It seems to be a rule nowadays that no criticism from overseas of our local national security arrangements can be allowed to pass unchallenged, or indeed uncondemned. This is fair enough, although no doubt it would be fairer if local criticism were still allowed.
No doubt there are many matters in this area on which intelligent people might politely disagree. We are all entitled to our opinions. But, as a great editor of the Guardian once put it, comments are free but facts are sacred. I do not wish to express any opinion on the merits of recent legislation. Its defenders, though, should be discouraged from rewriting history.
This brings us to Mr Ambrose Lam San-keung, who recently penned a piece for the China Daily defending the latest legal changes against criticism from the International Bar Association's Human Rights Institute. The institute, said Mr Lam, has made "unsubstantiated claims" about the Safeguarding National Security Ordinance.
Mr Lam then canters through the usual whataboutisms – some Western countries provide no protection for whistleblowers, some limit the right to choose counsel, and so on. And then we come to this:
"No country would allow any seditious speech or publication that incites mutiny, disaffection, hatred, violent acts, or disobeying laws. No country would allow any association to provide training in using offensive weapons or military exercises without the government's permission. No country would accept any assembly that aimed at sabotaging public infrastructure.
Surprisingly, before the enactment of the Ordinance, Hong Kong enjoyed "freedom" of incitement, sedition, unlawful military training, and sabotage of public infrastructure. As a result, riots broke out in 2014, 2016 and 2019."
China Daily, April 1
I take this to mean that, in Mr Lam's view, Hong Kong had no laws against incitement, sedition, unlawful military training or sabotage of public infrastructure, and this absence caused the riots in 2014 (sic), 2016 and 2019. This is an "unsubstantiated claim".
Leaving aside the questionable matter of cause and effect – I do not recall any rioter explaining his malfeasance as a protest against the absence of relevant laws – the matter of large legal absences is easily dealt with:
- Incitement and sedition were first criminalised by the Seditious Publications Ordinance of 1913. The ban was extended to acts by the Sedition Ordinance of 1938 and the whole matter was wrapped up in the Crimes Ordinance in 1971, at which point inspiring disaffection or mutiny in the disciplined forces was added. We may note in passing that the sedition offence was abolished in the UK in 2009 as archaic, infringing valuable freedoms and "used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom." Present company excepted, of course.
- Sabotage of public infrastructure was covered by the law on criminal damage, which resides in the Crimes Ordinance Section 60. It includes: "A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage it or being reckless as to whether it would be destroyed or damaged is liable to imprisonment for 10 years. If a person destroys or damages any property … intending to endanger the life of another or being reckless as to whether the life of another would be thereby endangered is also guilty of this offence and is liable to imprisonment for life."
- The law on unlawful military training is also in the Crimes Ordinance, at Section 18, under which it is an offence if a person "trains or drills any other person in the use of arms or the practice of military exercises or evolutions" without the permission of the Governor or the Commissioner of Police."
Mr Lam is an educated member of a learned profession so we must accept that when he writes rubbish he really believes what he says, and is not merely spouting propaganda "being reckless as to whether" it is true or not.
Disturbingly, he is also a member of the Legislative Council. His latest writings give rise to some doubt as to whether all members of that body had even a superficial knowledge of the existing law when they agreed to substantial amendments of it.
More disturbingly still, Mr Lam sits in the council on behalf of the legal functional constituency. He is in fact a lawyer. You might think that other members would expect learned and accurate advice from him about upcoming and existing legislation, and that opinions on these matters which fall from his lips would be particularly influential for non-legal members.
In his defence, I suppose, Mr Lam might blame the copy editor who worked on his offering, which will cut no ice with me because I used to be one. Or he could say that he did not mean what he appeared to mean and I have perversely insisted on using a literal meaning which was not what he intended.
Legislators – and lawyers – should be careful in their choice of words.
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