SCMP: Chipping Away at Our Hard-Earned Freedom (Excerpt)

Tuesday, May 22, 2001

Statements made by the new Chief Secretary for Administration, Donald Tsang Yam-kuen, last Friday have brought closer to reality the introduction of "anti-[term omitted]" legislation targeted at the Falun Gong. The Hong Kong version is believed to be inspired and encouraged by an anti-[term omitted] bill currently before the French Senate. Two features of this bill are most notable and feared. It will punish "mental manipulation" under the broad and subjective definition of "fraudulent abuse of a person in a state of psychological or physical subjection resulting from the exercise of serious or repeated pressures or techniques meant to alter one's judgment". Almost any religious conversion can be made to fit into this formula by its persecutors.

The other feature is that once labelled a [term omitted], a group could be dissolved by court order if one of its leaders, or the group itself, is found guilty more than once of an offence. It is reported that based on this, the Security Bureau will propose that a group could be disbanded if a branch of it is found guilty of a crime outside Hong Kong. In answer to a direct question from Democratic Party chairman Martin Lee Chu-ming in his first meeting with Legislative Councillors in his new role, Mr Tsang tacitly admitted the Government was studying the French bill seriously. He justified this by saying Hong Kong must take note of developments in other parts of the world. "Some religious or quasi-religious groups behave in an extremist fashion. Although this takes place elsewhere, shouldn't Hong Kong deal with it carefully? Or are we only to have regard to what happens here?"

This statement is unlikely to mean merely that Hong Kong should keep an intellectual interest in what happens in other parts of the world. That France, an undisputed modern Western democracy, can contemplate an anti-[term omitted] law is a good enough excuse for Hong Kong to follow, whether or not the bill is eventually passed by the French Senate. But perhaps Mr Tsang's statement goes even further, to suggest that the condemnation of a group elsewhere as a [term omitted] is sufficient ground for its being banned in Hong Kong - precisely the effect that Chief Executive Tung Chee-hwa wanted to achieve when he said things like Hong Kong's freedoms are not to be abused to subvert Beijing.

What the French see fit to do in their own country is quite their own business. Apart from a few notable exceptions such as terrorism and money laundering, criminal law has always been specific to its own community. It deals with the specific "mischief" occurring in a community to the degree of severity warranted by the harm being caused and by the sentiment of that community.

One thing which is obvious in the French context is the shock caused by the collective suicide of 16 members of the Order of the Solar Temple doomsday [group] in France in 1995 - followed by a series of similar incidents elsewhere in Europe and Canada in recent years - and the perceived failure in the past to deal with complaints against various [group]s by their former members. Reportedly, about 280 court proceedings have been initiated since 1996, with 100 of them being subsequently dropped and only 48 resulting in convictions, mostly for deception, fraud or illegal practice of medicine. But even in this context, the bill has roused deep concerns and strong protests in France.

Where is the parallel in Hong Kong? Are the collective breathing exercises of a group of people, albeit professing religious thoughts with which Secretary for Security Regina Ip Lau Suk-yee finds exception, enough to threaten the internal security or public order of the SAR? What is the particular nature of the threat which the Societies Ordinance cannot deal with?

Or is this all just a sham, and a transparent one at that; the real issue being that the Government has found a legal cloak for religious persecution and is hopeful of pleasing Beijing with it?

Mr Tsang tried to assure Legco members that the Government would "act according to law". In view of this government's track record in the past few years, it is no surprise that such assurances fool no one. A recent editorial in the Hong Kong Economic Journal pointed out that Hong Kong officials are increasingly going in the direction of the mainland's "rule by law", while former Bar chairman Ronny Tong Ka-wah SC, raised the same warning in an article in the Hong Kong Economic Times.

Both commentaries referred to recent incidents showing a downward movement in human-rights protection since reunification. Fundamental rights and freedoms are being steadily chipped away in the name of law and order, using the political tools of manipulation of public opinion and pressure on pro-Beijing parties in Legco.

[...]

To the Government, the rights and freedoms enshrined by the letter and spirit of the Basic Law are not sacrosanct. They are open to modification by Beijing through the conduit of judicial processes in Hong Kong. If Article 39 is open to modification in dealing with the right of abode, why should it be otherwise when it comes to an anti-[term omitted] law against a [group] already outlawed by Beijing?

Once the precedent is established, what rights or freedoms are safe? How can judicial independence avail when the judiciary is itself powerless? The immediate issue may be anti-[term omitted] legislation and the Falun Gong, but far more than that is at stake. In allowing the Government to create a legal instrument to beat Falun Gong, Hong Kong will be designing the collapse of its own freedoms.

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

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