hong Kong Student Review of Political Science (SRPS) is published and owned by the Politics and Public Administration Association SSS HKUSU. It is a non-partisan student journal which aims to promote the study of Politics and Public Administration and facilitate the intellectual exchange between students and academics.

Editorial Statement The views expressed in the various articles represent those of the authors and not the Association. The articles included in SRPS may not be reproduced in any form without the written permission of the authors.

Subscription OfficeRoom G02,Chong Yuet Ming Amenities CentreThe University of Hong KongPokfulam Road, Hong Kong

Politics and Public Administration Association SSS HKUSUSession 2011-2012

Honorary PresidentProf. Joseph C.W. ChanHead, Department of Politics and Public Administration, The University of Hong Kong

ChairmanLAU Cheuk Lun, Alan

Internal Vice ChairmanLEUNG Hon Kit, Roger

External Vice ChairmanLIM Kar Yee, Shirley

General SecretaryXU Lok Yi, Joyce

Financial SecretaryCHU Cho Leung, Stanley

Publication SecretaryCHAN Lik Ki, Ricky

Publicity SecretaryWU Sze Lok, Ash

Current Affairs SecretaryWONG Man Ho, Anson

Chinese Current Affairs SecretaryKING Kai Wing, Christina

THE HONG KONG STUDENT REVIEW OF

POLITICAL SCIENCE


Editor's Note

I am pleased to introduce to you the Hong Kong Student Review of Political Science (SRPS) Spring 2012 Issue.

SRPS serves as a platform for students to share and express their views on the study of political science and current affairs, not only with their fellow schoolmates but also with the public at large.

Students from different universities submitted their articles concerning a wide range of topics related to the subject of political science, including the Chief Executive election, political culture of Hong Kong, Article 23, human right in China, and the European Court of Human Rights. A writer from Korea also shared her views with us. The diversified origins of our submissions and also the wide range of topics covered will surely bring interesting and new perspectives on politics to you.

On behalf of the Association, I would like to express my heartfelt thanks to Prof. Joseph Wong Wing-ping for accepting our invitation to an interview, all the students who have contributed to this issue of the SRPS and the editorial board who have laboured restlessly to make this issue a reality.

I sincerely hope that you enjoy reading this issue.

Chan Lik Ki, RickyEditor-in-chiefThe Hong Kong Student Review of Political Science

王永平教授訪問訪問陳力奇劉綽麟胡詩珞

訪問整理陳力奇朱祖良

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特首選戰結束幾近一月，關於這場選舉過程及結果的爭議依然不絕。市民對候任特首的表現、將來政府的施政、以至政經發展皆十分關注。本會有幸邀請到王永平教授接受訪問，與我們分享他的意見。

特首選舉

這次特首選舉對香港的政治、經濟和社會發展有重大影響。雖然依然是小圈子選舉，但激烈程度乃前所未有。兩位參選人之間互相攻擊和互揭醜聞的行徑與其他民主選舉中可見的一樣，市民對選舉的關注度亦遠超前兩屆特首選舉。

前兩次選舉只有一名建制派人士參選特首。市民普遍接受選舉結果，社會並未關注小圈子選舉的弊病。這次選舉特別之處是有兩位建制派人士參選，經過二人在選舉中的鬥爭，部分市民認爲兩人皆不可接受，可見他們領略到小圈子選舉的弊病，出現了對此制度不滿的意見。

港大民意研究計劃舉辦的 3.23 民間全民投票計劃的結果顯示，市民對三位參選人的支持度皆遠低於上次選舉中帶著高民望當選的曾蔭權。雖然梁振英獲足夠票數當選，卻令市民反思香港應否儘快實行普選，並關注未來選舉的提名辦法。

經濟方面，選舉結果顯示市民對社會現況不滿。雖然社會經濟狀況不錯，政府亦推出不少有利民生的政

策，如最低工資和 $6000 計劃，但社會仍瀰漫著不滿政府向大地產商傾斜的情緒。市民也不滿意政府處理社會問題反應緩慢，如雙非嬰兒問題醞釀多年，政府卻沒有及早處理，反而在問題嚴重，民怨沸騰時才作出回應。

唐英年為前政府高官，市民對他的認識比梁振英深，然而市民卻選擇支持一位他們不太認識的參選人，反映市民對現屆政府和現況的不滿。候任特首梁振英距離正式上任還有數月，已展現求變之心，譬如在雙非嬰兒問題上屢次公開表達他的施政意向；跟工商界的關係上亦有別於現屆政府糾纏不清的關係，避免市民對政府產生不滿。

選舉喚起市民對政治議題的關注，原本選舉完結後關注減退亦屬正常，但相信這次熱潮能持續一段日子。首先，立法會選舉將至，政黨為爭取市民支持，不會讓由特首選舉帶起的熱情冷卻，如民主派便會針對選舉中有關梁振英的醜聞繼續批評政府。另外，社會上亦有不少經濟民生議題令市民相當關注，如雙非問題等等。

選舉中兩名建制派參選人鬥爭激烈，互揭所謂黑材料，又互相指責抹黑，使這次選舉被批評為一次醜陋的選舉。但市民應該明白揭露資料其實是一件好事，假如是無中生有，市民可以自行判斷；如果屬實，自然不是抹黑，不應被批評責怪。要知

道即使在民主選舉中，互揭黑材料也正常不過，且是件好事。除了能揭露事實，讓市民對參選人加深認識外，也能考驗參選人的應對能力和危機處理能力。政府換屆

有人批評曾蔭權在事情「逼到埋身」才做事，對此我是認同的。前特首董建華施政有心無力，縱使施政報告中有雄心壯志，但因任内社會經濟充滿危機，很多政策都未能實行。反觀現任特首曾蔭權有豐富的從政經驗，任内沒有重大的經濟危機，上任時又有頗高的民望，絕對有足夠的條件和空間大展鴻圖，可是面對很多問題都抱著不做不錯，少做少錯的心態，沒有處理。

放眼未來，候任特首近日較熱門的話題是他組織管治班子的問題。梁振英之前沒有顯著政績，支撐他民望的是市民對他的期望，組班便成爲他要面對的第一個考驗。市民對他抱有期望，希望他有一個好的管治班子，如果他未能招攬人才，施政將面對更大困難，也會影響市民對他的印象，質疑他沒有能力說服人才進入他的團隊，不能做到用人唯才。其實組班困難與否很大程度上取決於領導者的領導能力。社會上人才不少，關鍵是能否說服他們接受邀請，加入政府服務。

經濟發展

近期有關經濟的熱門議題，莫過於地產霸權。候任特首其中一樣受市民歡迎的是他沒有跟地產商親近的形象。所有經濟體皆不能一成不變，現在香港經濟由地產商主導，繼續下去不是一件好事。從候任特首的政綱中可以看出，政府其實有能力和有相關的政策打破這現象。但現今的情況不能全怪地產商，政府也有責任透過控制供應、規管銷售等方法讓市場返回正軌。如果能改變現在不公的制度，處理地產商賺取暴利的問題和對其他行業的影響，是可以讓地產行業健康發展的。

在大市場小政府的原則下，政府的力量不大。現在經濟發展面對的問題有二。第一，地價和租金不斷上升，阻礙其他行業發展。對此須理順地產業，營造良好的營商環境，其他行業自然會發展，不需太強的主導。第二，須檢討與内地的關係，檢視服務業和專業，如醫療行業的發展潛力。香港擁有優良的技術和人才，如果有空間擴展，會有利相關行業整體發展。當然，香港一些行業人才短缺，政府可考慮開放國際人才，讓有關行業能持續發展。

政治發展 – 擴大問責制？

選舉中兩位建制派參選人的激烈競爭，讓市民有更大期望在 2017 年有一個公平公正的特首選舉。既然中央已定下時間表讓香港人能在 2017

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年普選行政長官，市民也不會接受2017 年沒有普選。2017 年選舉的焦點在於如何提名。現在的選舉委員會缺乏代表性，不符現實，如式微的漁農業竟能佔如此多席位。能否確保將來的提名委員會有充分的代表性，將取決於梁振英的取態和能力，以及中央政府的量度。

問責制本身是一個好制度，確立了問責官員和公務員之間的分工。問責官員負責政治工作，即群衆工作，和媒體、政黨及團體聯絡、溝通和談判；公務員則負責協調、分析和執行，兩者理應沒有衝突。問責制另一個好處是可培育政治人才。完善的問責制能為有志從政的年輕人提供上升階梯，讓他們在不同的崗位上累積經驗，將來成爲高官後便能擁有豐厚的政治歷練，面對更大

的挑戰。

現行制度其中一個問題是缺乏人才。很多問責官員皆不是政治人才，做不到政治工作。此外，政治助理的薪金過高，又不做政治聯繫工作而做政務工作，不能增長政治經驗。過高的薪金也令他們缺乏誘因離開政府，到其它職位上累積不同經驗。

結語

梁振英能否真正成爲香港人的特首？經過激烈選舉中的連串事件，香港市民已對他起了疑惑，他們將會更留意特首和政府施政，監察政府。

理想香港 -反思過去審視未來政治及公共行政博覽 2012 回顧

政治及公共行政博覽 2012 開幕禮於三月十三日順利舉行。本會有幸邀請到李柱銘先生和李鵬飛先生作主禮嘉賓，並向港大師生分享他們對香港未來發展各方面的看法和意見。

本會有幸邀請到香港城邦論作者陳雲博士就香港發展與聽眾作出分享。活動非常成功，總共有四十多位同學與公眾人士參與該次討論。

本會成功在中山廣場舉辦了特首論壇。當日，我們邀請了余若薇議員丶劉銳紹先生及梁國雄議員分享對是次特首選舉的看法。

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本會有幸邀請到呂大樂教授分享他對香港現今公民社會的發展及其對政治的影響。呂教授在討論中提出香港公民社會歷史久遠的看法，也回答了會眾不同關於公民社會的問題。

二十名會員參加了訪問美國領事館活動，跟經濟與政治部的首長 Mr Martin Murphy 會面。

本會有幸邀請到鍾庭耀博士、葉建源先生及成名教授與港大師生分享他們對香港學術自由現況及未來的見解。

本會有幸邀請到前政務司司長和立法會議員陳方安生女士跟同學分享她對香港民主運動的看法。

Hong Kong’s Political Culture Revisited: Apathy or Activism?Jake C.H. ChanBachelor of Social Sciences (Government and Laws) IIThe University of Hong KongIntroduction

Ever since the study of political culture of Hong Kong gained momentum in 1970s, there have been conflicting views over whether Hong Kong’s political culture is one of apathy or activism.

Those who believe that Hong Kong has an apathetic political culture point to the low turnout rate in the 2008 Legislative Council Election, the 5 Districts De-facto Referendum in 2010 and the recent District Council Election, the strikingly low political party memberships, as well as the general absence of mass movements as supporting evidence. In their views, Hong Kong people are “economic animals” who merely act on calculation of concrete material interests rather than abstract principles. Such views are often articulated across the territory and supported by government officials’ remarks that Hong Kong is and should remain be an economic city rather than a political city.

In stark contrast, those who advocate Hong Kong’s political culture as one of activism argue that the discourse of political indifference is waning. Often cited examples are the pro-democracy protest in 1989, the yearly July 1st Demonstration, and the record-high participation in the June 4th Night Vigil in both 2010 and 2011, and more recently the “3.23 Civil Referendum Project” led by the Public Opinion Program, the University of Hong Kong, where “People’s Power” is manifested. Moreover, the vibrancy of the civil society and the mass media, as well as prevalence of the Internet

have, as argued by some, contributed to political activism in Hong Kong by cultivating an environment conducive to post-modernist social movements as well as discursive participation.This review argues that such a debate originates in part from disagreements over the meanings of political culture and political participation. It thus first provides a conception of political culture and political participation. It then seeks to outline an approach through which Hong Kong’s political culture should be studied.

Also, while arguing that Hong Kong people are in general politically active, this essay contends that such activism is not unqualified and that Hong Kong’s political culture is best characterized as one of “Depoliticized Activism”, which is the product of the paradoxical co-existence of political activism with the culture of de-politicization, imposed both externally and internally.

Political Culture Defined

Different views over the meaning of political culture have been offered. Almond and Verba (1963) define it as “a set of political orientations which consist of attitudes towards the political system and its various parts, as well as the role of self in the political system” (p.13). In their views, political culture is seen as the political attitudes and values shared by the citizens.

Swindler (1986) sees political culture as the “tool kits” of habits, skills, and styles from which people construct strategies of action. It

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acts as a resource as well as a constraint which allow scholars to go beyond the rational-action argument and adopt the normative argument in looking at political events (Lee and Chan, 2008).

Nonetheless, as Kertzer (1996) suggests, “politics is symbolic, because both the formation of human groupings and the hierarchies that spring from them depend on symbolic activities” (p.4). To define political culture as merely attitudes and values shared by citizens will be too narrow a conception of political culture and have neglected the importance of the symbolic system (Hunt, 1984; Kertzer, 1996).

Political culture should hence properly be defined as “the widely shared beliefs, values and norms among citizens within a political system, which are shaped byte symbolic system, and serve as a constraint as well as a resource for people to engage in politics”.

Four important points have to be noted. First, since it is virtually impossible for all citizens within a political system to share the same political beliefs, values and norms, political culture should mean the mainstream culture. Second, while political culture, a widely shared value and attitude, is difficult to observe and quantify, it can nonetheless be reflected by patterns of political participation. Third, identity plays an important part in shaping beliefs, attitudes, values and norms, and hence identity politics should not be neglected in the discussion of political culture. Also, since the symbolic system shapes political culture, it is susceptible to manipulation (Wingo, 2003).

Political Participation Defined

Scholars have offered different definitions of political participation. For instance, Milbrath and Goel (1965) define political participation as “actions of private citizens by which they seek to influence or to support government and politics”

(p.2). McClosky (1968) sees it as “voluntary activities by which members of a society share in the election of rulers and, directly or indirectly, in the formation of public policy” (p.252). Also, Verba, Schlozman & Brady (1995) defines political activities as “actions which afford citizens in a democracy an opportunity to communicate information to government officials about their concerns and preferences and to put pressure on them to respond” (p.37). The focus on behavioral participation, as argued by some scholars, has however failed to acknowledge the cognitive aspects of political participation, which “prepares and precipitates behavioral participation” (Lam, 2004, p.242).

In this essay, political participation is defined as “activities by private citizens which are designed to influence the decision making process of the government, to express their policy preferences or opinions on certain political issues, as well as to acquire political information”.

Four important aspects of this definition should be noted. First, such activities can be voluntary or mobilized. Second, both institutionalized and non-institutionalized political participation are included. Third, the aims of participation are to influence the policy making process, express preference or opinions, and show grievances. Finally, the importance of cognitive participation is recognized.

The Approach to Understanding Hong Kong’s Political Culture

A few general approaches can be used to understand the political culture in Hong Kong.One approach is the definitional approach (King, 1981; Lee and Chan, 2008). By asking citizens questions about their attitudes and values towards the political system, which by definition is the political culture, the political culture of Hong Kong can be mapped out.

The problem, as mentioned earlier, however, is that attitudes and values are unobservable and difficult to verify. Hence, some scholars adopt the behavioral approach and look at patterns of political participation (Lau and Kuan, 1995; Lam, 2004) as indicators of the political culture of Hong Kong.

Yet, a problem still exists. Since the behavioral approach is an inductive approach, to simply look at political participation to ascertain the political culture of Hong Kong may commit the fallacy of affirming the consequence. There is thus the need to qualify the “observed” political culture with other factors which affect the political culture.

Some scholars, for instance, have sought to understand how Hong Kong’s political culture is affected by the identity (Lam and Lam, 2010; Matthews, Ma and Lui, 2008; So, 2008) as well as the symbolic system (Kertzer, 1996; Matthews, Ma and Lui, 2008).

The essay first looks at patterns of political participation in Hong Kong to ascertain political activism in Hong Kong. After that, the symbolic system and the identity politics, which shapes the political culture, will be used to explain instances of the divergence. A unique political culture of “De-politicized Activism” in Hong Kong is thus unmasked.

Arguments for Political Apathy

Before arguing that Hong Kong’s political culture is one of “De-politicized Activism”, we first examine the traditional arguments for Hong Kong people being politically apathetic.King (1981) was among the first who understood the political culture of Hong Kong as one of apathy. By adopting the framework developed by Almond and Verba (1963) and using the definitional approach, he identified Hong Kong’s political culture as one of mixed parochial-

subject culture, characterized by large apolitical strata and a low sense of citizenship, a strong sense of political powerlessness, and citizens’ avoidance of political responsibilities and minimal participation in politics.

Lau and Kuan (1988) shared similar views but tried to qualify the phenomenon with a traditional “ethos” developed out of the peculiar combination of a refugee identity (Hoadley, 1970), a submissive Chinese culture (King, 1981) as well as a symbolic system under the manipulation of the colonial government (Harris, 1978; King, 1981). They also found in their survey that most citizens perceived politics as struggles among self-interested and even corrupt politicians, and shared a sense of distrust in the government and political powerlessness. These internal constraints thus limited their political participation (Lee and Chan, 2008).

By looking at patterns of political participation in formal politics, they also identified a culture of “utilitarian familism”, which refers to “a normative & behavioral tendency of an individual to place his familial interests above the interests of society or any of its component individuals and groups, and to structure his relationships with other individuals and groups in such a fashion that the furtherance of his familial interests is the primary consideration” (Lau, 1982, p.201), among Hong Kong citizens. The culture of prioritizing materialistic interests over all other interests among familial interests thus, according to them, explains citizens’ low participation in politics and avoidance of involvement with outsiders.

Although Lau and Kuan (1995) later modified their studies on political culture by including questions on non-institutionalized political participation, they still focused too much on institutionalized political participation. The general lack of involvement in political and social group Hong Kong people, absence of

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political mobilization, fragmented and individual participation, as well as the absence of collective action had been cited as evidence of political aloofness among Hong Kong citizens.

Finding a high cognitive political attentiveness and low behavioral participation among Hong Kong citizens in their studies, Lau and Kuan(1995) argued that Hong Kong people are better termed as “attentive spectators”, who while possessing sound knowledge and awareness in politics, nevertheless refrains from participating in politics as a result of a sense of political powerlessness coupled with general satisfaction with the government, which was the result of increased governmental intervention in society, facilitated by “the provision of more channels of participation by the government through political reform, greater governmental tolerance, and increased responsiveness to citizens’ demand” (p.16).

A Critique of Political Apathy Arguments

A few problems with their analyses can be identified. First, as suggested earlier, the definitional approach adopted by King (1981) in understanding political culture of Hong Kong is inherently problematic. Thus while someone represents himself as apathetic, he may be a de-facto activist (Lee and Chan, 2008). Also, the sense of powerlessness, identified by King (1981) as an important reason why Hong Kong people in general do not participate in politics, involves negative ideas towards politics and is arguably informed after having cognitively participated in politics, and hence should be treated as an evidence of political activism.

Meanwhile, Lau and Kuan (1988) have adopted too narrow a conception of political participation in examining the political culture of Hong Kong. However, the focus on institutionalized political participation has neglected a wide range of non-institutionalized political participation

as well as instances of social activism, which form an important alternative channel for political activists to engage in politics (Lee and Chan, 2008; Lam, 2004; Lui and Chiu, 1999). Moreover, given the emergence of a local identity (Lam and Lam, 2010; Matthews, Ma and Lui, 2008), the introduction of elections since the 1980s, the rise of political parties, as well as efforts by the colonial government to politicize the citizens in preparation for the political handover, it is unsure if their arguments still apply.

Also, Lau and Kwan (1988) seem to suggest that politics and economy are incompatible with each other and that when one cares about their economic interests, it is not possible that he also engages in political participation, thus misplacing the two in a countervailing dilemma in reaching their conclusion.

Although Lau and Kuan (1995) later modified the i r sur veys to inc lude some k inds o f informal politics, they have nonetheless failed to acknowledge the importance of cognitive participation and discursive participation as examples of political participation. For instance, it is not entirely clear why fragmented and individualistic participation should prevent us from seeing Hong Kong’s political culture as one of activism. Also, if the reason for not engaging in behavioral participation, as suggested by them, is the result of satisfaction with the government, it is paradoxical why feeling satisfied with the government, though not expressed, should not be regarded as a kind of political participation.

Moreover, their account has overlooked the role of identity politics and the symbolic system such as education in shaping the political culture of Hong Kong, and is hence insufficient for our understanding.

Political Activism?

The view that the discourse of indifference is invalid has found support and is echoed by many scholars. Lam (2004), for example, even argued that Hong Kong has in fact been characterized by an activist culture, which can be attributed to its historical settings.

Lam (2004) contends that political participation in Hong Kong before the 1980s should be best understood as political acts targeting three political regimes, given its unique context and historical setting, and that participation in social movements should also be included in examining the political culture of Hong Kong. By adopting a broader conception of political participation to include unlawful activities, discursive activities as well as acts of support, as well as examining 13 cases during the period of 1949 to 1979, Lam (2004) had reconstructed the political culture of Hong Kong and provided convincing evidence for the existence of an activist culture.

The expansion of various forms of participants and political acts since the 1980s, including growing political parties and groups, an increase in political movements, the demonstration in support of the student movement in Beijing in 1989, and the recent post-modernist social movements resulted from the Internet Activism and a vibrant civil society (Lam and Lam, 2010; So, 2008) are also vivid examples of political activism in Hong Kong. Moreover, an unprecedented high number of 5,231 assemblies, processions and demonstrations of varying scales and concerns were recorded in 2010. A consistently high level of cognitive participation in politics has also been observed.

All the above seem to suggest that the Hong Kong society is characterized by a culture of political activism. A question however arises. If the Hong Kong people are politically active, why had mass mobilization rarely occurred? Why had

such activism not often translated to real actions, as seen from a relatively low voters’ turnout rate and a stunted political party system?

This is best explained by the culture of de-politicization that has long existed in Hong Kong (Lam, 2004; Lee and Chan, 2008). Such a culture of de-politicization, informed both by the government’s manipulation of the symbolic system, as well as the cultivation of a depoliticized identity among citizens, checks activism and constrains political participation among citizens, and explains why collective actions have always limited in scale, intensity and articulation.

The Culture of De-politicization

The culture of de-politicization involves both external de-politicization and internal de-politicization. External de-politicization refers to the de-politicization by the government; while internal de-politicization refers to the self-imposed de-politicization.

External De-politicization

Before the handover, the government had tried to de-politicize the citizens by engaging in the condemnation of activists, stressing the importance of obeying the colonial law and the importance of discipline, as well as denouncing sit-ins and demonstrations as “too confrontation to be productive” (Lam, 2004, p.213). Also, the discourse of social harmony has depoliticized the citizens with activist measures being cautioned against.

After the political handover, to cultivate among people in Hong Kong a kind of depoliticized citizenship that is conducive to ruling remains an important governing ideology of the HKSAR government. For example, the government has at times denounced collective actions, cultivated a passive citizenship, contained the aspiration

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for greater democracy, marginalized party development, and sought to exert control and influence on the media (Lam and Lam, 2010). All these have led citizens in general to refrain themselves from participating “too actively” in politics and hence a divergence between the level of cognitive and behavioral political participation. This is evident in the 2010 Five District De-facto Referendum, where the government actively depoliticized the citizens and boycotted the election, saying that the election is “unconstitutional and too radical”, eventually leading to a record-low turnout rate of just 17%.

Efforts to depoliticize the citizens can also be seen from the attempts by the government to “sinicize” and weaken the cosmopolitan elements in the Hong Kong identity (Lam and Lam, 2010; Matthews, Ma and Lui, 2008), with a particular emphasis on harmony, submissiveness and the importance of economic interests over political concerns.

Internal De-politicization

Apart from de-politicization attempts by the government, the distrust towards the political parties, beliefsi n the dirtiness of politics and the perceived political apathy of their fellow citizens were also pervasive in Hong Kong people’s political consciousness, and has resulted in a kind of self-imposed de-politicization, limiting the patterns of participation available to citizens.

The distrust towards the political system stems from a narrow conception of politics among citizens as involving “dirty” power struggle to strike one’s opponent and hence undesirable. It is also the result of a widely-shared belief that getting involved in politics is potentially dangerous and the exclusive domains of radicals and troublemakers (Lam, 2004).

Moreover, some citizens see their fellow citizens and themselves as not having the quality required

of making political decisions, and are susceptible to manipulation by the political parties. They believe that such political decisions should be the domain of government officials and political elites who are more equipped and qualified to do so (Lee and Chan, 2008). This self-imposed de-politicization has thus constrained their political participation.

The stigma attached to political involvement has thus often led citizens to limit themselves to cognitive participation and discursive participation, as well as disguising their activities, however political, as social activities and having nothing to do with politics. They also proceed with caution when they deal with the government, thus leading to a Reformist culture (Lam, 2004).

For example, when 500,000 took to the street on July 1st, 2003, some demonstrators, obviously activists, however emphasized themselves as just a group of demonstrators who were politically apathetic and joined the protest only because they feared that the legislation of Article 23 of the Basic Law will deteriorate the cosmopolitan values, including basic rights and liberty, and threaten the cosmopolitan elements in the Hong Kong identity (Lam and Lam, 2010). They also attributed their success to their demonstration being peaceful, and stressed that they were not mobilized by any political groups, downplaying the role of the political parties in the demonstration, and saying that they joined the protest as it allowed them to speak their own mind directly (Lee and Chan, 2008).

Also, in the 2010 5-district de-facto referendum, while those who vote dare obviously political activists, especially given government’s efforts to depoliticize and boycott the election, the respondents however represented themselves as merely fulfilling their civic responsibilities and not political activists.

Meanwhile, while some who ran for the 2011District Council Election are obviously politicians with pro-establishment affiliations, they howeve r adve r t i s ed themse lve s a s Independent Candidates who just want to serve the community and are not affiliated with any political parties.

The debate over the Political Reform proposal has also seen more people labeling themselves as “moderate democrats” and seeking to distance themselves from the “radical democrats” for fear of “political hyper-activism” (Lee and Chan, 2010). Such a self-imposed de-politicization, toge the r w i th de -po l i t i c i z a t ion by the government, thus contributes to a culture of de-politicization and explains the paradoxical co-existence of political activism and the general absence of collective actions in the territory.

Conclusion

Beginning with a critical overview over the meanings of political culture and political participation by various scholars, the review first provides a conceptual understanding of political culture and political participation. After that, an approach to understanding political culture is offered. The approach has been used to examine the political apathy argument and to provide a way to acquire a comprehensive reading of the political culture of Hong Kong.

As this review argues, if one accepts that social activism and cognitive participation be counted as political participation, the high level of cognitive participation and the high intensity of social movements, coupled with Internet Activism and a vibrant civil society may suggest that Hong Kong’s political culture has always been one of activism. The paradox however is that, if citizens are in fact politically active, why had such an activism not often translated into actual actions, and why had citizens chosen not to present themselves as politically active even

when they were involved in activist activities? What accounts for such a “disarticulation”?

The culture of de-politicization, which has existed in Hong Kong for a long time, sheds some light on this. By putting political pressure on citizens to suppress their demands and diverting their attention to other areas using various socio-economic strategies, cultivating among citizens a depoliticized identity, de-politicization by the government has, together with citizens’ pervasive consciousness to self-depoliticize, checks activism and prevents collective actions from “looming large”.

Such a check-and-balance, however, is reciprocal, i.e. activism also checks de-politicization, and explains why the culture of de-politicization has never extinguished activism. The “latent” activism also enables re-politicization of the depoliticized activists at times, upon the use of the symbolic system and identity politics by the civil society. This best explains why while Hong Kong people are de-facto activists, they manifest political activism and apathy during different periods of time.

References

Almond, G., & Verba, V. (1963). The Civic Culture Theory: Political Attitudes and Democracy in Five Nations. Princeton: Princeton University Press.Harris, P. (1978). Hong Kong: A Study in Bureaucratic Politics. London: Heinemann Educational Books.Hoadley, J. S. (1970). Hong Kong is the

Lifeboat: Notes on Political Culture and Socialization. Journal of Oriental Studies (8), 209-211.

Hunt, L. (1984). Symbolic Forms of Political Practice Politics, Culture and Class in the French Revolution (pp. 52-86). Berkeley and Los Angeles: University of California Press.

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Kertzer, D. I. (1996). Politics and Symbols. New Haven and London: Yale University Press.King, A. Y. C. (1981a). Administrative

Absorption of Politics in Hong Kong: Emphasis on the Grass Roots Level. In A. Y. C. King & R. P. L. Lee (Eds.), Social Life and Development in Hong Kong (pp. 127-146). Hong Kong:

Chinese University Press.King, A. Y. C. (1981b). The Political Culture of

Kwun Tong: A Chinese Community in Hong Kong. In A. Y. C. King & R. P. L. Lee (Eds.), Social Life and Development in Hong Kong (pp. 147-168). Hong Kong: Chinese University Press.

Lam, W. M. (2004). Understanding the Political Culture of Hong Kong: The Paradox of Activism and Depoliticization. New York: M.E. Sharpe, Inc.

Lam, W. M., & Lam, K. C. Y. (2010). Civil Society and Cosmopolitanism: Identity Politics in Hong Kong. In R. Coate & M. Thiel (Eds.), Identity Politics in the Age of Globalization (pp. 57-82). Boulder, Co: First Forum Press.

Lau, S. K., & Kuan, H. C. (1995). The Attentive Spectator: Political Participation of the Hong Kong Chinese. Journal of Northeast Asian Studies, 14(1), 3-24.

Lee, F. L. F., & Chan, J. M. (2008). Making Sense of Participation: The Political Culture of Pro-democracy Demonstrators in Hong Kong. The China Quarterly(193), 84-101.

Lui, T. L., & Chiu, S. W. K. (1999). Social movements and public discourses in politics. In T. W. Ngo (Ed.), Hong Kong's History. London: Routledge.

Matthews, G., Ma, E. K. W., & Lui, T. L. (2008). Hong Kong, China: Learning to Belong to a Nation. London and New York: Routledge.

McClosky, H. (1968). Political Participation. In D. L. Sills (Ed.), International Encyclopedia of the Social Sciences (Vol. 12, pp. 252-265). New York: Macmillan.

Milbrath, L. W., &Goel, L. (1965). Political Participation: How and Why Do People Get Involved in Politics . (pp. 5-38). Chicago: Rand McNally & Company.

So, A. (2008). Social Conflicts in Hong Kong after 1997: The Emergence of a Post-modernist Mode of Social Movement? In M. K. Chan (Ed.), China's Hong Kong Transformed: Retrospect and Prospects beyond the Firtst Decade (pp. 233-251). Hong Kong: City University of Hong Kong Press.

Swindler, A. (1986). Culture in Action: Symbols and Strategies. American Sociological Review(51), 273-286.

Verba, S., Nie, N. H., & Kim, J. O. (1978). Participation and Political Equaltiy: A Seven-Nation Comparison. Cambridge: Cambridge University Press.

Verba, S., Schlozman, K. L., & Brady, H. (1995). Voice and Equality: Civic Voluntarism in American Politics. London: Harvard University Press.

Wingo, A. H. (2003). Veil Politics in Liberal Democratic States. Cambridge: Cambridge University Press.

Article 23 – What is the Best Way Forward?Matthew L.C. ChoiBachelor of Social Sciences (Government and Laws) IThe University of Hong Kong

“The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies” –Article 23 of the Basic Law

On 1st July 2003, over 500,000 marched in the streets of Hong Kong Island to oppose the government’s proposal to implement the article into local legislation. At present, while Article 23 still remains a sensitive issue, it is very likely that the Hong Kong government will introduce a new bill to the Legislative Council and launch another round of public consultation in the near future.

This essay argues that it is desirable for the HKSAR government to adopt the minimalist approach to implement Article 23, so as to strike a balance between national security concerns of the Central People’s Government, and the protection of civil liberties in Hong Kong.

In adopting a minimalist approach, while the government should only fulfill what it is constitutionally required to as stated in Article 23, it should go beyond the minimum standard of human rights protection as stated in the Basic Law and the International Covenant on Civil and Political Rights.

W H Y I S T H E I M P L E M E N TAT I O N O F A R T I C L E 2 3 C O M P L E X A N D CONTROVERSIAL?

While Article 23 imposes a constitutional duty on the SAR government to enact laws on its own to safeguard national security, the drafting of a proposal to tackle the issue is both a difficult task and a politically sensitive issue.

Vagueness in language

Article 23 does not define the precise meaning of “treason”, “sedition”, “subversion” and related actions. The words “political ties” are particularly vague and could be stretched to any organization which seeks to influence public policy or private conduct. “Subversion” and “secession” are not familiar among Hong Kong residents as they are not common law terms. Moreover, concerns may arise since the Basic Law provides no definition of “national secrets”, and the words were applied in prosecutions with an exceptionally broad definition in the Mainland.

The vagueness and lack of clarity of words not only create difficulties in drafting the local statute, but also create concerns fear that a law with broad definition of national security offences that curtails civil liberties would be in force.

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Possible Conflicts of Law

Before the government proposal to implement Article 23 was released, Yash Ghai commented that it would be easy for the Hong Kong government to implement it in way which contravenes guarantees in the Basic Law and the ICCPR.

Benny Tai also commented that although there is a co-existing constitutional duty imposed on the HKSAR government to comply with the international standards on the protection of the fundamental rights under Article 39 of the Basic Law, the HKSAR government may take more restrictive view of human rights, though it may still be compatible with the ICCPR, which sets the lowest requirement on the protection of human rights.

In particular, the power conferred to police officers to conduct warrantless searches to investigate possible national security offences, proposed by the bill in 2003, is likely to be in conflict with Article 29 of the Basic Law, which states that

“homes and other premises of Hong Kong residents shall be inviolable…arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited”.

While Article 29 of the Basic Law only includes, literally, “homes and other premises”, Article 14 of the Bill of Rights Ordinance extends to searches of vehicles and other conveyances as it offers a general protection against arbitrary or unlawful interferences with one’s privacy, irrespective of the type of space.

Furthermore, if the government bill were enacted in 2003, any organizations that are subordinate to proscribed organizations in the Mainland would be proscribed, regardless of whether they had committed any crimes in the HKSAR. This

provision may seem to contravene Article 27 of the Basic Law and Article 22 of the ICCPR, which guarantee the freedom of association.

However, the following two reasons are the most fundamental that result in thegreat complexity and controversy of the issue.

Interests between the Central People’s Government vs. Hong Kong Residents

As noted by many academics, the introduction of Article 23 into the Basic Law by the Chinese government was the direct consequence of the Tiananmen Incident in 1989. It is believed that the article aims to prevent challenges to the mainland political system, and to prevent Hong Kong from becoming a base for subversion.

From the point of v iew of the Chinese Government, Article 23 is already a concession as the article requires the Hong Kong government to implement the article through local legislation, instead of directly implementing relevant national laws in Hong Kong.

However, the Chinese Government st i l l retains overriding power in the process of implementation of Article 23 as Article 17 of the Basic Law empowers the NPCSC to invalidate any local legislation which is inconsistent with the Basic Law regarding the relationship between the Central Authorities and the HKSAR. The local legislation for the implementation of Article 23 easily falls into this category.

Meanwhile, there are worries that Article 23 may be a threat to civil liberties. During the legislative process in 2003, the business, investment and banking sectors raised concerns about the potential effect of the proposed legislation on the free flow of financial information. Librarians and academics from universities in Hong Kong also feared that they might be caught under the proposed new offence of “handling seditious

publications” when they collect information for academic papers. The Catholic Church worried that it would become the target of the proposed provision of the proscription of local organizations, and the press and the media demanded the addition of a “public interest defence” when protected information is disclosed.

The Political Context of Hong Kong

In the consultation document of the bill, the HKSAR government repeatedly referred to the practices of other countries in how they deal with crimes against the state. Therefore, it seems that the government would like to give an impression that its proposals were consistent with the practices of many Western liberal countries.

However, Benny Tai commented that proposals to implement Article 23 should be reviewed in light of the unique political and constitutional context of Hong Kong, in which a democratic system of elections that ensures check and balances and thus, prevents abuse of government power is absent.

Moreover, he observed that the HKSAR government failed to show its commitment to human rights protection as in the consultation document, it did not fully recognize the special constitutional status of the ICCPR, nor admit that the Johannesburg Principles, concerning the freedom of speech and access to information which Article 23 attempts to limit, had been widely recognized.

Fu Hualing commented that Article 23 is special, in the sense that it is an article imposed by a communist party state on a liberal, free society, and in addition, the fear among the Hong Kong public has been exacerbated by the poor human rights record of the Mainland government. In particular, the prosecution of Xi Yang, a Hong Kong journalist for “stealing state secrets”

and Wang Dan for subversion just before the turnover raised concerns that Mainland concepts of crimes against the state will be applied in the HKSAR after Article 23 is implemented.

In January 2012, the Civil Human Rights Front criticized the police for serious abuse of power during public demonstrations. Over 416 protesters were arrested in 2011, with 24 prosecuted. The political climate in Hong Kong casts doubt on whether greater power should be granted to the executive, especially the police, to restrict freedom in the name of maintaining national security and public order, for example, to conduct warrantless searches.

THE GOVERNMENT PROPOSALS IN 2003

Although various reasons may be suggested to account for the failure of the HKSAR government to implement Article 23, for example, its refusal to issue a white bill, the anger from the public aroused by the Security Bureau’s manipulation of statistics in the public consultation, the attitude of government officials and its hasty manner in trying to pass the bill before July, strong calls for amendments to liberalize the bill remain a fundamental cause for the eventual withdrawal of the bill.

Why Are the Government Proposals in 2003 Relevant in the Discussion?

Any future attempt by the HKSAR government to implement Article 23 is likely to be based on its proposals made in 2003. Moreover, the HKSAR government may or may not reintroduce provisions abandoned in the “3 concessions” in a future bill.

An Introduction to the National Security (Legislative Provisions) Bill

On 26th Feb 2003, the HKSAR government introduced the blue bill to the Legislative

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Counc i l . The b i l l c ove r ed sub s t an t i a l amendments to three existing ordinances, including:(i) The creation of two new offences, “subversion” and “secession”, amendments to the existing offences of “treason” and “sedition”, and the granting of warrantless search powers to the police in the Crimes Ordinance;( i i ) Amendments to the Official Secrets Ordinance to specify the scope of state secrets protected in the ordinance, and the introduction of the new offence of unauthorized and damaging disclosure of protected information obtained by unlawful access;(iii) The addition of the provisions to the Societies Ordinance of the proscription of local organizations which endanger state security, including those subordinated to a proscribed Mainland organization.

On 3rd June 2003, the government announced 20 committee stage amendments to the bill, and most of them were minor amendments.

On 5th July 2003, the government announced “3 major concessions” to the bill. The government:(i) Delete power to proscribe subordinate organizations;(ii) Introduce a “public interest” defence for unlawful disclosure of certain official information;(iii) Delete provision which confers on the police power to search without court warrant in exercise of emergency investigation powers.

Critique of the Government’s proposal in 2003

The National Security (Legislative Provisions) Bill, as on 3rd June 2003, is discussed, followed by a separate discussion of the “3 concessions”.

Albert Chen commented that the bill were reasonable, and “represented a sincere and genuine attempt to put the principle of One-Country-Two-Systems into practice”, and he

predicted that abuse of the law would be rare. Furthermore, he suggested that the independent judiciary of Hong Kong would be the last resort for human rights protection.

Dr. Christopher Forsyth and Kent Roach did not share the same view with Albert Chen, that the judiciary is a reliable last resort against abuse of power. Kent Roach noted the tendency of judicial deference concerning national security issues, especially in the House of Lords case of Secretary of State for the Home Department v Rehman. Dr. Forsyth agreed with Lord Bingham’s judgment in R v Shayler in the House of Lords that the judiciary is reluctant to address the issue of national security, and therefore, judicial review is not a sufficient safeguard for human rights in that respect.

Moreover, Kent Roach compared the bill with anti-terrorism laws enacted in Canada and Australia after the 11st September Incident. He commented that unlike its counterparts, the bill did not contain safeguards for protests, advocacy and labour strikes, which would be potentially oppressive in a society without democracy.

Treason, Secession, Sedition and Subversion

The deletion of outdated offences against the person of the sovereign under the existing laws should be welcomed, and the abolition of the common law offences of “misprision” and “compounding treason” is also desirable as Article 23 does not require the HKSAR government to criminalize these two offences. Fu Hualing also commented that the existing law of sedition would have been significantly improved and liberalized had the bill been enacted.

However, D. W. Choy and Richard Collen noticed many uncertainties and broadly defined terms in the proposed amended Crimes Ordinance. For example, it is unclear whether “assistance to the enemy” covers humanitarian

aid since no mental elements are required in the new provision, and the definition of subversion lacks certainty so that strong criticisms of the policies of China might be covered in the offence if the law were to be interpreted broadly. Kelley Loper further suggested that the inchoate offences of “conspiracy” and “attempt to commit secession” pose great dangers for human rights.

Warrantless Searches

Simon Young commented that the government failed to justify the warrantless search power according to constitutional principles of legitimacy, based on the tests of proportionality and necessity. Benny Tai also commented that the provision is unnecessary as there is no imminent danger of widespread contravention of Article 23 in the HKSAR, and the government has not proven that there are genuine difficulties in investigating, collecting evidence and prosecuting offenders of the Article 23 offences.

Theft of State Secrets

Johannes Chan warned that provision about the protection of government secrets may result in a chill on the freedom of expression in the HKSAR. Doreen Weisenhaus, a journalist, opposed the proposal to increase liability for the damaging disclosure of government secrets. He worried that important stories of government misconduct might never come to light if the bill were enacted.

Proscription of Local Organizations

Christopher Forsyth analyzed the provision in the perspective of administrative law. He commented that the proposed amendments to the Societies Ordinance are unnecessary, since while it is not required by Article 23 at all, there are already procedures for the proscription of organizations that threaten security.

Moreover, he suggested that the proposed provi s ion may be re l i ed on to prohibi t organizations that have been proscribed in the Mainland from conducting activities in the HKSAR, especially the Falun Gong. He warned that the proposal to proscribe local organizations which are subordinate to proscribed organizations in the Mainland may results in the indirect enforcement of Mainland laws in Hong Kong, therefore putting the high degree of autonomy of the HKSAR guaranteed in Article 2 of the Basic Law at risk.

Forsyth commented that while there would be much room for the judiciary to maneuver, the judiciary is being asked to “bear too heavy a burden”. He commented that when an organization was proscribed under the proposed amended Societies Ordinance based on the reason that the objective of the organization is to engage in the national security offences listed in Article 23 or spying, it would be difficult to quash the decision through judicial review. Furthermore, the proposed rules for appeals against the decision of proscription of organizations are made by the Secretary for Security, but not the judiciary.

Benny Tai also commented that as no specific rules for the proscription of an organization on the ground of national security in the law, and specific proscription systems are present in the Mainland, underground churches, non-governmental organizations and political groups may be proscribed. Therefore, any organization in Hong Kong may be proscribed merely because it maintains an affiliation with a Mainland organization without committing any other unlawful acts, seriously threatening the freedom of association guaranteed in Article 27 of the Basic Law.

Furthermore, the provision may have a very wide remit as it criminalize the acts of being a member of, providing financial assistance and

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attending a meeting of a proscribed organization, which affects not only the office bearers of the organization, but also its members and any other person who supports it.

The Three Concessions

In general, the three major concessions on 5 July were welcomed. However, some suggested that they were still inadequate for the protection of civil liberties in Hong Kong. Simon Young called for a critical and comprehensive review of existing police powers in Hong Kong to ensure that they are all constitutionally legitimate, while Johannes Chan suggested three further amendments to the Official Secrets Ordinance:(i) The public interest defence for the disclosure of protected information should be further extended, so that government officials and contractors would be able to raise the defence;(ii) The defence should be defined clearly to be wide enough to cover the exposure of abuse of power by a public authority, not only by government officials;(iii) The defence should be available even if the amount of information disclosed is more than necessary to expose the abuse of power.

LOCAL LEGISLATION IS NOT REQUIRED-THE BEST WAY FORWARD?

Be f o r e t h e g ove r n m e n t p u b l i s h e d t h e consultat ion document for the bi l l , the Democratic Party, the Frontier, the Hong Kong Bar Association and the Hong Kong Human Rights Monitor held the view that existing laws of Hong Kong are sufficient to prohibit the acts listed in Article 23, and therefore, there was no need to create new offences or enact additional laws.

While some academics argued that the offences of subversion and secession have been effectively covered in the existing offence of treason in the Crimes Ordinance, others shared the view that

the existing Societies Ordinance has already complied with the requirements of Article 23 of the prohibition of political activities by foreign political organizations and the establishment of ties between local political organizations and their foreign counterparts.

Furthermore, the HKSAR government admitted that the existing provisions in the Official Secrets Ordinance already comply with Article 23 in the protection of state secrets, in the consultation document of the bill.

However, the speech by Qiao Xiaoyang, then Deputy Secretary of the Legislative Affairs Commission of the NPCSC in 2002, suggested that the option of no local legislation was not favoured by the central authorities.

Moreover, if there is no local legislation at all, an opportunity will be lost to amend existing laws, either those which are totally inappropriate after the change of sovereignty, for example, the offence of “kills, wounds or causes bodily harm to Her Majesty, or imprisons or restrains Her”, which is clearly based on the situation in a monarchical state, or those which are draconian and not amended throughout the colonial era.

Priscilla Leung went even further to suggest if eventually no law is present to protect national security, which is a deep concern by the central authorities, the NPCSC may exercise its power under Article 18(3) of the Basic Law to apply a national law on national security into Annex III of the Basic Law, which may be more unwelcome to the Hong Kong public.

T H E P R I N C I P L E O F M I N I M U M LEGISLATION

Benny Tai suggested the government to adopt the principle of minimal legislation, that is, to legislate as little as possible in fulfilling its constitutional duty. The Bar Association took the

same view.

When making choices in the drafting of the bill, he suggested that the option that fulfills the constitutional duty under Article23 with the least legislative measures, or imposes less restriction on individual rights than another, should be preferred to the others.

Furthermore, existing laws that are clear enough and are compatible with the protection of individual rights and freedoms guaranteed in the Basic Law and the ICCPR should be retained, and all legal terms should be defined as clearly as possible in order to achieve certainty, and therefore, minimize the discretion granted to the law enforcement agencies.

W H Y I S M I N I M U M L E G I S L AT I O N DESIRABLE?

As suggested above, neither the government proposals in 2003, nor the suggestions that no local legislation for Article 23 is required, is successful to satisfy both the constitutional duty of HKSAR government and national security concerns of the central authorities, while at the same time allay concerns of the Hong Kong public.

In the following, it is suggested that it is desirable for the HKSAR government to deal with Article 23, in the way of minimum legislation.

Reasons why the Minimalist Approach is a Desirable Solution

On one hand, the HKSAR government will have entirely discharged its constitutional duty under Article 23, and therefore, activities that endanger national security, including treason, secession, sedition, subversion, theft of state secrets and political activities of foreign political organizations will have been effectively prohibited by local legislation, thus expectation

from the central authorities will be satisfied.

On the other hand, as the government amends existing laws only when necessary, the public will perceive the future bill to be a sincere attempt to protect civil liberties in Hong Kong, when the bill not only does not go beyond what is required in the Basic Law, but significantly exceeds the minimum level of human rights guarantee in the Basic Law and in the international human rights regime.

As opposed to the option of no local legislation for Article 23, the legislation process will be an excellent opportunity to review, amend and liberalize existing laws.While the existing offences of treason in the Crimes Ordinance that cover many offences against the sovereign as a natural person may be amended to reduce uncertainty, the existing laws may also be liberalized by, for example, abol i shing the common law offences of misprision of treason and compounding treason.

Moreover, the minimalist approach is desirable given Hong Kong’s current undemocratic system of government and the lack of check and balances between the executive and the legislature against abuse of power by the executive. Furthermore, the judiciary may not be a reliable guardian of human rights, as suggested by Forsyth and Roach above.

Furthermore, the passing of a liberal national security law is beneficial to the prosperity of Hong Kong, as Chen Zhiwu, a professor in economics, suggested that the freedom of press is extremely important for the health and growth of the service sector and the financial market, therefore, any unnecessary restrictions on the free flow of information are risky and costly.

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CONCLUSION

In conclusion, it is desirable for the government to simultaneously fulfill its constitutional duty, satisfy national security concerns from the central authorities, and allay concerns of the public in Hong Kong, by demonstrating that the bill is a sincere attempt to provide adequate human rights protection, through the minimalist approach in future legislation of Article 23.

As Carole J. Petersen pointed out, the legislation of Article 23 is a window to access the strengths and weaknesses of One-Country-Two-Systems. Therefore, the success in striking a balance between national security and human rights in future legislation will definitely increase confidence in the special constitutional system of the HKSAR, especially among the international community. Without a doubt, the unique model of One-Country-Two-Systems in the HKSAR will certainly remain an interesting case for study in the foreseeable future.

Recommended Readings

Chen, Albert H.Y., “’One Country, Two Systems’ from a Legal Perspective,” in Yeung Yue Man, ed., The First Decade: Hong Kong SAR in Retrospective and Introspective Perspectives (Hong Kong, Chinese University Press, 2007), Ch 8

Clark, David, “Sedition and Article23” in Peter Wesley-Smith (ed), Hong Kong's Basic Law: Problems & Prospects (Hong Kong: Faculty of Law, University of Hong Kong, 1990)

Forsyth, Christopher, “National Security (Legislative Provisions) Bill 2003: Administrative Law aspects”, in Conference on Freedom and National Security - Has the Right Balance Been Struck (2003 : University of Hong Kong)

Fu Hualing, “The National Security Factor: Put t ing Ar t ic le 23 of the Bas ic Law in Perspective” in Judicial Independence and the Rule of Law in Hong Kong, Steve Tsang (ed.) (Hong Kong: Hong Kong University Press, 2011)

Fu Hualing, Petersen, Carole J. and Young, Simon N.M. (eds), National Security and Fundamental Freedoms: Hong Kong's Article 23 Under Scrutiny (Hong Kong: Hong Kong University Press, 2005) (This book is, by far, the most comprehensive work on Article 23, and includes articles written by various academics. This essay is mainly based on the findings in this book.)

Ghai, Yash, Hong Kong's New Constitutional Order (Hong Kong: Hong Kong University Press, 2nd edn, 1999), Ch 10

Hu, Bob, “The Future of Article 23” 41 HKLJ 431

Leung, Mei-fun, Priscilla, The Hong Kong Basic Law : Hybrid of Common Law and Chinese Law (Hong Kong : LexisNexis, 2007), Ch 11

Lo, P. Y., The Hong Kong Basic Law (Hong Kong : LexisNexis, 2011)

Tai, Benny Y. T., “The Principle of Minimum Legislation for Implementing Article23 of the Basic Law”, 32 HKLJ 579 (This article, written when the consultation document for the bill was released, provides a detailed discussion of the minimalist approach.)

Freedom and national security : has the right balance been struck? (Hong Kong : Faculty of Law, University of Hong Kong, 2003)

人權拉鋸戰東喜香港大學刑事司法學三年級生

市民珍惜集會示威自由，但深明這些權利不可凌駕一切；我們依賴執法者維護法紀，但堅拒警權成為絕對武力。如何在這拉鋸戰定下一條合適的界線？何謂保安過度嚴密？封鎖多少米才是合理？

去年八月國務院副總理李克強訪港，時間雖短，但留下的餘波至今仍未平息。社會各界的意見呈兩極：一方堅持執法者越權，人民權利遭侵犯；另一方強調限制人權有理，應為大局著想，相類似的爭議在最近的遊行、示威活動繼續湧現。整個爭議的核心在於如何平衡每個市民和社會大眾的利益。

若然核心的平衡問題糾纏不清，上述等等細節旁枝只會為難題打下死結。本文借前以色列最高法院首席法官 Aharon Barak 在牛津講授的一課 Human rights and their limitations: the role of proportionality 作藍本，以李克強訪港為例，提供一系列考慮因素。

作為人權法的權威，巴拉克法官一開首便強調：「民主建基於人權基礎。但若人權完全不受限制，民主是不可能的。」若然某限制是達到社會一致擁護的目標（如大眾健康）之必要條件，便可能要限制某人的權利或要

求某人履行義務。在極端的情況，該義務可以是犧牲他自身的權利。究竟保護李克強是否港人一致擁護的目標，讀者心中有數。就社會價值而言，香港警隊的確有責任保護李克強安全，但我們同時渴求安寧、資訊流通。當採訪集會自由等國際認可、受憲法保護的人權和政要人身安全產生衝突，分清緩急、主次有助解釋限制的合理程度、範圍、時間。

在現實層面，該限制要合法（符合 legality的原則），而且要受大眾認同（符合legitimacy 的原則）。香港大律師公會一度質疑「核心保安區」的法律根據；監警會主席翟紹唐對「保安區」聞所未聞。香港警務督察協會主席曾昭科和曾偉雄以「警察術語」解釋，但非法律詞彙不等於做法適切，此辯解迴避了警方實質手段合法性的問題。警方翻經究典，終於找到了《警隊條例》第 10 條作依據；律政司高級助理民事法律專員黎啟生雖說警方沒強行進入港大和麗港城，但儘管限制人權的目的（goal）是合適（如保障政要人身安全），手法仍可能不當。就李克強訪港三天的措施而言，可考慮：1) 警方的目的和手段（means）有沒有合理的連繫（例如 :封鎖整所大學和鄰近一

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帶，以及隔離手無寸鐵的學生似乎跟安全目的關係薄弱）、2) 有沒有其他可行的做法可減少對人權的限制、3) 有否平衡社會利益和傷害。

巴法官強調：我們應該考慮限制人權帶來的邊際利益（marginal benefit）和邊際損害（marginal damage），比較的準則是它們對社會的相對有多重要（relative social importance），而非「安全」和「自由」這些空泛的概念。就麗港城居民和港大李成康二事來看，警方施加的約束踐踏了他們表達訴求的自由（可視作邊際損害）。若然當日他們窮兇極惡、警力又散渙，情況存有危機，勉強來說，警方可說限制人權賺回的邊際利益是副總理的安全和香港秩序井然的美名。但，事實非然。巴法官指廣泛（extensive）而且即時（immediate）的損害才是限制人權的合理辯解，就該居民和李成康二事而言，這辯解明顯並不適用。

筆者在牛津唸人權法時，教授曾引一例：二戰時，一名記者撰寫大量失實的文章，法庭裁定誹謗罪成，記者起初需付上天文數字作賠償金。縱然該記者失德、罔顧後果，但法院考慮到巨額罰款可能扼殺言論自由，所有

Reforming the European Court of Human RightsConrad H.Y. WanBachelor of Laws IThe London School of Economics and Political Science

Theresa May has recently pushed for a deal securing fresh assurances that Qatada will get a fair trial in Jordan. If successful, May will be spearheading the UK’s latest attempt to extradite the cleric, on the grounds that he plotted bomb attacks and sustained links with terrorist organizations.

The case is part of a growing trend where the UK government encroaches upon the powers of the European Court of Human Rights (ECtHR). This is likely to continue in light of the proposals to reform the Strasbourg court, which will form the basis of discussion at a summit in Brighton.

The aim of these proposals is a clear one: to allow Parliament more control over human rights issues. As they stand, the proposals appear to center on the concepts of ‘greater subsidiarity’ and ‘margin of appreciation’. These allow individual states to take different approaches to particular rights. Under the new proposals, both concepts will be accorded broader meanings, which will hopefully reduce the number of cases taken to Strasbourg.

This, however, is highly problematic. While many British cases taken to Strasbourg are defeated before they even get there, other countries like Russia genuinely bank on the ECtHR as the court of last resort, largely because they have weak legal traditions. Not only this, whether the proposals will work for the UK is also highly debatable, as they will set an important precedent for political influence on the judicial branch of government.

It is also hard to conceive how David Cameron’s proposal to ‘scrap the Human Rights Act’ will work out in practice. Conferring fewer rights by introducing a bill of rights is without precedent. Any analysis on its effect on other jurisdictions is purely speculative.

Another solution advanced by David Cameron is to have ‘[g]reater clarity and precision’, ‘as opposed to vague general principles, which can be interpreted in many different ways’. However, clearer-defined rights can be hugely problematic. First, they would necessitate a bill so detailed as to include every right and obligation actionable in law. This risks making legislation highly inflexible, and takes away the advantages of judicial creativity. Second, this level of complexity would require training much more taxing than what was required before the HRA was enacted. Given the scope of the bill, this is simply unthinkable.

Whatever proposal the government advances, the danger of political intervention is very real. Any move in the way of removing the powers of the ECtHR will defeat the purpose of having the HRA in the first place, and bodes ill for human rights in general.

報館或會噤若寒蟬。所以最後減輕懲處。李克強來港，我們明白執法者不容有失，亦要考慮長遠後果，但一件六四汗衣也觸動警方神經，市民將來如何申訴？香港的示威文化何去何從？警方的嚴陣十分嚇人，當天身處藍田的我也被截停。情形是不是緊急如此？警方的風險評估是不是太保守？

進一步而言，是不是所有人權同等重要？巴官指社群的歷史和人民特性能提供答案，讀者應有定論。自新警務處處長上任，示威者憂慮自由被打壓；記者惶恐採訪權被剝奪。在這前提下，國家重要人物的安全固然重要，但示威、採訪的安排有否放寬空間？秤錘完全傾倒一方，警方有責任主動解釋各種限制的強度（intensity）、程度（extent）、範圍（dimension）均屬合理。嚴苛限制應為了更大的社群利益。縱觀過去來港的大人物，李克強獲得的招待可算是空前，箇中原因為何？曾偉雄在立法會爭拗事件經過，卻未有從法理、情理角度為各種約束護航，警方有欠積極（如近日解釋使用胡椒噴霧、限制採訪區等爭議），對人權的限制在大眾眼中仍欠妥當。

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Do You Want to Vote?Soo Min LeeBachelor of Social Sciences IThe University of Hong Kong

Scene 1

On March 23, Civil Referendum Project by HKU’s Public Opinion Programme (POP) took place. According to the POP’s webpage, the Project aimed to ‘let people express their support towards different candidates of the fourth CE election’ since ordinary HK citizens do not have right to elect the CE. Not only were the traditional voting booths were set up throughout Hong Kong, but also high end technologies such as smartphone app were utilized to facilitate participation. Accordingly, the public showed extraordinary support. For instance, days before 23rd, people actively spread out the poster and details of the polling on the internet. On the day, countless people lined up in front of the polling station to cast their votes while others used electronic devices to participate. Eventually, total 222,990 voters participated during the two-day polling (extended to March 24th since the website was hacked). Although there were various controversies over hacking and manipulation of votes, this Project clearly showed HK people’s zeal for gaining their rights to participate and express their views in politics.

People queuing at the Tuen Mun polling station on 23 March 2012

Poster of the 3.23 Civil Referendum Project

Scene 2

On 11th April, South Korea held a national election for members of 19th National Assembly. South Korea guarantees its citizens over 19 years old with the right to directly vote in elections. This political right is the hard earned fruit of people’s struggle for democracy during the 1970s and 80s.However, over the last years, the

country has had decreasing voting rate. National Election Commission recorded, for example, that the national average voting rate was 71.9 percent in 1992 14th National Assembly election while the rate decreased to 46.1 percent in 2008. Such decline is also apparent in other occasions including presidential elections. It seems that there is no particular reason for the fall, but the public’s loss of trust in politics and election is indicated as one of the possible reasons. Alarmed by the current situation, some people, especially those in 20s and 30s, recently started to re-recognize and promote the importance of political participation. Twitter, blogs, and Facebook are the main means for those people to encourage others to vote. Also, many celebrities and public figures voluntarily posted photos or tweets to promote the public’s participation. In the end, 19th Assembly election’s voting rate hit 54.3 percent, around 8 percent higher than that of the last one in 2008.

Ahn Cheol-soo, a prominent professor and businessman, holding a sign saying ‘I WILL vote on 11th April."

In one part of the world, people are striving for the voting rights. In another part, falling voting rate has become a significant social problem. As a Korean student studying HK, I came to think a lot about the relationship between democracy and the public participation after directly observing those two scenes mentioned above. Since I support for universal suffrage in HK, I believe both HK and Korea can learn from each other from these cases: Korean people should keep in mind how lucky they are to have voting rights; HK people should notice that democracy grows not only from universal suffrage but also from people’s continuous care and support.

On her Tweeter account, a famous K-POP singer Lee Hyori posted the photo she took after voting

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Functions Review

港大政政時事論壇 : 維權 ? 侵權 ? - 談規管纏擾行為對民權的影響

Mega Sale 2012

The 39th Inauguration Ceremony 2011-2012

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AcknowledgementsProfessor Joseph Wong Wing-ping

DHL Global Forwarding (Hong Kong) Limited

The Hon. Jasper Tsang Yok-shing

Bill Chan Wai-leung

Zumdieck Asia Limited

Submission of ArticlesThe SRPS welcomes articles on political science or public administration, as well as commentaries on current affairs and political incidents written by students. Articles on any topic with any stance are welcome. Please feel free to send us an e-mail to [email protected] should you have any enquiries.

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Notes________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

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Address:c/o Department of Politics and Public Administration,The University of Hong Kong,Pokfulam Road,Hong Kong

Website: http://www.hku.hk/ppaaE-mail: [email protected]

SRPS VOLUME 35 ISSUE 1 Spring 2012

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