Hong Kong Christian Institute

Newsletter

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Issue 169

October, 2002

Freedom of Conscience, Not National Security

Anti-Sedition Laws Threaten Hong Kong People's Freedom

Rose Wu

On Sept. 24, a paper addressing implementation of Article 23 of the Basic Law was unveiled for a three-month consultation period. Despite the efforts of government officials to reassure the public that the Article 23 legislation will not take away Hong Kong people's freedom, many people, both local and abroad, have raised legitimate concerns about the proposal of the Hong Kong Special Administrative Region (HKSAR) government since its release.

What Is Article 23?

This article of the Basic Law stipulates that the HKSAR government shall enact laws on its own to prohibit any act of treason, secession, sedition and subversion against the central government or the theft of state secrets. In addition, foreign political organisations are prohibited from conducting political activities in the HKSAR, and local political organisations cannot establish ties with foreign political organisations.

Why Now?

Those who support the government's proposal to enact Article 23 legislation often argue that this is a "one country" issue; and since Hong Kong is now part of the motherland of China, we must fulfil our duty to protect its national security. It is quite clear that since the fifth anniversary of the handover on July 1 this year both Beijing and SAR leaders have strongly indicated that it is Hong Kong's obligation and top priority to uphold national interests by implementing Article 23.

However, Democratic Party chairman Martin Lee Chu-ming has asked, Why is now the time to legislate? If Hong Kong did fine during the first five years of the handover, why must it be necessary for Hong Kong to have such legislation in the sixth year?

Former legislator Christine Loh also worries that Hong Kong is going through a process of economic restructuring and that people's confidence is now low and fragile. This move will only create more fear in the community and destroy the public's trust in the government at a time when its popularity is flagging.

Are the Laws Needed?

Supporters of such legislation say that it is a constitutional obligation to pass such legislation because the Basic Law says that Hong Kong "shall do so." More importantly, the reason for the move to introduce the laws is because Beijing wants them in place.

Those who oppose this move argue that the SAR government should assert "the two systems" instead. Since the Basic Law states that Hong Kong shall enact the laws "on its own," it is thus a matter to be tackled within the SAR's separate system.

The Bar Association, in a paper released in July, argues that since acts of subversion and secession are already covered by existing laws, such as those dealing with treason, perhaps it is not necessary to introduce new offences so long as all acts mentioned in Article 23 are addressed. They also suggest that we effectively use the Johannesburg Principles that seek to allow for effective national security laws that fully respect basic rights. The significance of these principles, which were established at a conference of legal scholars, judges and lawyers in South Africa in 1995, is that they ensure that people can only be prosecuted for forms of expression which are intended and likely to incite imminent violence. It would thus seem that it is possible to deal with Article 23 in a way which actually improves the legal landscape. The question is, Is this what the government wants?

What Are the Worries?

One of our major worries is that through enacting such legislation the HKSAR government will introduce into Hong Kong the mainland practice of using “national security” as a pretext to silence different opinions, suppress the development of our civil society and deprive Hong Kong people of their basic human rights.

As Christine Loh pointed out in the South China Morning Post on Sept. 25, "Article 23 represents the roughest interface between the two systems? People worry about what acts will be covered and whether basic freedom of expression will be compromised. However, we all know that the authorities in Beijing are less tolerant about certain controversial subjects, such as Taiwan's independence and Falun Gong.

Human rights watchdogs and Falun Gong practitioners have already expressed their fear that the anti-subversion law could be used by Beijing to suppress groups in Hong Kong it distrusts. A spokesman for Falun Gong in Hong Kong, Kan Hung-cheung, noted that the main purpose of enacting such a law is to set up a formal channel for the Chinese Communist Party (CCP) to extend its suppression of groups it dislikes to Hong Kong.

Another worry is that Article 23 legislation will criminalise free speech. Journalists’ organizations have expressed their deep concern, particularly on the offences related to sedition and the theft of state secrets. The proposal says a publication will be defined as seditious if it incites people to commit treason, secession or subversion. The government also will create a new offence under the Official Secrets Ordinance covering the unauthorised disclosure of sensitive or damaging information relating to mainland-SAR relations. Thus, if the proposal becomes law, an indirect form of censorship will be imposed on the media, which would damage freedom of speech and expression in the community.

In addition, the Hong Kong Human Rights Monitor criticised the proposed laws as being so vague and broad that they could easily be abused. For instance, regarding the theft of state secrets, how is an "enemy" and a "purpose prejudicial to the safety or interests of the PRC or the HKSAR" to be defined? Is this a disclosure that would merely be considered embarrassing to the government? Is the "enemy" the Dalai Lama or the Democratic Progressive Party (DPP) in Taiwan? Again, in reference to the theft of state secrets, the consultation document states that "information should only be criminalised where the information is of a sensitive nature," but how will the phrase "of a sensitive nature" be defined and who will determine the definition? Although the government now says that it will be very relaxed in enforcing these laws, once the laws are enacted, they can be used in any manner that the government chooses.

We also worry that under the section relating to foreign political organizations an organisation can be banned if "the organization is affiliated with a mainland organisation which has been proscribed in the mainland by the central authorities in accordance with national law on the ground that it endangers national security." Currently Falun Gong is banned in mainland China under the "evil cult" law. However, if the mainland authorities also ban Falun Gong under national security laws, then they would also be banned in Hong Kong. In this case, if Christians express support for the religious freedom of Falun Gong, will Christians then be considered an "affiliated group" with a banned organization on the mainland.

Perhaps the most threatening aspect of the proposed legislation in the consultation document is that the police will be granted the power to enter homes and offices in Hong Kong without a warrant to search and seize materials.

Lastly, another menacing aspect of the proposed Article 23 legislation is that the penalty for those who commit offences under this legislation is a sentence ranging from seven years to life imprisonment.

National Security vs. People's Security

From a human rights perspective, no law is justified if its purpose is to suppress the rights and freedoms of the people. Government officials emphasise that every country has national security laws and that it is Hong Kong's obligation to enact Article 23 of the Basic Law to protect the essential interests of the State. However, we want to argue that “national security” can be used as a weapon by governments to curb the people's liberty and freedoms.

While our government cited similar legislation from other countries as examples to demonstrate how "liberal" the proposed laws are, we would like to present another view as reflected in a joint declaration from a workshop organised by the Asian Human Rights Commission (AHRC), the Asian Forum for Human Rights and Development (Forum Asia), Suara Rakyat Malaysia (Suaram) and the Transnational Institute (TNI) in August this year in Thailand, the workshop Democracy and Security of the People in the Asian Region that gathered about 50 non-governmental organizations (NGOs) representing 17 national identities in Asia. At the conclusion of the workshop, they issued a declaration entitled "Human Security, Not National Security: A Call to Action." The declaration points out that while many national security laws have their origins in colonial emergency powers and traditional autocracies they have continued to evolve and have been adapted by many local elites to perpetuate their rule in Asia. The participants at the workshop noted that these so-called "national security laws" have paved the way for genocide, massacres, extrajudicial killings, disappearances, torture, detention without trial and shams of trials. The role of basic institutions, such as an independent judiciary, prosecution system and police force, were fundamentally undermined. People's rights to food, health, education and other basic needs were also greatly reduced. People, in short, were exposed to terrible insecurity.

From their actual experiences, it is clear that much of what is carried out in the name of “national security” is, in fact, illegal and an abrogation of the rule of law. The principles articulated by international human rights instruments, in particular the International Covenant on Civil and Political Rights (ICCPR), are violated in the name of "national security." Real security is that which ensures the promotion and realisation of all human rights--political, social, economic and cultural--for all peoples.

Christian Stance on Article 23

As Christians, we believe that freedom of expression, in particular freedom of thought, beliefs, conscience and speech, are basic human rights. We cannot sacrifice these values in the name of protecting "national security." In particular, the freedom of religious belief of Christians flows from our freedom of conscience, which may cause us to hold views that oppose those of the government.

Historically, there have been numerous martyrs who have sought to protect these freedoms, such as Oscar Romero, archbishop of El Salvador, and civil rights leader the Rev. Martin Luther King Jr. in the United States. Because of their courage to fully actualie their freedom of conscience, they chose to take an oppositional stance against the oppressive political regimes of their time which led to their assassinations.

To me, their expression of faith and spirituality is rooted in their commitment to the people who were crying for justice and love. This is the Reign of God that Jesus promised and which he continues to proclaim by means of the Church's witness at different times of human history. Within this faith tradition, Christians are called to surrender our loyalty to our Lord Jesus Christ by bringing the Reign of God into being. Bowing down to any state power will only be a form of idol worship.

Therefore, the challenge for Christians is to make a choice to either surrender our conscience to God or to the State. To translate our action into reality means that Christians in Hong Kong should say NO to Article 23.

Join the Civil Human Rights Front:

We Want Freedom of Conscience. Say No to Article 23

More than 30 NGOs representing the interests of women, workers, the underprivileged, community groups, people of different districts and ethnic minorities came together to form the Civil Human Rights Front on Sept. 13. Our objectives are to promote Hong Kong's human rights culture and to protect our freedoms. The first task before us is to reiterate our strong opposition to the government's decision to enact laws under Article 23 of the Basic Law. We earnestly hope that you can join us to fight together to end such draconian and unnecessary legislation in Hong Kong. For those who are interested to join the Civil Human Rights Front, please contact HKCI.