HONG KONG: Preserve Hong Kong’s Freedoms, Withdraw Article 23 Legislation 

HONG KONG: Fundamental human rights at risk; threat to the rule of law and freedom of expression, association, peaceful assembly and the press
———————————————————————————————————————-

Dear Friends

On July 1, 2003, more than half a million people in Hong Kong took to the streets to protest against the National Security (Legislative Provisions) Bill to implement Article 23 of the Basic Law, Hong Kong’s mini-Constitution. They echoed the same message: the Hong Kong government does not listen to the people; they are afraid that the government’s actions will endanger Hong Kong’s freedoms for future generations.

Considering the threats of the National Security (Legislative Provisions) Bill to human rights, the rule of law and the vitality of Hong Kong, the Asian Human Rights Commission (AHRC) has strongly urged the Hong Kong government to withdraw this bill. We also call upon all members of the Legislative Council (Legco) not to repeat the same mistake as the government during the consultation period last year by hastily examining this bill and to ensure that the people’s right to be fully consulted in the legislative process is respected.

See the AHRC’s statement at:

http://www.ahrchk.net/statements/mainfile.php/2003statement/110/

BACKGROUND INFORMATION:

In February this year, the Hong Kong government submitted the National Security (Legislative Provisions) Bill to Legco. The bill aroused severe criticism from the legal community and various sectors of Hong Kong society. AHRC is deeply concerned that the bill, if it becomes law, will seriously threaten human rights and the rule of law in Hong Kong.

Article 23 of the Basic Law states:

“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 organisations or bodies from conducting political activities in the Region, and to prohibit political organisations or bodies of the Region from establishing ties with foreign political organisations or bodies.”

Article 23 is one of the most sensitive articles in the Basic Law. The article was incorporated into Hong Kong’s mini-Constitution in the aftermath of the suppression of the 1989 Tiananmen movement.

On Sept. 24, 2002, the Hong Kong government released a consultation document containing its proposals to enact national security legislation related to Article 23 and invited the public to submit its views to the government before Dec. 24, 2002.

However, the release of the consultation document aroused much concern in Hong Kong, for, first of all, the proposal in the government’s consultation document introduced a number of new offences that far exceed the need for safeguarding national security. Numerous statements were published by responsible organisations, such as the Bar Association of Hong Kong, and people from the academic community, from local churches and from many social organisations, all expressing considerable misgivings about the future that may await Hong Kong if these proposals become law.

In February 2003, the Hong Kong government disregarded the request from Hong Kong’s people and the international community for the publication of a White Bill, which is a draft of the legislation and which offers a further consultation period, and submitted the National Security (Legislative Provisions) Bill to Legco. Although some changes to the proposals in last year’s consultation document were included in the bill, they are less than adequate to remove our anxieties that the bill, if it becomes law, will seriously threaten human rights and the rule of law in Hong Kong.

First, the definitions in the bill remain so vague that it would allow the government to use the law as a legal weapon to deny, rather than protect, people’s rights. For instance, the term “instigates” in Section 2(1)(b) of the amendments to the Crimes Ordinance is so broad and imprecise that the government could prosecute individuals solely for the expression of an opinion, and the meaning of “intimidating the Central People’s Government” in 2A(1)(c) could be interpreted in a very broad manner by government officials.

Second, the offences of sedition and the handling of seditious publications pose a serious threat to freedom of expression. As the offences of treason, subversion and secession are ill-defined, any expression in support of legitimate demands for democracy and human rights in mainland China and Hong Kong may be considered as committing sedition.

Third, the bill provides for a new category of protected information that “relates to any affairs concerning the HKSAR which are, under the Basic Law, within the responsibility of the Central Authorities.” Any unlawful and damaging disclosure of such information will become an offence. The information covered under this new category of information remains unclear though and could include a wide range of information related to political and economic rights and the livelihood of Hong Kong’s people. As a result, freedom of the press and freedom of information will be seriously restricted.

Fourth, another concern about this legislation is the power it confers on the police to search Hong Kong’s homes, offices and factories and seize materials without a warrant issued by a court. In the experience of other Asian jurisdictions, to provide the police with search and seizure powers without warrants often leads to an abuse of this power and an increase in corruption.

Fifth, the bill allows the proscription of any organisation in the community which is subordinate to a mainland organisation that has been banned on national security grounds by the central government. Under this particular proposal, the definition of “national security” in Hong Kong will be determined by the central government in Beijing, and local organisations will become unlawful without any oversight and protection by the courts in Hong Kong, thereby eroding the “one country, two systems” model.

The bill also suggests that during the appeal against proscription the appellant and their lawyer can be excluded from attending the appeal hearing in order to “protect” the publication of evidence which might prejudice national security. This arrangement, however, goes against the principles of equality before the courts and the right to a fair and public hearing. The recent amendment proposed by the government to enable the secretary for security to make regulations concerning appeals creates an even greater danger to people’s right to association, for it institutionalises and legalises a conflict of interest in which the person who decides to proscribe an organisation also makes the rules on the appeal of that decision.

For more information about the bill and this issue, please visit the web site at <http://www.article23.org.hk>.

SUGGESTED ACTION:

Please write your appeals to the Hong Kong authorities and members of Legco below to express your grave concern about the National Security (Legislative Provisions) Bill and to ask legislators who are undecided or are leaders of political parties in Hong Kong to vote against the legislation or to vote for its withdrawal.

Please send your appeal before the final reading of the bill in Legco on July 9, 2003.

 

To support this case, please click here: SEND APPEAL LETTER