PART 3 - Article 23 Series

 

Dear Subscribers & Friends,

 

There appears to be a realization within the HKSAR Government that its promotion of Article 23 is NOT going well. Previous comments by the chief executive and the secretary for security that Hong Kong people are supportive is showing signs of backfiring. The secretary's recent ill-conceived remarks using Nazi Germany as an illustration for the failure of democracy has not helped. There are growing requests from the public on how to object

 

A. Quick update

 

In PART 2, we discussed the secretary for security being caught out at a public forum on the government's selective quoting of international law reform reports to buttress its own consultation paper. The following day, the Solicitor General had to do some damage control. Here are what they both said:

 

"I don't agree that we have been deliberately misleading. Of course it is free for us, as authors of the [government's consultation paper] to quote whatever we think is helpful to our argument"

Regina Ip, Secretary for Security 30/10/02

 

"The paper does not purport to review law reform proposals throughout the world. In choosing to refer to certain proposals, there was no intention to mislead."

Robert Allcock, Solicitor General, 31/10/02 

 

B. Why be concerned at all?

 

1. Article 23 represents the roughest area of interface between Hong Kong and Mainland China. Hong Kong's concern with Article 23 has to do with the dilemma of being a part of the "one country" of the People’s Republic of China.

 

2. China has a very different interpretation of human rights. It is still a jurisdiction where there are many more restrictions to the freedom of speech and association. Academics and researchers have been arrested - the case of Li Xiaomin (formerly of Hong Kong's own City University) is still fresh in Hong Kong people's minds. Even more recently, the search engine, Google, was blocked.

 

3. Thus, Article 23 has to be seen within the context of China. Arguments that other countries, even democracies, have tough national security laws, ignore the fact that Article 23 has to be examined within the context of China.

 

C. Government's Packaging of Article 23

 

The government is aware of the roots of Hong Kong people's fears. Here are a range of government past statements to package Article 23 for promotion to the people:

 

1. Don't worry about it - it won't concern you

 

"It is rare for the offence of endangering the state to be committed, it has nothing to do with waiters, taxi-drivers, housewives or students".

 

2. We are not targeting anyone

 

"The proposed legislation does not target any organization. Falun Gong was banned in the mainland as an evil cult, not for national security reasons".

 

3. You can still protest

 

"The proposed subversion offence is not just shouting slogans, but has to involve levying war, using force, threatening the use of force or serious unlawful means to overthrow the government".

 

4.Other places have tougher laws still

 

"Many countries have laws to deter and penalize activities that threaten national security"

 

C. On second thoughts...

 

Let us think about the government's packaging (using same numbering as above):

 

1. The law applies to everyone. Will the proposed laws restrict those who are outspoken, including the press, which could reduce the accountability of government and restrict the circulation of information and opinion?

 

2. Under the proposed "proscription mechanism", the government can ban any organization Beijing certified for being "affiliated" to or having "connections" with banned organizations on the mainland, even though it has not committed, or is attempting to commit, or has as its objective to commit any acts against national security.

 

3. Subversion offences can be committed by "serious unlawful means", including "serious interference or disruption of an essential service, facility or system". No specific intent is needed. If a person writes a forceful article, which leads to public protest, paralyzing traffic, the writer could be prosecuted.

 

4. Most countries do not have subversion laws. Subversion is defined as "to intimidate the PRC Government or "disestablish the basic system of state as established by the Constitution". Hong Kong people who went to Beijing to support the June 4 demonstration, or who joined a rally in Hong Kong, would be caught by the new law if it was in place in 1989.

 

D. Be careful of Christmas presents ... (for a laugh)

 

"A publication if regarded by a normal person on reasonable grounds to have the intention of inciting its reader to do something that would undermine national security, and you are in possession of it, would commit an offence. But if you receive it as a Christmas present, and you never open it and don't know what the content is, then it is not against the law".

 

E. Request for Information

 

Many of you have asked how you can express your views on Article 23:

 

1. The government's consultation paper is available at www.info.gov.hk/sb or www.info.gov.hk/eindex.htm

2. You can also get copies from all District Offices.

3. You can express your views by email to b123@sb.gov.hk by the 24/12/2002.

4. You can find out more about Article 23 at www.article23.org.hk - this is an NGO site.

5. Many organizations are studying Article 23 and are likely to respond. Thus if you belong to a chamber of commerce, university, or even a commercial company, it is useful to find out how the proposals might impact on you and your organization. You can then be more focused in your response.

6. This series of Newsletters may help. We will be going into greater details on each of the offences in the coming weeks.

 

CHRISTINE LOH