(Clearwisdom.net) The Hong Kong SAR government proposed the Consultation Document1 on Proposals to Implement Article 23 of the Basic Law in September 2002, in order to enact laws to punish related actions stipulated in Article 23 with specific penalties. Both the Consultation Document and the public speech by Mrs. Regina IP, the head of Hong Kong Security Bureau, stressed that Article 23 would be used to amend and add additional related items, and to specify the related crimes already stipulated in the common law, so that they would all conform to the objectives of Article 232. Article 23 would absolutely follow the principle that protects people's freedoms and rights as stated in the "International Covenant on Civil and Political Rights" (ICCPR) and the "International Covenant on Economic, Social and Cultural Rights." (This principle was determined by Article 39 of the Basic Law3) Moreover, related laws in Mainland China would not be "automatically" applied in Hong Kong4, therefore they would not affect the rights and freedoms of the Hong Kong people.

We must ask, however: is it true that Article 23 will not affect the activities and freedoms of the people and the existing civil organizations, as claimed by the Hong Kong SAR government?

In fact, looking from the content of the Consultation Document on Article 23 published by the Hong Kong SAR government, there are many potential contradictions and preset traps. The direction to enact this law shown in Article 23 precisely demonstrates that the Hong Kong SAR government attempts to enact this law to take advantage of the interconnected gray areas between international covenants, freedom of expression and the protection of other civil rights, under the excuse of "national security," to achieve the purpose of suppressing democracy, freedoms and human rights of the Hong Kong people, including the suppression of the activities and freedom of Falun Gong cultivation group in Hong Kong, as can be seen in the following aspects:

  1. The goal of the whole Consultation Document provides excuses for the enactment of Article 23. For example, there are two reasons5 given for including the following in criminal law, "any act of treason, secession, sedition, subversion against the Central People's Government (CPG), 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 first is Article 23, and the other one is that it is mentioned in ICCPR that the freedom of speech, under special "reasons" such as if it is damaging national security, can be restricted. The process of drafting, amending and the final decision on Article 23 has its special historic background and political reasons. The Chinese government fully displayed its intention to restrict Hong Kong people's political freedom by insisting on the enactment of Article 23 in the Basic law in the first place, in order to avoid similar bloody suppression like the "June 4th Students Movement at Tiananmen Square" should the Hong Kong people oppose the Chinese government. There are other articles discussing this issue6, so I shall not go any further on this point in this article.

    2. There is one issue worth noting: Is the people's relevant rights that are restricted by enacting Article 23 only the freedom of speech as claimed by the Hong Kong SAR government, and therefore conforms to Item 3, Article 19 of ICCPR, and so the freedom of speech can be restricted with the reason to protect "national security"? In the suggestion of the No. 20 item of the Consultation Document, it is explicitly stated that according to the existing "Association Regulations" in Hong Kong, the head of Security Bureau can declare a certain organization illegal if it's necessary to protect the national security 7; on the other hand, the No. 21 suggestion also explicitly states what is needed to ban a certain organizational activity in Hong Kong: to protect national security, public safety or public order, and if an organization also falls into any one of the following8 three categories:

    (1) The purpose or one of the purposes of the organization is to participate in treason, secession, sedition, subversion or theft of state secrets, or:

    (2) The organization has already committed treason, secession, sedition, subversion or theft of state secrets, or

    (3) The organization is a branch of an organization in Mainland China that is banned by the central government according to national laws and deemed harmful to national security.

    No. 22 also suggests that organizing, supporting and administering activities of the banned organization is also a crime; any other organizations involved with this organization can also be declared illegal when necessary9.

    Let's not talk about the definition and the scope of "treason, secession, sedition, subversion and theft of national secrets" in the first 2 issues, for they are the focus of the Consultation Document. What is most suspicious is what is stated in the third issue, that an organization banned by the central government with the excuse of damaging national security can also be banned by the Hong Kong SAR government with the same reason, and it only needs the approval of the Security Bureau before the ban is put into effect. Although item 23 of the Consultation Document provides limited ways to obtain legal help, the same law item also explicitly states that the SAR Hong Kong government can decide whether the organization threatens national security according to the central government's judgment, and therefore the SAR government's decision will be deemed legal. Whether the legal system can truly investigate the accusation of damaging "national security" as determined by the central government, and how much arbitration power it has to make a different verdict is highly doubtful.

  2. From 1999, the Chinese government made a series of political and legal decisions and legal definitions and declared Falun Gong illegal in China, and conducted a persecution, which has been going on for more than three years until now. During this time, many Falun Gong practitioners were illegally arrested, detained, brutally tortured, inhumanly treated and suffered great injuries and deaths, which seriously violates Falun Gong practitioners' human rights protected by "Universal Declaration of Human Rights" (UDHR)10 and ICCPR11.

Regarding Falun Gong, the protection is mostly based on these two international documents as well as item 18 of UDHR12, which is protection of freedom of religion and belief. This right in nature itself has the characteristic of fusing the exercise of other correlated rights, which is unique in that it protects other related rights, including expressing one's belief in public (external forum), which covers rights of speech, assembly, gathering, parade, etc. Because of the uniqueness of its nature, this right was singled out from other rights to be granted special protection, and it is one of the basic human rights with the longest history.

The uniqueness of freedom of religion and belief is shown by non-derogation dedicated to item 2, Article 413 of ICCPR. The significance of this protection for the freedom of religion and belief can be viewed from two perspectives: regarding individual belief (internal forum), there is absolute protection of the freedom of belief, it is sacred and cannot be violated, and the government cannot restrict it under any circumstances; on the other hand, as for public expression of the freedom of belief, although item 3, Article 1814 of ICCPR allows restriction under special circumstances, because of the special status to protect the freedom of religion and belief, such restriction needs much more strict requirements than for other rights. This restriction must meet three requirements, which include that it must have a legal foundation, it is necessary and it must have a clearly stipulated purpose (public safety, order, health, morality and the protection of other people's basic rights and freedom). The U.N Human Rights Committee made a special emphasis that "national security" should not be used to restrict freedom of religion and belief, although it can be used to restrict other rights15.

Therefore, although item 3, Article 19 of ICCPR acknowledges the exception of protecting the freedom of expression for the protection of "national security," it does not mean that the same principle can be used to restrict freedom of religion and belief. The persecution against Falun Gong by the Chinese government not only violates the absolute protection of individual right of belief as stated in ICCPR; the political excuses and the excuse of protecting national security that are publicly claimed by the Chinese government cannot legalize its restriction over Falun Gong practitioners' right to publicly express their belief, either. However, China, with laws and policies in such serious violation of ICCPR inside of China, is likely to, through the combination of Article 23 and Hong Kong's Association Regulations, impose restriction of freedom of religion and belief under the excuse of protecting "national security," even though it declares on the surface that such restriction conforms to the principle of ICCPR to protect human rights of freedom of speech and belief, in fact, it violates the principle that "'national security' should not be used to restrict freedom of religion and belief."

In other words, Article 23 by the Hong Kong SAR government is not merely restriction over freedom of speech as it claims, but it can also be legalized for other purposes with the excuse of protecting "national security." Moreover, although the "illegal organizations damaging to national security" as determined by the Chinese government have not automatically extended into Hong Kong, the administration and legal system of Hong Kong SAR government will not investigate the Chinese government's verdict itself 16. Furthermore, the direction of the enactment of Article 23 determines that Hong Kong's SAR government can copy the central government's policy and declare an organization illegal if the organization is banned in Mainland China. It can also use Article 23 and Association Regulations to ban Falun Gong activities in Hong Kong. The suggestion to forbid organizing activities in Hong Kong in Consultation Document itself contains a latent contradiction in which it appears to follow the principle of ICCPR while actually violating it. Because the No. 3 important issue of the No. 21 suggestion is listed after two issues of "treason, secession, sedition, subversion and theft of national secrets," which has not attracted much attention, yet it actually attempts to turn over the right to decide whether an organization's activity in Hong Kong is illegal to the central Chinese government.

Although the head of the Security Bureau stressed that the draft of Article 23 would be published in early 2003 and the government would continue to consult with the people, yet the Consultation Document explicitly stated the consultation ended on December 24, 2002. No one knows how the Hong Kong SAR government is going to conduct future consultations. The Hong Kong SAR government not only attempts to restrict the freedom of speech of the Hong Kong people, but also misleads people to focus their attention on freedom of speech through the Consultation Document, hiding its true intention behind the excuse of protecting "national security"--violating the principle of UDHR of protecting freedom of belief. The way the Hong Kong SAR government conducts itself makes it impossible for people to have any trust in them; furthermore, if the Hong Kong SAR government accepts the suggestions made in the Consultation Document, it would further violate Article 39 of the Basic Law, which enjoys the status of the Constitution of Hong Kong, therefore, Article 23 does not have a legal foundation from the very beginning.

Reference:

1. See Hong Kong Security Bureau, Consultation Document on Proposals to Implement Article 23 of the Basic Law (Sept. 2002), available at http://www.info.gov.hk/sb/eng/23/reporte.pdf.
2. See id. 3.
3. See id. 5.
4. See Hong Kong Security Bureau, Proposals to Implement Article 23 of the Basic Law: Myths and Facts, pt. Proscribing Organized Crimes, available at http://www.info.gov.hk/sb/eng/23/index.html.
5. See Hong Kong Security Bureau, supra note 1, 5.
6. See an article in Chinese at http://www.dajiyuan.com/b5/2 /10/7/n233361p.htm
7. See Hong Kong Security Bureau, supra note 1, 20.
8. Hong Kong Security Bureau, supra note 1, 21.
9. See Hong Kong Security Bureau, supra note 1, 22.
10. Universal Declaration of Human Rights, G.A. Res. 217 A, U.N. GAOR, 3rd Sess., pt. 1, at 71, U.N. Doc. A/810, (1948)( hereinafter "UDHR").
11. International Covenant on Civil and Political Rights, G.A. Res. 2200A, U.N. GAOR 21st Sess., Supp. No. 16, at 52 , U.N. Doc. A/6316 (1966)(hereinafter "ICCPR").
12. Article 18 of UDHR provides, "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance."
Article 18 (1) and (2) of ICCPR also provides a similar protection, "Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching." And (2), "No on shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice."
13. Article 4 (2) of ICCPR, "No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision."
14. Article 18 (3) of ICCPR provides, "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."
15. See General Comment No. 22 (48) on Art 18, U.N. GAOR, Hum. Rts. Comm., 48th Sess., 8, U.N. Doc. HRI\GEN\1\Rev.1 at 35 (1994)
16. See Hong Kong Security Bureau, supra note 4.

Views expressed in this article represent the author's own opinions or understandings. All content published on this website are copyrighted by Minghui.org. Minghui will produce compilations of its online content regularly and on special occasions.

Category: Perspectives