British Chamber of Commerce in Hong Kong Responds To Hong Kong Government "Consultation" On Article 23

(Clearwisdom.net)

19 November, 2002

Mrs Regina Ip JP
Secretary for Security
Central Government Offices
Lower Albert Road
Hong Kong

Dear Regina:

1. We welcome the opportunity to express our views on the proposal by the SAR Government to implement Article 23 of the Basic Law. Furthermore we welcome the suggestion that there will be an interim stage before the tabling of the 'Blue Bill' at which time it will be possible for us to see and comment upon the detailed legislation. It is important to recognize that the Hong Kong SAR is regarded globally as a 'Special Case' and the pressures that this imposes on the government are clearly understood.

2. Furthermore it is worth reflecting that all of this should be built on a sense of fairness and justice. In every case where people submit themselves to be governed they expect in return to be dealt with fairly. The test of this proposed legislation therefore must be is it fair and does it meet the standards of the civilized democratic norms set out in the appropriate international conventions. It is felt that it is absolutely right that such an imperative should be placed on the SAR Government as this will surely make the implementation of "One Country Two Systems" a success in both the national and the international perspectives and in turn this could have far reaching consequences. To this end we would suggest that great care be taken to ensure that, as wide a spectrum of opinion should be sought on the proposals and any concerns addressed before the detailed legislation is put before the Legislative CouncilAssembly.

3. The consequences of not addressing the international implications of this legislation would be to the detriment of Hong Kong's position as the unique international business centre as it would surely erode any advantage that Hong Kong has over not only the Mainland but other regional centres. Finally there is view that having made the decision to legislate this should be accomplished with as much speed as is consistent with a thorough consultative and legislative process.

4. On points of detail we have the following observations to make:

That any legislation meets fully the requirements already set out in Article 27 which guarantees certain fundamental rights and freedoms for Hong Kong Residents. This should also apply to Article 39, which stipulates that the provisions of the International Convention on Civil and Political Rights (ICCPR) and the provisions of the International Convention of Economic, Social and Cultural Rights (IESCR) shall remain in force.

Regarding extra-territorial effect, we believe that expecting all permanent residents to hold a duty of allegiance to Hong Kong (and, by implication, to the People's Republic of China) regardless of their nationality goes beyond the requirements of Article 23.

It is not easy to find an effective definition of sedition, which does not threaten fundamental rights, such as the right to freedom of expression. There has, for example, been widespread concern in the community about what might be considered 'seditious' publications. We urge the government to define crimes considered sedition as narrowly as possible, to allay concern that this provision could be used more generally against those who oppose the government, but have no intent to overthrow it.

Given concern in Hong Kong and overseas about individuals convicted for the theft of alleged state secrets in the Mainland, we urge the government to define "state secrets" as narrowly as possible, in order to remove any possibility that economic information or other data not related to genuine security concerns, could be considered a "state secret". The problem here is that the expression "state secret" is borrowed from Chinese law and usage. If the principle of "One Country, Two Systems" is to be maintained, it is essential that the definition of a "state secret" under Hong Kong law is not as widely drawn as it is under mainland law."

We are disturbed by the proposal to create a new offence of "unauthorized and damaging disclosure of protected information obtained by unauthorized access" as this runs contrary to the whole concept of transparency ad is open to abuse without check.

We reserve judgment on of what would be defined as "political activities that pose genuine threats to national security". This is a difficult judgment since all too often it is inconvenience rather that real threat that causes action to be taken against political causes.

The proposed investigation powers seem to go further than any existing police powers in Hong Kong. We doubt such powers are necessary for the purposes of an investigation.

The proposals to give the Secretary for Security the power to proscribe organisations proscribed on the mainland on grounds of national security appear to give the Chinese authorities a substantial foothold in the criminal law of the HKSAR. It is important that the line between SAR and Mainland law is not blurred.

In summary, the British Chamber entirely accepts that the SAR Government is under remit to legislate in this matter. However, we believe that Hong Kong's strength lies in its respect for the rule of law and fundamental rights and freedoms. If the Government's aspiration to become Asia's World City is to be fulfilled then it must ensure that the rights and freedoms (as outlined in the Joint Declaration and the Basic Law) are protected, the rule of law remains intact, and the "one country two systems" principle is upheld. To fail to do so would will make Hong Kong a much less favourable location for international business to be based simply because it will remove its regional and national uniqueness."

Yours sincerely

Norman Lyle, Chairman
British Chamber of Commerce

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