HONG KONG: Proposal to enact national security law raises serious concerns 

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

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On Sept. 24, 2002, the Hong Kong government released a consultation document containing its proposals to enact national security legislation related to Article 23 of the Basic Law, the mini-Constitution of Hong Kong. The consultation paper invites the public to submit its views to the government before Dec. 24, 2002.

The Asian Human Rights Commission (AHRC) is deeply concerned that the Hong Kong government’s proposals will lead to the deterioration of human rights and the rule of law in Hong Kong. In particular, it is feared that the rights of Hong Kong’s people to freedom of expression, freedom of the press, freedom of association and freedom of information will be threatened if the proposals become law. These concerns are shared by others in Hong Kong and by many members of the international community.

BACKGROUND INFORMATION

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 the Basic Law in the aftermath of the suppression of the 1989 Tiananmen movement. The Hong Kong government did not enact laws under Article 23 during the first five years after the reunification of Hong Kong with China in 1997. This is allowed as Article 23 stipulates that the Hong Kong Special Administrative Region (HKSAR) shall enact laws on its own related to Article 23. This means that the HKSAR can decide on when and how to enact these laws. The HKSAR government’s “non-action approach” up until September this year has been widely appreciated by the public.

However, the release of the consultation document has aroused much concern in Hong Kong. The problem is that the proposal in the government’s consultation document introduce a number of new offences that far exceed the need for safeguarding national security. Numerous statements have been 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.

The anxiety of many respected groups over the Article 23 proposals stem from a number of concerns.

First, the present consultation document only provides an outline of the proposals. The content of the consultation document seems to have been ill-defined, causing confusion and uncertainty. The key offences of treason, secession, sedition and subversion are referred to with an ambiguity that would allow the government to use the law as a legal weapon to deny, rather than protect, people’s rights.

Second, the intention to proscribe any organisation in the community that has been banned on national security grounds by the central government in mainland China thereby absolves the HKSAR government from having either any responsibility or authority over such matters. Under this particular proposal, the definition of “national security” in Hong Kong would be determined in Beijing, and local organisations would become unlawful without any oversight and protection by the courts in Hong Kong, thereby eroding the “one country, two systems” model.

Third, there is much uncertainty surrounding the expansion of police power given in the consultation paper to enter premises to conduct a search and seize materials merely for investigative purposes without any warrant issued by a court. The oversight function of the judiciary in granting warrants must be preserved if the rule of law is not to be diluted or threatened. This section of the consultation document clearly grants too much discretionary power to the police, regardless of the rank of the officer.

Fourth, the proposal to widen the provisions on unlawful disclosure of information may inhibit freedom of information and the press, for what is deemed a “state secret” may, in reality, merely be a remark or decision that is politically embarrassing. While the consultation paper outlines the types of information that should not be unlawfully disclosed, it does not indicate who will make the important decision about what specific information is a state secret. Journalists and other local and international observers have already noted a trend towards self-censorship in the Hong Kong media since 1997. The provisions of this consultation document, if enacted into legislation, will only further contribute to the decline of press freedom in the community.

Fifth, problems also exist regarding the possible targets of the proposed legislation. In particular, members of Hong Kong’s diverse expatriate communities could be at risk of committing one of these crimes, especially if their country were at war with the People’s Republic of China (PRC). The growth of a perception among the international community in Hong Kong that its members are exposed to personal risk under the proposed amendments may have an adverse effect on the atmosphere in Hong Kong, particularly among foreign investors.

In all countries of Asia where laws similar to the new proposals under Article 23 have been adopted, the rule of law has suffered severely. Indonesia’s long years of national security laws, for instance, have led to a society where it is now very difficult to reroot basic institutions for justice. Similarly, in more affluent Malaysia, basic freedoms and the independence of the judiciary are also in peril due to such legislation. And special mention must be made of Singapore. Unlike Hong Kong, the development model of Singapore was premised on the sacrifice of rights and freedoms. Hong Kong was able to achieve equal or greater economic development while at the same time preserving its open society with basic freedoms. It would be a tragedy to needlessly sacrifice this advantage.

Considering the above concerns about the government’s proposal and their threats to human rights, AHRC requests that you send an appeal to the relevant authorities below to ask for the withdrawal of the proposals.

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

SUGGESTED ACTION

Please write your appeals to the Hong Kong authorities below to express your grave concern about the proposal to implement Article 23 of the Basic Law in Hong Kong.

In addition to contacting the primary government officials dealing with this issue, please write to officials responsible for trade and tourism, two areas of the government that will be sensitive to your views.

Because Dec. 24, 2002, is the deadline for the consultation period, please send your appeal before this date.

In addition, please write to the Foreign Ministry of your country or the nearest embassy or consulate to express your apprehension about the Article 23 legislative proposals, and ask them to express their views to the Hong Kong government officials below.

Information about your Foreign Ministry can be found on the Internet at <http://www.gksoft.com/govt/en/>, and details about embassies and consulates can be located at <http://www.embassyworld.com/>.

 

 

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