Hong Kong Human Rights Monitor

4/F Kam Tak Building

20 Mercer Street

Sheung Wan, Hong Kong

Phone: (852) 2811-4488

Fax: (852) 2802-6012

Email: [email protected]

Website: http://www.hkhrm.org.hk

Human Rights Monitor has carefully considered the Government's National Security (Legislative Provisions) Bill.

We are pleased that the Government has taken account of some of the most serious concerns which we expressed when the Consultation Document was published last September. In particular we are relieved that the Bill as published defines treason in such a way that it no longer criminalises trade with the Taiwan authorities; that the proposed offence of possession of seditious publications has been dropped, and that the previous proposal to take power to ban any organisation which had ever given money to a Mainland organisation banned in the Mainland on national security grounds has also been abandoned. The introduction of jury trial for most of the proposed offences is a positive step. We are also pleased that the Government has indicated its willingness to consider further amendments to the Bill.

We remain of the view that the Bill is not needed to catch any genuinely criminal organisation or activities, as these are amply catered for under existing law, and that some of its provisions are still open to misuse in future to persecute those who are unpopular with the Mainland authorities but are merely exercising their rights of free speech, freedom of association and freedom of assembly in Hong Kong.

The proposed power to ban organisations subordinate to Mainland organisations banned on national security grounds remains open to abuse unless it is made clear that "Mainland organisations" is only to mean organisations which are presently in the Mainland. At present the Bill might be interpreted to mean organisations which were originally organised in the Mainland but are not now, such as the Kuomintang or Falun Gong. This change would be particularly reassuring to Falun Gong members, in view of the Government's assurance that the legislation is not intended to target them.

The power to search without a warrant for seditious publications is an extreme measure wide open to abuse. The fact that the police officer authorising the search must be at Superintendent level and must have cause to believe that evidence will be destroyed without the search is no real safeguard. It is hard to see what legitimate state interest is served by such a power. It should be removed from the Bill.

The very complex provisions relating to disclosure of official information will increase the pressure on newspaper editors and other recipients of information which may possibly have been unlawfully obtained and relate to national security. We consider that the additions proposed to the law are unnecessary and will have a chilling effect on news reporting. If the Government insists on going ahead with them we hope that as a reasonable counter-balancing measure to enhance public confidence it will at least provide a "whistleblower" defence ie a defence that the publisher of the material genuinely and reasonably believed that publication was in the public interest.

We repeat our earlier concern that the power to ban organisations subordinate to Mainland organisations banned on national security grounds is outside the remit of Article 23. We do not believe that there is any need for a separate banning power of this kind. If the Government insists on it, we consider that the banning should actually be done by a court on the application of the Secretary for Security, rather than by the Secretary for Security. This would provide a safeguard against a ban resulting from political pressure which could not survive the scrutiny of the evidence in court. The alternative proposed by the Government -- ban first with an appeal to the court -- could inflict irreparable damage on an organisation which was banned but then succeeded in having the ban lifted.

We hope that the Government will make these further changes. We are aware that the Government has argued that the legislation as drafted is more liberal than in some other common law jurisdictions. However it should recognise that Hong Kong's unique position under "One Country Two System" means that extra safeguards are needed here, if the community is to be reassured that the law means nothing worse than the Government spokespersons say.