26 March 2003

The Editor
South China Morning Post

Dear Sir,

Ms Wendy Shen has expressed concerns about the implementation of Article 23 ("Article 23 on seditious publications threatens free expression", SCMP 24 March 2003).

Perhaps her concern about the proposed offence of handling seditious publications arises because she looked at only half of the offence. In her analysis she overlooked one of the two significant limitations on the scope of the offence. Not only are the publications to be subjected to the objective test of "being likely to cause the commission of treason, subversion or secession' to which she refers, but there is also a subjective mental element built into the offence. Only those who handle such publications 'with intent to incite others, by means of the publication", to commit these offences, would be subject to the handling offence. These limitations, taken together, mean that the offence cannot be used to stifle freedom of expression. Even if a particular criticism of the government fell outside the express exceptions to the proposed offence, publication of that criticism would not by itself amount to an offence. Moreover, anyone accused of the offence will have a right to opt for a jury trial. Jurors are selected randomly from members of the public, guaranteeing that widely accepted social values will be reflected.

With regard to the proposed power to proscribe organizations, Ms Shen's assumption that 'the government will most likely be happy to follow any directives issued by the central authorities, directives that the rule of law may not be able to withstand' is not justified. If the Secretary for Security simply proscribed an organization in accordance with such a directive, she would be acting unlawfully and the courts could strike down the proscription. It is precisely because the rule of law is maintained in Hong Kong, and an appeal channel is provided to our independent courts, that these fears are groundless.

Ms Shen has also overlooked the fact that the Bill sets out, no fewer than three times, a provision to ensure that human rights will be protected. The provision states that the new laws are to be interpreted, applied and enforced in a manner that is consistent with Article 39 of the Basic Law. That Article provides that no law shall contravene international covenants on human rights.

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