The Basic Law (the constitution of the HKSAR promulgated by China in 1990) provides that apart from laws relating to defence and foreign affairs, Chinese legislation will not be applied in Hong Kong.

It also provides, among other things, that HK residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; the right and freedom to form and join trade unions and to strike; and freedom of movement, to travel and to enter or leave the HKSAR. All HK residents shall be equal before the law. Freedom of the person and of one’s homes shall be inviolable. The freedom and privacy of communication of HK residents shall not be infringed upon except when the relevant authorities so order, in accordance with legal procedures, to preserve public security or to investigate criminal offences. Legal rights (access to courts, free choice of lawyers, presumption of innocence and right to a speedy trail) are preserved.
Apart from civil and political rights, the Basic Law also protects the rights to social welfare and retirement security of workers in accordance with the law, as well as the freedom to engage in academic research, literary and artistic creation and other cultural activities.
Because of the general nature of the provisions of a constitution, the strength of the guarantees provided in the Basic Law for human and democratic rights will depend largely on its interpretation, in other words, whether an independent judiciary can be maintained, particularly at appellate level.
In addition, some of its provisions appear to be outside the scope of judicial interpretation. For example, its Article 109 says that the government of the HKSAR shall provide an appropriate economic and legal environment for the maintenance of HK as an international financial center; Article 147 provides that the HKSAR shall on its own formulate laws and policies relating to labour. As an academic analyst observed: “These are policy statements, and it is difficult to imagine how the court can enforce such clauses.” Much will depend therefore on the implementation legislation which will be adopted by the incoming legislature to be elected in May 1998.
Since the take-over on July 1, 1997, there have been no obvious or direct repressive measures against the opposition.
Although criticism of China has been clearly toned down, and “self-censorship” by media enterprises is a concern both among journalists and democratic activists, such restraint had already taken effect years earlier after a Chinese court sentenced Hong Kong reporter Xi Yang to 12 years in prison in April 1994 for allegedly “stealing state secrets” (information regarding gold sales and interest rate moves of the Bank of China). Chinese pressure against unfavourable reporting has been constant in recent years (particularly against the Chinese-language press) and has taken many forms, ranging from intimidation to attempted corruption. For example, Apple Daily, a Chinese-language mass-circulation newspaper often critical of China, has been denied accreditation to cover news on the mainland and was not allowed to cover a reception organised by the Chinese foreign ministry in Hong Kong in September last year. Such pressure, however, does not appear to have markedly increased in the eight months since the reversion of HK to Chinese sovereignty.
The release and expulsion to the United States of leading Chinese dissident Wei Jingsheng in mid-November and his meeting with US president Clinton on December 8, were reported in both Chinese- and English-language papers (although the issues containing these reports were not allowed to circulate in other Chinese cities) and in two of the three existing TV chains. Wei Jingsheng’s book “The Courage to Stand Alone” is on sale in both English and Chinese versions (a first shipment was sold out within days). Social conflict, statements by other dissidents and repression of dissidents is also reported.
Han Dongfang, a leading activist of the Chinese independent trade union movement, continues his weekly broadcasts (three times fifteen minutes) over Radio Free Asia and continues to publish the China Labour Bulletin, which has now been registered with the authorities.
The activities of the democratic opposition in Hong Kong are reported in the press, for example the demonstration by 24 human rights organisations on December 10 in protest against HK government policies, or the demonstration of Frontier against the functional constituencies on December 11. However, according to democratic activists, this media coverage is far from reflecting the actual level of activity. They call the reporting on the democracy movement “minimal” and believe that this under-reporting reflects a deliberate policy of de-politicising Hong Kong.
There has been no interference with the activities of opposition political parties (DP and Frontier), other than keeping them out of the representative political institutions, nor has there been interference with the opposition trade unions (the independent HKCTU and the pro-Taiwan HKTUC).
However, on certain occasions police have moved harder against demonstrators: for example, five protesters demonstrating at the IMF-World Bank Forum on September 21 were arrested, charged and released on bail pending trial. Police presence is also more in evidence at other demonstrations.
More serious is the repeal by the NPC, the Provisional Legislature and the Chief Executive of progressive legislation adopted by the elected Legco. In February 1997, the NPC decided that two laws, the Societies Ordinance and the Public Order Ordinance, that had in 1992 and 1995 respectively been amended to conform with the HK Bill of Rights (itself adopted in 1990), were not compatible with the Basic Law in their amended form.
The Legco had amended the Societies Ordinance to remove the requirement of previous permission to organise societies. The Provisional Legislature, following the NPC decision, repealed the amendment, re-establishing the requirement to apply for previous permission from the Police Commissioner (who is also the Societies Officer). Regarding international affiliation, where all restrictions had been repealed in 1993, no previous permission (but one month advance notice) is required for “non political organisations” including trade unions but “political organisations” (defined as those groups which are directly involved in electoral politics) require prior government approval. “International linkages” are prohibited for “political organisations”, including funding by overseas donors.
The 1995 amendment to the Public Order Ordinance abolished the requirement of a previous permit to hold a demonstration and required only that those planning to do so had to notify the police in advance. This amendment was also repealed by the Provisional Legislature, reinstating the permit system. The government can now ban demonstrations on the grounds of “national security”.
Article 23 of the Basic Law says: “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.” Tung Chee-hwa has deemed Hong Kong’s existing laws on treason and sedition, amended and liberalised by the last elected Legco, inadequate under Article 23 standards and has promised that new legislation will be enacted after a new legislature is elected in May. There is legitimate fear and concern that this legislation will be inspired by current Chinese law and practice, where peaceful dissent against the ruling party is often equated with “subversion”. Publicly expressed support for the independence of a territory such as Tibet or Taiwan would become a criminal offence. “Theft of state secrets” could cover the collection and dissemination of any information that might inconvenience the government, as in the case of journalist Xi Yang in 1994 (see above) or in the case of the three Chinese seamen of the ship Arcadia in 1992 who were accused of “revealing state secrets” (their wages!) when they and fellow crew members lodged a complaint about their working conditions with the local seafarer’s union in an Italian port.
On July 6 last year, five days after the handover, the Provisional Legislature also suspended labour laws enacted by the elected Legco one week before. These laws had been introduced by three HKCTU officials and Frontier legislators (chairman Lau Chin-shek, general secretary Lee Cheuk-yan and Leung Yiu-chung). They would have brought Hong Kong into compliance with ILO conventions and would have established the right of workers to union representation and collective bargaining and to conduct union activity on company premises and on company time. They also would have established the right of unions to federate and to affiliate to international bodies and would have lifted restrictions on the use of union funds.
Even as they were adopted by the elected Legco, these laws drew vehement protests from the business establishment. The Liberal Party councillors walked out of the debate. Henry Tang Ying-yen, Chairman of the Federation of Industries and future Executive Councillor, said the laws were “dangerous” and would hurt Hong Kong’s competitiveness. The Secretary for Education and Manpower said they would turn away investors, damage industrial relations and undermine Hong Kong’s stability and prosperity. A crisis meeting of the Joint Business Group on the Labour Situation, representing 13 chambers of commerce on June 27 issued alarmist statements, such as that 80 percent of overseas investors would pull out if the laws were allowed to stand, and that the loss would be in the “billions of dollars”. Tung Chee-hwa pledged that he would see to it that the “undesirable social and economic consequences “ of the laws would be “rectified” as soon as the new legislature would take office. And so he did.
Union workers and labour rights groups signed petitions and demonstrated in the streets to defend the labour laws and Lee Cheuk-yan carried on a five-day hunger strike in protests against their suspension, academics testified that none of the dire consequences invoked by the business establishment had any basis in reality and the ICFTU formally protested to the new Hong Kong government on June 8, but to no avail. On July 16, the Provisional Legislature voted 38 to 9 to suspend three labour laws and one dealing with individual rights. Two labour laws survived: one increases compensation for victims of occupational deafness and the other declares May Day a legal holiday.
Hong Kong is host to a number of national and international NGOs acting on behalf of human and democratic rights, labour and union rights, protection of the environment and other public interest issues. They now also include an ICFTU/ITS Office. So far, none of them has been interfered with. However, Paul Yip’s Hong Kong Policy Research Institute has been calling NGOs to enquire how they are registered, what their activities are and how they are funded. The tax-exempt status of one NGO (as a “charitable society”) has been questioned on the grounds that its work was political in nature.
HKSAR residents need permits to enter China; some leaders of the democratic opposition have been denied such permits. Chinese citizens also need permits to enter the HKSAR.
In summary: since the handover, political, social and economic rights have been systematically eroded, the rule of law has been undermined and the government has given itself all the power it needs to repress dissent and opposition. The fact that it has not so far used these powers in any obvious and direct way, does not lessen their intimidation effect nor their potential danger in a crisis situation.