Select Committee on Foreign Affairs Minutes of Evidence

APPENDIX 4

Memorandum submitted by the Hong Kong Journalists Association

  The Hong Kong Journalists Association (HKJA) is a trade union representing about 800 working journalists. It was formed in 1968, and has focused its efforts on improving working conditions for journalists and pressing for greater protection for press freedom. It is this latter aspect of the HKJA's work which prompts this submission.

  The atmosphere in the Hong Kong Special Administrative Region (SAR) since the handover has on the surface been calm. But there have been some disturbing developments, which bring into question the continuity of the rule of law, which is essential to the protection of press freedom.

  These developments include the passage of laws with retrospective effect, the freezing and subsequent amendment of several laws passed before the handover, and questionable decisions not to prosecute the New China News Agency in a privacy case and a leading newspaper owner in a fraud case.

  Another area of concern is the change to the electoral system, which will result in a Legislative Council which will almost certainly be less robust in defending freedoms than its 1995 equivalent.

  The HKJA quotes these cases simply to explain that there are worries over legal and administrative developments in the Special Administrative Region. The union will now focus on three areas directly impinging on media freedoms. These are the enactment of subversion laws sometime after the Legislative Council elections in May; the perception among many journalists that the government is becoming less open; and threats to the editorial independence of the government-owned station, Radio Television Hong Kong.

1. SUBVERSION LAWS

  Article 23 of Hong Kong's constitution, the Basic Law, stipulates that the SAR must enact laws prohibiting treason, sedition, subversion, secession and the theft of state secrets.

  Hong Kong has treason and sedition laws in the existing Crimes Ordinance. The pre-handover government proposed changes to these provisions, plus the addition of clauses outlawing subversion and secession. In late June 1997, the Legislative Council endorsed more liberal treason and sedition provisions, but rejected the subversion and secession proposals.

  The post-handover government failed to sign into effect the new treason and sedition provisions, which means that the broader pre-amendment clauses remain in force. This failure to allow the amended versions to come into effect is in itself regrettable.

  The government says it is studying the issue, which now appears to mean it will work on new Basic Law article 23 proposals, instead of bringing into effect the June 1997 amendments. This is a vital issue, because onerous laws could prove a serious threat to media freedom.

  The HKJA has in the past argued that the Basic Law should be amended to delete reference to subversion and secession laws, which are not common law concepts in Hong Kong. The union maintains this stance.

  However, in the absence of such changes, the HKJA would argue for a liberal approach to the drafting of treason, sedition, subversion and secession laws. They should be brought into line with international standards for the protection of freedom of expression.

  This in particular means the application of the Johannesburg principles, which state that national security may legitimately be invoked in order to restrict freedom of expression only if a government can demonstrate that the expression is intended to incite imminent violence; that it is likely to incite such violence; and that there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

  There is one further serious concern among journalists about Basic Law article 23 laws. The chief executive, Tung Chee-hwa, has spoken of the need not just to enact laws against acts of subversion, but also to ban the advocacy of such acts. These would take the Article 23 offences one vital step further, by outlawing for example the advocacy of independence for Hong Kong, Taiwan and Tibet.

  This development is of particular concern because the line between reporting advocacy of such acts and the actual act of advocacy is blurred. SAR government officials have accepted that this is a difficult area. The HKJA believes it could be a disastrous area for the media, and has urged the government to resist the temptation to introduce this new concept into local law.

  All efforts should be made to impress upon the SAR government the need to adopt a lenient approach towards Basic Law Article 23 laws, in line with our recommendations above. Any failure to do so could threaten the heart of media freedom—the free expression of views not in line with those of the administration.

2. DOUBTS OVER GOVERNMENT COMMITMENT TO OPEN GOVERNMENT

  Since the handover, many journalists have noted that the government has become less open than its predecessor. The HKJA carried out a survey of its members in January 1998 to determine how strongly they felt about this issue.

  The survey showed that 69 per cent of respondents believed the government was now less open than before the handover. The Chief Executive's office came under heavy criticism with 80 per cent of those expressing an opinion saying it was either "not very open" or "not at all open". Asked about ways to improve government openness, 72 per cent said legislation was needed. A significant proportion also called for the opening up of many government committees and advisory bodies that are at present not open to the media.

  The government denies that it is less open than its predecessor, arguing that it is fully committed to transparency in its operations. It points to the success of its code on access to information, which was extended to all government departments in December 1996.

  The HKJA tested the code in late 1997, by seeking access to 81 government reports and documents mentioned in the government's October 1997 progress report. The result was that only 35 per cent of the requested documents were made available in full.

  In the light of these findings, the HKJA called on the government to move away from an administrative approach to access to information, and instead adopt formal freedom of information legislation. The HKJA is also calling for government advisory bodies to hold open meetings. It has made an initial call for transport, town planning, broadcasting, education and environment panels to open their doors to the public and the media.

3. THREATS TO RTHK'S EDITORIAL INDEPENDENCE

  Another threat to media freedom has recently emerged, in the form of criticism of the government broadcaster, Radio Television Hong Kong (RTHK). The broadcaster enjoys editorial independence, as provided in an administrative agreement between it and its government policy bureau. A new two-year agreement reaffirming this principle was signed in mid-July 1997.

  In March 1998, a Hong Kong member of the Chinese People's Political Consultative Conference, Xu Simin, accused RTHK of making programmes which are critical of the government. He said the station, as a government department using government funding, should support government policies.

  Mr Xu's remarks in Beijing prompted a lukewarm response from the chief executive. Tung Chee-hwa, who suggested that a review of RTHK's role may be necessary. One day later, the chief secretary for administration, Anson Chan, made a more forceful defence of the station. Mr. Tung also followed up with a stronger statement in favour of RTHK.

  For a few years, there has been criticism of RTHK in the pro-Beijing media, including Mr Xu's publication, the Mirror magazine. So for RTHK journalists and media observers, the attack was not new. Rather, the significance of the move was that for the first time since the handover the issue of RTHK's role as a public broadcaster had been brought out into the open.

  RTHK staff believe that the controversy over their role will continue. Both management and staff support the maintenance of editorial independence, and believe the government should do more to protect its unique role as a public broadcaster. The HKJA also shares this view, and believes that the government should take immediate steps to formalise RTHK's administration agreement through legislation, so that its durability and function is not open to administrative discretion.

CONCLUSION

  The HKJA calls on the British foreign affairs select committee to pay particular attention to the way the Chinese and SAR government adhere to provisions in the Joint Declaration and the Basic Law on press freedom. This is a vital component of Hong Kong's success, and any erosion would have a serious effect on the SAR's stability.

  The committee should monitor in particular the extent to which proposed Basic Law Article 23 laws may affect media freedoms, as well as any changes in the ability of Radio Television Hong Kong to fulfill its duties as an impartial public broadcaster, reflecting all views in the SAR.

  Members should also be mindful of moves towards a less open government, which may impair the ability of the public and the media to seek official information as set down in Article 19 of the International Covenant on Civil and Political Rights.

2 April 1998

---

---

Prepared 7 August 1998