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Hong Kong Basic Law Article 23

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Hong Kong Basic Law Article 23 is the basis (parent statute) of a security law currently being proposed by the Hong Kong Government. On September 24, 2002 the government released its proposals for the anti-subversion law. It is the cause of considerable controversy and division in Hong Kong, which operates as a separate legal system in accordance with the Sino-British Joint Declaration.

Under British rule, Hong Kong had a number of draconian laws regarding national security, which among other things allowed the Hong Kong government to ban organizations, which it did in regard to both the Communist Party of China and the Kuomintang. Although these laws had rarely been enforced since the 1960's, there was concern about the possible use of those laws after the handover to China.

Article 23 of the Hong Kong Basic Law stipulates that the Hong Kong Special Administrative Region shall enact laws on its own to protect national security. At the time of the drafting of the Basic Law this was intended to be protective of civil rights in that in placed responsiblity for drafting these laws with the Hong Kong government.

The Hong Kong Government has drafted the National Security (Legislative Provisions) Bill to implement Article 23 and replace British colonial era laws on the subject.

Concern with the legislation has arisen because of the authoritarian regime in the People's Republic of China: the new law invokes concepts of "treason" against the PRC in certain circumstances. Critics claim that this will erode freedom of speech rights. Suspicions have been exacerbated by the refusal of the government to issue a White Bill[?] on the legislation, causing groups such as Amnesty International to declare that it "has grave concerns about the proposals in the government's consultation document and the lack of a draft White Bill which means that the public still do not know how the legislation will actually be worded". The government will be required to issue a blue paper[?] containing the draft legislation when it presents the new bill to the Hong Kong Legislative Council[?] ("Legco"), but this would leave no time for the public to voice its concerns, and the government may use its unelected majority in Legco to rush the bill through.

In the consultation document of Article 23 enactment, the following issues have caused concern:

  • Any branch of an organization that is part of an organization banned by the central government of the PRC under state security reasons can be banned in Hong Kong at any time, and the Hong Kong government does not have to conduct any independent investigation. (In other words, laws in mainland China apply in Hong Kong.)

  • The concepts of government and country are confused and exchangeable in the proposed document. In a democratic country, citizens are empowered with the right to monitor and check the government, whereas the proposed enactment of Article 23 makes opposing the government the same as opposing the country.

  • In the proposed enactment, police are allowed to enter residential buildings and arrest people at any time without court warrants and evidence.

  • Any speech deemed as instigative can be regarded as illegal, including oral, written and electronic forms; people who express or hear such speech and fail to report such speech are regarded as guilty.

  • Permanent residents of Hong Kong are under the power of this law, no matter where they reside. People who are in Hong Kong are also under the power of Article 23, regardless of nationality, including people who visit or transit through Hong Kong. Violations of Article 23 can result in jail time or a life term in prison.

Supporters of the legislation, the most vocal of which is Hong Kong's Secretary for Security Regina Ip[?] view the introduction of the law as being quite ordinary and natural:

"Firstly, all countries have laws to protect national security but, in Hong Kong, the Mainland's national laws on this subject do not apply. It has been left up to the Hong Kong SAR Government to enact laws 'on its own'. This in itself shows a great measure of trust in Hong Kong people by the Central Government authorities. We are not introducing Mainland law into Hong Kong. We are developing our own approach. Can you imagine California or Connecticut enacting their own laws against treasonous acts or foreign organizations bent on the overthrow of the US Government?

"Secondly, we have a constitutional and legal obligation, under our Basic Law, to enact such laws. By doing so, we fulfill our role to implement 'One Country, Two Systems'. Five years after Reunification, it is time to move ahead on a matter that is regarded as extremely important by our sovereign. By doing so, we will remove once and for all the uncertainties that have cropped up from time to time over the past five years as to when, and in what form, Article 23 will be implemented.

"We also have a moral duty, as a Special Administrative Region of the PRC, to protect the security and sovereignty of our country. Why should Hong Kong people be under any less obligation to do so, or indeed feel uncomfortable in doing so, compared to citizens in other countries?

(Source: HK needs laws to protect national security by Secretary for Security, Mrs Regina Ip 28 January 2003) (http://www.basiclaw23.gov.hk/english/focus/focus5.htm)

Mrs. Ip has been criticised by the press and religious groups for her zealousness in pursuing the implementation of the legislation. In a politically clumsy move, Mrs. Ip asserted that because the ordinary people would not understand the legal language, there was no point in consulting them on it - in other words, because a few may not comprehend, let's keep everyone in the dark. This comment illustrates the extent to which authoritarian reflexes have become the natural habit of Hong Kong's unelected ruling elite.

Mr Bob Allcock, Hong Kong's Solicitor-General[?], has been perceived as more even handed in his approach and has frequently argued that the laws proposed by the government are less restrictive than the colonial era laws that they are intended to replace

"Contrary to what some have alleged, the Bill to implement Article 23 of the Basic Law does not provide for 'secret trials'. Any criminal prosecution under the proposed new laws would be subject to normal trial procedures. In addition, if anyone were charged with one of the serious offences against national security, he or she would have the right to trial by jury."

(Source: There will be no 'secret trials' by Bob Allcock, Solicitor General 25 March 2003) (http://www.basiclaw23.gov.hk/english/focus/focus6.htm)

"The proposed new offence of treason will be narrower than the existing offence. It will therefore impose no new restrictions on freedom of speech. The only situations in which words could amount to treason under the proposals would be where the words instigate a foreigner to invade the PRC or assist a public enemy at war with the PRC. For example, if the PRC is at war with a foreign country, and a Hong Kong permanent resident broadcasts propaganda for the enemy, he may be convicted for assisting that enemy."

(Source:Freedom of expression is NOT under threat by Bob Allcock, Solicitor General 28 January 2003) (http://www.basiclaw23.gov.hk/english/focus/focus4.htm)

He has also pointed out that under the new laws, a banned organization can appeal the ban to the judicial system, a right not available under the previous laws.

In response opponents of the bill including Martin Lee[?] have argued that a potentially repressive bill is more acceptable in a system of parliamentary democracy and under British rule, the potential impact of security laws were minimized by the fact that the sovereign was a parliamentary democracy in which the political leaders would suffer political damage if they attempted to enforce these laws. The argument is that because the sovereign in the case of Hong Kong is authoritarian, there are fewer restrictions which prevent them from using badly drafted laws.

Journalists in particular are concerned about the new law, especially in respect of journalistic criticism of the Central Government of the People's Republic of China and its relationship with Taiwan, Tibetan secession, or other matters arising from the possession of official documents.

Religious groups are equally apprehensive about the law. The Falun Gong cult, which has been the subject of political repression in Mainland China(including the torture and detention of its members) on the basis of "security concerns" is worried that Article 23 will allow such political repression will extend to Hong Kong if the Falun Gong are regarded by Hong Kong authorities as a threat to the motherland.

Outspoken Catholic Bishop Zen[?] has been a key figure in the debate over the legislation: on 15 May 2003 he instructed his church members to resist the introduction of the legislation. But his speech was critisized by some pro-PRC political commentators in Hong Kong, saying that the church should not be involved in political matters.

The normally neutral Hong Kong Bar Association (the organisation representing barristers) has also stepped into the fray: Bar Association chairman Alan Leong Kah-kit has publicly said, "The more you read into this document, the more anxious and concerned you get. There are some glaring ambiguities." Other organisations which have spoken out against the proposal include the Hong Kong Journalists Association, Hong Kong Confederation of Trade Unions, the International Confederation of Free Trade Unions, the Foreign Correspondents Club and the Faculty of Law at Hong Kong University[?]. Members of the European Parliament, and officials of the United States Department of State, the United Kingdom, Canada, and New Zealand have expressed concerns about the Article 23 legislation.

Some banks in Hong Kong were reported to be considering relocating if the proposed Article 23 is passed, out of the fear that the laws would restrict the free flow of information. On December 7, 2002, it was reported in the press that ten foreign banks had told the government privately that the introduction of Article 23 would have disastrous consequences for Hong Kong, threatening its demise as Asia's financial capital.

On December 14, 2002 approximately 20,000 - 60,000 people demonstrated against the legislation. By December 24, 2002 190,000 people had signed petitions against the proposed enactment of Article 23.

On July 1, 2003, approximately 200,000 - 500,000 people demonstrated against Article 23, against the failing economy, and against Tung Chee Hwa, by marching from Victoria Park[?], Causeway Bay to Central Government Offices in Central. In response to the demonstration, two of the pro-government parties in the Legislative Council expressed reservations about the bill, and informal polls of the Legislative Council delegates suggested that the ability of the government to pass the bill was in doubt. On July 5, 2003 Tung Chee Hwa announced that he intended to have a vote on a modified security law, which would remove the ability of the police to conduct warrantless searches, reduce the ability of the government to ban organizations, and include a public interest exemption for releasing state secrets.

On July 6, 2003 Tung Chee Hwa announced that the second reading of the Law was to be postponed after James Tien[?] of the Liberal Party announced that he was resigning from the Executive Council and would have his party members vote for a postponement. As a result, the government would have insufficient votes to pass the law.

At a time when Hong Kong's economy, inextricably linked to its property index, is in the doldrums, and SARS has had a major impact on life in the Special Administrative Region, the Government's focus on Article 23 has been perceived as inappropriate, especially since Hong Kong has been a stable place since the 1997 handover from the United Kingdom to the PRC not requiring revision of colonial anti-subversion laws.

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