TNAG-2862-FCO40-4116-Article-XIX-(lobby-group-for-press-freedom)-and-Hong-Kong-Jo-1993 — Page 142

Urgent Business: Hong Kong, Freedom of Expression and 1997

defence of "prior publication", both of which have been used in the past with some success to defend the disclosure of official information.

The fact that the OSA 1989 is a tightened and more enforceable law makes it a double-edged sword. In the context of Hong Kong, where administration is at least as prone to secrecy as in the UK itself, the lack of such restraining mechanisms as a defence of disclosure in the public interest appear to put press freedom, among other rights, under some threat.

Also, as the HKJA has indicated, the new Act's so-called liberalization of the disclosure of official information does not guarantee in itself that more information will now be made available to the public, nor does it recognize the public's right to know. The Bill of Rights, the HKJA has argued, confers on the government an obligation to guarantee the right of public access to official information about government policies and procedures, and the right of individuals to vet and correct information about themselves. Along with Justice (the Hong Kong Section of the International Commission of Jurists), the Hong Kong Human Rights Commission, and Friends of the Earth in Hong Kong, the HKJA is calling for freedom of information legislation. During a meeting with the HKJA in August 1992, Governor Patten offered that the Executive Council would undertake a review of how information may be made accessible to the public, including consideration of the enactment of a freedom of information ordinance. However, while Governor Patten has promised a more open and answerable government, he has made it clear that he is generally against such declaratory legislation - preferring instead administrative regulations and guidelines.

One final pressing problem regarding the Official Secrets Act concerns the fact that, as with all British legislation extended to Hong Kong, it will lapse on 30 June 1997. Under Article 23 of the Basic Law, the SAR is required to enact legislation prohibiting the "theft of state secrets". Rather than allowing the SAR carte blanche to introduce new legislation, it is vital now that a local law is enacted which is consistent with the spirit of promoting freedom of expression under Article 16 of the Bill of Rights. This could be done in the context of freedom of information legislation.

The government has said on a number of occasions that it is looking into localizing the Official Secrets Act, though it has said at the same time that it has to consider consultation with the Chinese over any piece of legislation which it hopes will go beyond 1997. Indeed, the question of localizing legislation has already surfaced on the agenda of the Sino-British Joint Liaison Group (JLG), though it is unlikely that any substantive discussions have yet taken place. If such consultation must take place, it is incumbent on the British government to guarantee, as far as is possible, with China that all legislation is consistent with the ICCPR as agreed under the Sino-British Joint Declaration.

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