National Security And Fundamental Freedoms

There has been intense interest in the proposals to implement Article 23, both in Hong Kong and abroad. This book will be valuable to anyone who has followed or participated in that debate or has an interest in the delicate balance between civil liberties and national security. The book will be particularly useful for legislators, policy-makers, lawyers, journalists, historians, teachers, and students, especially in the fields of law and the social sciences. The statutory Appendix will assist teachers and students to draw comparisons between existing law and the government's proposals. In 2003 more than 500,000 people marched in Hong Kong against the National Security (Legislative Provisions) Bill, which would have prohibited treason, sedition, secession, and subversion against the national government of China and included new mechanisms for proscribing political organisations. This edited collection analyses that legislation, particularly the implications for civil liberties and the one country two systems model. Although the massive protest compelled the Hong Kong government to withdraw the Bill from the legislature in 2003, it will likely propose similar legislation in the future because Hong Kong has a constitutional obligation to implement Article 23 of the Basic Law. The book provides detailed and balanced commentary on the Bill, explains why certain proposals proved so controversial, and offers concrete recommendations on how to improve the proposals before the next legislative exercise. Fu Hualing is an Associate Professor and Director of the Centre for Comparative and Public Law, Faculty of Law, of the University of Hong Kong. His research interests include social legal studies, human rights and criminology. He has an LLB from Southwestern University of Law and Politics (China), an MA from the University of Toronto (Canada) and a doctorial degree from Osgoode Hall Law School (Canada). Carole J. Petersen is an Associate Professor and a former Director of the Centre for Comparative and Public Law, Faculty of Law, of the University of Hong Kong. She has been teaching law in Hong Kong since 1989, specializing in constitutional law, human rights, and anti-discrimination law. She has a BA from the University of Chicago, a JD from Harvard Law School, and a Post-graduate Diploma in the Law of the People’s Republic of China from the University of Hong Kong. Simon N. M. Young is an Associate Professor and Deputy Director of the Centre for Comparative and Public Law, Faculty of Law, of the University of Hong Kong. He teaches criminal law, evidence and legal aspects of white collar crime. Previously, he was Counsel in the Crown Law Office-Criminal, Ministry of the Attorney General for Ontario, in Toronto, Canada. He obtained his LLB from the University of Toronto and his LLM from Cambridge University. “This collection of essays on the saga of Hong Kong’s efforts to address the mandate of Article 23 in the Basic Law of the Hong Kong Special Administrative Region and related matters is likely to be an extremely useful resource for a number of audiences. These include those directly engaged with the issue of legislation and policymaking in Hong Kong in both public institutions and in the community; those who have an interest in the development of Hong Kong’s political and legal system and its relationship to the system of Mainland China; and those with an interest in national security and anti-terrorism legislation more generally, from a comparative perspective. The overall quality and range of the contributions is strong. The topic itself is a current and important one, and the collection is an important contribution to the field.” — Andrew Byrnes, Professor of Law, Australian National University “The debate on legislation to ensure the sovereignty and security of the PRC against threats from Hong Kong was a turning point in the Special Administrative Region’s political history. It showed that while some Hong Kong residents may have reservations about democracy, human rights are cherished by almost all. It also showed that people can influence policy even without formal institutions of democracy. The authors of this book played a leading role in the debate, clarifying the legal issues, which was critical to an informed debate.” — Yash Ghai, Sir Y.K. Pao Professor of Public Law, University of Hong Kong

European Convention on Human Rights – Article 10 – Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. In the context of an effective democracy and respect for human rights mentioned in the Preamble to the European Convention on Human Rights, freedom of expression is not only important in its own right, but it also plays a central part in the protection of other rights under the Convention. Without a broad guarantee of the right to freedom of expression protected by independent and impartial courts, there is no free country, there is no democracy. This general proposition is undeniable. This handbook is a practical tool for legal professionals from Council of Europe member states who wish to strengthen their skills in applying the European Convention on Human Rights and the case law of the European Court of Human Rights in their daily work.

The primary aim of this study as a whole is to examine how useful a safeguard the Convention is, and can be, in the sensitive area of national security law and practice. The first part of the book consists of an examination of the national security concept generally in the Convention and the context of national security concerns in European states. The second part of the book is devoted to detailed studies of secret surveillance and security data registers, both of the court and commission's case law and of national laws in the field. The third part of the book consists of an article-by-article analysis of the case law of the commission and the court dealing with national security. The book is of interest to academics, practising lawyers and legislators interested in human rights and national security issues.

The book deals with the complicated relationships between national security and human rights, and between public health and human rights. Its premise is the fact that national security and public health are both included in human rights instruments as ‘exceptions’ to the human rights therein sanctioned, yet they can arguably be considered as human rights themselves and be equally valuable. The book therefore asks to what extent the protection of the individual could – or should – be overridden to enable the protection of the national security or public health of the general public. Both practice and case law have shown that human rights risk being set aside when they clash with the protection of national security or public health. Through theoretical analysis and practical examples, the book addresses the conflicts that arise when the concepts of national security and public health are used – and abused – and other rights, including freedom of speech, procedural freedoms, individual health, are violated as a consequence. It provides many interesting findings on the values that states are ready to protect – and forego – to ensure their safety, which can contribute to the ongoing debate on the protection of human rights. This book was originally published as a special issue of The International Journal of Human Rights.

Tracing the history of government intrusions on Constitutional rights in response to threats from abroad, Cole and Dempsey warn that a society in which civil liberties are sacrificed in the name of national security is in fact less secure than one in which they are upheld. A new chapter includes a discussion of domestic spying, preventive detention, the many court challenges to post-9/11 abuses, implementation of the Patriot Act, and efforts to reestablish the checks and balances left behind in the rush to strengthen governmental powers.

The official report that has shaped the international debate about NSA surveillance "We cannot discount the risk, in light of the lessons of our own history, that at some point in the future, high-level government officials will decide that this massive database of extraordinarily sensitive private information is there for the plucking. Americans must never make the mistake of wholly 'trusting' our public officials."—The NSA Report This is the official report that is helping shape the international debate about the unprecedented surveillance activities of the National Security Agency. Commissioned by President Obama following disclosures by former NSA contractor Edward J. Snowden, and written by a preeminent group of intelligence and legal experts, the report examines the extent of NSA programs and calls for dozens of urgent and practical reforms. The result is a blueprint showing how the government can reaffirm its commitment to privacy and civil liberties—without compromising national security.