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Asian
Human Rights Commission
As a regional human
rights non-government organization based in Hong Kong, the Asian
Human Rights Commission (AHRC) has observed the adverse effects
of national security legislation in many parts of Asia. AHRC is
thus deeply concerned that the proposals contained in the Hong
Kong government's consultation paper entitled
'Proposals to implement Article 23 of the Basic Law'
(Consultation Document, Security Bureau, September 2002) will
unnecessarily threaten the freedoms of Hong Kong's people.
The foreseeable outcomes of these proposals include serious
damage to the rule of law in Hong Kong, loss of public
confidence, increased corruption and a concomitant decline in
economic conditions.
Though the declared
intention of the consultation document is to improve the
stability of Hong Kong SAR, the paper has in fact already caused
much uncertainty that may have a very harmful impact on the
society. The primary fear is that this paper may be a forerunner
to some dangerous repressive measures. Numerous statements that
have been published by responsible organizations such as the Bar
Association of Hong Kong, persons from universities, from the
churches and from many social organizations, all expressing
considerable misgivings about the unfamiliar future that may be
awaiting Hong Kong.
Hong Kong has
continued to experience a sense of optimism and certainty since
becoming a Special Administrative Region (SAR) of the
People's Republic of China (PRC) on 1 July 1997. There are
currently no foreseeable threats to national security stemming
from Hong Kong. Indeed, "one country, two systems" has
been hailed as a success by many local and international
observers, as well as the Hong Kong government itself. It is
unfortunate, then, that this general mood has now been disturbed
such that every group fears that its sphere of activity will be
adversely affected by the proposal to introduce new security
laws, without there being any internal reason to do so. Because
of these proposals, the anxiety local people felt prior to the
transfer of Hong Kong's sovereignty in July 1997 is again
manifest. The fear is that by way of interpretation all areas of
activity brought under security laws, even religious
affiliations, may become a problem. Labour disputes, trade union
protests, legitimate political activities, publications and human
rights programmes may also fall under its aegis. The fear also
stems from the perception that these proposed legislative changes
may usher a new era of repression into Hong Kong akin to other
parts of Asia.
Since the consultation
document was released in late September, government officials
have tried to reassure the community that the proposed changes
would not be misused. However, oral guarantees do not possess the
weight of law, and no amount of assurances by well-meaning state
officers and senior bureaucrats will appease such concerns, as
there is no guarantee that new persons holding positions of
authority will not change their minds. Thus, the immediate
consequences of this proposal have not been good for Hong Kong.
Some may say that the fears are exaggerated, however, the very
nature of fear is that once unleashed it cannot be controlled.
The anxiety spreading
among the many respected groups expressing concerns over the
Article 23 proposals stems from a number of aspects. First, the
content of the consultation document seems to have been
ill-defined, causing confusion and uncertainty. 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
thereby absolves the government of Hong Kong SAR 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
"two systems" model.
Third, there is much
uncertainty surrounding the expansion of police power given 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 territory.
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 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, and 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
re-root 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.
The experiences of
these neighbouring countries stand in contrast to those western
states that have already passed similar legislation apparently
without major adverse consequences mentioned in the proposal
document to support its case. Those jurisdictions have
deep-rooted democratic traditions with a well-defined separation
of powers and a system of checks and balances. Hong Kong, on the
other hand, does not have a fully functioning democratic
legislature; and the PRC much less so. Regional comparisons,
then, are likely to be much more revealing than those from
further abroad.
Observing the
experiences of other Asian jurisdictions, the expansion of
discretionary power to the police, especially lower ranking
officers, often leads to an abuse of this power, resulting in a
greater number of human rights abuses and more corruption. To
believe that strict rules relating to arrest without warrants,
detention and judicial supervision can be changed without causing
abuse of power and an increase of corruption both within and
outside the police force is a delusion that other societies have
paid a heavy price for holding.
One of the greatest
achievements of Hong Kong SAR has been its Independent Commission
against Corruption (ICAC). A central tenet of this institution is
recognition that the police must be controlled from outside.
Since 1974 Hong Kong has clearly demonstrated that there is an
explicit relationship between elimination of corruption in the
police and in other sectors of society. However, the fear is that
if the proposals are enacted the police may have the power to act
outside of ICAC surveillance, even if there are serious
complaints. This would greatly undermine the authority of the
ICAC. The confidence of both investors and the general public in
the economic management of Hong Kong is also closely related to
the mechanisms for accountability and transparency put in place
by the government. If the prevailing system is tampered with, in
the present circumstances of economic downturn potential
investors may well go elsewhere.
The 'Proposals to implement Article 23 of the Basic
Law' appear to constitute a threat to the freedoms that Hong
Kong has enjoyed prior to and since the transfer of its
sovereignty to the PRC. They seem intended to inhibit the
participation of Hong Kong people in decision-making and debate
relating to their society, to the advantage of the authorities.
In reality, however, both the entire community of Hong Kong SAR
and its government will be losers. While the proposals ought not
to proceed at all, if they are destined to do so nonetheless,
then it is vital that a white bill be introduced before the final
legislation is presented, to permit detailed community dialogue.
Under any circumstances, the setting of arbitrary deadlines for
completion of the legislative changes is inappropriate. Hong Kong
SAR, as noted earlier, has functioned well for the past five
years without this legislation, and faces no imminent threat that
demands it. The introduction of a specific deadline may result in
an undue element of hurry and an air of inevitability to the
whole procedure that would harm the social morale in Hong Kong,
already sufficiently damaged by the government's treatment
of these proposals to date. The Hong Kong SAR government would do
well to reconsider its approach in this instance, and restore
public confidence through an open and sensible consultation
process that may, if necessary, ultimately contribute to national
security without trampling on the human rights of its citizens.
* In September 2002, the Security Bureau of the Hong Kong
Special Administrative Region released a consultation document
entitled 'Proposals to implement Article 23 of the Basic
Law'. The document proposes that new national security style
legislation be enacted in the territory. The above submission was
written in response to that document by the Asian Human Rights
Commission, which has its headquarters in Hong Kong.
Posted on 2002-11-22
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