AS(F)2, F Division
Security Bureau
6/F, East Wing
Central Government Offices
Lower Albert Road, Central
Hong Kong
E-mail: 11th December 02
Re: Hong Kong (English-speaking) P.E.N. response to Hong Kong’s Consultation Document: “Proposals to implement Article 23 of the Basic Law”
International P.E.N., the only worldwide organisation of writers, editors and translators, is the leading voice of the international literary community. Founded in 1921 and headquartered in London, P.E.N. today represents some 12,000 members in 150 local centres, in more than 70 countries.
Hong Kong (English-speaking) P.E.N. is one of two P.E.N. centres in Hong Kong, the other a Chinese-language group. The English centre, with about 30 active members, was founded over 10 years ago; Hong Kong Chinese P.E.N. has existed much longer. Hong Kong English P.E.N. have encouraged Hong Kong Chinese P.E.N. and International P.E.N. to respond separately, before Government’s 24th December 02 deadline.
To begin, Hong Kong English P.E.N. is deeply concerned about the proposed subversion legislation because it would threaten the territory’s long tradition of freedom of expression and free speech, two vital components of civil society that have helped transform Hong Kong into the vibrant international capital it is today.
While Hong Kong English P.E.N. appreciate the need for legislation to replace outdated colonial laws, it believes any new laws should be highly limited in scope and free of new provisions that could diminish the free flow of ideas and information.
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The following are Hong Kong English P.E.N.’s specific concerns, in no particular order:
1)The consultation process itself is flawed by the absence of a preliminary “white bill” around which discussions on specific points of law can cohere. This is far easier to amend in response to results of a public consultation that a formal “blue bill” which, once introduced into the Legislative Council, requires separate motions, debates and votes on every change, no matter how minor or significant. The existing consultation-document proposals in general are too vague and would be easily subject to abuse.
2)“Protected Information” under state-secrets clauses should be defined by reference to content or nature, NOT by source.
3)A clear definition of “Protected Information as State Secrets,” must be written, otherwise the notion is too vague and could impede tragically the free flow of information.
4)“Unauthorised and Damaging Disclosure” should be excluded from the proposed list of offences, as its vague legal definition could lead to serious self-censorship on the part of the press, financial institutions and other organisations whose public duty includes disclosure of information.
5)A balance of “freedom of expression” and “national security” should adhere to the sixth point of the Johannesburg Principles, which states: “expression may be punished as a threat to national security only if intended or likely to incite violence and there is direct and immediate connection between the expression and occurrence of such violence.”
6)Consideration of “Public interest in Disclosure” described in point thirteen of the Johannesburg Principles: “In all laws and decisions concerning the right to obtain information, the public interest in knowing the information shall be a primary consideration,” should be incorporated verbatim into Article 23 as an acceptable defence for press reports.
7)“State Secrets” should exclude information already in the public domain, such as on the Internet, in libraries, press morgues, etc.
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8)All subjects of legislation should exclude protection of unlawful or unconstitutional acts by the authorities.
9)Offences should be prosecuted within six months and, for proceedings to continue, should require approval based on a court hearing once prosecution has begun.
10)Laws against treason, secession and subversion adequately protect national interests, Government should withdraw proposals to legislate against sedition and/or seditious publications, which serve no meaningful security purpose but do engender a climate of self-censorship and invite government abuse of the exercise of free expression and speech.
11)Existing restrictions on foreign political organisations covered by the Societies Ordinance are adequate. Proposals to create new laws making it “an offence to organize or support activities of a proscribed organization” and to “manage or be an office-bearer of the unlawful organization” are vague and present a serious threat to internationally affiliated organisations such as Hong Kong English P.E.N., because definition of such an organisation would be determined by China’s highly uncertain, and often ideologically driven policies. As currently proposed, for instance, laws outlined in the Article 23 consultation document could subject to prosecution at any time the Roman Catholic Church and its practitioners in Hong Kong, along with international free-speech activists, such as members of Hong Kong and International P.E.N.
Submitted following member consultation, via postal and electronic mail by:
Fred Armentrout
President
Hong Kong (English-speaking) P.E.N.
Email:
Facsimile: 2525-3961