2002-10-4 South China Morning Post

editorial: Keeping two systems

It has often been said that the requirement on Hong Kong to pass laws protecting the central government against subversive acts strikes at the heart of the ''one country, two systems'' concept. The reason for this is not hard to see. The two systems, in the mainland and Hong Kong, adopt a very different approach to this sensitive area of the law. Conduct which is legal in Hong Kong may fall foul of the mainland's more sweeping restrictions. Acts considered subversive there may in the SAR be regarded as no more than legitimate criticism of government policy.

But the central government has not applied the mainland laws to Hong Kong. Indeed, Article 23 of the Basic Law states the SAR shall enact the legislation ''on its own''. It clearly envisages Hong Kong's provisions being different to those applying on the mainland.

The Hong Kong government appears to accept this. Its consultation paper on the proposed laws, released last week, makes clear that common law principles are to be followed, international human rights conventions complied with, and freedoms guaranteed by the Basic Law protected.

It is surprising then to find in the consultation paper a proposal that groups in Hong Kong may be banned if they are affiliated to organisations outlawed by the central government on the grounds of national security. At first glance, at least, this proposal would appear to amount to an effective importation of mainland legal principles.

Under the Societies Ordinance, the Secretary for Security is already empowered to ban organisations if this is reasonably believed to be in the interests of national security. National security is defined there in very broad terms as ''the safeguarding of the territorial integrity and the independence of the People's Republic of China''.

There is a need to narrow that power to bring it more into line with international legal principles, such as by restricting the definition to one involving the threat or use of force, or incitement to violently overthrow the government. It could be argued the current proposals go some way towards this by stating that a ban can only be imposed on an organisation which commits, attempts to commit, or has the objective of committing one of the Article 23 offences, such as treason.

But then comes the bombshell. Another basis proposed for imposing a ban is if a Hong Kong group is affiliated with a mainland organisation outlawed by the central authorities on the grounds of national security. The government accepts, in the paper, that the ban by the central authorities would be in accordance with mainland law. That would provide for the mainland authorities to trigger the banning of organisations in Hong Kong.

No doubt the government would argue that it has provided safeguards. There would be a need to prove the Hong Kong group is affiliated to the one banned in the mainland. The Secretary for Security would still have to reasonably believe the SAR group posed a threat to national security. And an appeal could be lodged to the courts.

However, this will come as little comfort to groups such as the Falun Gong and the Hong Kong Alliance in Support of the Patriotic Democratic Movement in China, who have long feared the new laws will be used to target them.

One worrying aspect is that, under the proposals, there appears to be little room for the courts to intervene. Once Beijing has imposed a ban, and this has been extended by the Secretary for Security to a group in Hong Kong, it will be difficult for the judges, under the proposed law, to disagree. At the very least it will place both the Secretary for Security and the courts in an invidious position.

In fact, Article 23 does not require a law to be enacted providing for the banning of organisations on national security grounds. Already, under new laws introduced in July, terrorist groups may be banned by the Chief Executive on the recommendation of the Secretary for Security. It does not appear that a new law giving our government additional powers to ban groups on the grounds of national security is needed.

However, if one is to be introduced, it should be restricted to the question of whether, according to common law principles, a genuine threat to national security exists. The ban should be subject to judicial approval, after the hearing of evidence. This would provide the state with adequate protection, and ensure the lines between the two legal systems do not become blurred. Hong Kong's traditional role as a place where those who disagree with the central government's policies are free to express their views would continue.

By bringing the mainland authorities into the national security equation, the government is unnecessarily courting controversy.