Amnesty International Expresses Concerns over the Article 23 Draft Bill

Amnesty International in Hong Kong issued the following statement on May 2 2003:

On 3 May 2003, Amnesty International Hong Kong will present to the Bills Committee of Legco its submission on the government's proposal to implement Article 23 legislation.

Amnesty International has many concerns about provisions in this legislation, which have not been revised or narrowed since their inclusion in the Consultation document. The organisation is also concerned about problematic new additions to the legislation. Despite these concerns Amnesty International welcomes many of the changes made by the government to the legislative proposals set out in the Consultation document. In particular, we welcome with caution the decision to remove from the proposals the archaic offence of misprision of treason, though we remain concerned that this offence may well be covered de facto by other amendments to the existing legislation. We are also relieved to see the removal of the unacceptable offence of possession of seditious publications. Amnesty International believes, however, that continued inclusion of the offence of handling seditious materials and the proposal to proscribe groups banned in the mainland remain unacceptable as currently drafted.

Amnesty International remains deeply concerned over much of the proposed legislation and is also disappointed by the handling of the public consultation process and the apparent desire by the HKSAR government to push this important piece of legislation into existence without according it appropriate attention and discussion.

Amnesty International believes that the proposed legislation goes further in its amendments to the various existing ordinances than the obligation imposed by Article 23 actually requires. In addition, Amnesty International believes that proposed revisions to some existing and controversial legislation such as articles in the Societies Ordinance relating to proscription of societies exacerbate legislation, which is already overly restrictive of fundamental human rights.

The enactment of Article 23 legislation has implications for the fundamental human rights of the people of Hong Kong, and legislation passed should be clearly and narrowly defined so as to limit disproportionate restrictions, avoid criminalizing the exercise of fundamental freedoms and facilitate public certainty about what exactly constitutes a criminal offence. Amnesty feels that the proposed legislation is not sufficiently clear and well defined, and its enactment in its present form could result in abusive prosecutions.

Several offences, as currently drafted, appear to be at risk of conflicting with fundamental freedoms contained within the International Covenant on Civil and Political Rights (ICCPR) as well as with the rights of Hong Kong people to exercise freedom of association and expression under the Basic Law of the Hong Kong SAR. In addition, Amnesty believes that several clauses within the draft legislation seriously erode the principle of "One Country-Two Systems", which is enshrined in the Basic Law, by introducing vaguely defined PRC legal concepts, asserting the supremacy of PRC interpretations over Hong Kong definitions and traditions.

Amnesty International believes that the definitions of Treason, Sedition and Subversion need further revision and clarification to ensure that these offences are not used to limit fundamental freedoms and to ensure that the population of Hong Kong are clear about what constitutes an offence, Without such clarification, the offence of sedition, incitement to sedition and handling seditious publications will also remain ambiguous.

Amnesty International reiterates the call made in our earlier submission to Legco that the offence of sedition be removed from the legislative proposals. Sedition has long been used as a tool to suppress dissent and imprison dissidents and others for peacefully exercising their rights to freedom of expression and association. To introduce it into Hong Kong would be a retrograde step.

Amnesty International has serious concerns about the provisions relating to the proscription of societies and believes that they go far beyond what is called for in Article 23 and introduce into Hong Kong PRC legal definitions and standards, contrary to the principle of "One County-Two Systems". There is nothing in Article 23, which calls for the HK SAR Government to proscribe local organizations or defer to mainland proscription of organizations. Article 23 only refers to the need to proscribe foreign political organizations or for local organizations that have ties to foreign political organizations.

Amnesty International is particularly concerned at the proposals which allow for the government to make provisions "enabling proceedings to take place without the appellant being given full particulars of the reasons for the proscription in question" and 8E(3) (b) that the "Court of First Instance may hold proceedings in the absence of any person, including the appellant and any legal representative appointed by him". Amnesty again urges the Hong Kong SAR Government to be mindful of its obligations under international standards and Article 35 of the Basic Law to accord the right to adequate legal defence for defendants. To deny people the right to know the reasons for proscription and to hold hearings without either themselves or their lawyers being present runs counter to internationally recognized legal standards.

There appears to be no objective necessity for the legislation to be rushed through the legislative process and indeed, legislation on Article 23 is so important and potentially damaging to basic human rights that Amnesty International believes there must be further opportunity for public debate and for the government of the HK SAR to further revise its proposals to ensure any legislation on Article 23 conforms to the ICCPR and the Basic Law.

Amnesty International believes that unless the proposed legislation is revised and clarified, there remains the potential for widespread abuse and a dramatic reduction in the protection and promotion of the rights of Hong Kong citizens to exercise their fundamental rights of freedom of expression, information and association.