Generation 40s – 四十世代

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Hong Kong does need to revisit Article 23 – not to criminalise calls for independence, but to modernise our outdated sedition laws

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South China Morning Post
Comment›Insight & Opinion
2016-04-25

Cliff Buddle

Cliff Buddle says some of the 2002 proposals for national security legislation would in fact have improved current laws

The unexpected emergence of a small but vocal independence movement in Hong Kong has sparked much consternation and condemnation.

Some critics have gone further than merely expressing disapproval, calling for legal action to be taken against the young activists concerned. There have even been suggestions that new national security laws should be passed, in accordance with Article 23 of the Basic Law, to remove any doubt that publicly expressing pro-independence views is a crime.

There is, indeed, a need to revisit issues raised during the Article 23 debate 14 years ago, but with a different objective. Rather than seeking to criminalise mere expressions of opinion, we should be reforming and modernising our outdated colonial-era sedition laws. These laws are crying out for amendment, to bring them in line with developments elsewhere in the world and to ensure that free expression is protected.

The new national security laws under Article 23 proposed by the government in 2002 raised concerns about curbs to our city’s freedoms and drove half a million people onto the streets in protest. They were then promptly shelved.

What is often overlooked is that the government’s proposals, while raising many troubling questions, would have improved some of the laws currently languishing on our statute books.

Whether or not the existing sedition provisions in the Crimes Ordinance can be used to prosecute peaceful advocacy of independence is open to debate. The relevant sections, nine and 10, are expressed in very broad terms.

This was noted by government officials when putting forward the Article 23 reforms. They were at pains to stress that their proposed secession and sedition laws would not cover mere expressions of opinion.

Then solicitor general Bob Allcock said in a speech in December 2002 that the existing sedition laws were too broad. The government’s proposed changes, he added, “would limit the offence to conduct that incites serious crimes, violence or public disorder”.

Elsie Leung Oi-Sie, then secretary for justice, expressed similar views at the time. In a speech in October 2002, she said: “The proposal regarding the sedition offence has taken into account the development of the society and the common law. A person will be considered to have committed such an offence and subject to criminal sanction only if that person with a seditious objective intends to achieve that objective by causing violence or creating public disorder or public disturbance.”

And in a passage which is relevant to today’s debate about advocating independence, Leung spoke of the use of non-violent means in a bid to change constitutional matters.

She said: “We are of the view that there are some constitutional matters that cannot be changed or be readily changed. However, if no force, violence, or serious unlawful means or inciting others to take such measures are involved, then we should not use criminal sanction against people from discussing, expressing opinions and even to strive to achieve such an objective.”
The government clearly formed the view that it should not criminalise peaceful advocacy

So when the government had the opportunity to amend these laws under Article 23, it clearly formed the view that it should not criminalise peaceful advocacy.

This was not the first attempt to limit the scope of the sedition laws. The history of the Crimes Ordinance provisions is interesting. Their origins lie in a desire by Hong Kong’s British rulers to control newspapers which they felt risked stirring up trouble in China. Draconian sedition laws were enacted in 1914. Over time, the laws were amended, notably after the introduction of the Bill of Rights Ordinance in 1991.

Days before the handover in 1997, the Legislative Council limited the scope of the legislation by requiring an intention to cause violence or create public order or disturbance. That amendment, however, was not introduced into law.

That leaves broad provisions in place today. They would, however, be open to attack in court if they were used to prosecute peaceful advocacy of independence. Common law developments have seen courts interpret these provisions in a way which requires an element of violence.

It is also difficult to image the courts enforcing the laws in the light of the protection given to the freedom of expression by the Basic Law, the Bill of Rights Ordinance and the International Covenant on Civil and Political Rights.

Some commentators have pointed out that freedom of expression is not an absolute right. Certainly, it can be restricted and this is why we have laws on defamation, privacy and obscenity, among others, which limit free speech. But the courts are careful to ensure that any restriction on the right is not too broad and goes no further than is strictly necessary in the public interest.

Reference has been made to a case before the Court of Final Appeal in 1999 concerning laws making it a crime to desecrate the national flag. The court upheld these laws, which restrict a particular form of free expression, by reference to a vague legal concept concerning the general welfare of the community.

That case, however, coming only 18 months after the handover and following events which had seen the court come under fire from Beijing amid a constitutional crisis, must be seen in the context of the time in which it was decided.

The words of one of the judges in that case have stayed with me ever since I heard him deliver them in court 17 years ago. Asked where restrictions on freedom of expression would stop if the flag laws were allowed, Mr Justice Kemal Bokhary said that “it stops where these restrictions are located. For they lie just within the outer limits of constitutionality. Beneath the national and regional flags and emblems, all persons in Hong Kong are – and can be confident that they will remain – equally free under our law to express their views on all matters whether political or non-political: saying what they like, how they like.”

New Zealand abolished its sedition law in 2007 and Britain followed in 2009. Britain did so partly because it did not want them to be used as a justification for their maintenance in other parts of the world.

Hong Kong’s future lies with the “one country, two systems” concept, not independence. The concept necessarily involves Hong Kong remaining an inalienable part of China. But it also preserves Hong Kong’s freedoms, including free speech. The right permits the peaceful expression even of the most sensitive of political opinions. Tolerance of this kind is a hallmark of our constitutional arrangements, not a threat to them.

Cliff Buddle is the Post’s editor, special projects

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