Brief Introduction of “Article 23”

December 18, 2002

Letter / Petition to Oppose “Article 23”

On Sept. 24, 2002, at the instigation of the Chinese Government, the Hong Kong Special Administrative Region (SAR) released proposals for controversial legislation to severely punish anything Beijing considers to be seditious, subversive or a threat to Mainland security. However, the definition of precisely what activity would fit into these categories is disturbingly vague. Consequently, a diverse range of interest groups from financiers to Falun Gong, from the Hong Kong Bar Association to trade unionists, from democrats to journalists, are all alarmed that Article 23 could seriously undermine the basic civil liberties that Hong Kong has traditionally enjoyed.

The new law would give the Hong Kong authorities the power to proscribe any organization which 'either has as its objective to engage in any act of treason, secession, sedition, subversion or theft of state secrets (espionage); or is affiliated to a mainland organization which has been proscribed in mainland China by the Central Authorities, in accordance with national law on the ground that it endangers national security.'

The proposed laws are complex and sweeping in scope, and the public is still struggling to come to grips with their full significance. Thus far, this much is certain: Those most seriously affected include all who work with ideas and information. They range from academics to artists to journalists to securities analysts to publishers and distributors of newspapers, books, periodicals and films. The wide net cast by the proposals covers even the words and deeds in and out of Hong Kong of a broad range of foreigners with links to Hong Kong, such as the expatriate executives of multinational firms.

The Article 23 proposals include the following measures:

• Laws on sedition:
  Many lawyers point out that such laws have fallen into disuse in countries such as Canada, Australia and New Zealand. The Hong Kong government, acknowledging this “paucity of sedition cases,” comes to a different conclusion: “… there is not much empirical experience to support either its removal or its retention.” The government seeks to extend the reach of the law so that all permanent residents (they include foreign nationals who meet a seven-year Hong Kong residency requirement) could be prosecuted for what they say in and out of Hong Kong.
  
  
• Theft of state secrets:
  Existing law, criticised by human rights experts for being too broad, is further expanded. New areas covered include relations between Hong Kong and the central government in Beijing, a subject of legitimate public concern. There is no provision for defenses typical in other jurisdictions, as when publication of a “secret” is in the public interest or when the “secret” already has been publicized by others.
  
  
• Seditious publications:
  The proposed definition is so broad Hong Kong’s university librarians have voiced the worry that much of what is on their library shelves could be deemed seditious.
  
  
• The current six-month time limit on bringing prosecutions against sedition would be removed under the proposals. Words that displease the authorities thus could come back to haunt the speaker or writer years later.
  
  
• The Secretary for Security would have wide authority to ban local and foreign political organizations. In some cases a mere declaration by the Chinese government that an organization endangers China’s national security is sufficient grounds for a ban – with limited possibility of appeal in the Hong Kong courts, thus increasing the possibility of Chinese government intervention in Hong Kong.

The beefed up laws would be backed by enormous increases in enforcement powers and penalties, including the following measures:

• Exemptions for the police from the normal requirement of a court warrant for entry into private premises and for search and seizure.
  
  
• Police also could compel financial institutions to divulge confidential client information without first obtaining a warrant.

Many Article 23 offenses would be punishable by life imprisonment. In stark contrast, existing Hong Kong law doesn’t even specify some of the proposed Article 23 offenses, such as subversion, as crimes

Responses to “Article 23” legislation in Hong Kong

Comments from the Legal Profession

Alan Leong, chairman of the Hong Kong Bar Association, said according to Reuters 11/10/02 that some of the proposals were "terminators", so draconian that no one would escape if they were targeted. He also said that the authority “will have very, very wide discretion in picking and choosing whom to prosecute, when to prosecute, for what to prosecute". He called for a white paper of the bill for a second round consultation.

Margaret Ng, a legislator representing the legal profession in HK, wrote in the SCMP 9/10/02 “Secretary for Security Regina Ip Lau Suk-yee and her colleagues are trying hard to present the proposed Article 23 legislation as innocuous and something that will not affect the vast majority in Hong Kong. It is nothing of the sort.

“A careful reading of the consultation paper reveals numerous draconian measures and serious pitfalls. …These proposals … surrender to the [China] central authorities a fundamentally important part of the autonomy provided under the Basic Law.” She supports the call for a white paper

The FT reported 25/11/02 that Audrey Eu, a legislator and a former chairwoman of the Bar Association, said "If the central government says that the Falun Gong is a threat to national security, there's very little Hong Kong courts can do,"

Comments by politicians

Martin Lee, Chairman of the Democratic Party, writing in the Wall Street Journal 27/09/02, said that the HK authority “is about to install the necessary legal mechanisms to enable Beijing to suppress the free press and dissident groups in Hong Kong.” In particular, “Under the present proposals, so long as Beijing decides and states that the Falun Gong "endangers national security" in mainland China, … the Hong Kong government would have to take action against Falun Gong followers...”

The China Democracy Party and China Democratic Alliance announced their firm opposition to Article 23 legislation.

South China Morning Post reported 02/10/2002 that Albert Ho, a Democratic legislator, said the anti-subversion law was unnecessary and could easily be abused to criminalise speech and to suppress dissidents Beijing disliked.

Comments from Human Rights Bodies and NGOs

The AFP reported that on 19/09/02 a coalition of 30 NGOs in Hong Kong protested and submitted a petition to the HK government against the proposed legislation.

Mike Jendrzejczyk, Director for Asia at Human Rights Watch wrote in the International Herald Tribune 11/10/02 “the muted response from key governments was surprising and disappointing.”

Comments by media organisations

Mr. Cliff Bale, chairman of the press freedom subcommittee of the Hong Kong Journalists Association, wrote in the Wall Street Journal on 10/10/02 that the proposed law “could have a devastating effect on media” He supported the call for a white paper.

Time magazine commented 7/10/02 “What the Tung administration is doing is handing to Beijing the power to decide who shall do what in Hong Kong. This makes a mockery of the autonomy pledged five years ago.”

The main English paper in HK, the South China Morning Post, commented 28/09/02 “it is inconceivable the Falun Gong will still be able to operate freely in Hong Kong if it is categorised a threat to national security on the Mainland”

Siu-Lan Law, General Secretary of the Hong Kong Journalists Association said 31/10/02 (Forbes) "We have every reason to worry."

Comments from the business community

The leading financial and business publications have lead the criticism of Article 23 legislation. The FT commented 30/09/2002 “the legislation will give Beijing absolute control over the mass media and all dissident groups. A large part of Hong Kong's success has been attributable to the independent enforcement of the rule of law. It would be a terrible shame - and a threat to the city's future prosperity - if this were to be replaced by the rule of politics”. It further commented 1/10/02, “it is becoming harder and harder to argue that it is business as usual in Hong Kong.”

Mark Clifford, Hong Kong bureau chief for BusinessWeek, commented 31/10/02 “The sweeping, heavy-handed proposals that Beijing is pressing on the island raise deep concerns about its future freedom … It's almost as if Ip [HK minister for security] and her crowd are trying to scare investors away from Hong Kong.” He also asks “Why does the government want to accelerate the process if, as it professes, the proposed new laws will be rarely utilized, and there's no immediate plan to use them?”

The Forbes reported 31/10/02 “The proposal has introduced a measure of hard-to-calculate political risk for Hong Kong's already struggling markets. …Already, many critics of the law in the business community refuse to discuss their concerns publicly for fear it will hurt their ability to do business in China. …The business community is not buying it [HK Government reassurance].”

According to the Forbes 31/10/02, Frank Martin, President of the American Chamber of Commerce in Hong Kong said "We don't want to see any erosion in the legal system". Anthony Miller, Asia MD for Ramius Capital Group said "As global fund managers, we look to invest in markets that maintain reliable rule of law."

Jim Walker, of emerging markets brokerage CLSA commented 1/11/02: "When things are going badly, politics matters a lot"

Comments from religious groups

Reuters reported 3/10/02 that Hong Kong Roman Catholic Bishop says he fears the anti-subversion law: “If it materialises, there’ll be a lot of troubles”. The Christian Science Monitor commented 4/10/02 that China “took a big leap backward”.

Comments from other public figures

Hong Kong's former Chief Secretary Anson Chan said, according AFP 03/10/02, “Its impact on our freedom and our lifestyle is far-reaching. We should encourage the widest possible debate,…the devil is in the detail.” She called for the publication of a white paper.

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Friends of Falun Gong Association of Canada's Letter to Hong Kong Security Bureau to Oppose Article 23

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