We are a group of international and regional non-governmental organisations (NGOs) based in Hong Kong. We have been deeply concerned about the legislation related to Article 23 of the Basic Law since the consultation on the government’s proposals last year. At that time, we called for the publication of a White Bill to allow more time for public consultation on this law, the most controversial law since the reversion of Hong Kong’s sovereignty to China. However, the Hong Kong government has disregarded such a reasonable request from Hong Kong’s people and the international community and has submitted the National Security (Legislative Provisions) Bill to the Legislative Council (Legco) in February. Although some changes to the proposals in the consultation document are 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. Moreover, the phrase “serious criminal means” in (2A(4)(b)) covers a wide variety of activities in which a massive e-mail campaign to government departments or a large demonstration that blocks traffic could be interpreted as seriously disrupting an electronic system or essential service, facility or system.
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 and the government rejects incorporating in the sedition offence the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, 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. The experience of dealing with severe acute respiratory syndrome, or SARS, in Hong Kong and mainland China shows that a free flow of information is essential to the protection of people’s basic rights, even to the right to life. However, this necessary transparency will be put at risk by this new category of protected information. Moreover, the bill does not indicate who will make the important decision about what specific information is a state secret. Presumably, it will be the Chinese government without any oversight by the courts in Hong Kong-a potentially dangerous mechanism.
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. Consequently, we believe that no police officer or government official of any rank should hold such immense power.
The Abu Sayyaf Group was formed with the aid of the Armed Forces of the Philippines and the CIA in 1980’s in its efforts to digress the rising Muslim secessionist struggle in Mindanao. Now, the ASG is a band of bandits notorious in the kidnap-for ransom activities, without political ideology and is prevailing with AFP’s collution and shaky deals.
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 in 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 proposals for holding trials in camera without the attendance of the defendants and the proposed withholding of the “particulars” of the reasons for proscription go far beyond what is needed by Article 23 and, in fact, run contrary to both the Basic Law and international standards on the right to fair trials which Hong Kong is obliged to uphold. Indeed, the introduction of such proposals represents a massive retrograde step for the internally recognised rights of Hong Kong’s citizens. 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.
The vitality of Hong Kong and its economy depends on its free environment and rule of law. With these advantages, Hong Kong now plays a key role as a bridge between the international community and mainland China. In addition to foreign companies, many regional and international organisations like us have implemented programmes related to mainland China, such as research on social issues and the promotion of safeguards on the basic rights of workers and vulnerable groups. If this bill becomes law, the function of Hong Kong as a bridge between China and the outside world will be greatly diminished. The new law will create a filter between Hong Kong and China that will inhibit the free flow of information. The chilling effects of this law will also suffocate the initiatives of Hong Kong’s people and the international community to support humane and sustainable development in China, for people will fear that their China-related activities will be considered subversive or seditious or that the information they have acquired may be considered a state secret.
We are at a moment in time when we are in need of more transparency and accountability, not less. SARS reminds us of this wisdom. Considering the threats of the National Security (Legislative Provisions) Bill to human rights, the rule of law and the vitality of Hong Kong, we strongly urge the Hong Kong government to withdraw this bill. The price to be paid by Hong Kong in the name of protecting national security is too high a price to pay and will, in fact, harm China’s interests, not protect or promote them.
We also call upon all Legco members not to repeat the same mistake as the government during the consultation period by hastily examining this bill. It is the responsibility of Legco to protect the human rights of Hong Kong’s people and to ensure their right to be fully consulted in the legislative process. We ask Legco to fulfill its responsibilities to the people of Hong Kong.
Amnesty International, Hong Kong Section
Asia Monitor Resource Centre
Asian Human Rights Commission
China Labour Bulletin
Centre for Justpeace in Asia Documentation for Action Groups in Asia
Human Rights in China, Hong Kong Office
World Student Christian Federation Asia-Pacific