ARTICLE 19 and The Hong Kong Journalists Association
But arguably the intent of the subversion clause is already hard at work, well before the Basic Law comes into effect. Those who criticize the mainland authorities know they must consider whether their actions today may result in some form of retribution after the handover. There are strong indications that the intimidating shadow of subversion is priming a mood of self-censorship that is putting freedom of expression in some jeopardy well before the British take their leave.
2.6
TREASON, SECESSION, SEDITION, AND THEFT OF STATE SECRETS
If the term subversion raises serious questions of inconsistency and interpretation, so equally do requirements in Article 23 that the SAR enact laws to prohibit "any act of treason, secession, sedition ... or theft of state secrets". The political nature of such offences will mean that legislation, even if there are checks and balances, must sit uncomfortably with the protection of certain rights, especially freedom of expression.
Hong Kong's present laws on treason and sedition fall under the Crimes Ordinance, the relevant provisions of which are particularly anachronistic and extend to the colonial authorities extraordinary, ill-defined powers.13 As might be expected, the Ordinance covers offences against the Crown or the British government, the relevant provisions of which will consequently cease to be effective at midnight on 30 June 1997. The requirement thereafter for fresh legislation raises similar problems to that of subversion. How is the SAR legislature to enact legislation which on the one hand is consistent with safeguarding basic rights, while on the other satisfies what the Chinese authorities consider to be offences of treason and
sedition?
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Prohibition of the "theft of state secrets" lays the same minefield. The present Official Secrets Act, 1989 (OSA), a British law extended to Hong Kong, will lapse on the handover to Chinese rule.1 The SAR is thereafter required to enact legislation which prohibits not simply the unauthorized disclosure of information - the purpose of the British act - but rather the "theft of state secrets", which has the unmistakable phraseology of repression.
It is reasonable to assume that it is China's intention to ensure the enactment of laws in Hong Kong similar to its own Law of the PRC on Guarding State Secrets (1988). The provisions of this law, which retain very broad criteria for the offence of disclosing official information, are designed to strengthen the political control of the CCP. To cite one example, a four-year jail term was handed down to Beijing Daily editor Qi Lin in 1992 for allegedly "leaking state secrets" to a Taiwanese newspaper. The information concerned the case of Hu Jiwei, a former editor of the Communist Party organ, the People's Daily, who was placed under investigation in the aftermath of June 1989. Actions taken by the Party against Hu were a matter of
13
See Chapter 4.
14
See Chapter 4.
14
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