House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Minutes of Evidence

APPENDIX 2

Memorandum submitted by Article XIX

As you and other members of the Foreign Affairs Committee may be aware as a result of our written submission to the Committee in October 1997, ARTICLE 19 has been actively involved for several years with the promotion and protection of freedom of expression in Hong Kong. During this period, we have, among other initiatives, published an annual report on freedom of expression in Hong Kong jointly with the Hong Kong Journalists' Association (HKJA). The most recent such report, The Die is Cast, was published in June 1997, shortly before the handover to China (copies were attached to our October 1997 submission to the Committee [not printed]).

We note that a delegation from the Foreign Affairs Committee is about to make a visit to Hong Kong, and we hope it may be helpful therefore if we take this opportunity to identify a number of key issues affecting freedom of expression which we believe warrant the Committee's attention.

1. Legal Restriction of Freedom of Expression

Despite the introduction of the Bill of Rights Ordinance (BORO) and other legal reforms under the Patten administration with a view to strengthening the future protection of human rights in the Hong Kong Special Administrative Region, there remain several laws which are especially threatening to freedom of expression. Foremost among these are:

— Article 23 of the Basic Law: this requires the HKSAR government, following the forthcoming elections, to enact legislation "to prohibit any act of treason, secession, sedition, subversion against the Central People's Government".

We are most concerned that Article 23 may be used as a basis for the introduction of new legislation which draws upon concepts of treason, sedition and subversion which derive from those in use in the People's Republic of China (PRC), where relevant laws and practices are widely framed and severely restrictive of press freedom and freedom of expression. Prior to the handover, the outgoing Hong Kong administration proposed to amend the Crimes Ordinance in order to liberalise its provisions on treason and sedition (the definition of sedition, for example, was amended to require an element of violent intent), as ARTICLE 19 and the HKJA had long urged, and to introduce new clauses criminalising subversion and secession. The former changes were endorsed by the Legislative Council, but to date we understand that they have not been signed into law by Hong Kong's Chief Executive, Tung Chee-hwa, raising fears that they are to be made more restrictive.

As the proposals relating to subversion and secession were not accepted by the Legislative Council, it is also feared that new, highly restrictive legislation may be introduced after the elections to define these offences in a way that may effectively outlaw some forms of peaceful expression about issues considered politically sensitive in the PRC. For example, statements already made by the Chief Executive give grounds for concern that his administration may be intent on criminalising expression involving peaceful advocacy of self-determination or independence for Hong Kong, Taiwan or Tibet.

ARTICLE 19 believes that laws covering treason, sedition and other offences relating to national or state security should take full account of the importance which is accorded, under international law, to the protection of freedom of expression, and should accord with the standards set out in the Johannesburg Principles on National Security, Freedom of Expression and Access to Information.

— The Official Secrets Ordinance, the Emergency Regulations Ordinance, the Interpretation and General Clauses Ordinance, and the Telecommunication Ordinance are all in urgent need of reform. The Official Secrets Ordinance, which includes provisions governing the disclosure of official information, is deficient particularly by virtue of its failure to allow for public interest or prior publication defences, while the Emergency Regulations Ordinance is a most dangerous provision in that it authorises the Executive Council to declare a state of emergency in ill-defined circumstances and grants the Chief Executive extreme powers of censorship. The Interpretation and General Clauses Ordinance permits the authorities, under certain conditions, to search and seize journalistic material gathered in confidence, and could therefore be exploited to deter investigative journalism aimed at the exposure of official corruption or other wrong-doing in pursuit of the public's right to know. The Telecommunication Ordinance allows the prohibition of all types of message.

We believe that the above provisions should be repealed or amended by the HKSAR authorities in order to bring them into full accordance with Hong Kong's obligations under international law, notably the International Covenant on Civil and Political Rights.

— The Public Order and Societies Ordinances were amended by the Provisional Legislature as soon as it took office following the handover to China in order to place new restrictions on freedom of assembly, association and expression, notably through the introduction of the concept of "national security" as a basis for banning assemblies and demonstrations, and for proscribing organisations, such as those espousing independence for Tibet.

We believe that these amendments represent a significant, retrograde step which should be reversed as a matter of urgency. Peaceful exercise of the rights to freedom of expression, association and assembly is protected under international law and should not be constrained in this way.

2. Threats to Radio Television Hong Kong (RTHK)

Considerable concern has arisen in recent weeks over the future independence of RTHK, Hong Kong's publicly-funded radio and television broadcaster. RTHK has been repeatedly criticised over the years by that portion of the Hong Kong press known for its close alignment to Beijing, but, despite this, it has continued to exercise editorial independence. Earlier this month, RTHK came under renewed public attack when it was denounced by a senior Chinese figure, Xu Simin. He upbraided RTHK for broadcasting information critical of the HKSAR government and called for it to be made more subservient to that government. His remarks, which were widely reported in Hong Kong, appeared to receive at least tacit support from the HKSAR Chief Executive, although they were subsequently rejected by his deputy, Anson Chan.

This renewed criticism of RTHK is especially disturbing at a time when Hong Kong is about to hold its first elections since the reversion to Chinese rule, when RTHK, as Hong Kong's public service broadcaster, will have a key role to perform in ensuring that the electorate is fully informed about election issues and the policies and platforms of those contesting the poll.

We understand now that the Provisional Legislature will debate the future independence of RTHK, whose radio service has the widest audience in the HKSAR, on 1 April.

ARTICLE 19 believes that all possible influence should be brought to bear on the HKSAR authorities to ensure the future independence—that is, structural, operational and editorial independence—of RTHK. It would be a gross betrayal of the people of Hong Kong, and of their right of access to a free flow of information, as enshrined in international human rights law, if RTHK's independence were to be sacrificed on the altar of political expediency.

3. Access to Information

At a time when the UK Parliament has before it a liberal draft Freedom of Information Act, it is particularly disturbing to note what appears to be a strong contrary trend in Hong Kong. According to reports received by ARTICLE 19, official attitudes to the disclosure of state-held information have become markedly more conservative since Tung Chee-hwa assumed office as Chief Executive, and there is now a far less open style of government compared to that under the Patten administration. A survey recently commissioned by the HKJA found that more than two-thirds of journalists questioned considered that the government had become less open. A similarly high proportion called for new legislation to be enacted to put the right of access to government-held information—currently governed by a 1996 administrative code—onto a statutory basis.

4. Media Self-Censorship

Media freedom is an essential element of democracy, good governance and accountability. There is particular cause for concern, therefore, when editors and journalists feel themselves under such legal and other constraints that they act as their own censors. There is a considerable debate about this phenomenon among Hong Kong's media community, and recent research has produced some disturbing evidence. In 1997, a survey conducted by Professor Joseph Chan of the Chinese University of Hong Kong found that more than one-third of journalists exercised some form of self-censorship in reporting on China or large Hong Kong corporations, with over half perceiving that their colleagues exercised self-censorship.

Having regard both to the corrosive effects of media self-censorship, and to the difficulties of obtaining firm evidence of the phenomenon, we urge the Foreign Affairs Committee to give particular attention to this issue, particularly in its meetings with journalists, editors, publishers and media proprietors.

ARTICLE 19 would welcome a meeting with members of the Committee following their return from Hong Kong in order to discuss these issues further.

March 1998