Background

Beginning on the 25th September this year, a three months consultation period has begun on the "Proposals to Implement Article 23 of the Basic Law" (or the Proposals on Article 23) formulated by the Hong Kong SAR government.

Article 23 of the Basic Law stipulates that the Hong Kong Special Administrative Region (HKSAR) "shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government (CPG), or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies." 

HKCTU members are worried because a lot of ordinary, legitimate and day-to-day trade union activities fall into the murky area of the Article 23 offences as stipulated in the Proposals on Article 23. They strongly oppose the Proposals on Article 23 and the government to act on national security at a time when there is no obvious threat. The Proposals on Article 23 will in actual effect become a political tool to silent all forms of government opposition including trade unions and workers opposition to government anti-workers and anti-trade union rights policies. 

HKCTU has put forth its official statement and circulated to its affiliates. It is also a member of a larger coalition called the Civil Human Rights Front which coordinates some of the mass activities in the community for people to voice out their opinions. It is of utmost importance that we can all hold hands together and speak in one voice: " No Proposals on Article 23!"

The full government consultation document can be accessed at the Security Bureau website at 
http://www.info.gov.hk/sb. 

If you want to know more the HKCTU positions or just to show your concerns, please contact them by 
e-mail at hkctu@hkctu.org.hk
Hong Kong Confederation of Trade Unions

Statement on the objection of the “Consultation Document on Proposals to Implement Article 23 of the Basic Law”

1. The Confederation of Trade Unions opposes the proposals to implement Article 23 of the Basic Law. 

   • Article 23 of the Basic Law has granted the autonomy to the Hong Kong Special Administrative Region (HKSAR) Government to enact its own law in accordance with the requirement of the particular article. It means that Hong Kong people should enjoy the rights to decide by its own at what time to enact such a law and in what way it will be drafted.
     
     Since we did not see anything happened over the past five years which was to endanger or had endangered the national security, we have no substantial necessity to enact such a controversial law at this moment. 
     
     The incumbent consultation document has infringed seriously the human rights and the freedom of Hong Kong people. We cite our arguments as follow: 

2. The introduction of the term "national security" has infringed seriously the freedom of societies of the public. 

   • What have suggested in Chapter 7 of the consultation document actually overdo what we are asked to act on by Article 23. The particular contents are quite irrelevant to the headline of the chapter _Foreign Political Organizations.
     
     Since the government suggests in the Section 7.14 " to make it an offence to organize or support activities of a proscribed organization", but it does not add the word "foreign" between "proscribed' and "organization", it indicates obviously that the government is to pinpoint the relations and affiliation between the local organizations to those in the Mainland.

   • The government further suggests in Section 7.16 that it is the Central Authoritious rather than the HKSAR itself "to determine whether an organization poses a threat to national security, especially for those entities based in Mainland with cells in the HKSAR affiliated with them". And "formal notification" will be sent to the HKSAR from the Central People's Government.
     
     The government's suggestion means to introduce the concept of the national security into the local judicial system. It will undermine harshly the human rights as well as the foundations of the legal system in Hong Kong. 

   •  Local trade unions may also be proscribed if they affiliate with the proscribed organizations in the Mainland (for instance, the Mainland's independent trade unions run underground because the country allows only the official trade unions to operate).
     
     As a result, the management people or the executive officers of the concerned unionist organizations will commit a criminal offence of which subject to the maximum penalty of 7-year long imprisonment. 
     
     It is crystal clear to be a serious infringement on the freedom of societies, and what's more, a threat to block the local trade unions to give support to the mainland workers who are squeezed to launch reasonable confrontation. And it will also kill the room for other non-governmental organizations to hold activities in the Mainland.

3. The "national security" will become a means for the authority to suppress people with different voices. 

   • The proposals raised in the consultation document use fully the "national security" concept to overwhelm people's protection on the human rights and the freedom as well. Since neither the HKSAR Government nor the Central People's Government is elected by universal suffrage, to stress "national security" becomes a means to empower the authority.
     
     As a result, the implementation of Article 23 equals to put the interests of the authority on top of the interests of the public. It is no good to people, especially the grassroots and the ordinary workers as well. 

4. Sedition offence is a minefield to trap the trade unions.

   •  The consultation document states that it is an offence on sedition "for a person to incite others to create public disturbance which will harm the stability of the HKSAR". 
     
     To define "incite", the government suggests in Section 4.2 to include "counsel disobedience to law or to any lawful order" etc.. 
     
     The suggestion will affect the activities held by the trade unions. It is because when trade unions hold activities, especially those like industrial actions, strikes, assemblies or public processions, it may result in disorder if at that time the police get involved. At that time, the concerned parties may be labeled as "sedition". Even if the campaign has yet to turn into a public disturbance, the police may say it is and use it as an excuse to ban the event. 
     
     It sounds as a "potential threat" to people's freedoms on assemblies, public processions, and rights on holding strikes and labor activities.

   • Section 4.17 suggests that it should be an offence if a person prints, publishes, distributes, displays, re-produces any publication or imports or exports any "seditious publications". It will not only seriously suppress the freedom of press as well as that of the academic sector and to create an offence by words, but also undermine the freedom of producing internal publications by different organizations. 
     
     For instance, if a trade unions states in its internal publication by urging its members to participate in a strike fighting for the interests of the trade unions and the rights on democracy, it can be said as a sedition. 
     
     In return, the trade unions will be charged as to endanger the stability of the HKSAR Government. And the members of the trade unions can also be challenged because of owning the materials. Eventually, the organizations' rights to have a free flow on information will be infringed. 

5. The unclearness has created white terror 

   • There are numerous unclear places in the consultation document. An obvious example can be witnessed in Section 5.5. The government proposes in the particular provision to make it an offence of subversion to overthrow the Central People's Government or disestablish the basic system of the state as established by the Constitution by levying war, use of force, threat of force, or other serious unlawful means. The term "serious unlawful means" seems to be so unclear, and it puts the movements on fighting for democracy and political reforms under the threat of the white terror.
     
     When Hong Kong people stage a strike to fight for the democratic reforms in the Mainland, or to hold a public assembly to terminate the "one-party ruling" in China. They may be charged because the ways they adopt can be treated as "serious unlawful means" or "disestablish the basic system of the state as established by the Constitution".

   • The government further proposes in Section 2.8 that it is also an offence of subversion "to levying war by joining forces with a foreigner with the intent to overthrow the PRCG; or compel the PRCG by force or constraint to change its policies or measures". (PCRG means the Central People's Government)
     
     However, the government adopts a wide approach while defining the term "war", suggesting it also means that a large group of people join together to have an intention to prohibit the government from exercising its power freely. 
     
     Under such definition, if we call for China to implement democratic reforms or let trade unions to enjoy the freedom on holding assemblies, and if at the same time some foreigners get involved in the activities, the trade unions will commit the offence.
     
     Since the consultation document lacks solid proposals for the public' s reference (the government has rejected the claim to launch a white bill for a comprehensive consultation), it seems to mislead the public. People will be scared more after the law is in place, worrying they will be trapped easily.

6. To make misprision of treason a statutory offence is ridiculous.

   • In Section 2.14, the government proposes to make "misprision of treason" a statutory offence. It suggests that it is committed "when a person knows that another person has committed treason but omits to disclose this to the proper authority within a reasonable time". 
     
     The definition of "reasonable time" is unclear. And it is ridiculous the most by asking a person to judge whether another person has committed an offence of treason. 
     
     Furthermore, the offence on "Misprision of Treason" will probably make Hong Kong people face a tragedy like the previous Cultural Revolution in the Mainland, in which people rushed to disclose to the authority what others had done and framed each other also.

7. The offence on theft on state secrets intervenes in the freedom of speech.

   • The proposed amendments put under the offences on sedition and the theft of the state secrets create "potential threat" to the freedoms of press and speech as well. It is unacceptable in any democratic countries over the world. 
     
     Organizations' publications on urging the public to oppose the government's unreasonable policies may be charged of committing an offence of sedition. It is a harsh blow on the freedom of organizing operations and publication as well.

8. The Police Force will have too big power in hands.

9. To enlarge the power of the police will lead easily to an abuse, and in return, the public's rights will be infringed very lightly. 
   
   The consultation document suggests an emergency entry, search and seizure power should be provided to the police for investigating some Article 23 offences. And the power should be exercised by a sufficiently senior police officer, for instance "a superintendent". It is obvious to further enlarge the power of the police. 
   
   On the other hand, the non-governmental organizations, the trade unions and even the business parties and religious groups will be disturbed by the police anytime the latter like to do so. And their autonomy as well as daily operation will be affected seriously. 
   
   
   Lee Cheuk-yan
   General Secretary 
   Hong Kong Confederation of Trade Unions. 
   

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