Dear Chief Executive Tung:
We write to express Human Rights Watch's profound concern that proposals by your government to implement Article 23 of Hong Kong's Basic Law will seriously undermine civil liberties and civil society in Hong Kong.
The three-month consultation period your administration set aside expires on December 24. Given the enormous public interest from the legal, media, political, religious, and business sectors, we urge your government to continue to seek the widest possible public consultation on a specific text before introducing it to the Legislative Council. Because of the far-reaching consequences and sweeping nature of national security laws, it is impossible to have genuine and meaningful consultation without being able to analyze the specific text of such laws. It is thus vital that experts, interested parties, and Hong Kong people have the opportunity to comment not only on the generalities of the proposed new laws, but the specifics. In particular, where entirely new categories of offenses alien to the common law are being created, such as subversion, it will be essential to thoroughly review and assess the impact of the new laws on society.
Both legal and business groups have urged the publication of a White Paper that would contain the exact language proposed in the new law. We encourage you to support this call, particularly as a more methodical approach to consultation may increase public support for any legislation that ultimately emerges.
Preserving Fundamental Freedoms
The 1984 Sino-British Joint Declaration guarantees explicitly that all of Hong Kong's freedoms--including press freedom, religious freedom, and freedom of association and assembly-- will continue. They are guaranteed by Hong Kong's strong tradition of adherence to the rule of law and its international commitments under the International Covenant on Civil and Political Rights. These obligations require full compliance.
However, aspects of the proposed laws raise serious questions about the HKSAR's commitment to both the International Covenant and the rule of law. Article 23 states that: "The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies."
However, as the Hong Kong Bar Association and numerous legal authorities have stated, in most areas the existing laws of the HKSAR are sufficient to prohibit the acts and activities listed in Article 23. Indeed, Hong Kong people have consistently and peacefully exercised their human rights within the rule of law. In the five years since the territory's transfer of sovereignty from the United Kingdom to the People's Republic of China, there have been no significant political upheavals. Any consultation process must first consider whether new legislation of the scope proposed by your government is at all necessary. Most legal commentators who have reviewed the consultation document have concluded that it is not.
Perhaps most important, concepts such as treason, secession, sedition, subversion, and state secrets are traditionally vague and open for selective abuse. They, therefore, must be drawn as narrowly as possible. Although the consultation document states the goal of using only precise terms, many of the terms actually proposed are far from precise.
Broad New Offenses Will Erode Human Rights
Human Rights Watch is especially concerned about new offenses under Article 23 that relate directly to freedom of expression, including sedition, the "theft of state secrets," and treason ("instigating a foreigner to invade the PRC"). A free and unfettered media and a free flow of information have been and will continue to be essential to Hong Kong's long-term success. If businesses want to work in an atmosphere of censorship, self-censorship, and limits on information, then Hong Kong will lose its competitive advantage; enterprises and corporations will simply move to the mainland.
The proposed law's definition of "seditious publications," under which those who publish information inciting others to "commit treason, secession or subversion" or "endangering the stability of China and Hong Kong" can be jailed for seven years, is certain to have a chilling effect on the free flow of information. Much political commentary could be construed by some as inciting others to "commit treason, secession or subversion." If an individual wishes to express such sentiments it is his or her right. Acts, not words, should be punishable in a modern, rights-respecting society.
Use of the term "stability" also raises serious concerns. Mainland China and Hong Kong are stable political entities. It is unthinkable that a publication could threaten the stability of either. This inherently imprecise term is often used to arbitrarily punish or censor publications in countries around the world. It is a term that should not be introduced into Hong Kong law, as no editor or journalist will know when they have crossed the line from legal into illegal speech, and no government can adequately assure publications that a future government will not misuse such a provision.
The proposal dealing with the subject of "theft of state secrets" or publishing of "unauthorized" news could affect both Hong Kong and overseas reporters. Human Rights Watch believes it must be up to journalists to report any news in the public interest, and that this is a fundamental freedom essential to protecting all other rights. Under this provision information about relations between the mainland government and the HKSAR would be defined as a "state secret." Again, these terms are overbroad and would put at risk any journalist who published even a routine story about China-Hong Kong relations. Editors and journalists remain concerned and confused about the case of Xi Yang, who in 1994 published what appeared to be a routine story about economics but later was imprisoned in China for publishing an article based on information not officially released about government financial policies. Academics, financial researchers, and NGOs could be threatened as well.
Interference in Hong Kong Law by China
Human Rights Watch is particularly concerned that the proposed new laws under Article 23 give the Secretary for Security wide authority to ban local and foreign political organizations. According to the proposals, a declaration by the Chinese government that an organization endangers China's national security could be sufficient grounds for triggering investigations (or harassment) and possibly for a subsequent ban of a Hong Kong organization. This greatly increases the possibility of Chinese government intervention in Hong Kong. This provision introduces Chinese law and Chinese political control into Hong Kong through the back door, and is a clear violation of both the letter and spirit of the Basic Law.
This is particularly worrying since the statements of senior Chinese government officials make it appear that the impetus for the changes to Hong Kong's legal system has come not from the people of Hong Kong, but rather from Beijing. In February Li Peng urged the adoption of a new law, while in late June, when Hong Kong marked five years of return to Chinese sovereignty, Qian Qichen, China's deputy prime minister responsible for Hong Kong affairs, and other senior Chinese government officials told the Hong Kong government to enact a subversion law as soon as possible. Mr. Qian also warned that the group Falun Gong should be banned as an "evil cult."
Confidence in the independence of Hong Kong's legal system was further undermined by comments from senior officials, including the Secretary for Security, that the views of Beijing will be given weight when deciding whether to prosecute the Hong Kong media under Article 23 of the Basic Law.
In this context, of particular concern to Human Rights Watch is that the proposals for the implementation of Article 23 are similar to national security laws on the Mainland. As Human Rights Watch has documented over the past decade, in China similar subversion laws are regularly used to convict and imprison journalists, labor activists, Internet entrepreneurs, and academics. The Chinese government has tried and sentenced many activists who used the Internet to promote causes ranging from political change to worker rights. All were charged with subversion. Now that Hong Kong is part of China, these examples, taken together with the proposed language of the new subversion laws, give reason for concern that human rights in Hong Kong may be under threat.
The consultation documents state that the Hong Kong courts will act as the ultimate safeguard against arbitrary application of any new laws, such as which organizations could be banned. But the decision by Chinese Communist Party's Standing Committee to overrule a decision of the Hong Kong courts in 1999 undermined the previously high confidence in the independence of the Hong Kong judiciary. Can the HKSAR guarantee that a similar intervention could not happen if Beijing was not satisfied with the decision of the Hong Kong courts in implementing these new laws?
Concerns about Article 23 are not part of an abstract discussion. Many groups and individuals have written to your government to express their dismay at the planned changes to Hong Kong laws. Last week, there was a large public demonstration with tens of thousands of participants--many more than even the organizers hoped would attend. We strongly urge your administration to listen to these voices of civil society and to Hong Kong's friends in the international community before moving forward to implement any new laws on subversion.
We also wish to add that the preservation of Hong Kong's rule of law, along with basic rights and freedoms in Hong Kong, provides an important example for China's own reforms and progress in these areas. We thus hope your government will not end its public consultation on Article 23 on December 24, but will present the draft legislation first to the public for comment and initiate an even wider discussion about the impact such laws will have on Hong Kong's vibrant free press and free society. We urge your government to amend the draft to address adequately all these concerns before the draft is introduced to the Legislative Council for the legislative process.
Finally, senior officials in your government regularly argue that Article 23 of the Basic Law requires them to legislate to prohibit subversion and other offenses. Yet the Basic Law also mandates a move toward democratic election of the legislature and chief executive with the ultimate goal of "universal suffrage," a process that has not begun. We urge you to explain to the people of Hong Kong why the provisions of Article 23, which could have a serious impact on fundamental human rights, must be implemented so urgently while one of the core principles of the Basic Law--the right of people to choose their own leaders--is being ignored.
On June 25, 2002, Deputy Prime Minister Qian Qichen, asserted that the current system, in which only half the Legislative Council may be directly elected, should be "kept intact." But the best long-term guarantor of civil liberties is a government accountable to and responsive to its people, together with an independent judiciary. We urge your government to initiate the process of instituting a fully democratic system as soon as possible. This is a more urgent priority than implementing the provisions of Article 23.
Thank you for your consideration.
Executive Director, Asia Division