Statement on Objections to the Consultation Document 'Proposals to Implement Article 23 of the Basic Law'
1. The Confederation of Trade Unions opposes the proposals to implement Article 23 of the Basic Law.
Article 23 of the Basic Law grants autonomy to the Hong Kong Special Administrative Region (HKSAR) government to enact its own law in accordance with the requirement of this particular article. This means that Hong Kong's people should enjoy the right to decide on their own at what time to enact such a law and in what way it should be drafted.
Since we have not seen anything occur for the past five years which endangered national security, we feel there is no substantial necessity to enact such a controversial law at this time.
The incumbent consultation document has seriously infringed the human rights and freedom of the people of Hong Kong. We cite our arguments below.
2. The introduction of the term 'national security' seriously infringes the freedom of societies in the public sphere.
2.1 What has been suggested in Chapter 7 of the consultation document is actually far more than what we have been asked to act on by Article 23. The particular contents do not bear any relevance to the title of the chapter, "Foreign Political Organizations."
Since the government suggests in Section 7.14 "to make it an offence to organize or support activities of a proscribed organization" but does not add the word "foreign" between "proscribed" and "organization," it is an obvious indication that the government wants to pinpoint the relations and affiliations between local organizations to those in mainland China.
2.2 The government further suggests in Section 7.16 that it is the role of the central authorities rather than the HKSAR itself "to determine whether an organization poses a threat to national security, especially for those entities based in the mainland with cells in the HKSAR affiliated with them." Moreover, "formal notification" will be sent to the HKSAR from the central people's government.
The government's suggestion means to introduce the concept of "national security" into the local judicial system. This will deeply undermine human rights as well as the foundations of the legal system in Hong Kong.
2.3 Local trade unions may also be proscribed if they are affiliated with the proscribed organizations in mainland China. For instance, the mainland's independent trade unions operate underground because the country allows only the official trade union to operate.
As a result, the management or the executive officers of the union organizations concerned will be committing a criminal offence that is subject to a maximum penalty of imprisonment for seven years.
It is crystal clear that this is a serious infringement of the freedom of societies. Furthermore, it is a threat to block local trade unions from giving support to mainland workers, who already find it difficult to launch a reasonable confrontation. In addition, it will not leave any room for other non-governmental organizations (NGOs) to hold activities on the mainland.
3. The concept of 'national security' will become a means for the authorities to suppress people with different voices.
The proposals raised in the consultation document make full use of the concept of "national security" to undermine the protection of people's human rights and their freedom as well. Since neither the HKSAR government nor the central people's government are elected by universal suffrage, the stress on "national security" will become a means to empower the authorities.
As a result, the implementation of Article 23 would be tantamount to putting the interests of the authorities higher than the interests of the public. This does not bode well for Hong Kong society in general, but especially for grassroots organisations and ordinary workers.
4. The offence of 'sedition' is a minefield to trap trade unions.
4.1 The consultation document states that it is an offence of sedition "for a person to incite others to create a public disturbance which will harm the stability of the HKSAR."
To define "incite," the government suggests in Section 4.2 that it includes to "counsel disobedience to law or to any lawful order."
This suggestion will impact activities held by trade unions, especially those such as industrial actions, strikes, assemblies or public processions, because when trade unions hold activities these may result in disorder if, at that time, the police get involved. The parties involved may then be labeled as "seditious". Even if the campaign does not turn into a public disturbance, the police may say it has and use it as an excuse to ban the event.
This sounds like a potential threat to people's freedom of assembly and of public processions and the right to hold strikes and labor activities.
4.2 Section 4.17 suggests that it will be an offence if a person prints, publishes, distributes, displays or reproduces any publication or imports or exports any seditious publications." If implemented, this will not only seriously suppress freedom of the press and that of the academic sector in creating an offence by words but will also undermine the freedom of different organizations to produce internal publications.
For instance, if a trade union in its internal publications urges its members to participate in a strike to fight for the interests of the trade union and their democratic rights, it can be said to have committed an act of sedition.
In response, the trade union will be charged with endangering the stability of the HKSAR government, and the members of the trade union can also be challenged for owning the materials. Eventually, organizations' right to the free flow of information will be infringed.
5. The general lack of clarity has created white terror.
5.1 There are numerous places in the consultation document where the meaning is unclear. An obvious example can be seen in Section 5.5. The government proposes in this particular provision to make it an offence of subversion to overthrow the central people's government or disestablish the basic system of the State as established by the Constitution by levying war, use of force, threat of force or other serious unlawful means. The term "serious unlawful means" seems to be very unclear, and it puts any movement that fights for democracy and political reforms under the threat of white terror.
When Hong Kong people stage a strike to fight for democratic reforms in the mainland or hold a public assembly to terminate one-party rule in China, they may be charged under Section 5.5 because the methods they adopt can be treated as "serious unlawful means" or an attempt to "disestablish the basic system of the State as established by the Constitution."
5.2 The government further proposes in Section 2.8 that it will also be an offence of subversion "to levy war by joining forces with a foreigner with the intent to overthrow the PRCG; or compel the PRCG by force or constraint to change its policies or measures" (PCRG is the central people's government).
However, the government adopts a wide approach when defining the term "war," suggesting that it also means when a large number of people join together as a group with the intention of prohibiting the government from freely exercising its power.
Under such a definition, if we call for China to implement democratic reforms or to allow trade unions to enjoy freedom of assembly and if at the same time some foreigners get involved in the activities, then the trade unions will be committing an offence.
Since the consultation document lacks any solid proposals for the public's reference (the government has rejected the claim to launch a white bill for a comprehensive consultation), it seems to be misleading the public. People will be more frightened after the law is in place and worry that they will easily be trapped.
6. To make 'misprision of treason' a statutory offence is absurd.
In Section 2.14, the government proposes to make "misprision of treason" a statutory offence. It suggests that this offence is committed "when a person knows that another person has committed treason but omits to disclose this to the proper authorities within a reasonable time."
It is absurd to ask a person to judge whether another person has committed the offence of treason. In addition, the definition of "reasonable time" is unclear.
Furthermore, the offence of "misprision of treason" will probably make the people of Hong Kong face a tragedy like the Cultural Revolution in mainland China in which people rushed to disclose to the authorities what others had done and also framed each other.
7. The offence of 'theft of state secrets' encroaches on freedom of speech.
The proposed amendments to the offences of sedition and the theft of state secrets create a potential threat to freedom of the press and freedom of speech. This is unacceptable in any democratic country in the world.
Organizations producing publications urging the public to oppose the government's unreasonable policies may be charged with committing the offence of sedition. This would be a harsh blow to the freedom of an organization's operations and publications.
8. The police will have too much power in their hands.
To increase the power of the police will readily lead to an abuse of power, and, in return, the rights of the public will almost certainly be infringed.
The consultation document suggests that emergency entry, search and seizure powers should be provided to the police to investigate some Article 23 offences and that the power should be exercised by a sufficiently senior police officer, for instance, a superintendent. The reason for this suggestion is obviously to further enlarge the power of the police.
On the other hand, NGOs, trade unions and even business parties and religious groups could be disturbed by the police at any time that they, the police, choose to do so. Moreover, their autonomy, as well as their daily operations, will be seriously affected.
Hong Kong Confederation of Trade Unions