TNAG-2862-FCO40-4116-Article-XIX-(lobby-group-for-press-freedom)-and-Hong-Kong-Jo-1993 — Page 144

Urgent Business: Hong Kong, Freedom of Expression and 1997

As they are presently constructed, the offences of treasonable and seditious intention are not compatible with the protection of freedom of expression under Article 16 of the Bill of Rights. These are dangerous powers in the hands of any unrepresentative government, and should be amended or repealed. Any review of the Ordinance, moreover, must also look into the question of localizing these provisions. As they stand, treason and sedition are offences not only against the Hong Kong government, but also against the Queen and British government. After 1997, the latter offences will lapse. Indeed, the entire provisions may lapse since, under Article 23 of the Basic Law, the SAR government is required to enact legislation prohibiting treason, secession and sedition. There is therefore an urgent need to localize and liberalize these provisions and hope they will survive 1997 without the need for new or further legislation.

However, as with the Official Secrets Act, any such localization will almost certainly be seen to require consultation with China in the JLG, a process that again creates concern about the kind of alternative provisions which might emerge from such a process.

4.4

BROADCASTING LEGISLATION

There are three separate laws governing this broad area: the Broadcasting Authority, Television and Telecommunication Ordinances. From the perspective of freedom of expression, each Ordinance permits significant powers of censorship, some of which place direct restrictions on freedom of expression such as the ability of the Broadcasting Authority to pre-censor programmes. Others are designed to act through regulating the licensee, even to the point where breaches may mean the revocation of a licence. The broad emphasis across the laws is on the control of the broadcasting media. What all the powers have in common is an authoritarian outlook; they do not share the liberal, self-regulatory environment for freedom of expression implied by Article 16 of the Bill of Rights.

The former Secretary for Recreation and Culture, Augustine Choi Chui-kam, told the Hong Kong Journalists Association in 1990 that while the government had sweeping legislative powers over broadcasting, these were seldom if ever invoked and were only there as an ultimate safeguard. It is certainly true that these provisions have rarely been used. However, this is not to say they will not be used, possibly in an arbitrary manner, either before or after 1997. Nor does this diminish the potential deterrent effect they may have on the exercise of freedom of expression by licensees.

In various submissions on these laws over the years, the HKJA has put the argument to the government that these powers are likely to be inconsistent with Article 19 of the ICCPR, and more recently Article 16 of the Bill of Rights. Various legislative councillors, during a press freedom debate in February 1992, have also spoken out against the repressive restrictions of broadcasting laws. During the 1991 hearings on Britain and Hong Kong, members of the UN Human Rights Committee specifically criticized the contentious nature of both the Television and Telecommunication Ordinances in relation to Article 19. Yet the government has maintained that they are compatible with the Bill of Rights.

37