The Macau Administration is poised to take its proposed Article 23 legislation through its final stages to put the offences of treason, secession, sedition, subversion against the Central People’s Government and theft of state secrets into its statute books. No one doubts that the Macau government will accomplish its mission with little or no obstruction. There is also no doubt that passage of this legislation is intended to have a demonstrating effect on Hong Kong where a similar attempt in 2003 created a worldwide storm of protests and contributed significantly to a 500,000-strong protest march demanding the resignation of then chief executive Tung Chee Hua.
This Article 23 legislation is mandated by both the Basic Laws of Macau and Hong Kong. In Hong Kong, as in common law jurisdictions elsewhere, secession and subversion are not considered to be crimes.
The proposed Macau legislation, in parts couched in highly emotional language on patriotism, will put into the statute books some of the harshest punishments to be meted out by the courts, a maximum of 30 years’ imprisonment for some of the offences.
Successive opinion polls in Macau show that less than 10 per cent of Macau people have adequate knowledge of the proposed legislation introduced last October. One poll showed that 85.4 per cent of respondents have little to no knowledge of this Article 23 legislation.
Public consultation only lasted six weeks, ending last November 30, and hurried through its first reading in January. Final passage is expected, with the legislation promulgated before Chief Executive Ho Hau Wah steps down from office at year’s end.
Without doubt various clauses in the proposed legislation directly threaten freedom of expression and freedom of the media. The offences are excessively broad in nature – more akin to the kind of wording seen in mainland laws. This makes the offences on sedition and theft of state secrets in particular damaging to free expression. Without the offences being worded in a clear and narrow way, there is a real threat that they will inhibit the activities of journalists and other free expression advocates.
The retention of the concept of “preparatory action” is also prejudicial to the free and non-violent action of those exercising free expression.
We also note that immunity defences are lacking. For example, the Johannesburg Principles on National Security, Freedom of Expression and Access to Information are not incorporated in the offence of sedition, and there is no public interest or prior publication defence in the theft of state secrets offence. This latter offence is also dangerous because it allows the People’s Republic to determine what is a state secret and allows the holding of closed-door trials.
This legislation directly threatens the rights and freedoms of Hong Kong journalists covering Macau affairs. If this legislation, as widely expected, is the forerunner of a similar law for Hong Kong, then the fundamental rights and freedoms enshrined in the Basic Law will be nullified. Clearly this threat is not only directed at the media but also at Hong Kong people as a whole.
Vigilance against castration of rights guarantees in the Basic Law is the order of the day. The HKJA urges Macau and Hong Kong people to be extremely wary of “crimes” specifically created to cow people into submission.
We said on 24 September 2002 when Article 23 was first introduced for Hong Kong that HKJA “views with regret the decision by the Government of the Hong Kong SAR to publish the consultation paper for the enactment of Basic Law Article 23. The HKJA has consistently held that there is no basis for rushing ahead with enactment, considering Hong Kong’s stable political environment and the absence of any threat to state security. Article 23 prohibits such acts as treason, secession, sedition, subversion against the Central People’s government and the theft of state secrets. Secession and subversion are not considered crimes in Hong Kong and other common law jurisdictions. The introduction of these new concepts inevitably would adversely affect freedom of expression.”
Our stand remains the same.
Mainland China is not under any threat from Hong Kong or Macau. There is absolutely no justification for introducing, now or in the foreseeable future, laws that will accentuate differences within our community and sharpen conflicts at a time when Hong Kong is facing a global economic crisis. Further divisions within our community will deepen divisions that already exist and gravely set back revival of our economy.
Hong Kong Journalists Association