Article 23 Proposals Broadly Consistent with Johannesburg Principles
When formulating its proposals on implementing Article 23, the Government was determined to comply with the human rights guarantees contained in the International Covenant on Civil and Political Rights. This is required by the Basic Law.
2. Some commentators have suggested that compliance with our human rights obligations is not sufficient; and that our laws should also comply with the Johannesburg Principles. However they are unable to point to any other jurisdiction or country (except possibly Peru) which has adopted that standard or which has laws which fully comply with the Principles.
3. There are 25 Johannesburg Principles. The Principles are useful reference materials in respect of limitations on freedom of expression and access to information on the grounds of national security. Broadly speaking, the Article 23 proposals comply with most of the Principles.
4. For example, Principle 7 enumerates a list of protected expression which should not be considered a threat to national security, including expression that advocates non-violent change of government policy or of the government itself; and criticism of, or insult to, the nation, the state or its symbols, the government, its agencies, or public officials, or a foreign nation. The Article 23 proposals do not seek to prohibit any such forms of expression.
5. The two areas where the Johannesburg Principles are particularly relevant, in that they directly affect freedom of expression and freedom of information, are sedition and the theft of state secrets.
6. The proposed new offence of sedition will be considerably narrower than the existing offence, which is to be repealed. The new offence would be committed only if someone -
- incites others to commit treason, secession or subversion; or
- incites others to violence or public disorder that seriously endangers the stability of the state or the HKSAR.
7. An offence of inciting others to violence or public disorder that seriously endangers the stability of the state would seem to be justified by Principles 1 and 2. Its genuine purpose and demonstrable effect would be to protect the PRC's existence or its territorial integrity against the use of or threat of force, or its capacity to respond to the use or threat of force. Moreover, the second limb of the proposed offence of sedition can also be justified on the grounds of public order. It is therefore not inconsistent with the Principles.
8. The first limb, inciting others to commit treason, secession or subversion clearly relates to national security. Some commentators have suggested that the proposed offence would not comply with Principle 6. A similar comment might be made in respect of those aspects of treason that touch upon freedom of expression.
9. Principle 6 states that expression may be punished as a threat to national security only if a government can demonstrate that :
- the expression is intended to incite imminent violence;
- it is likely to incite such violence; and
- there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.
Principle 6 appears to be unnecessarily restrictive.
10. Firstly, there may be many situations where it would be consistent with international human rights standards, and also appropriate, to prohibit the incitement of non-violent acts.
11. Examples of non-violent acts that have the potential of threatening a legitimate national security interest include -
- The disabling of a national defence computer system.
- The use of biological or chemical weapons.
- Broadcasting propaganda for the enemy during a state of war.
It should be possible to criminalise not only these acts but also the incitement of such acts. Principle 6 would seem to prevent this.
12. Secondly, Principle 6 provides that incitement to violence cannot be punished as a threat to national security unless the intention is to incite imminent violence.
13. However, where a person intentionally urges another to commit a crime of violence, is there any reason to distinguish between imminent violence and violence at a later date? Our general law of incitement makes no such distinction. If I incite someone to murder another person, it is an offence regardless of whether I urge an immediate murder, or one in a few weeks' time.
14. My concern about the imminent violence test is threefold -
- it is contrary to general principles of our criminal law;
- it introduces great uncertainty into a serious offence, since "imminent" is a vague concept; and
- most importantly, it appears to be illogical.
15. Can a state not legitimately prohibit a terrorist group from inciting others to prepare for a secessionist war say six months in the future, by arming themselves with missiles and other weapons?
16. The "imminent violence" test would seem to leave the state powerless to deal with such a threat.
17. Thirdly, Principle 6 states that incitement to violence can only be punished if it is likely to succeed. If a person intentionally incites violence, whether against an individual or the State, he has demonstrated behaviour that is unacceptable. The law can legitimately punish such behaviour, irrespective of its chances of success, in the same way that it punishes attempted crimes which may have had no chance of success.
18. With the greatest respect to the drafters of Principle 6, its well-intentioned attempt to limit restrictions on freedom of expression does not produce appropriate results in all cases. The more open-ended tests of balancing competing interests applied by the courts in respect of the International Covenant on Civil and Political Rights and the European Convention on Human Rights have more to commend them.
19. Consider the proposed offences of treason and sedition, where there are competing interests of national security and freedom of speech and information. If one weighs the competing interests in a candid and informed manner, can one justify the proposals?
20. The proposed offences of
- instigating a foreigner to invade the PRC;
- assisting by any means a public enemy at war with the PRC;
- inciting others to commit the offences of treason, secession or subversion; and
- inciting others to violence or public disorder that seriously endangers the stability of the state,
appear to be entirely justifiable restrictions on the grounds of national security. The fact that Principle 6 may not in all cases be satisfied would not prevent a court from upholding these offences as being consistent with the Basic Law or ICCPR. Nor should it be a valid ground for not enacting the proposed offences.
Theft of State Secrets
21. Principle 12 of the Johannesburg Principles states that "A state may not categorically deny access to all information related to national security, but must designate in law only those specific and narrow categories of information that it is necessary to withhold in order to protect a legitimate national security interest".
22. The proposals in respect of the unauthorized disclosure of state secrets are consistent with this principle. The categories of information to be protected are specifically set out and are narrow.
23. The two categories that are particularly relevant to national security are information relating to security and intelligence and information relating to defence. That information is already protected by existing law from unauthorized disclosure, and it is not proposed to extend the protection to cover, for example, economic information.
24. The first part of Principle 15 states that no person may be punished on national security grounds for disclosure of information if the disclosure does not actually harm, and is not likely to harm, a legitimate national security interest.
25. With regard to the unauthorized disclosure of protected information, with one exception, our proposed laws will fully comply with the first part of Principle 15. That is, an offence will only be committed if the disclosure was damaging, or was likely to be damaging, in the manner specified in the current law.
26. The exception relates to unauthorized disclosures of security or intelligence information by members of the security and intelligence services. This is not consistent with the first part of Principle 15, but the British House of Lords has recently decided that such a restriction is consistent with the UK's Human Rights Act.
27. The second part of Principle 15 provides that no person may be punished on national security grounds for disclosure of information if the public interest in knowing the information outweighs the harm from disclosure. Principle 16 contains a similar principle in respect of disclosures by public servants.
28. Neither our current law, nor the proposals in the Consultation Document, incorporate such a principle.
29. Our law is based on the UK's Official Secrets Act 1989. When that legislation was being prepared, the British Government considered creating a public interest defence, but rejected it for two reasons. First, a central objective of its reforms was to achieve maximum clarity in the law and in its application. A general public interest defence would make it impossible to achieve such clarity. Secondly, the intention was to apply criminal sanctions only where this was clearly required in the public interest. It was considered that no one should be allowed to disclose information which he knows may, for example, lead to loss of life, simply because he has a general reason of a public character for doing so.
30. The enactment of the UK's Human Rights Act in 1998 enabled defendants in the UK (as in Hong Kong) to challenge criminal offences as contravening the guaranteed rights. Questions were raised as to whether offences relating to unauthorized disclosure could be reconciled with the guarantee of freedom of expression. The concern was focused, on the perceived need to allow "whistleblowers" to reveal public wrongdoing, on the grounds that this would be in the public interest.
31. Those concerns were answered by the House of Lords in its recent decision in Shayler. The relevant offence was held to be consistent with the Human Rights Act. The court considered that the law provides sufficient protection for a "whistleblower" to reveal wrongdoings in appropriate cases.
32. This article is an attempt to explain the extent to which the current proposals satisfy the Johannesburg Principles. Some of the proposals may be further developed as a result of the comments received on them. However, most of the Principles are satisfied by the current proposals.
33. The Johannesburg Principles clearly provide a useful benchmark against which the proposals may be judged. However, Hong Kong is not legally obliged to comply with those Principles, and they are not the standard which other countries apply when making laws. Provided that our laws are consistent with the Basic Law and the ICCPR, it is for the people of Hong Kong, and their legislature, to decide where to strike the balance between the protection of national security and freedom of expression and freedom of information.