Is liberty too high a price?

AS THE WORLD searches for ways of preventing the threatened terrorist strikes in response to the United States attacks on Afghanistan, concern is growing that the war might claim an unexpected victim. Governments have moved swiftly to better protect their citizens in the wake of the September 11 attacks on New York and Washington. But as national security is seen as the top priority, civil liberties are coming under threat.

The US and Britain have already drawn criticism for seeking to introduce sweeping laws which appear to put the pursuit of terrorists ahead of human rights. Now, Hong Kong has similar decisions to make, following a resolution of the United Nations Security Council last month calling on member states to introduce a wide range of measures to combat international terrorism.

Secretary for Security Regina Ip Lau Suk-yee said last weekend this required the SAR to consider anti-terrorism legislation, as China is a member of the UN. Any steps taken would be on instructions from Beijing. 'We don't have legislation [specifically] against terror attacks at the moment, nor do we have any definition on terrorists . . . or [what is] an offence,' she said, adding that political asylum 'should not be granted to terrorists who claim they are under political persecution'.

The Security Bureau remains tight-lipped about what specific measures might be adopted in Hong Kong. 'Many things are still under consideration. It is a bit too early to say what we will do,' a spokeswoman said. But discussions are underway with Beijing, which has 90 days to report to the UN on what steps China is taking. 'We have to decide whether we need separate legislation to deal with terrorism. This will take some time,' the spokeswoman added.

Appropriate measures to clamp down on international terrorist activities and protect Hong Kong are likely to be widely welcomed. But, as in other countries tackling the terrorism threat, concerns that the SAR Government might use the current crisis to override human rights are already being expressed.

'The price we might pay for dealing with a few people could be enormous,' said Professor Yash Ghai, a constitutional-law expert at the University of Hong Kong. 'It is very dangerous for us to get caught up in this hysteria.'

UN resolution 1,373, which prompted Mrs Ip's comments, was passed on September 28 in response to the attacks on the US. It seeks to combat every aspect of terrorist activities, from the financing and planning of attacks to denying terrorists a safe haven. Member states are required to bring terrorists and their supporters to justice and ensure that 'in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts'. But the resolution makes it clear such measures must comply with international human-rights law.

The question being asked now is whether Hong Kong needs new laws to deal with the terrorist threat and, if so, will such legislation impact upon human rights. One of the problems to be addressed is providing a legal definition of terrorism. Without such a definition, it could be difficult to introduce specific laws dealing with those involved in supporting terrorist activities.

As Mrs Ip pointed out, Hong Kong has no legal definition for terrorism. This is perhaps not surprising. No legal definition exists in international law because it is difficult to find one acceptable to all UN members. Groups regarded by one nation as terrorists might be seen by another as freedom-fighters.

Professor Roda Mushkat, from the University of Hong Kong's department of law, supported a universal definition. 'At this point, it calls for a definition. I think that is the spirit of the UN resolution.' Such a definition would be needed in Hong Kong if, for example, legislation aimed at those who funded international terrorism were introduced, she added.

But such a step could be avoided by instead legislating against the funding of existing crimes, such as murder. 'I am not sure we need to have a definition of terrorism because almost all terrorist acts are crimes already,' said Paul Harris, a spokesman for the Hong Kong Human Rights Monitor. 'If you kill someone or you injure someone, if you damage property with intent to terrify others, you are already committing a criminal act.'

Attempts in Europe and the US to widely define terrorism when bringing in new laws have caused controversy. 'Some of the definitions of terrorism under discussion are so broad that they could be used to criminalise anyone out of favour with those in power and criminalise legitimate peaceful exercise of the right to freedom of expression and association,' said Amnesty International on its Web site last week.

A proposed law in the US would create a crime of 'domestic terrorism' and strike at those who engage in conduct that 'involves acts dangerous to human life'. This has come under fire from the American Civil Liberties Union (ACLU) which warned it could lead to protesters being treated as terrorists. The law could apply to groups such as environmental activists Greenpeace, said the ACLU in a report last Friday.

Although Hong Kong does not have a crime of 'terrorism' as such, it does have laws that clearly target terrorists. The Internationally Protected Persons and Taking of Hostages Ordinance, introduced in 1995, deals with offences directed at heads of state or diplomats even if they are committed by foreign nationals and take place outside Hong Kong. Hijacking airliners and endangering safety at airports comes under the Aviation Security Ordinance, enacted in 1996. Neither law mentions terrorism or defines it, instead referring to specific crimes such as kidnapping or murder.

Plans for new anti-terrorist laws in other parts of the world have raised the issue of whether human-rights safeguards can be overridden and the same questions are now being asked in Hong Kong.

Lord Woolf, the Lord Chief Justice of England and Wales, has warned the British Government that it must keep within the law when bringing in new measures to tackle terrorism. Lord Woolf said in times of stress 'the Government can get matters wrong'. Drastic measures for dealing with suspected terrorists, such as detaining them indefinitely and removing asylum-seekers without an appeal, have been proposed in Britain, along with plans to speed up extraditions.

In the US, similar proposals, including indefinite detention of non-citizens who cannot legally be removed, are also being considered. Concerns have been raised that the US constitution will be breached if moves to make it easier for law enforcement agencies to tap telephones and monitor Internet use go ahead.

As Hong Kong considers what action it will take, legal experts urged the Government to make sure any new measures are really necessary. The question of asylum seekers being suspected of terrorism - mentioned by Mrs Ip and included in the UN resolution - is difficult to apply to Hong Kong as the SAR does not grant political asylum. Applicants are referred to the local office of the UN High Commissioner for Refugees.

Solicitor and immigration law expert Mark Daly said the system the Government used for making referrals was, however, unclear and applicants could be unfairly removed. The anti-terrorism moves would only make life more difficult for refugees worldwide, said Mr Daly. 'Previously, refugees were often considered economic migrants. Now are they all going to be considered terrorists?'

Steps to help Hong Kong law-enforcement agencies tackle terrorists might also be taken. But there are fears this could lead to innocent people suffering. A high-profile series of arrests in Macau targeting people from South Asia in the wake of the September 11 attacks appears to have been bungled. The operation, on September 16, which involved use of a bomb-detection robot and special agents wielding sub-machine guns, was initially regarded as being aimed at suspected terrorists named on a list provided by US authorities. But at least one of those arrested, and then released, was an innocent tourist. None were charged with offences linked to terrorism. Macau authorities later unconvincingly claimed that the operation was aimed at Pakistani overstayers suspected of picking pockets.

Barrister Vandana Rajwani, of Hong Kong Against Racial Discrimination (Hard) said: 'The one thing we have to be careful of is not to have a knee-jerk reaction. It can't be a token gesture; it has to be well thought out.' The public would not support vague measures which led to people being unnecessarily targeted, arrested and incarcerated, she added. 'I can understand there was a reaction to protect the public, but it has to be measured and proportionate.'

Mr Harris, from Hong Kong Human Rights Monitor, agreed. 'Any suggestion to detain people indefinitely is not acceptable. It is introducing something like Malaysia's Internal Security Act which has been the subject of scorn and outrage for many years. It is open to the most flagrant abuses.

'If you were going to have powers of detention they would have to have very strict rules and be reviewed by a court which has evidence before it.'

Michael Lunn, SC, a vice-chairman of the Bar Association, said law enforcement authorities might find it useful to be able to detain suspects for longer periods, giving them more time to investigate and gather evidence before having to either charge or release a suspect. (Currently, suspects must be charged or released within 48 hours.)

But he added that the issue of new anti-terrorism laws could be compared with the debate in Hong Kong over whether to introduce legislation against 'evil cults'. 'I think the way to deal with these things is if you see a problem, address the specific problem rather than take a general approach.' He said the attack on the World Trade Centre in New York, for example, could be dealt with under existing criminal law, but bringing to justice those who helped fund such operations might be more complex.

Whatever measures are introduced would have to comply with the Basic Law and Bill of Rights and any new legislation could prompt court challenges.

Professor Ghai said: 'We have a good system in Hong Kong for human rights. Anything we do in this way has to be accommodated within, and judged under, the terms of that scheme.'

Professor Mushkat stressed the way forward was a balancing exercise. 'Given the international threat, I think some restrictions on civil liberties are called for. But it is a balancing act. It should be left to the judges to decide where to strike the balance. The courts are still the guardians of our civil liberties.'

Cliff Buddle is the Deputy Editor of the Post's Editorial Pages

'What we might pay for dealing with a few people could be enormous'