10 March 2003
COMMISSION ON HUMAN RIGHTS
Item 11(f) of the provisional agenda
CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTIONS OF:
STATES OF EMERGENCY
Written statement*submitted by Asian Legal Resource Centre (ALRC),
a non-governmental organization in general consultative status
The Secretary-General has received the following written statement which is circulated in accordance with Economic and Social Council resolution 1996/31.
[30 January 2003]
Proposal to enact national security law in Hong Kong SAR
1. The Government of the Hong Kong Special Administrative Region (HKSAR) of the People's Republic of China recently announced plans to introduce new 'national security' legislation to address states of emergency and related security threats. The Asian Legal Resource Centre is deeply concerned that the Hong Kong SAR government's proposals will lead to the deterioration of human rights and the rule of law in Hong Kong, the likes of which have been seen elsewhere in Asia through the application of such laws.
2. On 24 September 2002, the Government of HKSAR released a consultation document containing its proposals to enact national security legislation under article 23 of the Basic Law, the mini-constitution of Hong Kong, which states that the 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."
3. Article 23 is one of the most sensitive articles in the Basic Law. Its present wording came in the aftermath of the 1989 Tiananmen movement. Under the article, however, HKSAR can decide when and how to enact these laws. Considering Hong Kong’s present undemocratic system, the Asian Legal Resource Centre feels that now is not the appropriate time. In fact, the government's "non-action approach" until September 2002 had been widely appreciated by the public.
4. The release of the consultation document, then, has aroused much concern in Hong Kong, as it proposes a number of new offences that far exceed the needs for safeguarding national security. Because of these proposals, the anxiety local people felt prior to the transfer of Hong Kong’s sovereignty to China 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. These anxieties stem from a number of concerns, as follow.
5. First, the present consultation document only provides an outline of the proposals. Its contents seem 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. The Asian Legal Resource Centre has previously noted before the Commission that this is a common characteristic of national security laws already existing in Asia, permitting governments wide scope in exercising such legislation (E/CN.4/2002/NGO/78).
6. Secondly, the intention to proscribe any organization in the community that has been banned on national security grounds by the central government in mainland China thereby absolves the Government of HKSAR from having either any responsibility or authority over such matters. Under this proposal, the definition of "national security" in Hong Kong would be determined in Beijing, and local organizations would become unlawful without any oversight and protection by the courts in Hong Kong, thereby eroding the "one country, two systems" model.
7. Thirdly, 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.
8. Fourthly, 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.
9. Fifthly, 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 China. 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.
10. According to the Hong Kong Bar Association, the existing laws of the HKSAR are sufficient to prohibit the acts listed in article 23. The Bar also points out that many parts of these existing
laws are out of date and not compatible with the International Covenant on Civil and Political Rights (ICCPR). Thus, what the Hong Kong government should do is to revise the existing laws to make them in line with the ICCPR rather than create new offences to limit the freedoms of Hong Kong’s people in the name of national security.
11. In light of the above, the Asian Legal Resource Centre urges that the Commission call upon the Government of HKSAR simply to submit the draft article 23 legislation in the form of a "white bill" for further public consultation and without any deadline for its implementation.
* This written statement is issued, unedited, in the language(s) received from the submitting non-governmental organization(s).