Dow Jones: Bill Causes Concern

By CLIFF BALE

August 27, 2003

The doubts remain -- despite almost a year of reassurances from the Hong Kong government that its controversial national-security bill strikes a proper balance between the protection of national security and freedom of expression. Yet journalists are still asking -- what if I report on comments by Taiwan's President Chen Shui-bian that the island is a separate political entity or that the "one country, two systems" concept is not suitable for Taiwan? What if I report on leadership struggles within the Chinese Communist Party and such reports could in some way affect the stability of the People's Republic?

Such doubts continue to worry journalists, as the government gets ready to embark on a second round of public consultation forced on it by a mass march by half a million Hong Kong people on July 1. Ambrose Lee, Hong Kong's new secretary for security, says the government plans to release a new consultation document in September -- one year after the first was published. However, it will be based on the existing draft law, plus a series of amendments put forward to counter public concerns.

Two sections in the draft law pose particular risks to the media and freedom of expression. The first involves sedition. A journalist could be jailed for life for inciting others to commit treason, subversion or secession, or to seven years in prison for inciting others to engage in violent public disorder that would seriously endanger China's stability. A related offence -- handling seditious publications -- could result in a seven-year jail term for anyone who publishes, sells, distributes, prints, imports or exports a seditious publication.

A subsequent amendment watered this down by adding an element of intention. The government also agreed to include a clause imposing a two-year time limit on prosecutions for handling seditious publications. The original draft contained no such limit.

The other part of the law which could have a serious effect on journalists deals with the theft of state secrets. Two new offenses are created in the existing Official Secrets Ordinance. A new area of protected information is added to the existing four categories. This concerns information which relates to any affairs concerning Hong Kong that are within the responsibility of the central authorities in Beijing. Another new offense would allow the authorities to prosecute a journalist who makes a disclosure of information that has been acquired by means of illegal access -- for example, by hacking into a computer system, theft, robbery, burglary or corruption.

The government has turned down calls from civil-rights groups for these offenses to be scrapped. But it has added a public-interest defense, whereby a journalist would be able to argue that he had not committed an offense if he had made a disclosure that revealed any unlawful activity, abuse of power, serious neglect of duty, or a serious threat to public order, public security or the health or safety of the public.

So are journalists now satisfied with these provisions? It would appear not. A survey conducted by the News Executives Association in April 2003 -- before the amendments were made -- found that 80% of about 400 respondents found the bill to be problematic or unacceptable, and that it would affect freedom of speech. Some 80% also found that it was unacceptable for the government to exclude public interest and prior publication defenses or to allow the prosecution of individuals for sedition, irrespective of the effect of what was said or published.

While some of these respondents might have subsequently changed their mind, many would almost certainly still see the bill as overly restrictive. They remain worried about the effect that the bill, even in its amended form, will have on reporting on issues which are considered to be sensitive by Beijing. They cite reports on Taiwan, Tibet, Falun Gong, mainland dissidents and the inner workings and personnel matters relating to state and party leadership.

Indeed, liberal-minded legislators put forward a series of amendments in an attempt to rectify problems in the bill. They planned to either scrap or narrow the sedition offense and add wide-ranging public interest and prior publication defenses to the Official Secrets Ordinance. But the July 1 rally forced the government -- just three days before the final meeting of the Legislative Council -- to scrap plans to put the bill to a final vote.

So the debate is now postponed until later in the year. Critics are already questioning how genuine the second consultation will be -- given the way the government appeared to bulldoze through what it wanted -- at least until the July 1 march forced a rethink.

Groups such as the Hong Kong Journalists Association (HKJA) argue that there are four areas where change is still needed. First, there is no need for a sedition offense, as it is archaic and obsolete in most Western democracies. However, the government will almost certainly not budge on this issue, as Hong Kong's constitution -- the Basic Law -- says there must be such a law on Hong Kong's statute books. Given that reality, critics have been calling for the inclusion of provisions set down in the Johannesburg Principles on national security, freedom of expression and access to information, which were drawn up by a group of legal experts in South Africa in October 1995.

Second, the government should scrap one of the most onerous provisions in the bill -- the offense of handling seditious publications. This section strikes at the heart of media freedoms, in that it would most likely force journalists and those involved in the publishing industry to think twice before publishing any information which may be sensitive to Beijing.

Third, there should be a rethink of the wording of the government's public-interest defense. While journalists welcome the amendment, they see it as extremely narrow in scope. The HKJA argues that the government should opt for an all-embracing defense that simply states that disclosure was in the public interest. This would take account of all eventualities or changes of attitude toward the concept of public interest.

Fourth, the administration should include a prior publication defense in the Official Secrets Ordinance, whereby an offence would not have been committed if the information had already become available to the public either in Hong Kong or elsewhere.

Critics argue that such changes would bring considerable comfort to journalists and freedom of expression practitioners. Without them, the danger remains that the national-security law could have a serious chilling effect on the media, forcing journalists to think twice about the extent to which they would report or comment on vital issues of state -- such as leadership struggles or the tussles between Beijing and Taipei. Any shying away from such issues would also bring into doubt the viability of the government's aim to make Hong Kong a regional media hub and a world city.

Mr. Bale is chairman of the press freedom subcommittee of the Hong Kong Journalists Association.

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