HONG KONG

Art 23: No white paper, just whitewash

ON December 24, 2002, the Hong Kong Government ended a three-month public consultation period regarding proposed legislation for Article 23 of the Basic Law, Hong Kong's mini-constitution. In the following three months, the government received 90,000 written submissions. Thousands of people were drawn to the streets; between 12,000 and 90,000 protested the proposed legislation and between 20,000 and 40,000 marched in favour.

The Legislative Council (Leg Co) has since revised its proposals for security legislation and a new proposed bill (the National Security (Legislative Provisions) Bill) that would amend the Crimes Ordinance, Official Secrets Ordinance, and the Societies Ordinance is currently being considered. Although the new proposal has incorporated several of the changes suggested by consultation documents, it still contains provisions that are problematic from the perspective of international human rights law.

Article 23, which was contentious even at the time of Hong Kong's 1997 handover from Britain to China, states: "The Hong Kong Special Administrative Region (HKSAR) shall enact laws on its own to prohibit any act of treason, secession, sedition, or 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."

According to the proposed ordinance, a police officer of or above the rank of chief superintendent of police has the power to authorise the search of any place without a search warrant. This power is granted if, inter alia, the officer "reasonably believes" that the offence of handling a seditious publication is being committed and that the evidence of the crime will be lost if immediate action is not taken. The proposed suspension of the warrant requirement appears to contradict the common law understanding of the security of the individual as stated, for example, in the 4th Amendment to the United States Constitution. The Hong Kong Human Rights Monitor assessed the provision as follows: "It is hard to see what legitimate state interest is served by such a power. It should be removed from the bill".

The Hong Kong Human Rights Monitor also notes that the provisions relating to disclosure of official information are complicated and will create difficulties for the press and others who receive information that may have been unlawfully obtained and relates to national security. The Human Rights Monitor suggests that if the Government does not delete the provision, it should at the least include a "whistleblower" defence that would allow the publisher of such material to claim that s/he reasonably believed the act was in the best interest of the public.

Labour rights groups have emphasised that subversion, which is defined as "disestablish[ing]", "overthrow[ing]", or "intimidat[ing]" the People's Republic of China (PRC) Government by using force or "serious criminal means," includes any act which "seriously interferes with or disrupts an electronic system or an essential service, facility or system (whether public or private)." Given the fact that that in China the charge of subversion has often been levied against labour activists, this clause is undeniably vulnerable to biased manipulation.

Perhaps the greatest number of critics have focused on Clause 15 of the proposed legislation, which outlines additions to the Societies Ordinance. The amended Section 8A(1)(c) would proscribe any local organisation "which is subordinate to a mainland organization."

A "mainland organization" is defined as any body of persons that is either organized and established or has its headquarters in any part of the PRC other than Taiwan, Hong Kong or Macao. A local organisation is "subordinate" to a mainland organisation if there is substantial financial contribution or loans from the mainland organisation, if the mainland organisation either "directly or indirectly" controls it, or if "the policies of the [local organisation] or any of such policies are determined, directly or indirectly, by the [mainland organisation]."

Falun Gong practitioners, for example, have correctly pointed out that this clause could have dire consequences for their practitioners in Hong Kong.

According to the proposed changes in the Societies Ordinance, before an organisation is proscribed, the Secretary for Security must allow the organisation to be heard or to make a presentation in writing. However, this obligation "does not apply where the Secretary…reasonably believes that affording the organization an opportunity to be heard or to make representations in writing would not be practicable in the circumstances of the case". As the Canadian Chamber of Commerce pointed out to Hon James To Kun-sun in a letter of 7 March 2003, " 'practicable' " represents too low a threshold to deny such a basic right since it implies convenience as a potential excuse."

Some critics, again in reference to proposed changes in the Societies Ordinance, have expressed alarm at the prospect of so-called "secret courts." The proposed ordinance would allow the Secretary for Justice to exclude the public from any hearing of an appeal against a proscription if "the publication of any evidence to be given or any statement to be made in the course of the proceedings might prejudice national security."

Although such potential threats to the security of the HKSAR are a legitimate concern, there are four problematic aspects of this proposed system. First, the Secretary of Justice is alone in determining the extent of the risk to national security. Second, the operative phrase, "might prejudice", is open-ended and largely subjective. And third, it is not clear whether "national security" refers to the HKSAR or the Peoples' Republic of China Government. Fourth, and perhaps most disturbingly, both the appellant and his counsel can be excluded from the court during the appeals hearing, although another counsel may be assigned to him. As pointed out by Martin Lee, founder of Hong Kong's Democratic Party, in his submission to the House of Commons, this violates Article 35 of the Basic Law which guarantees the right of "choice of lawyers".

By repealing Sections 4 and 11 of the Crimes Ordinance, the proposed legislation effectively removes the time limits for prosecution of treason and sedition. As one critic notes: "If you combine the dropping of time limits with the dropping of warrant requirements and the imposition of severe punishment one can only imagine the powerful weapon to be placed in the hands of a public official who may want to silence dissent."

Lastly, one of the most ominous aspects of the proposed legislation with respect to the "One Country, Two Systems" principle of governing the Hong Kong Special Administrative Region is the frequent confusion and lack of definition of the terms "the state," "PRC Government," and "HKSAR."

In its comment on the consultation document, the Hong Kong Bar Association noted that the Basic Law provides only dubious grounds for assuming that the HKSAR can be equated with "the state." However, the proposed legislation would amend the Crimes Ordinance to criminalise acts that would constitute "Endangering Security of the State."

The crime of sedition, the first act listed in the new section, is defined, inter alia, as inciting other to engage in "violent public disorder that would seriously endanger the stability of the People's Republic of China." In turn, a seditious publication is one that is likely to cause someone to commit the offense of treason, subversion, or secession, all of which are defined in terms of the Central People's Government of China.

Some have noted that it is doubtful whether any sedition law should be enacted in the first place, and that if such a law is enacted it should be more narrowly defined so that it conforms to the Johannesburg Principles. More generally, however, the confluence of national security as articulated by the PRC and national security as articulated by the HKSAR is extremely worrisome, given China's abysmal record of abuse of civil and political rights.

The Secretive History of Article 23

China and the United Kingdom signed  the Joint Declaration in 1985, and soon thereafter began to draft a  legal framework for Hong Kong. In its initial version, Article 23 (Article 22 in the first draft) read: "The Hong Kong Special Administrative Region shall prohibit by law any act designed to undermine national unity or subvert the Central People's Government." The drafting committee received over 73,000 submissions when it made the initial call for comments. In lamentable foreshadowing of objections that were voiced in the most recent consultation period, many submissions emphasised that the word "subversion" is absent from the common law, subject to misuse in many jurisdictions and, as such, should be removed from the language of the Basic Law.

The second draft of the Basic Law, finalised in 1989, partially addressed these concerns by removing the word "subversion" from the Draft Article 23. Yet the November 1989 Report of the Consultative Committee for the Basic Law of the Hong Kong SAR noted, "Who will be responsible for giving a definition to such an act? Will speech, publication and artistic creation within this realm be prohibited? … [S]ome people hold that…the implementation of Article 23 may…undermine freedom of the press and freedom of speech in the HKSAR."

The Drafting Committee ignored these comments and produced a text that was more conservative than either of the first two versions of Article 23. The Hong Kong Human Rights Monitor notes, "[T]he Drafting Committee's decision to ignore the substantial input on Article 23 [] received from the public in the second round was due in large part to a stiffening of backs inside the Central Government in the wake of Tiananmen Square.  Support for the protestors in Beijing was strong in Hong Kong...the criticism from Hong Kong of Beijing's decision to use force likely further solidified Beijing's fears that Hong Kong would become a centre for what it considered anti-government subversive activity."

The Guardian speculated that the LegCo's reason for enacting laws under Article 23 at this particular time stem are due to a "convergence of fears": Beijing worries that the SAR will become a base for subversive activity, and in turn the individuals who run the SAR worry that their power, which is not based on a democratic mandate, may soon begin to erode. Another journalist, writing for Time Asia, suggested that the current developments are related to Hong Kong's economic slump and that Hong Kong bureaucrats hope to take advantage of China's comparative economic strength by politically placating the Chinese government. Martin Lee put it more bluntly in a submission the House of Commons: "The general belief is that [the proposed legislation] is there because Beijing wants it."

Whatever their motives for Article 23, Hong Kong legislators must remember to consider Article 27 of the Basic Law, which guarantees freedom of speech, of the press and of publication, freedom of association, of assembly, of procession and of demonstration, and the right and freedom to form and join trade unions, and to strike.

In addition, Article 29 of the Basic Law states: "The provision of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall…be implemented through the laws of the Hong Kong Special Administrative Region."

According to this article, restrictions by shall not contravene the provisions of these international instruments.

Even from the first weeks' proceedings of the Commission, it is clear that national security legislation that gives short change to human rights has become a near-global phenomenon since the events of 11 September 2003.

Although the concerns addressed in such legislation are legitimate, it is hoped that Hong Kong will avoid following the example of some of its Asian neighbours and will instead set a positive precedent for transparency and respect for genuine democracy in its enactment of legislation under Article 23. Legislators can begin by reviewing and amending the proposed security ordinance with an eye towards Articles 23 and 27 or their own Constitution, and then look to international guidelines for security legislation such as the Johannesburg Principles on National Security, Freedom of Expression and Access to Information and the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights.