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SHA's speech at the Basic Law Institute Seminar at City University


Following is a speech (English only) by the Secretary for Home Affairs, Dr Patrick Ho, at the Basic Law Institute Seminar on Article 23 at the City University of Hong Kong today (December 23):

Ladies & Gentlemen,

Good afternoon and thank you for inviting me to this discussion.

Article 23 is, of course, a subject that impinges closely on human rights concerns, most specifically in regard to the freedoms of thought, conscience, expression and information. Some commentators have also seen cause for concern in other areas, such as security of the person and the right to privacy. The media has been awash with dire forebodings about the future of those freedoms in Hong Kong once the proposals now under consultation become law, either as proposed or in amended form.

It is understandable that people should be wary: suspicion of change is a natural human condition and vigilance is a sign of a healthy society when rights and freedoms are at stake. But I think my learned colleagues from the Department of Justice have clearly demonstrated that those fears have been overstated. I cannot possibly emulate their depth of analysis and, in any case, it would be pointless for me to simply repeat what they have said. However, in my role as Secretary with portfolio for human rights and community affairs, I would like to take a bird's eye view of the issues in relatively broad terms. In doing I hope to demonstrate that we on the policy side are fully appraised of the jurisprudential considerations, both international and domestic, and that we are determined to ensure that those concerns are fully reflected in policy formulation. I will also take the opportunity to share with you the feedback we have been receiving from the grassroots through our District Office network.

Moving straight to the question of rights protections, I think that everyone here is aware that Chapter III of the Basic Law guarantees the fundamental rights of Hong Kong residents. And, with a view to the concerns that has been expressed in our Article 23, let us remind ourselves that Article 27 guarantees - among other things - the freedoms of speech, the press, and publication. Article 28 prohibits arbitrary or unlawful arrest, detention or imprisonment. Article 29 provides that the homes of Hong Kong residents shall be inviolable and prohibits arbitrary or unlawful search of, or intrusion into a resident's home. Turning to the concerns about the freedoms of belief, expression and so forth: Article 32 specifically protects the freedom of conscience and religious belief. Article 34 guarantees the freedoms to engage in academic research. And Article 39 effectively 'entrenches' the provisions of the ICCPR and the ICESCR as applied to Hong Kong. Articles 18 and 19 of the ICCPR guarantee the freedoms of belief, expression and information: those provisions have direct effect in domestic law through Articles 15 and 16 of the Bill of Rights.

I have ran through this admittedly tedious list in order to demonstrate that the rights and freedoms that are at the heart of the concerns that have been expressed about Article 23 are deeply entrenched and protected. They are so protected at the constitutional level through the Basic Law, at the international level through the UN human rights treaties, which ensure compliance through the Treaty Monitoring Bodies, and in domestic law through such specific instruments as the Bill of Rights and, of courses, the laws against discrimination on the grounds of sex, disability, and family status.

As you know, all Hong Kong laws must conform to the Basic Law and all laws made in accordance with the Basic Law must be consistent with other Basic Law provisions. What this means is that legislation to give effect to Article 23 must be consistent with the protections afforded in Chapter III of the Basic Law and - through Article 39 - with the relevant provisions of the ICCPR and the ICESCR. The Solicitor General and his colleagues have explained these matters in greater depth. I will not attempt to pre-empt what they have to say as they are the Government's experts in these matters. But I hope that this overview of the legal framework in we which operate will help to reassure our interlocutors that these protections guarantee that Government cannot introduce legislation - be it in regard to Article 23 or to any other matter - that would compromise our rights and freedoms. My colleagues who have been involved in the present consultations and who will have to undertake the drafting of the new legislation are proceeding in the full light of these assurances and are fully aware of the constraints within which the law must be framed.

Turning quickly to the question of community reaction, we have consulted all the 18 District Councils: 16 are broadly in support and nine of those have gone further, passing motions to affirm their support. DC members who spoke in support of the proposed law took the view that it was necessary to comply with the requirements of the Basic Law, and that it was essential for protecting national sovereignty, territorial integrity, unity, and security.

Those who expressed reservations were concerned about the need to safeguard the freedoms of expression, information, thought and belief. They have called on the Government to define more clearly some of the terminology, such as "possession of seditious publications", "exercise of emergency entry by the Police", "connection with a foreign political organisation", and so forth.

I hope I have already made clear that our freedoms enjoy powerful protections in domestic and international law and any law to give effect to Article 23 must conform to the requirements that those protections impose. My colleagues who are directly involved in the drafting process will, of course, take careful note of the concerns that have been expressed about definitions and will address them as appropriate.

Thank you.

End/Monday, December 23, 2002


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