18 June 2003
National Security (Legislative
Provisions) Bill
The American Chamber of
Commerce is an organization with over 2200 members who have been doing business
in Hong Kong for many years. Our members value the opportunity to do business
in Hong Kong and take seriously our responsibilities to enhance its business
environment and to contribute to Hong Kong's international stature. It is in
this spirit that we offer our views on the proposed National Security
(Legislative Provisions) Bill (the "Blue Bill").
Our Chamber has followed the
development of the Blue Bill closely. On December 6, 2002, we commented on the
Government's proposals for Article 23 legislation. Many suggestions made to the
Government during the consultation period were incorporated in the Blue Bill,
including many of the recommendations that our Chamber made. (The full text of
our December 6 submission is available at
www.amcham.org.hk.)
We also appreciate that the
Government has continued to take into consideration the views of the community
on this important piece of legislation and that further changes were proposed
to the Blue Bill on June 3, 2003.
Despite these developments, the Blue Bill still contains provisions of concern to us because it needlessly jeopardizes key distinctive features which make Hong Kong a choice location for doing business in Asia:
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a
transparent legal system and independent judiciary;.
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the
unchallengeable free flow of information and expression of ideas, and.
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the
ease with which international trade and financial transfers are done.
Preserving these features is
crucial to Hong Kong's future economic growth. Anything that weakens Hong
Kong's rule of law or its open business climate ultimately makes Hong Kong less
competitive.
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Overly
broad prohibitions as found in the crimes of treason and subversion. The crime of subversion
includes the vague prohibition not to "intimidate the Central People's Government"
and the loose phrases "by using force", and "serious criminal
means." It also includes a prohibition against "seriously endangering
the stability of the PRC." The crime of treason also uses the vague
concept "intimidate the Central People's Government." These overly
broad phrases, inviting or allowing arbitrary application, should be
eliminated. A transparent, reliable legal system requires greater precision in
the definition of its crimes.
l Expanded
offences for the disclosure of unauthorized information, without the addition
of normal defences.
The Official Secrets Ordinance was enacted on 27 June 1997 after agreement had
been reached with the Chinese side of the Joint Liaison Group so that, only minimal
changes would be needed to comply with the requirements of Article of the Basic
Law. Instead, the Blue Bill expands the scope of protected areas, but does not include
the defences normally available in a legally developed economy. It should be an
acceptable defence to an accusation of unauthorized disclosure that the
information is already in the public domain or that the disclosure is in the
public interest.
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Handling
seditious publications.
We appreciate that the mere possession of a seditious publication has been
eliminated from the crime of sedition in the Blue Bill. However, the offence of
handling of seditious publications, which in many ways is similar to mere possession,
remains. There is no need to create a specific crime focused on publishers, printers,
sellers or distributors, when the general terms of the offence of sedition will
apply to any one who incites others to commit the offence of treason,
subversion or secession. The addition of a special offence of "handling
seditious publications" will have a negative impact on the publishing and
printing industries in Hong Kong, to our overall detriment.
l Investigative Powers. The Blue Bill would allow high-ranking police officers to issue emergency search warrants, rather than solely by a judge. Search warrants should be issued only when the government has satisfied a high level of need in an independent process. The proposed provisions do not include adequate safeguards against abuse and clearly weaken the legal and judicial system in Hong Kong.
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Proscription
of Organizations.
We note that the Blue Bill proposes that the Secretary of Security may
proscribe any local organization which is subordinate to a mainland organization
that has been proscribed by Central Government Authorities and where such proscription
is reasonably believed to be necessary in the interests of national security. A
document issued by the Central People's Government stating that the mainland
organization has been proscribed on the grounds of national security will be
conclusive and may be received in evidence in any legal proceedings without
further proof. Further, the rules of appeal in such cases are proposed to be
formulated by the Secretary of Security. We believe that these provisions limit
the effective functioning of Hong Kong's judicial as it exists today and do not
uphold the principle of "One Country Two Systems."
We are concerned that
provisions of the proposed Bill such as those cited above will have an impact
not only the business environment directly, but also on the ability of our
academics, researchers, medical professionals and journalists to function
effectively. The Bill has the potential to limit information, original
thinking, fresh ideas, quick responses and ultimately the quality of the work
force needed in a services economy. Freedom of thought, expression, research
and publication is the bedrock of a free and thriving economy.
Hong Kong has always been a
special place to our members. What makes it particularly special since 1997 is
the promise of "One Country, Two Systems" with the direct message
that Hong Kong can continue to work with its legal and social systems
unaffected by the change of sovereignty. We wish to see that the fundamental
integrity of Hong Kong's legal and judicial system remains strong.
We urge you to delay the
adoption of the Bill, to study further the impact that the Bill will have on
Hong Kong's economy and to change the provisions of the Bill we have identified
above.
Sincerely,
James E. Thompson
Chairman, The American Chamber of Commerce in Hong Kong