October 10, 2002

(Clearwisdom.net) What happens if I report the views of politicians advocating independence for Taiwan? What if I publish the contents of a speech of a prominent Chinese leader before it's officially released? What if I report on the death of a prominent leader or a top-level government reshuffle prior to an official announcement?

These are the concerns of a senior reporter in Hong Kong who reports on China affairs, in the wake of the Hong Kong government's announcement in September of proposals to implement new national-security laws. Many journalists feel the same. Many newspapers -- some that would have been expected to take a more pro-government line -- have expressed similar fears.

The government's consultation document identifies several offenses, including treason, sedition, secession, subversion and the theft of state secrets. Some are re-workings of existing offenses; others -- primarily secession and subversion -- are new offenses. The government is under an obligation to enact such offenses under Article 23 of Hong Kong's constitution, the Basic Law.

Two areas in the consultation document could have a devastating effect on media freedom -- sedition and the theft of state secrets. Other offenses could have a lesser impact on publications. There is also considerable unease about proposals to grant the police additional powers of search and seizure without first obtaining a court warrant.

The sedition offense strikes at the very heart of media freedoms. Some lawyers and civil rights groups argue that the offense is antiquated; that it is no longer needed. The government argues that the fundamental national-security interests and the stability of the state may sometimes be seriously endangered by verbal or written communications.

The government bends over backwards to argue that its new sedition offense will not have an onerous effect on the media. Its consultation document states, "(t)he crux lies in striking a balance between proscribing . . . highly damaging communications and protecting the freedom of expression."

It argues that the mere reporting of views will not be criminalized unless it incites others to commit treason, secession or subversion, or causes violence or public disorder that seriously endangers the stability of China or Hong Kong. The maximum penalty is harsh -- life imprisonment.

Further, the paper proposes an offense of dealing with seditious publications. This covers the whole range of publishing activities: printing, selling, distributing, importing and exporting. An element of knowledge and reasonable suspicion is involved in the offense, and a defense of "reasonable excuse" is provided. The penalty is seven years --substantially higher than under the pre-1997 colonial law that is now in effect.

The government argues that its proposals are in line with the International Covenant on Civil and Political Rights, which is enshrined in the Basic Law. But many journalists worry that in more controversial areas -- Taiwan, Tibet, Chinese dissidents, Falun Gong -- they could fall through the cracks in the law. And the rub is that critics do not know the exact wording of the law, because no draft is provided.

The Hong Kong Journalists Association and other civil-rights groups argue that the law must be tightened, to ensure that no abuse can take place. There is extreme suspicion about what they consider to be the vague nature of the offenses, despite the government adding safeguards aimed at easing their worries. This suspicion is exacerbated by the impression that a deal has been done between the governments in Beijing and Hong Kong about the nature of the offenses. The two sides have admitted that they have held discussions on the issue. Hong Kong's secretary for security, Regina Ip, went so far as to admit that they had reached a consensus to have laws in place by July of next year, when the current Legislative Council session ends.

As a defense mechanism, civil-rights groups are rallying around a document called the Johannesburg Principles on National Security, Freedom of Expression and Access to Information. These guidelines, drawn up in South Africa in Oct. 1995, state that expression can be punished only if there is an intention to incite violence, a strong likelihood of violence and a direct and immediate connection between the expression and the risk of violence.

These principles are considered to be at the more liberal end of interpretation of the International Covenant on Civil and Political Rights á-- so much so that the Hong Kong government already appears to have shot them down. It says in its consultation document that they "are not yet widely accepted international norms."

The solicitor-general, Bob Allcock, goes further, quoting human-rights commentator Sandra Coliver as saying that some of the Johannesburg Principles are "more protective of freedom of expression than widely accepted international norms." Given the widespread fears among journalists and human-rights advocates, as well as the democratic deficit in Hong Kong, this is precisely what the Hong Kong government should be aiming for in drafting national security laws.

The other area of grave concern for journalists is the section in the consultation document dealing with the theft of state secrets. The term itself prompts considerable fear among journalists. Several journalists and other activists are now serving lengthy jail terms in China for leaking state secrets. The most recent person to suffer was AIDS activist Wan Yanhai, who was accused of leaking a report on a blood-transfusion scandal in Henan province. He was lucky. He was released from detention after his case was highlighted in the overseas media.

Hong Kong's Official Secrets Ordinance is based on a British law, which deals with spying and the unauthorized disclosure of information in six major areas -- including security and defense, international relations, the commission of offenses and criminal investigations. While the prosecution has to prove harm in some cases, there is no public-interest or prior-publication defenses. These are essential for the protection of journalists who obtain sensitive information.

The government's consultation document proposes new offenses, including the addition of a new category on "information relating to relations between the central authorities of the PRC and the HKSAR." The addition of this new category, covering relations between Beijing and Hong Kong, is disturbing. The relationship between the sovereign and its special administrative region is of utmost importance to how Hong Kong is run. Indeed, the government gives away very little information about this. It is simply too sensitive.

For example, people know very little about the nature of the consultations between Beijing and Hong Kong over national-security offenses, apart from the fact that they did take place, and apparently the two sides reached a consensus to enact the new laws by July 2003. Yet there are strong public-interest reasons for knowing more about how the two sides are conducting business. For example, people are asking whether Beijing and Hong Kong have agreed on the nature of the new offenses.

Yet if a journalist were to obtain information about such issues, then once the new law is enacted he or she could be prosecuted for disclosing protected information. Without a strong public-interest defense, a journalist would be extremely vulnerable to government action.

These fears are genuinely held by human-rights groups and journalists, yet the government keeps stating the mantra: Don't worry, we will provide sufficient safeguards in the law, once it is published early next year. Yet, the reality is that the critics cannot be sure about the effect of such provisions until they see them in black and white.

This is why critics say it is vital to have a second round of consultation on the wording of the law itself. Many politicians, lawyers and human rights activists have made this call. The former chief secretary for administration, Anson Chan -- the so-called "conscience of Hong Kong" -- has made a similar call. Yet the government has rejected further consultation.

Once the new laws come into effect, the question then arises as to whether the government will use them sparingly. It will probably depend on the extent of pressure from Beijing and its friends in Hong Kong. If there is an outcry from pro-Beijing elements, then the secretary for justice will probably feel a need to take action. That in turn will set precedents for future action.

Ironically, though, the greatest danger might come from the chilling effect the new laws have on the media. There has already been a definite trend toward self-censorship in areas that are sensitive to China. These include Taiwan, Tibet, Falun Gong, mainland dissidents and the inner workings and personnel matters relating to state and party leadership. Many media organizations feel it is just not worth the trouble of carrying out their own investigations into such matters.

This trend is likely to be exacerbated once the new national-security offenses come into effect. Publications and broadcasters will shy away from conducting their own interviews with Taiwan leaders or overseas-based Chinese dissidents. That -- at the end of the day -- is likely to be the greatest impact of the new laws.