National Security and Fundamental Freedoms

National Security and Fundamental Freedoms: Hong Kong's Article 23 Under Scrutiny

Fu Hualing
Carole J. Petersen
Simon N.M. Young
Copyright Date: 2005
Pages: 534
https://www.jstor.org/stable/j.ctt2jbzsg
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  • Book Info
    National Security and Fundamental Freedoms
    Book Description:

    There has been intense interest in the proposals to implement Article 23, both in Hong Kong and abroad. This book will be valuable to anyone who has followed or participated in that debate or has an interest in the delicate balance between civil liberties and national security. The book will be particularly useful for legislators, policy-makers, lawyers, journalists, historians, teachers, and students, especially in the fields of law and the social sciences. The statutory Appendix will assist teachers and students to draw comparisons between existing law and the government's proposals. In 2003 more than 500,000 people marched in Hong Kong against the National Security (Legislative Provisions) Bill, which would have prohibited treason, sedition, secession, and subversion against the national government of China and included new mechanisms for proscribing political organisations. This edited collection analyses that legislation, particularly the implications for civil liberties and the one country two systems model. Although the massive protest compelled the Hong Kong government to withdraw the Bill from the legislature in 2003, it will likely propose similar legislation in the future because Hong Kong has a constitutional obligation to implement Article 23 of the Basic Law. The book provides detailed and balanced commentary on the Bill, explains why certain proposals proved so controversial, and offers concrete recommendations on how to improve the proposals before the next legislative exercise.

    eISBN: 978-988-220-227-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Preface
    (pp. ix-x)
    Fu Hualing, Carole J. Petersen and Simon N.M. Young
  4. Contributors
    (pp. xi-xii)
  5. Chronology and Abbreviations
    (pp. xiii-xvi)
  6. Table of Cases
    (pp. xvii-xxiv)
  7. Table of Legislation
    (pp. xxv-xlii)
  8. Introduction
    (pp. 1-10)
    Carole J. Petersen

    Article 23 of the Basic Law is one of the most controversial provisions in Hong Kong’s constitution.¹ It provides:

    The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.

    The debates over how this provision should be implemented embody the tension that is inherent in the...

  9. PART I: GENERAL PERSPECTIVES
    • 1 Hong Kong’s Spring of Discontent: The Rise and Fall of the National Security Bill in 2003
      (pp. 13-62)
      Carole J. Petersen

      On 1 July 2003, more than 500,000 people¹ marched in the largest protest in history against the Hong Kong government.² Despite intense heat and crowded conditions, the march was peaceful. There were no fights, no arrests, no property damage. The marchers were dignified, proud, and patient. Many had stood for hours in Victoria Park, elbow to elbow, waiting for their turn to join the march. They waited there because they knew that only those who started in the Park would be included in the official count. Everyone wanted to be counted.

      This chapter analyses what led to the unprecedented demonstration...

    • 2 Counter-Revolutionaries, Subversives, and Terrorists: China’s Evolving National Security Law
      (pp. 63-92)
      Fu Hualing

      The Chinese criminal law affects Hong Kong in many different ways.¹ Events occurring between Hong Kong and mainland China since the Reunification have created a number of “connecting doors” through which the jurisdiction of Chinese criminal law may be extended to Hong Kong directly or indirectly.² The National Security (Legislative Provisions) Bill would have created another such connecting door in the most sensitive area of criminal law. The proposed law has both symbolic and practical importance for political rights and freedom in Hong Kong. Symbolically, how the law was drafted was an index of the level of tolerance of the...

    • 3 The Consultation Document and the Bill: An Overview
      (pp. 93-118)
      Albert H.Y. Chen

      The publication on 24 September 2002 of the Hong Kong government’s Consultation Document on Proposals to Implement Article 23 of the Basic Law (“the Consultation Document”) opened a three month long consultation exercise on the legislative proposals to implement Article 23 of the Basic Law. The results of the consultation were announced on 28 January 2003 with the publication of a multi-volume Compendium of Submissions. On the same day, the government also announced nine sets of clarifications or modifications of the original legislative proposal. This was followed by the publication of the National Security (Legislative Provisions) Bill (“the Bill”) on...

    • 4 Old and New Visions of Security: Article 23 Compared to Post-September 11 Security Laws
      (pp. 119-148)
      Kent Roach

      Hong Kong was committed by Article 23 of its Basic Law to enact national security laws long before September 11, 2001. The terrorist attacks on the United States did not figure prominently in attempts to defend and justify the National Security (Legislative Provisions) Bill before it was withdrawn. The Bill highlighted crimes of treason, secession, sedition, and subversion against the state rather than new crimes of terrorism that have been enacted in many countries, including Hong Kong,¹ as a direct response to September 11. Appearances and labels, however, may be deceiving. In this chapter, I will argue that the Bill...

  10. PART II: SPECIFIC TOPICS
    • 5 Treason and Subversion in Hong Kong
      (pp. 151-188)
      D.W. Choy and Richard Cullen

      Treason and subversion are two very serious criminal offences. Laws punishing such criminal activities have been on the statute book of Hong Kong since the 1800s. Despite this, most Hong Kong people are not familiar with these offences. Throughout the more than 160 years of modern Hong Kong history, there have only been two treason trials, both of which date back to the Japanese Occupation.¹

      Since September 2002, however, public awareness with respect to these two offences has been increasing. This is largely a result of the decision of the Government of the Hong Kong Special Administrative Region (HKSAR) to...

    • 6 A Secession Offence in Hong Kong and the “One Country, Two Systems” Dilemma
      (pp. 189-216)
      Kelley Loper

      The debate over the implementation of Article 23 of the Hong Kong Basic Law illustrates the tensions inherent in the “one country, two systems” framework perhaps to a greater degree than any other issue that Hong Kong has faced since its transition to Chinese sovereignty in 1997. The purpose of implementing Article 23, according to the SAR government, is to protect the state and ensure that national security is not threatened by serious criminal offences,¹ concerns that would usually fall within the remit of a national — rather than a local — government’s responsibility. However, by virtue of the “two...

    • 7 Past and Future Offences of Sedition in Hong Kong
      (pp. 217-250)
      Fu Hualing

      For Sir James Fitzjames Stephen, whether the offence of sedition is justifiable depends on how the relationship between the ruler and the ruled is conceptualized. “If the ruler”, according to Sir Stephen, “is regarded as the superior of the subject, as being by the nature of his position presumably wise and good, the rightful ruler and guide of the whole population, it must necessarily follow that it is wrong to censure him openly, that even if he is mistaken his mistakes should be pointed out with the utmost respect, and that whether mistake or not no censure should be cast...

    • 8 National Security and the Unauthorized and Damaging Disclosure of Protected Information
      (pp. 251-276)
      Johannes Chan

      In the leading case of Lingens v Austria,² the European Court of Human Rights remarked that “freedom of political debate is at the very core of the concept of a democratic society”. Freedom of political debate presupposes adequate access to government information, without which citizen participation in public affairs and accountability of the government would not be meaningful. In modern society, the media plays a particularly important role, not only in imparting information and ideas and ensuring a free flow of information, but also in the exposure of corruption and abuse of power. The media can only effectively play this...

    • 9 Article 23 and Freedom of the Press: A Journalistic Perspective
      (pp. 277-302)
      Doreen Weisenhaus

      Journalists in Hong Kong have long dreaded the coming of legislation mandated by Article 23 of the Basic Law. Since the handover of Hong Kong to the People’s Republic of China (PRC) in 1997, the press and the public have known that, at some future date, the newly created Special Administrative Region would have to pass national security legislation dealing with treason, secession, sedition, theft of state secrets and subversion. To journalists, the prospect represented the culmination of years of anxiety over how one of Asia’s freest presses would function after the end of British rule. Despite the creation of...

    • 10 A Connecting Door: The Proscription of Local Organizations
      (pp. 303-330)
      Lison Harris, Lily Ma and C.B. Fung

      Controversy surrounded the National Security Bill’s provisions for the proscription of local organizations. One especially disturbing implication of the proposal was the affront to the “one country, two systems” policy. The proposed amendments to the Societies Ordinance¹ would have allowed Hong Kong’s Secretary for Security to consider proscribing an organization in Hong Kong if it were subordinate to an organization that had been banned on the mainland on the ground that it posed a threat to national security.² This raised fears that the Central government would, through this “connecting door”, impose on Hong Kong its definition of national security and...

    • 11 The Appeal Mechanism Under the National Security Bill: A Proper Balance between Fundamental Human Rights and National Security?
      (pp. 331-362)
      Lin Feng

      One of the most controversial issues in the National Security (Legislative Provisions) Bill 2003 (the Bill) was the proposal to empower the Secretary for Security to make special rules regarding an appeal of an order proscribing a local organization. The Bill proposed that such rules could provide for the appeal to take place without the appellant being given full particulars of the reasons for the proscription in question and in the absence of any person, including the appellant and any legal representative appointed by him. Different views have been expressed about the constitutionality of such procedures. The crux of the...

    • 12 “Knock, knock. Who’s there?” — Entry and Search Powers for Article 23 Offences
      (pp. 363-398)
      Simon N.M. Young

      In times of unrest and internal subversion, most would agree that the police should have effective powers to enforce the law and maintain public order. But what appears justifiable as a temporary measure in times of emergency should not automatically be taken to be so in times of peace and stability. In a civil society with a constitutional duty to protect human rights, the enactment of permanent entry, search, and seizure powers in the name of national security must be preceded by a clear and convincing justification from the state.

      In September 2002, when the Hong Kong government proposed an...

    • 13 A Case for Extraterritoriality
      (pp. 399-426)
      Bing Ling

      “Can the island of Tobago pass a law to bind the rights of the whole world? Would the world submit to such an assumed jurisdiction?” asked Lord Ellenborough CJ in 1808.¹ For every law enacted by a domestic legislature that purports to apply to persons, things, or events beyond its national frontier, a similar question may be asked and the answer is often not as clear and straightforward as one would hope for. The concern over the propriety of extraterritoriality is compounded when the legislation in question is penal in nature; all the more so where the law is designed...

  11. Appendix — Selected legislative extracts
    (pp. 427-472)
  12. Index
    (pp. 473-484)