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South China Morning Post, May 17, 1994
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Dump this colonial baggage
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By Martin Lee
Governor Patten enjoys a widespread reputation as a champion of press freedom. He has given numerous speeches around the world on the topic, at one recent lecture in Dublin declaring, ¡§it would be the most seedy of betrayals¡¨ for broadcasters such as Rupert Murdoch and Ted Turner to appease China by self-censoring for reasons of commercial expediency.
But back in Hong Kong, it is a different story. Governor Patten has consistently resisted calls from the Hong Kong community to strike from Hong Kong¡¦s laws books the draconian colonial statutes which could be used to muzzle Hong Kong journalists after 1997.
Hong Kong¡¦s colonial legacy means that our statue books contain an array of repressive colonial-era laws ¡V laws that permit the colonial government to stifle press freedom and free expression in the name of public safety or good relations with other countries. With three short years until the transition of sovereignty to China, these anachronistic laws now constitute a major threat to our rule of law and freedom.
Colonial laws are not meant to protect rights, but to restrict them. As has been the case in almost all colonies ¡V where the government is not chosen by the democratically established consent of the governed ¡V the laws are designed principally to give whatever powers the government may need to control the local population.
There is already ample evidence that China will try to transfer its system of press controls to Hong Kong, as seen in China¡¦s recent treatment of Hong Kong journalists. Would it not, then, be the most seedy of betrayals for Governor Patten to fail to remove the most unfair vestiges of colonialism ¡V those laws can be used to repress free speech and a free press?
Soon after Mr. Patten was named Governor, the Hong Kong Journalists¡¦ Association presented to him a list of the 17 most repressive colonial-era laws, including the Emergency Regulations Ordinance, the Official Secrets Act, the Crimes Ordinance (dealing with treason and sedition), the Summary Offences Ordinance, the Police Force Ordinance, and the Public Order Ordinance. These laws, among others, contain breathtaking broad powers to crush freedom of expression and authorise censorship of all media.
A closer look at the Emergency Regulations Ordinance ¡V dating from 1992 ¡V illustrates the threat colonial laws pose to Hong Kong people¡¦s freedoms. The law reads: ¡§On any occasion which the Governor in Council may consider to be an occasion of emergency or public danger he may make any regulations whatsoever which he may consider desirable in the public interest.¡¨
The menace to press freedom is clear: the first power that statute grants to the executive branch is the blanket authority to censor the press and to issue regulations for ¡§censorship, and the control and suppression of publication, writing, maps, plans, photographs, communications and means of communications¡¨
Moreover, this power to declare an emergency is so vague and arbitrary that Governor Patten could wake up on the wrong side of the bed tomorrow and declare a state of emergency. Presumably he won¡¦t, but I do not need to point out the scope for abuse this law will present after 1997.
Governor Patten promised to give the Emergency Regulations Ordinance and the rest of the HKJA list urgent attention. That was well over a year ago. To date, only three of the 17 most egregious laws have been amended ¡V the Broadcasting Authority Ordinance, the Television Ordinance and the Telecommunication Ordinance. All of the other laws remain in effect.
The Governor¡¦s cavalier attitude towards press freedom is further reflected by the fact that he still continues to resist the numerous calls from the local community to establish an independent Human Rights Commission, and opposes an Access to Information Bill which would promote a truly open and accommodate government. The Government also rejected my request to amend the Film Censorship Ordinance which allows films to be censored on the grounds of ¡§damaging good relations with other territories¡¨ ¡V a provision used as recently as last January to challenge the Foreign Correspondents¡¦ Club showing of a BBC documentary about Mao. Because of the Government¡¦s refusal to act, I will move a private member¡¦s bill later this year to amend this colonial law.
Although Hong Kong is currently the freest society in Asia, since 1989 Hong Kong have been all too aware of how fragile a commodity freedom is. In Hong Kong we assume that the rule of law means laws that protect our rights, freedoms and way of life. But when the laws themselves are bad, our freedoms are in great danger.
Thus far, these anachronistic laws restricting press freedom have not been widely abused because of the link to the UK¡¦s parliamentary democracy. While the colonial government is not accountable to Hong Kong people, it is accountable to a democratically elected British Parliament some 13,000 kilometres away. That is, if the Hong Kong government were to behave irresponsibly, heads could conceivably roll in Whitehall. But even this system of accountability once-removed will be removed along with the Union flag on June 30, 1997.
Whatever trust we put in the integrity of Hong Kong judiciary, judges must apply the law, and if the laws censor the press, even the best judge would have to rule as the law dictates. Clearly, if many of our draconian colonial laws remain after 1997, they will be legitimately available to later government officials to gag Hong Kong reporters.
The Singapore Internal Security Act is a sad case in point. This statue was left on the books when the British colonial administration departed from Singapore. Since that time, the Singapore government has used this law to suspend civil liberties and detain Singapore citizens indefinitely without trial.
Francis Seow, the former head of the Singapore Law Society, ran up against the Internal Security Act when he was punished in the name of public safety for disagreeing with the Singapore government. However ironic, the Singapore authorities can effectively silence their critics by pointing out that since the Internal Security Act was left by Britain ¡V a Western, democratic country ¡V it would be a double standard to suggest Singapore should not use this law as well.
Indeed, if we look around the region, the British colonial and administration has a lousy track record of leaving such laws in the wake of a departure from former colonies. Malaysia, another former colonial holding, has a statue similar to the Internal Security Act which is also used to detain people for exercising their political rights.
The draconian laws on our statue books are like land mines. Like Singapore, Beijing will be only too happy to inherit these repressive colonial laws. It would be a great tragedy of Governor Patten and the colonial government are allowed to repeal this mistake in Hong Kong, the most successful British colony. Hong Kong people will suffer if these statutes are then used to lock up offending reporters or to stifle political dissent. Yet this is the course the British Government has set in refusing to expunge these laws from our legal system.
It is not enough for Governor Patten simply to lament the sad state pf press freedom in Hong Kong. This is an executive-led government and the executive has the power to introduce bills to amend or repeal these laws. But his government has not taken action thus far for much the same reason his colonial predecessors long shut the down on Hong Kong¡¦s legitimate democratic aspirations: fear of offending China.
Especially in light if the obvious implications of the arrest of Xi Yang and other journalists, there can be no further justification (if indeed there ever was) for the Government¡¦s foot dragging on reforming the colonial laws so open to abuse.
All our rights and freedoms are interlinked. Once press freedom is gone, none of our other freedoms ¡V including our free market and our free enterprise system ¡V is safe. Thus the obligation to repeal these colonial laws and set up democratic institutions to protect freedom is not just an administrative responsibility. It is also a moral one. It would be the height of hypocrisy for Governor Patten to leave Hong Kong with the knowledge that he has left in place the means to stifle our spirit of freedom.
Governor Patten, for all his oratory on the virtues of free expression, is on verge of leaving behind a set of laws under which Hong Kong could have a bleak, Orwellian future. Unless the Governor and his administration take immediate action, it could yet be the ultimate irony that after 1997, Governor Patten¡¦s fine speeches on press freedom are banned in Hong Kong under colonial laws he himself left in place.
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