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The Response of American Chamber of Commerce in Hong Kong to the Consultation Paper on Article 23
(Clearwisdom.net)
December 6, 2002
Mrs. Regina lp
Secretary of Security
Central Government
Offices
Lower Albert Road
Hong Kong SAR
Dear Secretary Ip,
The American Chamber of Commerce is an organization of over
2200 members doing business in Hong Kong. As an organization which pay-, close
attention to the business environment in Hong Kong, we have great concern about
the proposals that have been put forth to implement Article 23 of the Basic Law,
Our concerns relate to both the content and process of the proposals.
The Government of Hong Kong encourages foreign businesses to
invest in Hong Kong, to establish operations, regional headquarters, and,
crucially, to provide jobs. In doing so, the Government asks foreign businesses
to place their trust in Hong Kong's political, economic and social systems. We
commend the Government for the consultation process which has been started.
However, it is of critical importance at this time that the Government of Hong
Kong show its trust in the systems and people of Hong Kong by issuing a White
Bill containing the complete text of the proposed Article 23 legislation as soon
as possible.
Given the sweep of the Government's proposals for Article 23
legislation, the obligation to ensure the informed consent of Hong Kong society
must be fully addressed. The vitality of Hong Kong as an international business
center, where financial institutions locate their regional headquarters and
where financial markets are a core feature, depends on the SAR remaining a free,
open society within a transparently fair and predictable legal system. These are
basic to Hong Kong's credibility and effectiveness as a business center with
international standing.
Over the past decade, as Hong Kong's financial markets have
grown, Hong Kong has become a service-based economy. Its competitiveness is
increasingly dependent on a highly educated work force with a wide range of
skills utilized in finance, investment, technology and other knowledge-based
sectors. The free flow of information is essential for the continued development
of higher education, for the advancement of technology and research sectors, and
for the operation of Hong Kong's markets. Ultimately, access to the widest range
of information and civic debate is essential for a competitive Hong Kong,
Many of the proposals contained in the Government's
Consultation Document on Article 23 legislation fall short of meeting Hong
Kong's requirements as an international business city and risk creating a
chilling effect. In particular, we are concerned about the following:
The proposal is made to introduce a new offense of
"unauthorized and damaging disclosure of protected information obtained by
unauthorized access." This is not required by Article 23 and appears to
prohibit disclosure of information which may be available through other
sources or where there is a strong public interest in disclosure,
The terms "state secrets" and "protected information"
have not been formulated in a way which allows a person to distinguish
whether information received is a state secret or protected information.
This could lead to self-censorship and a restriction of the flow of
information necessary to Hong Kong's development.
The mere possession of materials which may be
considered to contain protected information, state secrets or seditious
content may be considered a crime. These proposals must be eliminated or
severely restricted.
The proposals in the Consultation Document are often
vague or overly broad. Phrases such as "threat of force" or "other serious
unlawful means" should be avoided or defined to acts which pose a clear and
present danger to the stability and security of the State.
The Consultation Document proposes that an organization
in Hong Kong may be proscribed by the Hong Kong Government if it is found to
be affiliated with a mainland organization which has been proscribed by PRC
central authorities for reasons of national security. The Consultation
Document does not define national security or explain how an affiliation
between Hong Kong and mainland organizations will be determined. We urge the
Government to develop stringent definitions which respect the principle of
"one Country, two Systems,"
The Consultation Document also proposes that a decision
to proscribe and declare an organization unlawful would be subject to an
appeal procedure on two levels, with an "independent tribunal" to decide
points of fact and a court of law to determine points of law. We are greatly
concerned with such a proposal to limit the scope of Hong Kong's courts of
law.
The crime of treason has been. expanded to include the
act of intimidating the PRC government. Intimidation of a government cannot
be well defined, and in any case, should not be actionable in the absence of
real, measurable damage caused to the government.
In the offenses of treason, secession and subversion,
the act of "levying war" is not defined. We hope that any definition will be
confined to specifying organized, armed action, and not include a riot,
disturbance or a prolonged assembly.
The Consultation Document states that "adequate and
effective safeguards" should also be put in place to protect the freedoms of
demonstration and assembly and other guaranteed rights. However, these
safeguards are not stated in the Consultation Document. Such safeguards must
be expressly provided for in the proposed legislation, especially safegus to
ensure continued freedom of the press, including investigative reporting and
editorial latitude.
There are proposals for new emergency powers, without
adequate legal requirements for use and corresponding checks to avoid abuse of
authority.
These are the issues of concern that we have currently
identified, but it is difficult to comment more specifically until the full text
of the proposed legislation is made public.
The Government's proposals for Article 23 legislation, while
clearly the result of thoughtful effort, require further discussion within the
community and especially the input of Hong Kong's many legal and political
experts, We see it as imperative to issue a White Bill as soon as possible to
allow more meaningful consultation needed to produce Article 23 legislation
which will strengthen Hong Kong's competitiveness as an international business
center.
We would be most pleased to discuss our concerns in greater
detail and remain available to answer any questions you may have.
Yours sincerely,
James E. Thompson
Chairman Source:
http://www.amcham.org.hk/pr/issues/12-06-02-letter_to_ReginaIp.pdf
To open PDF file, you need to have Acrobat Reader, which
can be downloaded from
http://www.adobe.com/products/acrobat/) Posting date: 12/20/2002
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