written by Cliff Buddle.
SOMEWHERE IN Tung Chee-hwa's office, it has been suggested, lies a secret file containing information that could plunge Hong Kong into the most damaging controversy since the 1997 handover. It would contain details meticulously prepared by the Security Bureau, the result of years of research into an issue which has been dubbed a "ticking time bomb", one that could set Hong Kong on a collision course with the mainland and prompt a constitutional crisis. The research concerns proposals for passing security laws against treason, sedition, subversion and secession, as required by Article 23 of the Basic Law. For almost five years the Government has delayed bringing in the sensitive laws, which many fear will restrict basic freedoms and be used to crack down on Beijing enemies such as the Falun Gong or supporters of an independent Taiwan. But in recent weeks signs have emerged that the legislation is on its way. The time bomb might be about to explode. "If you look at all the circumstantial evidence you conclude they are going ahead with it," Bar Association chairman Alan Leong Kah-kit, SC, said.
The issue was raised in high-level talks in Beijing for the first time in February, when National People's Congress chairman Li Peng met Secretary for Justice Elsie Leung Oi-sie. Vice-chairman of the NPC's legislative Affairs Commission, Qian Xiaoyang, said at the time: "Under the Basic Law, the SAR has a duty and responsibility to enact the law . . . It has to do so as soon as possible." There have been suggestions Ms Leung will extend her contract, due to end in June, in order to help establish the laws under Article 23. Reports have also said a Security Bureau file on the issue has been put in the hands of the Chief Executive. A spokesman for the Security Bureau said the proposals were still being worked out and would not say if a report had been sent to Tung Chee-hwa. Asked about the research, he replied: "We are not yet in a position to disclose any details." Mr Leong said: "The Government does not want to share the research results with anyone." He has urged a Bar Association committee to study the issue and hopes it will be able to reach conclusions by next month. "I don't want to sit on this issue. I believe it is important enough to justify immediate attention because of all the far-reaching repercussions and implications," he said.
The Government faces a difficult task balancing the interests of the central Government with preservation of human rights. When the Basic Law was promulgated in 1990, the Tiananmen Square massacre was still fresh in the memory. It has been suggested that China's concern that Hong Kong may become a base for subversive activity led it to insist on Article 23 being included. But the climate has changed substantially since then and it is now difficult to see what threat is posed in Hong Kong that cannot be dealt with under existing laws. "I don't think the central Government cares that much, so long as no one raises the question in Hong Kong. But whenever there is a so-called crisis in Hong Kong, over Falun Gong or Taiwan, certain people come out and say we need [laws passed under] Article 23," associate law professor Fu Hualing, of the University of Hong Kong, said. "This puts pressure on both the central and Hong Kong governments. If someone brings the question up, they have to respond somehow. The easiest way is to say we are going to bring in the laws." But if new legislation is to keep pro-Beijing groups happy by providing a new weapon to crack down on dissent, it is bound to conflict with rights protected by the Basic Law. The mainland's subversion laws have been used to target democracy campaigners, academics, journalists and religious activists. A study by the Hong Kong Human Rights Monitor last year pointed out that the mainland's national security laws fell well short of international standards. Article 105 of the Criminal Law, for example, outlaws "incitement to subvert the political power of the state and overthrow the socialist system by spreading rumours, slander or other means".
The Human Rights Monitor report says: "No definition of key terms is given, leaving the Government a high degree of flexibility in pursuing its critics." Mr Leong warns that if Hong Kong adopts laws similar to those in the mainland, a constitutional crisis will follow: "If we borrow [from the mainland] and enact those laws they are bound to infringe the fundamental rights and freedoms guaranteed by the Basic Law. If the Government insists on copying from the mainland, that would almost inevitably involve the court striking those laws down," he said. This might lead to another reinterpretation of the Basic Law by Beijing, which would severely damage Hong Kong's autonomy, Mr Leong said. Asked what threat to the state existed that was not covered by Hong Kong's existing laws, Mr Leong said: "Ask Li Peng. I don't know." Article 23 does, however, state that the SAR is to enact these laws "on its own", suggesting that wholesale copying of mainland laws is not the intention.
If the Government wishes to avoid conflict, it would seem to have two choices. The first would be to introduce laws that conform to international standards and pose no threat to free speech. The Human Rights Monitor report suggests this might be done by ensuring that the offences are clearly defined and narrow in their scope. They should only be brought in if needed to protect national security. The report says it is doubtful if laws on secession or subversion could comply with these principles. Laws on treason and sedition, inherited from the British, are still in force. Attempts just before the handover to liberalise them and to introduce narrowly defined laws on secession and subversion were ultimately unsuccessful, leaving the job to Mr Tung.
Paul Harris, a barrister and spokesman for the monitor, said: "If it is going to be done, I desperately hope it will be something that only criminalises things which are linked to the violent overthrow of the state." It should not punish the expression of views such as those supporting independence for Taiwan, he added. Alan Hoo, SC, said it was very significant that the central Government had not sought to impose its own laws on Hong Kong. "That is a very big step. You would have thought if any laws have top priority it would be these ones because it is a question of national security and territorial integrity," he said. This showed there was a clear recognition and respect for Hong Kong's separate legal system. It was now up to the SAR Government to introduce laws that balanced national security interests with human rights. "Sufficient regard must be given to rights and freedoms guaranteed by the international covenants, in particular freedom of expression," Mr Hoo said. He said there was not necessarily anything to fear from such laws. A second option for the Government would be to do nothing. "I regard it as totally unnecessary," Mr Harris said. But this would probably require the agreement of the central Government, he added.
The Security Bureau spokesman said wide consultation would take place: "We are studying the laws and law reform proposals of both common and civil law jurisdictions and examining relevant human rights principles to assist us. But until the proposals are made public, doubts will remain. The time bomb will continue to tick.
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