09/25/2002

ALL SIGNALS ARE THAT the process of Article 23 legislation is due to begin. Although it starts with a consultation paper, the SAR government has made up its mind that there will be legislation against "subversion" and "secession".

It also seems that the government appreciates this will put new restrictions on the freedom of speech and information, but it is nonetheless going ahead for one reason or another.

It is unfortunate that the government has chosen this course of action. Even if Article 23 has to be tackled, the manner and timing are particularly ill-chosen. As the debate is being opened in a politically uncertain context - brought on by the new ministerial system and the frustration at the economic downturn - the threat to Hong Kong's stability and prosperity is increased rather than minimised.

I cannot emphasise too strongly how critical it is to Hong Kong's survival - as a free and vibrant city - to refrain from proposing disturbing legislation.

There are those who say: "But every state has national security laws." However, individuals and organisations in the United States are protected by democracy and the First Amendment. Those in Britain are protected by a long history of constitutionalism and the Human Rights Act. The SAR is under a chief executive directly responsible to Beijing.

There are those who will attack critics of the new proposal and say there are already draconian laws against treason and sedition - laws drawn up under colonial rule. However, those laws have not been evoked for decades and are unlikely to withstand the rigours of a modern court challenge.

The government's job is to modernise the law, not to make it more menacing. Officials have said that worries are misplaced, because any new legislation under Article 23 must be compatible with international covenants on human rights. This might have more force if the SAR government's track record of what it regards as compatible with human rights had been more reassuring, for example, in its stance on the right-of-abode issue, on the Public Order Ordinance and on Falun Gong.

In addition, the right question is not whether Article 23 will breach the covenants which only set the minimum standard, but whether existing freedoms will be restricted or expanded. Already in the community there are widespread beliefs of what the SAR may be required to prohibit under Article 23. The most problematic areas are subversion and secession. Subversion is unknown to the common law. Secession is literally "splitting the state" in Chinese. In a recent analysis, the Bar Association said that, properly understood, punishable acts of subversion or secession are acts either of treason or of sedition, and therefore no new offences are required.

However, the public's strong perception is that any speech or demonstration forcefully critical of Beijing or even Hong Kong authorities will put participants at risk of criminal prosecution; that any apparent support of separatist movements or thoughts about Taiwan or Tibet or any part of China will risk contravening the law, and that the line between what is forbidden and what is permitted is blurred.

What a tolerant government considers normal political debate may be seen by a narrow-minded government as a dangerous challenge of authority.

When it comes to the "theft of state secrets", what counts as state secrets shifts with the standards of freedom and openness in a society.

The Official Secrets Ordinance passed in 1997 with Sino-British agreement contains draconian measures open to abuse.

The press and the public, who up to now debate political issues daily or see and hear them debated passionately, may thus in future live in fear of transgressing the law inadvertently. To avoid getting into trouble, the only thing to do will be to shun certain topics and association with politically-minded people.

Thus the law will label, ostracise and inhibit. Society will be hushed and then fall silent. Coupled with this an underground dissent movement will gather force. By its very nature such movements will be branded subversive, and so destabilising. Freedom will lose its status of being an automatic right and become a precious commodity to be paid for with blood and tears. Hong Kong as we know it will be lost.

It is said that the law will be clear and courts will give the right judgment. But the courts can only decide according to law, and under the present political reality the law will be as the executive chooses to formulate it.

Furthermore, long before the matter can reach the courts the harm will have been done. Indeed, prosecutions are but the tip of the iceberg of ceaseless police vigilance and investigation. Once a new subversion or secession law is put in force the law enforcement agencies will start their work. Telephone tapping and other forms of communication interception will be allowed. When people are aware of the possibility of interception and surveillance, they will modify their speech and conduct. Where they need to walk tall and run free they will act furtively - unless they are loudly and firmly pro-government. If one can't be pro-government, then the only safe way to live will be to have no political opinion and nothing to do with those who have.

No doubt the government and its defenders will be quick to say that this is just alarmist, if not inflammatory, and at any rate irresponsible. Well then, let them by action prove me wrong.

There is a simple criterion by which their action can be judged - that whatever law they pass on Article 23, that the law should have no impact on the day-to-day life of the community. Let "treason" be confined to a situation of war against China. Let "acts of secession" be confined to means of war or insurrection. Let "subversion" be no wider than seditious advocacy of violence against the government of the day. Let no prosecution be brought under national security law where ordinary criminal law will suffice.

Let there be clear provisions of affirmation of rights and proportionality such as the Johannesburg Principles - established at a conference in South Africa in 1995, which seek to allow for effective national security laws which fully respect basic rights. Hong Kong will then have tackled Article 23 and acquitted itself with honour.

The government has already started on the wrong foot. The numerous secret discussions which have already taken place between SAR officials and the mainland authorities casts doubt on the genuineness of the coming consultation with the Hong Kong public, and how much real room there is for its views to be considered. But Hong Kong people have no choice. They must look Article 23 in the eye and speak up.

The international community and business community have a choice. They can speak up now or face the possibility of having to reconsider their participation here later should Hong Kong lose its vibrancy. For Hong Kong's sake and theirs, I hope the answer is unhesitatingly the former.

Margaret Ng Ngoi-yee is a legislator representing the legal profession