On July 1stof this year, Hong Kong observed its fourth anniversary as a Special Administrative Region (SAR) under the government of the People’s Republic of China. Although both the central government in Beijing and the Chief Executive of the SAR have acted with restraint in some areas, both have taken steps on several occasions to water down rights protections in key areas of Hong Kong law. The Human Rights Monitor is concerned that future legislation, particularly on Article 23, will follow the same pattern of putting government control before the protection of basic rights. Under Article 23 of the Basic Law, Hong Kong’s mini-constitution, the Hong Kong government is empowered to enact legislation on treason, secession, sedition, subversion, theft of state secrets, and local and international activity of "political organizations or bodies"; such laws are usually referred to as national security laws.1 Some of these areas have been dealt with already: theft of state secrets is covered by the Official Secrets Ordinance, which was passed by the outgoing British colonial administration in the last days before the 1997 handover, and the regulation of contacts between local and international political groups is covered by the amendments to the Societies and Public Order Ordinances, passed by the undemocratically selected Provisional Legislative Council in 1997.2
Because additional legislation under Article 23 could be introduced by the Chief Executive at any time, this report will seek to outline a rights-centered framework for any new security laws, with a focus on those areas of Article 23 yet to be legislated post-handover: secession, subversion, treason, and sedition. The Hong Kong Human Rights Monitor opposes any law on subversion or secession, given that neither offence is present in the common law, and is concerned that legislation in other areas could be used to punish the free exercise of basic rights. If legislation is brought forward, the Hong Kong Human Rights Monitor believes that all new security law must conform to international standards as codified in the International Covenant on Civil and Political Rights (ICCPR), as well as the domestic protections found in the Basic Law and the Hong Kong Bill of Rights.3 In addition to these international and domestic rights instruments, the Chief Executive should be guided in the introduction of any new legislation by the Johannesburg Principles on National Security, Freedom of Expression, and Access to Information. Although the Principles lack the force of international law, they nonetheless serve as a set of useful guidelines for balancing national security concerns with the need to preserve basic rights protection in all areas of law.4 In order to ensure against the misuse of security legislation in the SAR, the Chief Executive of the Hong Kong SAR should:
Introduce legislation to repeal the changes to the Societies and Public Order Ordinances made by the Provisional LegCo in 1997 and work with the current LegCo to rewrite the laws so that they conform to international standards. Any reform of the laws should include a return to a notification scheme for both newly-formed societies and for public protests.
Introduce legislation to amend the Official Secrets Ordinance so that, in all cases, actual harm to national security must result from the disclosure in order for a violation to occur. Disclosures in which the public benefit outweighs any harm to national security should also be exempt from prosecution.
On treason, the government should work with the LegCo to modernize the crime of treason as found in Section 2 of the Crimes Ordinance such that the antiquated crime of attacks against the Queen’s person and other similar crimes are eliminated.5 Work with the LegCo to amend Section 2 of the Crimes Ordinance to introduce a clear requirement of intent to overthrow or otherwise seriously damage or destabilize the government in order to prosecute for treason.
Work with the LegCo to amend Section 2 of the Crimes Ordinance to include a requirement that a defendant’s action must be either itself be forceful or actually likely to incite violence in order to prosecute for treason.
Sign into law the repeal of Section 3 of the Crimes Ordinance passed by the LegCo in the closing days of the pre-handover Legislative Council.6 On secession and subversion, the Chief Executive should not introduce any legislation, as other laws more than adequately cover such behavior, including the crime of treason. Neither offence exists in the common law.
On sedition, the government should ask the Law Reform Commission to determine whether or not the crime of sedition is necessary, and, if necessary, what its provisions should be.7 The Chief Executive should then work with the LegCo to amend the Crimes Ordinance so that the crime of sedition is either struck from the books entirely or narrowed as per the recommendations of the Commission and LegCo.
In consultation with the LegCo, introduce amendments to the Emergency Regulations Ordinance to limit the Chief Executive’s power during a state of emergency; the amended law should include provisions ensuring that both individual rights and the integrity of the courts and LegCo are protected during states of emergency. Specifically, the ERO should be amended so that LegCo must approve the Chief Executive’s decision to declare a state of emergency.
In all of its legislative action on Article 23, the government’s hallmarks should be those of any competent legislative draftsman: narrow tailoring, clear definition of terms, and vigilance for language that could be stretched to prosecute peaceful free expression of ideas.
The Chief Executive’s recent statements labeling the Falun Gong as an “evil cult” have raised concern once again that he is more interested in toeing the line laid out by Beijing and less interested in maintaining Hong Kong’s autonomy and strong rights protections.8 Because Tung’s actions on Article 23 will be closely scrutinized, Article 23 legislation presents the administration with an excellent opportunity to publicly affirm its commitment to rights protection in Hong Kong.
With the exception of rescinding the changes already made to the law under the new administration, perhaps the best thing to do is nothing. Article 23 imposes no schedule on the enactment of legislation; the government could continue to occupy itself with other matters without violating the Basic Law. Also, although the Basic Law specifically mentions a number of transgressions, any new legislation need not necessarily include provisions on each listed one. As long as all of the acts listed are covered by law, then the requirements of Article 23 are met. If, for example, the government updates the treason provisions of the Crimes Ordinance, this would fulfil its obligation to “enact laws on its own to prohibit any act of treason, secession, sedition, (and) subversion,” as all of these activities can be amply covered by treason alone.9