Hong Kong Human Rights Monitor: "We repeat our earlier concern that the power to ban organisations subordinate to Mainland organisations banned on national security grounds is outside the remit of Article 23"
Hong Kong Human
Rights Monitor 4/F Kam Tak Building 20 Mercer Street Sheung Wan, Hong Kong Phone: (852)
2811-4488 Fax: (852)
2802-6012 Email:
hkhrm@hknet.com Website:
http://www.hkhrm.org.hk PRESS RELEASE 12 March 2003 ARTICLE 23 BILL -- HUMAN RIGHTS MONITOR'S ASSESSMENT Human Rights Monitor has carefully considered the
Government's National Security (Legislative Provisions) Bill. We are pleased that the Government has taken account of some
of the most serious concerns which we expressed when the Consultation Document
was published last September. In particular we are relieved that the Bill as
published defines treason in such a way that it no longer criminalises trade
with the Taiwan authorities; that the proposed offence of possession of
seditious publications has been dropped, and that the previous proposal to take
power to ban any organisation which had ever given money to a Mainland
organisation banned in the Mainland on national security grounds has also been
abandoned. The introduction of jury trial for most of the proposed offences is a
positive step. We are also pleased that the Government has indicated its
willingness to consider further amendments to the Bill. We remain of the view that the Bill is not needed to catch
any genuinely criminal organisation or activities, as these are amply catered
for under existing law, and that some of its provisions are still open to misuse
in future to persecute those who are unpopular with the Mainland authorities but
are merely exercising their rights of free speech, freedom of association and
freedom of assembly in Hong Kong. The proposed power to ban organisations subordinate to
Mainland organisations banned on national security grounds remains open to abuse
unless it is made clear that "Mainland organisations" is only to mean
organisations which are presently in the Mainland. At present the Bill might be
interpreted to mean organisations which were originally organised in the
Mainland but are not now, such as the Kuomintang or Falun Gong. This change
would be particularly reassuring to Falun Gong members, in view of the
Government's assurance that the legislation is not intended to target them. The power to search without a warrant for seditious
publications is an extreme measure wide open to abuse. The fact that the police
officer authorising the search must be at Superintendent level and must have
cause to believe that evidence will be destroyed without the search is no real
safeguard. It is hard to see what legitimate state interest is served by such a
power. It should be removed from the Bill. The very complex provisions relating to disclosure of
official information will increase the pressure on newspaper editors and other
recipients of information which may possibly have been unlawfully obtained and
relate to national security. We consider that the additions proposed to the law
are unnecessary and will have a chilling effect on news reporting. If the
Government insists on going ahead with them we hope that as a reasonable
counter-balancing measure to enhance public confidence it will at least provide
a "whistleblower" defence ie a defence that the publisher of the material
genuinely and reasonably believed that publication was in the public interest. We repeat our earlier concern that the power to ban
organisations subordinate to Mainland organisations banned on national security
grounds is outside the remit of Article 23. We do not believe that there is any
need for a separate banning power of this kind. If the Government insists on it,
we consider that the banning should actually be done by a court on the
application of the Secretary for Security, rather than by the Secretary for
Security. This would provide a safeguard against a ban resulting from political
pressure which could not survive the scrutiny of the evidence in court. The
alternative proposed by the Government -- ban first with an appeal to the court
-- could inflict irreparable damage on an organisation which was banned but then
succeeded in having the ban lifted. We hope that the Government will make these further changes.
We are aware that the Government has argued that the legislation as drafted is
more liberal than in some other common law jurisdictions. However it should
recognise that Hong Kong's unique position under "One Country Two System" means
that extra safeguards are needed here, if the community is to be reassured that
the law means nothing worse than the Government spokespersons say.
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