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HONG KONG: Proposal to enact national security law raises serious concerns

December 11, 2002

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM
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11 December 2002
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UA-65-2002: Proposal to enact national security law raises serious concerns
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HONG KONG: Fundamental human rights at risk; threat to freedom of expression, association, peaceful assembly and the press
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On Sept. 24, 2002, the Hong Kong government released a consultation document containing its proposals to enact national security legislation related to Article 23 of the Basic Law, the mini-Constitution of Hong Kong. The consultation paper invites the public to submit its views to the government before Dec. 24, 2002.
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The Asian Human Rights Commission (AHRC) is deeply concerned that the Hong Kong government's proposals will lead to the deterioration of human rights and the rule of law in Hong Kong. In particular, it is feared that the rights of Hong Kong's people to freedom of expression, freedom of the press, freedom of association and freedom of information will be threatened if the proposals become law. These concerns are shared by others in Hong Kong and by many members of the international community.
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BACKGROUND INFORMATION
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Article 23 of the Basic Law states:
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&quot;The Hong Kong Special Administrative 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.&quot;
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Article 23 is one of the most sensitive articles in the Basic Law. The article was incorporated into the Basic Law in the aftermath of the suppression of the 1989 Tiananmen movement. The Hong Kong government did not enact laws under Article 23 during the first five years after the reunification of Hong Kong with China in 1997. This is allowed as Article 23 stipulates that the Hong Kong Special Administrative Region (HKSAR) shall enact laws on its own related to Article 23. This means that the HKSAR can decide on when and how to enact these laws. The HKSAR government's &quot;non-action approach&quot; up until September this year has been widely appreciated by the public.
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However, the release of the consultation document has aroused much concern in Hong Kong. The problem is that the proposal in the government's consultation document introduce a number of new offences that far exceed the need for safeguarding national security. Numerous statements have been published by responsible organisations, such as the Bar Association of Hong Kong, and people from the academic community, from local churches and from many social organisations, all expressing considerable misgivings about the future that may await Hong Kong.
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The anxiety of many respected groups over the Article 23 proposals stem from a number of concerns.
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First, the present consultation document only provides an outline of the proposals. The content of the consultation document seems 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.
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Second, the intention to proscribe any organisation in the community that has been banned on national security grounds by the central government in mainland China thereby absolves the HKSAR government from having either any responsibility or authority over such matters. Under this particular proposal, the definition of &quot;national security&quot; 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 &quot;one country, two systems&quot; model.
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Third, 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.
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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 &quot;state secret&quot; 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.
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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 People's Republic of China (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, particularly among foreign investors.
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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 reroot 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.
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Considering the above concerns about the government's proposal and their threats to human rights, AHRC requests that you send an appeal to the relevant authorities below to ask for the withdrawal of the proposals.
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For more information, please visit the web site at &lt;http://www.article23.org.hk&gt;.
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SUGGESTED ACTION
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Please write your appeals to the Hong Kong authorities below to express your grave concern about the proposal to implement Article 23 of the Basic Law in Hong Kong.
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In addition to contacting the primary government officials dealing with this issue, please write to officials responsible for trade and tourism, two areas of the government that will be sensitive to your views.
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Because Dec. 24, 2002, is the deadline for the consultation period, please send your appeal before this date.
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In addition, please write to the Foreign Ministry of your country or the nearest embassy or consulate to express your apprehension about the Article 23 legislative proposals, and ask them to express their views to the Hong Kong government officials below.
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Information about your Foreign Ministry can be found on the Internet at &lt;http://www.gksoft.com/govt/en/&gt;, and details about embassies and consulates can be located at &lt;http://www.embassyworld.com/&gt;.
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SAMPLE LETTER (You may use your own words or the following as a sample)
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Dear
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Re: Proposals to Implement Article 23 of the Basic Law in Hong Kong
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I am writing this to express my concern about the proposals in the recent Hong Kong government consultation document entitled &quot;Proposals to Implement Article 23 of the Basic Law&quot;. Sadly, I believe the proposals will lead to the deterioration of human rights and the rule of law in Hong Kong. In particular, the rights of Hong Kong's people to freedom of expression, freedom of the press, freedom of association and freedom of information will be threatened if the proposals become law.
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In the consultation document, the government's proposal introduce a number of new offences far exceeding the need for safeguarding national security. The content of the consultation document seems 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.
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Numerous statements have been published by responsible local organisations, such as the Hong Kong Bar Association, people from the academic community, churches and many other social organisations, all of which express considerable misgivings about the unfamiliar future that may be awaiting Hong Kong.
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To avoid unnecessary threats to the freedoms of Hong Kong's people, the Hong Kong government should withdraw its proposals.
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While the proposals ought not to proceed at all, if they appear destined to do so nonetheless, then it is vital that the draft legislation, or &quot;white bill&quot; should be submitted for further consultation without any deadline set to permit more well-informed feedback.
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Thank you for your attention to this important matter.
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Sincerely yours,
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PLEASE SEND YOUR APPEALS BY E-MAIL OR FAX TO:
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1. Mr. Tung Chee-hwa
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Chief Executive
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Hong Kong Special Administrative Region Government
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5/F, Central Government Offices, Main Wing
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Lower Albert Road
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HONG KONG
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Tel: +852 2878 3300
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Fax: +852 2509 0577
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E-mail: ceo@ceo.gov.hk
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2. Ms. Regina Ip Lau Suk-yee
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Secretary for Security
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Hong Kong Special Administrative Region Government
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6/F, Central Government Offices, East Wing
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Central
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HONG KONG
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Tel: +852 2810-3017
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Fax: +852 2530-3502
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E-mail: sbeng@sb.gen.gov.hk
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3. Mr. Henry Tang Ying-yen
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Secretary for Commerce, Industry and Technology
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Hong Kong Special Administrative Region Government
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Level 29, One Pacific Place
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88 Queensway
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HONG KONG
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Tel: +852 2918 7500
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Fax: +852 2840 1621
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E-mail: cibenq@citb.gov.hk
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4. Ms. Rebecca Lai
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Commissioner for Tourism
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Hong Kong Special Administrative Region Government
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Room 267, 2/F, Central Government Offices, East Wing
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Lower Albert Road Central
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HONG KONG
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Tel: +852 2810 3507
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Fax: +852 2523 1973
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E-mail: tcenq@edlb.gov.hk
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Document Type :
Urgent Appeal Case
Document ID :
UA-65-2002
Issues :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.