Article 23 and freedom of the press: A journalistic perspective

Doreen Weisenhaus*

*Corresponding author for this work

Research output: Chapter in Book/Report/Conference proceedingChapter

3 Scopus citations

Abstract

Journalists in Hong Kong have long dreaded the coming of legislation mandated by Article 23 of the Basic Law. Since the handover of H o n g Kong to the People's Republic of China (PRC) in 1997, the press and the public have known that, at some future date, the newly created Special Administrative Region would have to pass national security legislation dealing with treason, secession, sedition, theft of state secrets and subversion. To journalists, the prospect represented the culmination of years of anxiety over how one of Asia's freest presses would function after the end of British rule. Despite the creation of a "one country, two systems" formula for governing Hong Kong, journalists and many others expressed fears that press freedoms might be sharply curtailed under Chinese sovereignty. When the "Proposal to Implement Article 23 of the Basic Law," otherwise known as the Consultation Document, was released by the Security Bureau of the Hong Kong Special Administrative Region (HKSAR) government in September 2002, many of those fears seemed justified. While the Consultation Document proposed some improvements to existing laws, it nonetheless also recommended measures, particularly relating to sedition and theft of state secrets, that if passed were widely seen as potentially threatening for the media in Hong Kong. After considerable and contentious reaction by journalists, human rights groups, lawyers and others,2 the HKSAR government scaled back several of its controversial proposals and limited the application of others when it released its National Security (Legislative Provisions) Bill in February 2003 and submitted other amendments in June. But it was not until after the unexpected rally on 1 July of at least 500,000 Hong Kong people, including many journalists, protesting against the proposed laws, that the government conceded additional key points and then withdrew the legislation. On 5 September 2003, it announced it was suspending the process indefinitely. Still, worries remain. If and when the legislation is reintroduced, journalists are likely to have many of the same concerns about any new proposals that relate to the same troublesome areas of sedition and theft of state secrets as well as secession a n d subversion, and any expansion of powers for police and the Secretary for Security. Journalists also are apprehensive about whether the government will attempt to open up new ground in a later bill. Any new laws in these contentious areas can have chilling effects: both for journalists trying to report on sensitive topics and for government sources. Despite the relative openness of the reporting environment for H o n g Kong media, journalists here rely heavily on anonymous sources and confidential information. These practices are partly the result of having to report on a local government that, in the absence of freedom of information laws, is not legally required to release much information and on a mainland government that is prone to broad interpretations of state secrets and severe sanctions against journalists. Hong Kong journalists and others have been convicted in the PRC in recent years for their reporting on what have been deemed state secrets. As the crimes of sedition, subversion, theft of state secrets and so on are essentially political in nature , journalists fear t h a t the local Hong Kong government in applying these laws might be tempted to defer to the PRC when it comes to issues of national security. When asked during the consultation period, for example, whether Beijing would be consulted about a HKSAR decision to bring a state secrets prosecution against a journalist, Regina Ip Lau Suk-yee, then Secretary for Security in Hong Kong, whose department would oversee such investigations, said: "Of course, we will take into account the views of the central government. It will carry certain weight." Ip also said that it would be for the Hong Kong government to decide whether to prosecute and for the case to be judged by its courts.3 Ip was right. While she is no longer Secretary for Security, much will always depend on the government, whoever is in office, in deciding whether and how prosecutions are brought and how they will be handled in the local courts. In cases that deal with issues of national security, much also will depend on whether decisions rendered by local courts will be left intact by the PRC. Doubt has been cast on the finality of decisions by Hong Kong's highest court after its controversial ruling that would have broadened a mainlander's right of abode in Hong Kong was re-interpreted by the National People's Congress Standing Committee (NPCSC) in Beijing and in effect overturned.4 Furthermore, some see the unilateral decision in Spring 2004 by the NPCSC to interpret key provisions of the Basic Law5 on democratic reforms in Hong Kong in which Beijing severely curtailed electoral development6 as a worrisome sign that it might become more interventionist about Article 23 as well. With answers to questions still to come, and with the political context of the next Article 23 legislative attempt unknowable, journalists are wary. Observed one Hong Kong columnist: "One thing we can be sure of is that...the Article 23 time bomb is continuing to tick.

Original languageEnglish (US)
Title of host publicationNational Security and Fundamental Freedoms
Subtitle of host publicationHong Kong's Article 23 Under Scrutiny
PublisherHong Kong University Press, HKU
Pages277-301
Number of pages25
ISBN (Print)9789622097322
StatePublished - Dec 1 2005

ASJC Scopus subject areas

  • Social Sciences(all)

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    Weisenhaus, D. (2005). Article 23 and freedom of the press: A journalistic perspective. In National Security and Fundamental Freedoms: Hong Kong's Article 23 Under Scrutiny (pp. 277-301). Hong Kong University Press, HKU.