Hon Ip Kwok-him, JP
Chairman
Bills Committee on National
Security (Legislative Provisions) Bill
Room 523G
West Wing
Central Government Offices
Hong Kong
15 April 2003
Dear Mr. Ip,
I am writing on behalf of the Executive
Board and membership of The Society of Publishers in Asia (SOPA), which is based
in Hong Kong and represents more than 100 local, regional, and international
publications. We are writing to express our concerns about the National Security
Bill relating to implementation of Article 23 of the Basic Law, recently
submitted to the Legislative Council by the Hong Kong Special Administrative
Region Government.
We recognize the necessity of legislation
implementing Article 23. However, we believe several of the proposals made in
the legislation would stifle free expression of ideas in Hong Kong.
Our concerns derive from our firm belief that one of
Hong Kong's primary competitive strengths in the international marketplace is
its reputation for a free and unfettered press. Hong Kong's free press is a key
aspect of the city's quality of life, and of the vibrant civil society that
exists here. Moreover, an environment of media freedom is necessary to ensure
that the citizens of Hong Kong remain informed and globally-aware, thus helping
to keep Hong Kong's workforce among the world's most productive.
The Bill is of serious concern not merely
to local media, but also to the many regional and international media
organizations that have chosen Hong Kong as their hub in Asia. Hong Kong's
reputation as a haven for open information exchange and free discussion has
made our city home to numerous international publications, most of which are
represented by our organization. To the extent that provisions implementing
Article 23 make the SAR a less attractive place for media organizations to
maintain employment and investment, the legislation may also have a more
tangible and immediate economic impact.
However, we are very hopeful that the Bill's
most worrying provisions can be addressed during the legislative process,
through full discussion and appropriate amendment. This is a unique opportunity
for Hong Kong's Legislative Council to place the SAR in the forefront of legal
and legislative practice, by enacting the world's most modern national security
legislation. To that end, we respectfully submit the following proposals to
improve the legislation:
First, we are concerned about provisions of the Bill
relating to sedition. We believe there is no need for a separate offence of
sedition. The acts described in the sedition section of the Bill are already
adequately covered by provisions governing treason, secession, and subversion.
The act of inciting others to commit these substantive offences is already an
offence under common law. Therefore, there is no need to add another layer of
criminality, in the form of a separate sedition offence.
During the consultation process, the Government
asserted that it was necessary to include sedition as an offence, in order "to
underscore the seriousness of these acts [governing treason, secession, and
subversion] by codifying these incitement offences in the context of sedition."
The Government also maintained that because Article 23 specifically uses the
word "sedition," the SAR is required to enact an offence with the
name "sedition."
We disagree. If such incitement is already effectively
prohibited under other sections of the law, the intent of Article 23 is satisfied,
and there is no need to codify an offence of sedition separately. We believe it
is dangerous to criminalize an act simply in order to emphasize the seriousness
of other offences, rather than because of the substance of the act itself.
Adding a non-essential criminal offence simply adds potential for abuse. The
risk of abuse of the sedition offence to restrict freedom of thought and
freedom of expression is simply too great.
In fact, sedition has fallen into disuse in most other
developed common law countries, even where old statutes sometimes remain on the
books. There has not been a prosecution for sedition in Britain since 1947.
Hong Kong should adopt national security legislation that accords with the best
legal practices of the 21st Century. Such legislation should not include
sedition as a separate offence. We fear that the sedition provisions of the
Bill could do real damage to a free and commercially viable press in Hong Kong.
Regardless of whether sedition itself is included as a
specific offence, we believe there should be no offence of "handling
seditious publications." The legislation indicates that it would be a
criminal act if someone "publishes, sells, offers for sale, distributes,
or displays any seditious publication; prints or reproduces any seditious
publication; or imports or exports any seditious publication, with intent to
incite others, by means of the publication, to commit [treason, subversion, or
secession]."
This is truly worrying to those of us in the media
business, because of its broad scope and vagueness. The offence is simply
unnecessary. If a person has authored a document with the intention of inciting
another person to commit an offence, then that person should be charged with
incitement of the relevant offence. However, the offence of "handling
seditious publications" encompasses an extremely wide range of activities,
and applies to individuals far removed from the actual authorship of any words
that might incite others. It would have the effect of causing printers,
importers, distributors, retailers, and others (even someone who is simply
copying an article to show a friend) to question legitimate trade and
commercial actions. To that extent, it is bound to stifle free discussion and
debate.
We note that a standard of intent has been included.
However, we do not believe that this provides sufficient protection against the
potentially stifling effect of the provision. According to Section 9C, a
seditious publication is defined as one that is "likely to cause the
commission of [treason, subversion, secession]." This constitutes an
objective test of what a "reasonable individual" would consider
likely. It does not refer to the actual state of mind of the reader of a given
document, or to that of the accused. In fact, different individuals would
naturally react to the same document quite differently. But with the objective
test in place, the door is easily left open to prove "intent" to
incite -- if a "reasonable individual" should know that a
publication is seditious, and if a person still handles that publication,
should he not by definition be accused of having the intention to do so? This
is, at best, an unclear, ambiguous standard.
If such provisions are enacted, the safest course for
anyone would be simply to avoid dealing with any potentially controversial
publications, on a wide range of topics. The "gray area" created by
the broad scope of this provision could create an environment of
self-censorship among journalists, publishers, printers, retailers, and others.
We strongly urge the Legislative Council to amend the
National Security Bill by striking out the offence of "handling seditious
publications."
We believe the ambiguity and redundancy of these
sedition offences is best dealt with by removing them entirely from the
legislation. But even if the Legislative Council deems it absolutely necessary
to retain provisions dealing with "sedition" and "handling
seditious publications," it should at the very least amend the Bill to
clarify the responsibilities placed on Hong Kong citizens.
That could be done by remedying one of the provision's
major shortcomings. As it stands, the Legislation does not require that
violence or the threat of violence actually result in order for "seditious"
activities to be criminalized. Instead, it merely requires that a document be "likely
to cause the commission" of treason, subversion, or secession, according
to the objective test noted earlier. Yet whether or not a publication truly
endangers security depends entirely on the conditions prevailing when it is
published. It is unreasonable to criminalize activities if there is in fact no
imminent danger to national security.
If "sedition" and "handling seditious
publications" are not to be entirely removed from the Bill, we would urge
the Legislative Council to clarify the provisions by specifying that only
behavior for which there is a direct and immediate
connection to occurrence of the offence (treason, subversion, or secession) is
subject to criminal penalty. This is a well-established safeguard in other
developed common law jurisdictions. Some jurisdictions have referred to this
standard in terms of a "clear and present danger" to national
security, which must be present in order for offences related to sedition to
apply. Other jurisdictions have done so by reference to Principle 6 of the
Johannesburg Principles, which also enshrines this concept. We believe the SAR
should follow this practice.
Finally, the Legislation proposes to abolish the time
limit within which sedition may be prosecuted. The limit is now six months
after commission for seditious offences. Repealing Section 2 of the Crimes
Ordinance has removed the existing offence, along with the time limit attached.
If newly enacted offences do not reinstall the time limit, it is effectively
open-ended. There is no reason why the risk of prosecution should hang over an
individual for an indefinite period of time, and a lengthy delay will certainly
be detrimental to an individual's ability to defend himself in a court of law. The
six-month time limit should remain.
The new provisions relating to the Theft of State
Secrets could also do real damage to the functioning of Hong Kong's free press.
We are concerned about several aspects of the Legislation that expand the
existing Official Secrets Ordinance without adding important safeguards.
First, the Legislation proposes to create a new class
of protected information, encompassing "relations between the Central
Authorities of the People's Republic of China and the HKSAR." We note that
the bill applies this principle only to "affairs concerning the Hong Kong
Special Administrative Region which are, under the Basic Law, within the
responsibility of the Central Government."
However, we believe this standard is ambiguous and
unclear, and we do not see the need for this provision. We agree that
information relating to true national security issues, such as defence or
international relations, could understandably be restricted. But these are
already covered within the existing categories of protected information. We
cannot see a justification for covering any other information under this
criminal offence. Among the affairs which may be considered as falling "within
the responsibility of the Central Government" under the Basic Law are the
appointment of the Chief Executive and principal officials; the election
participation process for the National People's Congress; the establishment of
Mainland departments and offices in the HKSAR; and numerous other issues.
Relations between Beijing and Hong Kong are of utmost
importance to how Hong Kong is governed, and we would go so far as to say that
the public has a right to know about these relations, in the interest of good
governance and the smooth functioning of "one country, two systems."
We believe this new category of protected information should be removed from
the legislation.
In addition, the legislation adds a new offence making
it a criminal act for an individual to make an unauthorized and damaging disclosure
of information protected under Part III of the Ordinance, if it is acquired by
means of illegal access "whether by himself or another." The Bill
defines illegal access as "unauthorized access to computer or
telecommunications;" "access to computer with criminal or dishonest
intent;" "theft, robbery, or burglary;" or "bribery." We
do not condone any of these acts. If protected information is obtained through
a criminal act by an individual, the offender should be prosecuted and an
injunction may be sought to restrain publication.
However, applying this provision to indirectly
obtained information would criminalize actions by an individual several steps
removed from the commission of any actual theft of state secrets. It would
place an unreasonable burden on that person to attempt to determine the
original source of the information. As a practical matter, journalists would
always have to treat information obtained anonymously as information that could
have been obtained illegally. Moreover, it is deemed unethical for news
reporters to disclose the sources of their information, yet under compulsion by
the prosecution, there may be no other way to prove the information did not
come from a protected source.
Under the legislation, indirect disclosure would only
be excused if the accused could prove "he did not know and had no
reasonable cause to believe" the information came from a protected source.
It is likely to be difficult if not impossible to ascertain whether certain
information was originally from a prohibited source or not, making it difficult
to claim there was "no reasonable cause" to believe that the
information is protected. This would be a minefield for media organizations,
and it should be dropped.
It is worrying that the legislation expands the list
of people on whom the duty of confidentiality is imposed. The Bill would
include all present and former public servants or government contractors. It
would also add agents and informants who provide information to the police. Here
again, this would significantly expand the amount of restricted information. The
legislation should not impose a duty of confidence on these new categories of
people.
As with the sedition provision, the best possible way
of dealing with these ambiguities would be to drop these three new Theft of
State Secrets provisions entirely. However, if the Legislative Council deems
them essential to the implementation of Article 23, the Legislative Council
should, at the very least, include two important safeguards to enable media
organizations to make accurate judgments about whether or not information can
legally be published.
First, the Legislation should provide for a "public
interest defence." The public interest in knowing a given piece of
information should be a primary consideration in whether or not that
information should be disclosed. If information is true, and if the public good
resulting from disclosure outweighs any damage, then this should be considered
a valid defence. Other jurisdictions have made reference to the public interest
in this context. For example The United Kingdom's Public Interest Disclosure
Act of 1998 and Freedom of Information Act of 2000 both incorporate the notion
of public interest in determining whether or not a disclosure of information is
permitted.
Second, there should be a "prior publication
defence." Information already in the public domain, no matter how it was
originally obtained, should not be included in the category of restricted
information. This merely recognizes the reality that Hong Kong citizens have
access to print, broadcast, and electronic information from around the world. If
they can access such information through other sources, it does not make sense
to restrict the ability of local media to publish it. Omitting a prior
publication defence creates the risk of selective prosecution.
Finally, we would like to note one other
area of concern.
The legislation proposes that the Secretary
for Security may proscribe any local organization" which is subordinate to
a mainland organization the operation of which has been prohibited on the
ground of protecting the security of the People's Republic of China, as
officially proclaimed by means of an open decree, by the Central Authorities of
the People's Republic of China." We believe that determinations related to
the actions of Hong Kong organizations should be made exclusively by the Hong
Kong Courts, based on criteria relevant to the SAR, upon
application by the Secretary for Security. This process should be an independent exercise of
judgment on the part of SAR officials. It should not be triggered by decisions
outside the Special Administrative Region. Otherwise, the principle of "one
country, two systems" will be seriously undermined.
We note the right of appeal through the
judiciary against a proscription. However, we are concerned that, upon
application from the Secretary for Justice, "the Court may order that all
or any portion of the public shall be excluded during any part of the hearing,"
if making evidence public "might prejudice national security." A
closed-door trial would seriously prejudice the rights of the appellant, and we
cannot envision instances where national security interests would be
jeopardized to the extent that they should outweigh the right of the appellant
to a fair and open trial.
Further, the Legislation criminalizes "participating
in the activities of a proscribed organization" and indicates an
individual is guilty of such participation if he "is, or acts as a member
of; attends a meeting of, or pays money or gives any other form of aid to."
This is an unnecessarily broad application that is likely to catch the innocent
or naïve, rather than those plotting criminal activities. If a media
organization has sent reporters to the meetings of such a group, has the
organization violated the law?
These proscription provisions go well beyond the
requirements of Article 23. We fear the Bill would put at risk many
organizations that have been operating in the HKSAR for years, without causing
any threat to the security of the HKSAR or the Central Government. Likewise, the
media organizations that report on such groups could be threatened.
We believe that the provisions discussed above would
inhibit the functioning of the local, regional, and international press in Hong
Kong. In addition to the very real threat of legal action for new offences, we
believe that the media will be moved to practice self-censorship. Laws that
make Hong Kong's media environment less free will affect not just journalists
and the media companies who employ them, but all of us who depend on the
important role of the free press in a modern, open society. It runs counter to
Hong Kong's aspiration to be regarded a "world city."
The Legislative Council now has a unique opportunity
to re-draft and update the SAR's existing, antiquated laws. We urge the
Legislative Council to replace these outdated statutes with national security
laws which are specific, unambiguous, and do not inhibit the legitimate
expression of free speech, assembly, a free press and the other liberties that
characterize Hong Kong's way of life.
The Society of Publishers in Asia supports legislation
under Article 23 to protect the sovereignty of China against armed subversion
and external attack. We are against expansion of that mandate to criminalize
aspects of the legitimate exercise of freedoms of a civil society and a free
press environment, which Hong Kong currently enjoys and which have been
guaranteed under the Basic Law.
Thank you for giving us the opportunity to express our
views.
Yours sincerely,
Cyril Pereira
Chairman
Encl