| 3 July 2003
The Editor,
Herald Tribune
Dear Sir,
Response to Herald Tribune, 28 June 2003
I take issue with your editorial appearing under
the heading "Repression in Hong Kong". It paints
a distorted and misleading picture of the effects
of the National Security Bill being legislated in
Hong Kong. The Bill includes safeguards to protect
fundamental human rights including freedom of expression
and association guaranteed by the Basic Law, Hong
Kong's constitution.
Yes, it is true that there are provisions which
give a power to the executive to proscribe an organisation
that is a threat to national security. But those
provisions replace an existing power to ban societies
on security grounds that has existed on our statute
book since the British colonial days. These powers
have always been available but have not been used
against any organisation since the Reunification.
The new provisions provide an appeal to the courts
which did not exist previously. On appeal, the
executive would have to satisfy the court that
the organisation poses a threat to national security
as defined under Hong Kong (not Mainland) laws,
and that so doing would be in strict accord with
the International Covenant on Civil and Political
Rights. There are also new constraints on when
the power can be exercised. To come within the
new provisions an organisation in Hong Kong must
fall into one of three categories, one of which
is that the local organisation is subordinate to
a mainland organisation banned on the mainland
under the mainland laws to protect national security.
This is a controversial provision, but it is there
as a manifestation of one country two systems to
protect the autonomy of Hong Kong. The irony is
that it is this very provision that would exclude
a group like Falun Gong in Hong Kong from the reach
of the new proscription powers because, as it operates
at present, it falls outside the proposed statutory
criteria. The organisation in Hong Kong itself
admits that it is NOT subordinate to a mainland
organisation.
The US executive regularly exercises its powers
to proscribe organisations on national security
grounds and requests other countries, including
Hong Kong, to ban them as well to protect US national
security. It is not unreasonable for Hong Kong
to have the power, subject to appropriate legal
safeguards, to protect the national security of
China. Hong Kong is part of China after all.
Contrary to what you assert, newspapers have
nothing to fear from the new laws. There is simply
no provision in the Bill that would prevent reporting
of SARS. Publication of articles that embarrass
the government, whether in Hong Kong or the Mainland,
will not be an offence. The Bill replaces the existing
all-embracing colonial sedition laws by a much
narrower offence and abolishes altogether the existing
offence of possession of seditious publications.
For a publisher to face prosecution not only must
his publication be likely to incite others to commit
treason, sedition or secession (all involving violence
or acts akin to terrorism) he must intend that
people should be incited to commit those offences.
The burden of proving this beyond a reasonable
doubt lies upon the prosecution. As with all the
other offences under the Bill an accused would
have the benefit not only of a jury but of Hong
Kong's fiercely independent and assertive judiciary.
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