Macao Article 23 & HK Draft Bill 2003

Updated: 2011.5.26

 

 

 

Macao’s Article 23

Hong Kong’s Article 23 Draft Legislation Proposal (2003)

Possible pitfalls after legislation

Rights and freedoms being affected

Concept

-          Makes the country equivalent to the government and the ruling class;

-          Ignores the social contract between the people and their government;

-           Deprives the people’s right to overthrow an unjust government;

-          Dr. Sun Yat-sen would have been imprisoned after legislation of  Article 23

Context

Activists were banned from entry into Macao. For example, during the Article 23 consultation period, a university forum was cancelled without reason; Invitees to discussion forum held by religious groups were discouraged from participating and Hong Kong citizens were refused entry to Macao for joining discussion forum.

 

On Oct 1 2010, a social worker working in a grassroots organization for 9 months was refused entry to Macao. It shows the entry blacklist has been extended to grassroots organizations focusing on economic rights.

Entry ban on activists

 

Lack of universal suffrage in Chief Executive and Legislative Council elections. Lack of checks and balances of powers.

 

Legal System

Effect

1. The freedom of expression of Hong Kong residents staying in Macao will be under threat.  For Hong Kong citizens residing in Hong Kong, their  expression online and in email may be subject to punishment when going to Macau.

 

2. As a model for Hong Kong

Will infringe freedom of expression, freedom of assembly, freedom of information, press freedom and academic freedom, etc.

 

 

Scope of application

Macao residents overseas (Section 1-5), persons in Macao, any Chinese national (Section 1 on Treason)

Persons in Hong Kong, Hong Kong residents in Hong Kong or overseas (subversion and secession), any Chinese national (Section 1 on Treason), including anyone in Hong Kong or any overseas Hong Kong permanent resident with Chinese citizenship

 

 

Wording

The regulations have blurry boundaries, making it easy to inadvertently breach the law regarding: theft of state secrets, use of force and other ‘serious criminal means’.

The regulations have blurry boundaries, making it easy to inadvertently breach the law regarding: theft of state secrets, use of force and other ‘serious criminal means’.

 

 

Preparation

White Terror

 

 

Expression

Rebuttal

Regulations for various offences ignore the Johannesburg Principles and the Siracusa Principles, e.g. it does not consider‘public interest’ and use of previously published information  as legitimate defense.

Regulations for various offences ignore the Johannesburg Principles and the Siracusa Principles, e.g. it does not consider ‘public interest’ and use of previously published information  as legitimate defense.

 

 

Treason

 

* Regarding joining foreign armed forces at war with China with intent to overthrow, intimidate, or compel the Central People’s Government to change its policies or measures: ‘War’ refers to open armed conflicts or declared war.  If a local organization and a foreign organization have a joint demonstration,  calling for changes in government policy, which results in riots, it is uncertain whether the local organization  will be categorized as ‘traitors’.

 

* “Instigates foreign armed forces to invade the People’s Republic of China with force”: It may lead to freedom of expression on trial.

 

* ”Assists any public enemy at war with the People’s Republic of China by doing any act with intent to prejudice the position of the People’s Republic of China in the war.”: Hong Kong residents who have not yet acquired citizenship but are paying taxes to a “public enemy” government and Hong Kong residents with dual nationality may be affected.

 

* Public Ordinance (Cap 245) The public ordinance already regulates public disturbances, so there is no need to duplicate and set up the harsh life sentence in Article 23.

 

 

Secession

“Using force or serious criminal  means”:

 

The strict and ambiguous definition may cover physical contact commonly seen in large scale protests [IL1] which affect traffic, thereby giving authorities the discretion to selectively enforce the law to persecute demonstrators.

* “using force that seriously endangers the territorial integrity of the PRC” or “serious criminal means”: Definitions are broad and ambiguous. “Serious criminal means” originates from the definition of ‘terrorist acts’  by the United Nations (Anti-Terrorism Measures) Ordinance, which may cover physical contact commonly seen in large scale protests, which affect traffic, thereby giving the authorities the discretion to selectively enforce the law to persecute demonstrators. 

 

Similar to ‘subversion’ against the Central People’s Government, the measure against secession ignores the social contract between the government and its people, curbing the right of the people to overthrow an unjust government.

*All self-determination and independence movements

Assembly

 

Expression

Subversion

Similar to “using force or serious criminal  means” regarding secession: The strict and ambiguous definition may cover physical contact commonly seen in large scale protests, which affect traffic etc..

Similar to “using force or serious criminal  means” regarding secession: The strict and ambiguous definition may cover physical contact commonly seen in large scale protests, which affect traffic, etc.

 

“Overthrow the Central People’s Government”: Like the secession clause, the subversion clause ignores the social contract between the government and its people, curbing the right of the people to overthrow an unjust government.

 

“disestablishes the basic system of the People’s Republic of China”: ‘basic system’ is ill-defined; the current system is an undemocratic one-party rule, hence it is dubious to regard the current system as inviolable. 

 

“intimidates the People’s Republic of China”: The power between the people and ruling state is unbalanced. “Intimidation” by the people may not cause substantial damage to the government. This may easily diminish the room for criticisms and monitoring of the state by the people.

Examples in Mainland China: “inciting subversion of state power”. Those charged under this offence include: Tan Zuoren, who compiled a list of student victims of the 2008 Sichuan Earthquake, wrote a commemorative article of the 1989 Tiananmen crackdown, and was interviewed by the foreign press; Liu Xiaobo, the co-author of Charter 08 and 2010 Nobel Peace Prize Laureate. 

 

*Mao Zedong and Dr. Sun Yatsen would have been imprisoned under Article 23

Assembly

 

Expression

Sedition

The definition is not clearly defined. Threats to the  freedom of expression particularly the journalists and activists

“Inciting treason, subversion or secession”, “incites others to engage, in Hong Kong or elsewhere, in violent public disorder that would seriously endanger the stability of the People’s Republic of China” and “ Handling seditious publication”:

 

*Definition of “The stability of the People’s Republic of China” is vague and broad, giving authorities the powers to suppress dissent.

 

* Vague definition of ‘seditious publication’: It may criminalize expression of dissent and undermine  freedom of thought, freedom of expression, freedom of the press and freedom of information.

 

* Criminalizing sedition and the handling of seditious publications is outdated and contrary to democratic development. The existing Crimes Ordinance (Cap. 200) section 10 covers such offenses whilst the Public Order Ordinance (Cap 245) already regulates the incitement of public disorder. The proposed penalties are heavier than in existing law: whereas, section 10 of the Crimes Ordinance carries a one-year sentence for initial conviction, two-year maximum sentence for re-conviction, Article 23 proposes life imprisonment for sedition. The proposed Article 23 also carries a prosecution length of two years, compared with six months under the section 10 of the Crimes Ordinance.

 

* Does not consider the Johannesburg Principles, which provides greater human rights protection by stating that the government can only convict based on national security reasons when opinions incite or will likely incite immediate violence, or when expression of views have a direct and close relationship with causing violence.

It may be used to suppress the dissent and criticism of the  government. For instance, publications criticizing the Chinese Communist Party such as Cheng Ming, Open Magazine, Nine Commentaries on the Communist Party, etc.; expressing views on promoting independence from China; media quoting remarks on independent movements such as Taiwanese independence; calling for vindicating June 4th crackdown and ending the one-party dictatorship; library books about the Falun Gong and books about overthrowing the government may be regarded as seditious publications.

Freedom of expression including freedom of information, press freedom, freedom of publication, academic freedom,  

Literary and artistic creations etc

 

State Secrets

* State secrets include defense, international relations, and relations between the Central Authorities and the Macao SAR

 

*’State secrets’ by the central government’s definition will lead to secret trials, undermining the  ‘One country, two systems’ concept

 

* China’s use of ‘state secrets’ in law has long been criticized by international human rights law experts and by the United Nations Committee against Torture

 

*Ignores the Johannesburg Principles and the Siracusa Principles, e.g. it does not consider the ‘Public Interest’  and use of previously published information as legitimate defense.

The offence of unlawful disclosure:

 

A disclosure is ‘damaging’ if it endangers or would likely to endanger national security. ‘National security’ means the safeguarding of the territorial integrity and the independence of the People’s Republic of China. The Article 23 legislative proposal expands the scope of protected information to include defence, international relations or information relating to relations between the Central Authorities and the HKSAR..
The definition is so broad and vague that journalists  may easily fall into pitfalls when reporting Mainland-HKSAR relations. Press freedom will be under threat.

 

“Illegal access “

There is no way to protect journalists or their sources of information.

 

Mainland example: Rights activist Huang Qi, who investigated shoddy construction work after the 2008 Sichuan Earthquake, was charged for illegal possessing of state secrets. Another example is  information regarding religious freedom in Mainland.

Expression

 

Information

 

Fair Trial

Political Organizations

The definition of ‘Political organization’ is too broad, making many civil groups subject to interference.

* The current Societies Ordinance already empowers the Secretary for Security to prohibit the operation and continued operation of societies on national security grounds. There is no need to set up another law with heavier penalties regarding proscribed organizations.

 

*Whether it is Article 23 or the Societies Ordinance, the grounds for proscribing organizations (safeguarding of the territorial integrity and the independence of the

People’s Republic of China or treason, subversion, secession, sedition and other crimes in Article 23) are vague and can be easily abused to suppress dissident groups, stifling civil society’s freedom of expression and freedom to criticize and monitor the government.

 

* In addition, the current Societies Ordinance empowers the Secretary for Security to prohibit the operation and continued operation of a local society which is a political body and has a connection with a foreign political organization or a political organization of Taiwan. ‘Political organization’ refers to  a government  or an agent of a government of a foreign country or a political subdivision of a government of a foreign country, or a political party in a foreign country or its agent. The ordinance has a wide range of application towards local organizations with affiliation or financial connections with foreign or Taiwanese organizations, giving authorities wide-ranging powers to suppress these local groups.

 

*The consultation draft includes
a ban on local organizations which  affiliated with mainland organizations banned by the Central Authority on the grounds of national security.
It will introduce mainland law into Hong Kong and will therefore undermine judicial independence and ‘One country two systems’ . If implemented, the Falun Gong and other local underground church-related organizations will be persecuted,  thus undermining freedom of association.

 

Communication, Assembly, Association

Penalty

Treason, secession and subversion against the Central People’s Government carry a sentence of 15 to 25 years imprisonment.

Treason, secession, subversion and incitement of treason carry a maximum sentence of life imprisonment.

 

 

Additional penalties

Stripping of political rights

N/A