One country, one system?

PUBLISHED : Friday, 21 February, 2003, 12:00am
UPDATED : Friday, 21 February, 2003, 12:00am

We should give the Hong Kong government credit for removing draconian provisions it had included in the original consultation document introduced in September on the implementation of Article 23 of the Basic Law.

However, we should also chastise it for ignoring widespread calls for a white bill and a second round of public consultation.

While the argument for a white bill may now be moot, the decision by officials to ignore public sentiment is not. It appears the government feels its virility would be questioned if it bowed to public opinion. The feeling seems to be that a strong government is one that can withstand public pressure and do unpopular things.

If that is indeed the government's attitude, then we are in for a lot of trouble. Precisely because the government was not democratically elected, there is an even greater need for it to bend over backwards to show it is responsive to the public.

But back to the Article 23 legislation. Although the bill gazetted on Friday is, no doubt, far superior to what was proposed last September, serious problems remain. One has to do with the procedures for banning organisations suspected of endangering national security and the appeal mechanism.

One vital reason why 'one country, two systems' has a chance to work is the separation of the mainland and Hong Kong legal systems. What is worrying is that this bill establishes a link between the two.

Although Hong Kong law already empowers the secretary for security to ban organisations on national security grounds, the bill provides that if an organisation is proscribed on the mainland for national security reasons, then Hong Kong's secretary for security has to decide if it is necessary to ban subordinate groups in the city.

In theory, the secretary for security can opt not to order such proscription. In practice, however, it is highly unlikely that this would happen, once the mainland has banned the parent body. This, in effect, gives the mainland a right to proscribe certain Hong Kong organisations.

What is even more worrying is that the bill says that the secretary for security does not have to give the banned organisation an opportunity to be heard or to make representations in writing before ordering its proscription.

And even more disturbing is the proposed appeal mechanism. The government proposes that the appellant does not have to be given 'full particulars of the reasons for the proscription in question'. Moreover, court proceedings may be held in the absence of 'the appellant and a legal representative appointed by him'. The court may appoint another lawyer, not of the appellant's choosing, to represent him.

These are extraordinary measures. What is being described sounds more like a kangaroo court. It is certainly not a court known to Hong Kong.

These proposals fly in the face of several provisions of the Basic Law. Article 35, for example, says that Hong Kong residents 'shall have the right to . . . access to the courts'. The same article says Hong Kong residents have the right to 'choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts'. The government proposes to do away with these basic rights.

The bill gives the chief justice the authority to make these patently unjust rules. By doing so, the government is imposing a political burden on the chief justice that makes his or her position untenable.

The government cites as precedents Canada and Britain, and the fact that the European Court of Human Rights had upheld such legal practices. However, the Canadian and British cases dealt only with immigration matters. There, almost by definition, the individual has no rights except what the immigration authorities deign to confer.

Here, however, as far as you and I are concerned, legal Hong Kong residents possess inalienable rights conferred by the Basic Law. Allowing this proposal to stand would make a mockery of the rule of law and gravely erode one of the pillars that uphold Hong Kong's high degree of autonomy.

Frank Ching is a Hong Kong-based journalist and commentator