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South China Morning Post, 24 December 2002
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Security legislation must not threaten our freedoms
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By Martin Lee
The community has been polarised by the hard-sell tactics employed by the government to implement the anti-subversion provisions within Article 23 of the Basic Law.
With today marking the end of the consultation period, people have been angered by the government's obstinate refusal to give details of the proposed legislation.
Those of us who fear that our freedoms will be eroded by the proposed legislation oppose it. Some have asked for details to be given in a white bill and for an extension of the consultation period for a few more months. Those who support the government call for the proposed laws to be implemented without any more ado, although even some supporters have expressed concern over certain proposals and the lack of details. Both sides have taken to the streets in large numbers.
It is time we took stock of the situation.
The common objective of both Beijing and the SAR government must surely be that no legislation under Article 23 would erode our freedoms, as has been repeatedly stressed by Chief Executive Tung Chee-hwa and his secretaries. Indeed, any erosion of our freedoms would constitute a serious breach of the Sino-British Joint Declaration and the assurances given to the people of Hong Kong in 1984 that all our freedoms and our way of life would remain intact for 50 years from 1997.
The government clearly started the consultation process on the wrong foot. Senior officials have openly conceded that the SAR government consulted the central government in Beijing and that the two governments reached a consensus on the timing and content, in general terms, of the proposed legislation before the proposals were even drafted.
This was a shocking revelation: Article 23 specifically provides that Hong Kong is to legislate in the seven prescribed areas on its own.
Instead of approaching Beijing, the government should have asked our own Law Reform Commission to study the matter and come up with recommendations including a white bill. Then it should have consulted the public as to how best to implement Article 23 without infringing any of our existing freedoms. Indeed, the experience of many countries shows that a responsible government approaches such important and sensitive constitutional matters cautiously, legislating only when there is general support after an extensive consultation, which might take years. The Tung administration had five years to prepare the way, but chose to do nothing until now.
There is no good reason why legislation under Article 23 should not coincide with the establishment of a democratically accountable government in the SAR, as is promised in the Joint Declaration and provided for in the Basic Law. It is wrong for Beijing and Mr Tung to say that Article 23 is the only provision in the Basic Law that has yet to be implemented. There is another: the development of democracy. The past 5 years have seen an almost total lack of trust on the part of the community for an unelected and unaccountable government under Mr Tung.
So a strong case has been made that the matter should be dealt with five years from now when Hong Kong will hopefully have a democratically elected chief executive as well as a fully democratically constituted Legislative Council.
This is the first time since the handover when there has been so much worry expressed over our freedoms both at home and abroad. In Hong Kong, those who have spoken out in public include politicians, church leaders, the Bar, the Law Society, academics, librarians, teachers, journalists, trade unionists, bankers, foreign chambers of commerce, university students as well as many ordinary citizens, culminating in the largest public protest since the June 4, 1989, Tiananmen massacre. Foreign governments have also voiced their deep concern. Surely it would be totally irresponsible, if not highly dangerous, for Mr Tung to ignore this most reasonable demand for a white bill.
The government is apparently prepared to make certain concessions over its ill-considered proposals to increase police search powers, to prohibit unauthorised disclosure of protected information consisting of communications between the central and the SAR governments, and to criminalise the possession of seditious literature. But it has remained firm over its most alarming proposal: to give power to the Secretary for Security, rather than to the courts, to ban any organisation in Hong Kong on grounds as trivial as public order. The secretary need only be satisfied that it is a branch or affiliate of an organisation on the mainland that has been banned on national security grounds. That fact will be certified by Beijing and be binding on the SAR government. This opens a dangerous hole in the relationship between Beijing and Hong Kong that is clearly inconsistent with the Basic Law.
Article 23 makes it clear that it is for Hong Kong to legislate on its own over the seven areas. The SAR consists of the government as well as the people of Hong Kong. The government must therefore listen to the people and immediately publish a white bill, and then consult the people of Hong Kong on how to proceed further. The bottom line is: no legislation unless all our freedoms are preserved.
Martin Lee Chu-ming is a former member of the Basic Law Drafting Committee, and a legislator and former chairman of the Democratic Party.
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