<<

ńňđ. 14
(âńĺăî 23)

ŃÎÄĹĐĆŔÍČĹ

>>

money laundering offences.79 In stage two of the implementation, the
Administration has softened its position on this point. Signs of this change
were already seen in respect of the mens rea standard for the disclosure
offence. In the Bill, it was proposed that any person who knew or had
‘reasonable grounds to suspect’ that any property was terrorist property
had a duty to make a secret disclosure to the police.80 This was an offence

72
For a discussion on the limits of the criminal law in preventing terrorism, see Roach,
Chapter 7, in this volume.
73
See text accompanying above note 41. 74 UNATMO, above note 33, s. 7.
75
Ibid., s. 8. 76 Ibid., s. 9.
77
By comparison, see the discussion of mens rea standards in the Canadian and United
States offences in Davis, Chapter 9, in this volume.
78
See HKSAR v. Shing Siu Ming & Others [1999] 2 HKC 818 at 825 (CA), leave to appeal to
CFA refused, [1999] 4 HKC 452 (CFA AC); HKSAR v. Yam Ho Keung [2002] 1230 HKCU
1 (CA).
79
HK Hansard, 11 July 2002, above note 37, 8985–6.
80
Bill, above note 25, clause 11(1).
ENACTING SECURITY LAWS IN HONG KONG 381

that had the greatest potential impact on ordinary persons, particularly those
in the financial and business sectors. After significant concerns were
expressed by the business and professional community, the government
yielded by replacing the objective element with the subjective standard of
‘knows or suspects’.81
The most controversial new criminal offence introduced was the prohibi-
tion against false threats of terrorist acts.82 Legislators and media groups
objected to the proposal for various reasons, including the chilling effect on
press freedoms, being outside R. 1373 or the FATF recommendations, and
being already covered by offences in the Public Order Ordinance (Cap 245).83
In the words of Margaret Ng, the ‘Secretary [had] not kept her word’ of
applying a minimalist approach.84 While the government acknowledged that
it was outside the scope of R. 1373 and the FATF recommendations, it
nevertheless said that the offence was necessary because of the incidences of
false threats of anthrax after September 11.85 Ultimately, without achieving
any reconciliation of these divergent views, the offence provision was passed
with only an amendment to confine the scope of the mens rea requirement.86
There were two other major amendments to the original Bill that were
important from the perspective of human rights. The first amendment removed
two lengthy schedules that would have conferred controversial new police
powers to enforce the provisions in the Bill.87 The other amendment, to the
relief of various legal and media groups, provided for express preservation of
legal professional privilege, the privilege against self-incrimination and the
protective regime governing journalistic materials in the Interpretation and
General Clauses Ordinance (Cap 1).88
After all the amendments were made, the enacted legislation had trans-
formed significantly from the original Bill.89 One ponders why the Bill in its
original form was so short-sighted and over-broad to begin with. It was
certainly not for lack of preparation time since the instructions from China
had arrived in October 2001, six months before the Bill was gazetted. As
argued below, it was due to insufficient consultation with the public and
experts at the ‘Bill formulation stage’, and not only at the ‘Bill amendment

81
UNATMO Report, above note 51, paras 60–72. 82 Bill, above note 25, clause 10.
83
UNATMO Report, above note 51, paras 53–9.
84
HK Hansard, 11 July 2002, above note 37, 8861. 85 Ibid., 9004–16.
86
The original proposal made it an offence to communicate information known or believed
to be false to another person ‘with the intention of inducing in him or any other person a
false belief that a terrorist act has been, is being or will be carried out’. The enacted
provision confines the added intent element to that of ‘causing alarm to the public or a
section of the public by a false belief that a terrorist act has been, is being or will be carried
out’. See UNATMO, above note 33, s. 11.
87
Bill, above note 25, Schedules 2 and 3. 88 Ibid., paras 26–7.
89
See Young, above note 36 for discussion of the legislative process.
SIMON N. M. YOUNG
382

stage’. This is a problem that reoccurs with the National Security Bill. The
critical tasks of formulating policies and drafting the bill, carried out from
October 2001 to April 2002, were largely completed by government lawyers
and officials with no outside participation.
The willingness of the government to make concessions was more likely
due to the June 2002 deadline than an earnest desire to safeguard funda-
mental rights and freedoms. Where the government was unwilling to change
a proposal, there was a tendency to try to justify its position by reference to
finding the same provision in other Hong Kong laws or in the laws of other
countries. But this approach to justification is narrow-minded because, in
respect of existing Hong Kong laws, it fails to question whether those laws are
themselves illegitimate (particularly in the areas of police powers and mens
rea standards) or otherwise inappropriate for the anti-terrorism context. In
respect of the anti-terrorism laws of other countries, it cannot be assumed
that what is appropriate for country A, B and C is necessarily appropriate for
Hong Kong, particularly having regard to its relatively low risk of attracting
terrorist-related activity.

3. United Nations Sanctions (Afghanistan) (Amendment)
Regulation 2002
On the same date the UNATMO was passed through LegCo, the Chief
Executive made the United Nations Sanctions (Afghanistan) (Amendment)
Regulation 2002 (UNSAAR), which amended the UNSAR in light of
R. 1390, adopted by the Security Council on 16 January 2002.90 To the
outsider, this new regulation came as a bit of a surprise since it suddenly
emerged as law without any prior consultation with the public or even
the elected members of the legislature. It would also have been surprising
for the legislators who had just completed an intense one and a half month
exercise of scrutinizing the UNATMO. The UNSAAR and UNATMO had
much in common in terms of origin, purpose and provisions, yet the manner
in which both were enacted could not have been more unique. It did not take
long for legislators and the legal advisors in the LegCo Secretariat to start
questioning the legal basis of the UNSAAR and the manner in which it came
into being.
On 4 October 2002, legislators discussed three issues concerning the
UNSAAR identified by LegCo’s Legal Service Division.91 First, legislators
questioned whether R. 1390 was a sanction to be implemented ‘against a

90
Published in the Hong Kong Gazette on 19 July 2002, amending the United Nations
Sanctions (Afghanistan) Regulation (Cap 537K).
91
LegCo Secretariat, ‘Minutes of the meeting held in the [LegCo] Chamber at 2:30 pm on
Friday, 4 October 2002’, LC Paper No. CB(2) 2886/01–02 for House Committee, Oct.
2002, paras 20–5.
ENACTING SECURITY LAWS IN HONG KONG 383

place’ as required by the UNSO.92 If it was not, then there had to be a legal
basis for the amendment regulation other than the UNSO, possibly the Basic
Law itself. While the antecedents of R. 1390 certainly arose out of events in
Afghanistan, by January 2002, it appeared the real focus of R. 1390 was on
certain individuals and entities linked to Osama bin Laden and al Qaeda,
persons who were probably no longer physically in Afghanistan. The
Administration’s position was that R. 1390 was a sanction implemented
against a place and the use of the UNSO was appropriate.93 In making this
argument, it cited the number of references to ‘Afghanistan’ in R. 1390, and
the antecedent resolutions, R. 1267 and R. 1333, which were more clearly
applied against a place.94
The second issue identified by the Legal Service Division was the overlap of
the supply of weapons offences in the UNATMO with three offences in the
UNSAAR.95 The difficulty was that the offences in the UNSAAR involved
strict liability, subject to statutory defences for the accused to satisfy on
balance. The equivalent offences in the UNATMO required proof of mens
rea. In theory, if a relevant case arose, the prosecution could avoid this mens
rea requirement by choosing to prosecute under the UNSAAR offences. In its
response of 26 November 2002 the Administration acknowledged that there
was overlap, but said that this was inevitable since there was overlap between
R. 1373 and R. 1390.96 Recognizing that the offence in the UNATMO was
wider, it was prepared to repeal the strict liability offences in the UNSAAR.97
The LegCo Legal Service Division later questioned whether the Hong Kong
government could amend the sections in the UNSAR that overlapped with
those in the UNATMO without fresh instructions from the Central People’s
Government.98
In respect of the third issue, the Legal Service Division noticed the ‘wide
powers of search and investigation’ contained in six provisions of the

92
LegCo Secretariat, ‘Legal Service Division Report on Subsidiary Legislation gazetted from
19 July 2002 to 27 September 2002’, LC Paper No. LS 131/01–02 for the House Committee
Meeting on 4 October 2002, 2 Oct. 2002, Annex I, paras 5–7 (‘Report on regulations’).
93
Commerce, Industry and Technology Bureau, ‘1: Whether the [UNSAAR] (Amendment
Regulation) is within the regulation making powers of the UN Sanctions Ordinance?
(Raised by the Hon James To)’, Paper No. CB(2)164/02–03(01) for House Committee,
October 2002.
94
Ibid. 95 Report on regulations, above note 92, para 9.
96
Anita Chan for Secretary for Commerce, Industry and Technology, Letter to Clerk to
Subcommittee on UNSAAR and United Nations Sanctions (Angola) (Suspension of
Operation) Regulation 2002, Paper No. CB(2)477/02–03(01), 26 Nov. 2002.
97
Ibid.
98
LegCo Secretariat, ‘Report of the Subcommittee on [UNSAAR] and United Nations
Sanctions (Angola) (Suspension of Operation) Regulation 2002’, LC Paper No.
CB(2)3003/02–03 for the House Committee meeting on 3 October 2003, Appendix II,
paras 6–10.
SIMON N. M. YOUNG
384

UNSAAR.99 R. 1390 did not expressly require the inclusion of these new
police powers. The Administration’s response was that these powers were
necessary to facilitate the enforcement of the new sanctions in the UNSAAR
and that they also existed in a previous UNSO regulation relating to
Liberia.100
Legislators in the House Committee were not satisfied with these
responses.101 Concerns about the UNSO and its regulations dragged on in
two subcommittees of the House Committee.102 Three further issues devel-
oped. The first was whether the implementing instructions from the Central
People’s Government should be disclosed to legislators. While the
Administration was prepared to advise as to the contents of the instructions,
it refused to make disclosure on grounds that they are intended for internal
use only and disclosure would be unprecedented.103 The second issue con-
cerned the means by which to implement United Nations sanctions, and
particularly when administrative measures, regulations or primary legislation
should be used.104 Finally, the third issue, and the more fundamental one, was
whether the regulations made under the UNSO should be subject to legisla-
tive scrutiny. These issues remained unresolved at the conclusion of LegCo’s
2000–2004 term.

C. The Article 23 episode105
With the first stage of the anti-terrorism initiative completed, the path was
clear for the Security Bureau to commence its national security initiative in

99
Report on regulations, above note 92, para 10. 100 Ibid.
101
See LegCo Secretariat, ‘Minutes of meeting held on Monday, 31 March 2003 at 4:30 pm in
Conference Room A of the [LegCo] Building’, LC Paper No. CB(2)2064/02–03 for the
Panel on Administration of Justice and Legal Services, 13 May 203, paras 45–51; LegCo
Secretariat, Minutes of the meeting held in the LegCo Chamber at 2:30 pm on Friday,
3 October 2003, paras 53–6.
102
The Subcommittee on UNSAAR and United Nations Sanctions (Angola) (Suspension of
Operation) Regulation 2002 held four meetings from 30 Oct. 2002 to 25 Feb. 2003. The
Subcommittee on the United Nations Sanctions (Liberia) Regulations 2003 held five
meetings from 11 Dec. 2003 to 21 June 2004.
103
Donald Tsang, Chief Secretary for Administration, Letter to Hon Miriam Lau, Chairman
of the House Committee dated 13 Nov. 2003.
104
The problem of having multiple listing mechanisms in domestic law has also been the
subject of criticism in Canada. See E. A. Dosman, ‘For the Record: Designating ‘‘Listed
Entities’’ for the Purposes of Terrorist Financing Offences at Canadian Law’ (2004) 62
University of Toronto Faculty of Law Review 1.
105
The events surrounding the rise and fall of the National Security (Legislative Provisions)
Bill together with a detailed examination of all the government proposals is the subject of
a book, National Security and Fundamental Freedoms: Hong Kong’s Article 23 Under
Scrutiny, edited by Fu Hualing, Carole Petersen and Simon Young published by Hong
Kong University Press in March 2005 (‘Article 23 Book’).
ENACTING SECURITY LAWS IN HONG KONG 385

late 2002. Only two months after the enactment of the UNATMO, the Security
Bureau released Proposals to Implement Article 23 of the Basic Law: A Consultation
Document (‘Consultation Document ’).106 Article 23 of the Basic Law required
Hong Kong to enact laws on its own to prohibit acts of treason, secession,
sedition, and subversion against the Central People’s Government. It also
required laws against the theft of state secrets and foreign political organizations
or bodies conducting activities in Hong Kong or forming ties with Hong Kong
political organizations or bodies. It is well known that Article 23 was inserted in
the Basic Law by China following the mass demonstrations in Hong Kong
against the 1989 Tiananmen incident in Beijing.107 After several months
of public consultation, the National Security (Legislative Provisions) Bill
(‘National Security Bill’) was introduced in LegCo on 26 Feb 2003.108
The legislative exercise to implement Article 23 probably would have
occurred even if September 11 did not happen. Nevertheless, following as it
did after the first stage of implementing anti-terrorism laws, the two initia-
tives were closely related in many ways. It was very much the same group of
officials responsible for implementing both initiatives. The Secretary for
Security, Regina Yip, was the person-in-charge of both. This can probably
explain why some of the same tactics and strategies to legal drafting, con-
sultation and concession-making were employed. As well, the substance of
the proposals shared many commonalities. Professor Kent Roach has argued
that the National Security Bill ‘combined an older vision of security based on
betrayal of the state with a newer vision of security found in post-September
11 anti-terrorism laws’.109 Two of the more noteworthy commonalities were
found in the National Security Bill’s definition of ‘serious criminal means’
and its use of the proscription mechanisms to ban local organizations.
As was true with the anti-terrorism Bill, though for different reasons, there
was a significant amount of criticism of both the consultation and legislative
processes. Two critical observations were generally made about the
Consultation Document.110 Although a significant amount of research from

106
Security Bureau, Proposals to Implement Article 23 of the Basic Law: A Consultation
Document (Hong Kong Government, 2002) was released on 24 September 2002.
107
See Fu Hualing, ‘The National Security Factor: Putting Article 23 of the Basic Law in
Perspective’ in Steve Tsang, ed., Judicial Independence and the Rule of Law in Hong Kong
(Hong Kong University Press, 2001) 73–98.
108
National Security (Legislative Provisions) Bill, gazetted on 14 February 2003 (‘National
Security Bill’).
109
Kent Roach, ‘Old and New Visions of Security: Article 23 Compared to Post-September
11 Security Laws’, in Article 23 Book, above note 105.
110
See generally, Carole Petersen, ‘Hong Kong’s Spring of Discontent: The Rise and Fall of
the National Security Bill in 2003’ in Article 23 Book, ibid.; Carole Petersen, ‘National
Security Offences and Civil Liberties in Hong Kong: A Critique of the Government’s
‘‘Consultation’’ on Article 23 of the Basic Law’ (2002) 32 Hong Kong Law Journal
457–70.
SIMON N. M. YOUNG
386

international sources was reflected, the document presented what seemed to
be fait accompli proposals rather than different options for reform. The
second critical observation was that the 62-page document contained pro-
posals often described in vague and ambiguous language. One of the most
common sayings floated by commentators at the time was that the ‘devil was
in the details’; until the details were revealed, it was difficult to come to any
final opinions on the proposals. It was not long after the publication of the
Consultation Document that commentators began asking the government to
publish a ‘white bill’ before presenting the ‘blue bill’ for first reading in
LegCo.
The government ultimately declined to issue a white bill, saying that
amendments would still be possible when the blue bill was scrutinized.111
Legislators and public interest groups, aware of how difficult it was to amend
a blue bill without support from the government, were greatly disappointed.
Before the issuance of the Bill in February 2003, the government suffered
another blow to its credibility with the Compendium of Submissions fiasco,
which led some legislators to condemn the Administration for compiling a
compendium ‘in a slipshod, incomplete and inequitable manner, distorting
the views expressed by the public and organizations’.112
There was much in the substance of the National Security Bill that was indeed
positive from the viewpoint of modernization and rationalization of the law.
Hong Kong’s laws concerning treason and sedition have never been updated
since they were introduced pre-World War II.113 If some of these offences and
related police powers were to be applied now, they would surely be challenged on
constitutional human rights grounds, e.g. freedom of expression.
Unlike with the anti-terrorism initiative, the Administration never
claimed to take a ‘minimalist approach’ to implementation. There were at
least three main proposals that were not expressly required by Article 23.114
The first related to the creation of a new offence of illegal access to protec-
ted information and a new category of protected information related to
‘international relations or affairs concerning the Hong Kong Special
Administrative Region which are, under the Basic Law, within the responsi-
bility of the Central Authorities’.115 This proposal was of great concern to

111
Ravina Shamdasani and Jimmy Cheung, ‘Officials stand firm against white bill’, South
China Morning Post, 24 December 2002, 2.
112
Words taken from a condemnatory motion, introduced by legislator Sin Chung Kai,
which did not pass. See debates in HK Hansard, 26 February 2003, above note 37,
4182–257. See also Press Release, ‘Transcript of remarks by Secretary for Security’,
6 February 2003.
113
See generally Crimes Ordinance (Cap 200), Parts I and II.
114
See generally Benny Y. T. Tai, ‘The Principle of Minimum Legislation for Implementing
Article 23 of the Basic Law’ (2002) 32 Hong Kong Law Journal 579–614.
115
See National Security Bill, above note 108, clauses 10 and 11.
ENACTING SECURITY LAWS IN HONG KONG 387

journalists.116 The second overreaching proposal was to give the Secretary for
Security a new power to proscribe organizations endangering national secur-
ity.117 The power could be exercised if the organization was subordinate to an
organization proscribed on the mainland. With this proposal, the earlier fears
that the anti-terrorism laws might be used to marginalize religious groups
undesired by the mainland were re-emerging in a new and real way.118 The
third proposal was to give the police a new warrantless entry and search
power to gather evidence in urgent circumstances.119 The difficulty with this
proposal was that there was no empirical necessity for the power or anything
to suggest that existing powers were inadequate.120
Although the Administration had always said that amendments to the blue
bill were possible during the legislative process, it became clear as the work of
the Bills Committee progressed that the Administration would only agree to
minor changes and not budge on the main proposals.121 Indeed, it was this
very defensive attitude taken by the Secretary for Security and other staff and
colleagues that angered legislators and commentators causing much
resentment.
The boiling point of this anger and resentment was reached on 1 July 2003
(a public holiday celebrating Hong Kong’s reunification with China) when
approximately half a million people marched in protest primarily against the
National Security Bill but also against the Administration generally.122 At the
time of the 1 July march, the Bills Committee for the National Security Bill
had already completed its work, and Second Reading debate on the Bill was
scheduled to continue on 9 July 2003.123 Four days after the march, the Chief
Executive announced three significant amendments to the Bill: (1) deletion of
the ‘subordinate to a mainland organization’ triggering condition to the
proscription power; (2) introduction of a ‘public interest’ defence for unlaw-
ful disclosure of certain protected information; and (3) deletion of the

116
See Doreen Weisenhaus, ‘Article 23 and Freedom of the Press: A Journalistic Perspective’
in Article 23 Book, above note 105.
117
National Security Bill, above note 108, clause 15.
118
See Lison Harris, Lily Ma and C. B. Fung, ‘A Connecting Door: The Proscription of Local
Organizations’ in Article 23 Book, above note 105.
119
National Security Bill, above note 108, clause 18B.
120
See Simon Young, ‘‘‘Knock, knock. Who’s there?’’ Entry and search powers for Article 23
Offences’ in Article 23 Book, above note 105.
121
LegCo Secretariat, ‘Report of the Bills Committee on [National Security Bill]’, LC Paper
No. CB(2)2646/02–03 for House Committee on 27 June 2003, 27 June 2003 (‘BC Art 23
Report’).
122
Ambrose Leung, Klaudia Lee and Ernest Kong, ‘Hopes for freedom float upon a sea of
political discontent’, South China Morning Post, 2 July 2003, 3; Jimmy Cheung and Klaudia
Lee, ‘Turnout piles the pressure on Tung administration’, South China Morning Post,
2 July 2003, 3.
123
BC Art 23 Report, above note 121, para 156.
SIMON N. M. YOUNG
388

warrantless entry and search power.124 Having made these major concessions
at the last minute, the Chief Executive still insisted on proceeding with the
second reading on 9 July.125
It soon became apparent that these concessions raised further issues,
particularly the scope and definition of the public interest defence.
Legislators and members of the public expressed concerns over the insuffi-
cient amount of time they had to consider the new amendments. These
concerns escalated until they climaxed when James Tien, legislator and leader
of the Liberal Party, resigned from the Executive Council, an unelected body
of special advisors to the Chief Executive.126 This hurt the Administration
because the Liberal Party, representing mostly business and corporate inter-
ests, held a sizeable number of votes in LegCo.
On the day after Tien’s resignation, 7 July 2003, the Chief Executive
announced that the second reading would be deferred and efforts would be
stepped up to explain the amendments to the public.127 Nine days later, the
Secretary for Security and another principal official, who had been embroiled
in a car buying scandal, announced their decisions to resign.128 Shortly
afterwards, the Chief Executive said that the government was going to ‘put
forward the Bill to the whole community for consultation again’.129 He
promised a ‘more extensive [consultation exercise] than the previous one’
and ‘to win the maximum understanding and support of the community as a
whole’.130 The timeline was to ‘depend very much on how the consultation
[went]’.131 After the summer recess, however, the Chief Executive announced
on 5 September 2003 that the National Security Bill was being withdrawn to
allow the public sufficient time to ‘study the enactment question’ and for the
Security Bureau to establish a special working group to review the legislative
work afresh.132 In September 2004, the Chief Executive announced that there
were no immediate plans to resume the legislative exercise.133
It has never been disclosed how much of a role the Chinese authorities
played in the making of the three amendments and the withdrawing of the
Bill. The general perception is that the Chief Executive consulted the central
authorities as these decisions were being made. It became rather clear that the
Hong Kong government was not fully in charge of the legislative exercise
when, shortly before his resignation, James Tien traveled to Beijing to deter-
mine from officials that there was no deadline to implementing Article 23.134

124
Press Release, ‘Chief Executive’s transcript on Basic Law Article 23’, 5 July 2003.
125
Ibid. 126 Press Release, ‘Statement by CE’, 7 July 2003. 127 Ibid.
128
Press Release, ‘Statement by Secretary for Security’, 16 July 2003.
129
Press Release, ‘CE’s transcript’, 17 July 2003. 130 Ibid. 131 Ibid.
132
Press Release, ‘CE’s opening remarks on Basic Law Article 23’, 5 September 2003.
133
Press Release, ‘Chief Executive Comments on Basic Law Article 23’, 16 September 2004.
134
See Albert Chen, ‘Hong Kong’s Political Crisis of July 2003’ (2003) 33 Hong Kong Law
Journal 265, 267; Petersen, above note 110.
ENACTING SECURITY LAWS IN HONG KONG 389

D. Legal response to September 11 (Part II)
Even before the march on 1 July 2003, stage two of the implementation of
anti-terrorism laws had commenced with the introduction of the United
Nations (Anti-Terrorism Measures) (Amendment) Bill 2003 (‘Amendment
Bill’) in LegCo on 21 May 2003.135 The Amendment Bill contained proposals
to expand the freezing power, to implement three additional anti-terrorism
treaties,136 to replace the recruitment offence provision with a new one, to
add a new warrant-based power to search and seize terrorist property, to add
three additional investigation powers involving prior judicial authorization,
and to provide for limited international sharing of information obtained
using the new powers.
In this second stage, there were a number of signs that the Administration,
with its new Secretary for Security, had modified its approach after learning
from the failings and problems of the two earlier legislative exercises. Indeed,
the change was so apparent that it attracted the following complimentary
comments from the staunchest critic of the original Bill, Margaret Ng:
Thankfully, the Government changed its attitude in the end, and worked
together with the Bills Committee with a more open mind. The many
amendments to be introduced by the Government is a result of that
process. Although it has caused us much effort, I am pleased that it has
happened, and I do sincerely thank the Government for its co-operation.
I took some time to revisit the Committee stage amendments I proposed
last year. I am pleased to say that many of them are now being effected
through the Government’s amendments. I would like to mention the most
significant improvements from the point of view of better legislation and
better regard for human rights.137

This time there was no externally imposed deadline and more time was given
to legislators and the public to study the Amendment Bill. A total of sixteen

135
Gazetted on 9 May 2003. The Amendment Bill was passed on 3 July 2004, and signed and
promulgated by the Chief Executive on 8 July 2004. The United Nations (Anti-Terrorism
Measures) (Amendment) Ordinance, Ord. No. 21 of 2004 (‘Amendment Ordinance’)
comes into operation on a day to be appointed by the Secretary for Security by notice
published in the Gazette.
136
The International Convention for the Suppression of Terrorist Bombings (1997),
Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation (1988), and Protocol for the Suppression of Unlawful Acts against the
Safety of Fixed Platforms Located on the Continental Shelf (1988). When the Bill was
introduced, the latter two instruments had neither been ratified by China nor applied
to Hong Kong. However, the Administration indicated that they would be applied to
Hong Kong in due course. See LegCo Secretariat, ‘Legal Service Division Report
on [Amendment Bill]’, LC Paper No. LS 107/02–03 for House Committee Meeting on
23 May 2003, 21 May 2003, para 2.
137
HK Hansard, 3 July 2004, above note 37, 470.
SIMON N. M. YOUNG
390

Bills Committee meetings were held over the course of eight months from
10 October 2003 to 18 June 2004. The rushed and confused atmosphere that
marked the first stage of implementation was not repeated, and interested
groups had ample opportunity to comment on both the original Amendment
Bill and the draft CSAs to that Bill. A mutually acceptable deadline was
naturally set by the 2004 summer recess, which concluded LegCo’s first
complete four-year term since the transfer of sovereignty.
This open public consultation process contributed to an informed,
balanced and acceptable piece of legislation. The Administration showed a
willingness to revisit the UNATMO to correct and improve defects resulting
from the rushed enactment. The United Nations (Anti-Terrorism Measures)
(Amendment) Ordinance narrowed the definition of ‘terrorist act’ with new
mens rea qualifiers,138 enacted a narrower recruitment offence with subjective
mens rea requirements,139 removed some of the objective mens rea standards
in the existing criminal prohibitions,140 and removed the ‘serious’ from the
‘serious default’ precondition to obtaining compensation.141 Important
amendments were also made to clarify and restrict some of the new police
powers introduced in the original Amendment Bill.142

III. Ideas for a new implementation strategy
The defects with Hong Kong’s security laws and policies have been more
procedural than substantive. It is not so much the substance of the laws (in
their final enacted or proposed form) that is problematic. And it is not so
much the policy behind the law that is troubling because most Hong Kong
people accept the reasons for having to implement anti-terrorism and
national security laws. Instead, this chapter has shown that the problems lie
more in how the laws and policies are formulated, debated, subjected to

138
Under part (a)(i) of the definition, a terrorist act must now involve the use or threat of
action where the action ‘is carried out with the intention of, or the threat is made with the
intention of using action that would have the effect of ’ realizing one of the harmful
consequences enumerated in clauses (A) to (F). See s. 3 of the Amendment Ordinance,
above note 135.
139
Section 10 of the UNATMO now makes it an offence to: (a) recruit another person to
become a member; or (b) become a member, of a specified terrorist body knowing that,
or being reckless as to whether, it is a body so specified. See s. 9 of the Amendment
Ordinance, ibid.
140
The objective standard of ‘having reasonable grounds to believe’ in ss. 7 to 9 of the
UNATMO has now been replaced with fault standards of recklessness, knowledge and
intention. See ss. 6 to 8, and 14 of the Amendment Ordinance, ibid.
141
See s. 17 of the Amendment Ordinance, ibid.
142
See ss. 3, 5, and 12 of the Amendment Ordinance, ibid., the significance of which is
explained in LegCo Secretariat, ‘Report of the Bills Committee on [Amendment Bill]’, LC
Paper No. CB(2)2915/03–04, 25 June 2004.
ENACTING SECURITY LAWS IN HONG KONG 391

public consultations, reformulated and finally enacted. In other words, it has
been the implementation strategy that has been plagued by problems. If the
Administration is to win the public’s trust and confidence behind future
legislative initiatives, it must first understand the reasons why the public
resisted and frustrated its previous attempts at implementation. These rea-
sons and possible ways of addressing them are discussed under the following
three headings.

A. External imposition without internal need
With both the anti-terrorism and national security initiatives, there was no
empirical necessity in Hong Kong for new laws. Instead, the public percep-
tion was that these new measures were being externally imposed on Hong
Kong, in which case adopting a ‘minimalist approach’ seemed to follow
logically. Closer examination revealed that the external imposition came
from China in both cases. This form of imposition touches upon a particu-
larly sensitive area for Hong Kong people. The Basic Law promised a ‘high
degree of autonomy’ for Hong Kong which meant that China’s socialist
political system would not be applied in Hong Kong. Naturally any steps
taken by China that appear to interfere with this high degree of autonomy are
viewed with mistrust by Hong Kong people.143
Both the anti-terrorism and national security initiatives were matters
under the Basic Law that required intervention from the central authorities.
As a matter of political reality, both initiatives were of great interest and
concern to China. The Hong Kong Administration had the responsibility of
mediating between China and the Hong Kong people. This was a challenging
task since it required, on the one hand, upholding Hong Kong’s autonomy,
while, on the other hand, carrying out the mainland instructions.144 Judging
from its performance and the public reaction, the Administration failed
to strike the proper balance by insufficiently upholding Hong Kong’s auton-
omy. Indeed, the manner in which the proposals were initiated, the inability
to compromise on certain issues until the final hour and the imposition
of artificial deadlines were strategies that clearly reinforced the external
imposition perception.
Contributing to the distrust were two other factors: the internal policy not
to disclose the instructions from China in respect of UN sanctions and the


143
This mistrust was exacerbated in early 2004 when the Standing Committee of the
National People’s Congress adopted an Interpretation of the Basic Law and made a
Decision that ruled out universal suffrage for 2007/2008, which was an aim that many in
Hong Kong had hoped to realize.
144
In respect of the national security initiative, it is unknown if China gave further instruc-
tions beyond Article 23.
SIMON N. M. YOUNG
392

proposal to make information concerning Hong Kong and China affairs
protected information under the Official Secrets Ordinance (Cap 521).
Without transparency about China’s instructions to Hong Kong in respect
of both initiatives, there would always be a lingering suspicion that the
Administration’s hard bargaining and imposed deadlines were a product of
Chinese interference.


B. Faulty consultation processes
Where there is no apparent empirical need for new criminal laws and police
powers, the need for genuine public consultation at the earliest possible
moment is greatest. Even where there is an empirical need, subject matters
such as anti-terrorism and national security can involve very technical legal
proposals, which is another reason for ensuring early and full consultations.
A third reason for having early consultations is that it helps to remove the
perception of external imposition. When the public is involved as early as the
proposal formulation stage then the public can take ownership in the final
product. This is a strategy that engenders autonomy over the initiatives.
Unfortunately this has not been a strategy used by the Administration.
Some have criticized the Administration for not using the Hong Kong Law
Reform Commission (HKLRC) in developing the Article 23 proposals.145
Using the HKLRC would have involved the public in a wide consultation
during the proposal formulation stage. However, the HKLRC may not be the
best vehicle for implementing laws on security in Hong Kong. It is not
unknown for governments to ignore completely the recommendations of
an independent law reform agency. When this is the case, the initiative goes
back to the drawing board, although with the benefit of the work done by the
law reform body. To avoid this potential roadblock, it may be necessary to
include some of the responsible government officials in the law reform
process. By having the officials actively involved in the formulation process
(but not in any leading role), there is a greater chance that the formulated
proposals will later be accepted. More importantly, the officials will have the
opportunity to gain broader perspectives by interacting directly with the
independent experts forming part of the body. The present system of con-
sultation, in the formal and politically charged atmosphere of a bills commit-
tee, leaves very little room for focused and rational discussion and exchange.
A plurality of expert views in the drafting process is very important in order to
avoid the formulation of short-sighted and overreaching proposals, as was
seen in the initial drafts of the anti-terrorism and national security bills.



145
See Petersen in Article 23 Book, above note 110, 21–3.
ENACTING SECURITY LAWS IN HONG KONG 393

Another limitation of the HKLRC is that its subcommittees are generally
non-permanent made up of the volunteer services of members of the com-
munity. Typically the subcommittee is disbanded once the specific law
reform reports are complete. There are no standing committees in the
HKLRC devoted to the study of specific areas of law. In the area of security
laws, it is probably a good idea to have a standing committee of experts that
not only proposes new laws when needed but also reviews existing ones. This
standing committee will also be able to formulate policies and principles
governing security issues in Hong Kong. The aim is to develop a new
discourse on security that arises from the grass roots rather than from outside
of Hong Kong.146

C. Defects in policy and practice
The anti-terrorism initiative revealed some serious defects in the
Administration’s present policies and practices in implementing Security
Council sanctions. The UNSO is in dire need of a complete overhaul.147
The triggering condition of implementing sanctions ‘against a place’ needs
to be reconsidered for at least two reasons. First, it falsely assumes that
Chapter VII decisions are always against a particular place. R. 1373 proved
this assumption was false, and increasingly, there is a greater tendency to
employ ‘smart sanctions’ that target specific persons or subject matters with-
out territorial boundaries.148
The other difficulty with the condition and the general scheme is that
Chapter VII sanctions against a place must necessarily require implementa-
tion using the UNSO (assuming instructions from the central authorities
have been received). In other words, regardless of the urgency of the matter,
the Chief Executive has no choice but to implement the measure by making
regulations that are not subject to scrutiny by the legislature. This raises
important issues concerning the accountability of the executive and the

146
Although it has not been a problem in Hong Kong, this informed standing committee
can also help to avoid the problem, which Victor V. Ramraj discusses, of having an
overreacting populist democracy motivated by misperceptions of risk and public fear. See
Ramraj, Chapter 6, in this volume.
147
The UNSO was originally enacted in a matter of days without question or dissent in the
first few weeks after the resumption of sovereignty. The expediency was a product of the
need to ensure that the existing UN sanctions continued to apply in Hong Kong after
1 July 1997. Unfortunately, it was enacted by the Provisional Legislative Council, an
unelected body put in place by China to facilitate the resumption of sovereignty. The
body was notoriously known to be uncritical of legislation put forward by the
government.
148
See Security Council Resolution 1540 (2004) (Non-proliferation of Weapons of Mass
Destruction) and Peter L. Fitzgerald, ‘Managing ‘‘Smart Sanctions’’ Against Terrorism
Wisely’ (2002) 36 New England Law Review 957.
SIMON N. M. YOUNG
394

separation of powers. It has been seen that these implementing regulations
can contain wide police powers and strict liability offences. There has yet to
be any reasonable justification on policy grounds for R. 1390 being imple-
mented with UNSO regulations while R. 1373 was implemented with primary
legislation. Having these two overlapping laws has also given rise to confusion
due to their separate terrorist listing mechanisms.149 Currently there are
two lists published in the Gazette on a regular basis as required by both the
UNATMO and UNSAR. While the names on the two lists have been the same,
this will not always be the case since the power to specify under the UNATMO
is broader than the power under the UNSAR.
The urgency in having the sanction implemented may be one explanation
for why executive regulations should be used over primary legislation, but
presently this is not a triggering condition in the UNSO. Even if regulations
are the desired method of implementation in urgent circumstances, it still
does not explain why there cannot be tabling of the subsidiary legislation
before LegCo for negative vetting. Ironically, even with the present scheme of
executive regulations under the UNSO, there has still been considerable delay
in implementing UN sanctions. Some of this delay may be explained by the
existing practice of the Chief Executive seeking views from the Executive
Council. Conferring this task on the proposed standing committee may very
well lead to a more expeditious process of implementation.
In reforming the UNSO Hong Kong can learn from the enabling legislation
used in Canada and Singapore, both of which share the same name and are
very similar in nature.150 Both laws give the executive a discretionary power
to implement Chapter VII sanctions by regulations ‘as appear to him to be
necessary or expedient for enabling the measure to be effectively applied’.151
Neither have the anomaly of restricting the lawmaking power to Chapter VII
resolutions implemented ‘against a place’. Both laws also preserve legislative
scrutiny by requiring the regulations to be tabled before their respective
parliaments within a short time after they are made.152




149
See similar problems in Canada, E. A. Dosman, above note 104.
150
See the United Nations Act, R.S.C. 1985, c. U-2 (CAN) originally enacted in 1945 (‘Canada
UNA’), and the United Nations Act, Chapt. 339, originally No. 44 of 2001, Republic of
Singapore Government Gazette, enacted on 17 October 2001 (‘Singapore UNA’).
151
See s. 2 of the Canada UNA, ibid., and s. 2(1) of the Singapore UNA, ibid. However, this
formulation is not without its difficulties; see criticisms of the Singapore UNA in
C. L. Lim, ‘Executive Lawmaking in Compliance of International Treaty’ [2002]
Singapore Journal of Legal Studies 73–103.
152
See s. 4 of the Canada UNA, ibid., and s. 2(4) of the Singapore UNA, ibid.
ENACTING SECURITY LAWS IN HONG KONG 395

IV. Conclusion
There are signs from stage two of the anti-terrorism initiative that the
Administration is changing its strategy to implementation. Indeed, the deci-
sion to withdraw the National Security Bill, even though its passage through
LegCo was imminent, reflected the Administration’s willingness to heed
public sentiment despite the absence of genuine democratic accountability
in Hong Kong. In the next four year term of LegCo, starting in October 2004,
the issue of Article 23 is bound to return together with ever-increasing new
global anti-terrorism initiatives. No time should be wasted in implementing
the procedural and consultative mechanisms that will lead to the develop-
ment of grass roots security laws and policies for Hong Kong.
PART FOUR

Regional Cooperation
19

Southeast Asian cooperation on anti-terrorism: the
dynamics and limits of regional responses
SIMON S. C. TAY AND TAN HSIEN LI



I. Introduction
Some have seen Southeast Asia as a potential ‘second front’ in the US-led war on
terrorism. The sharpest evidence of this was the 2002 Bali bombings. Problems in
Aceh (Indonesia), Mindanao (the Philippines) and in southern Thailand have
been linked with Muslim groups that have differences with their respective
capitals. They have resorted to action that has been described as ‘terrorist’.
Member states in the Association of Southeast Asian Nations (ASEAN) have
responded differently to issues within their own borders, as well as to US-led action
in other arenas. Public opinion in much of the region has grown in opposition to
the US-led war on terrorism, especially the decision to intervene in Iraq.
Generally, however, ASEAN states have sought to cooperate with the US or at
least to limit their disagreement. The US has largely acted on a bilateral basis with
the different governments. This draws from and reinforces the dominant security
architecture in the region that existed pre-9/11 and since the end of World
War II. The US has been anchored to Asia by a number of bilateral alliances and
agreements, as the centre of a hub-and-spoke arrangement. Each Southeast
Asian state has often more to do with the US than with each other. The points
on the hub do not coalesce.1 While this has been the dominant structure of
security arrangements in Southeast Asia, it is not the only one. There have also
been declarations, treaties and examples of cooperation among the states in the
region that do not have a direct or explicit American involvement.
Beyond terrorism, ASEAN has sought to bring the region together to coop-
erate on many issues. While ASEAN is not explicitly a security alliance, it has
developed its own modes for increasing cooperation and conflict avoidance
among its member states. ASEAN hosts the ASEAN Regional Forum (ARF) as
a multilateral dialogue on security. The ARF covers a ‘footprint’ that extends
beyond the immediate domain of Southeast Asia into Northeast Asia and
includes many non-regional powers with interests in the area, including the
US, Russia and even the European Union (EU), India and Australia. Its ‘road

1
See Simon S. C. Tay, ‘Asia, U.S. Primacy, and Global Governance’, (2004) 10 Global
Governance 139.

399
SIMON S. C. TAY AND TAN HSIEN LI
400

map’ expresses the ambition that the ARF will move from confidence-building to
preventive diplomacy and then to conflict resolution. It is an effort in norm-
building and institutionalization, intended to supplement but not displace, the
more realistic and military efforts of the bilateral US-centric security arrange-
ments. The differences between the latter and regional cooperation in Southeast
Asia hold the key to real understanding of the dynamics and limits of regional
anti-terror responses. While declarations of intention, plans of action and
treaties can be agreed between governments, the viability of concerted efforts
depends on at least two other elements. First is the strength (or weakness) of
regional institutions. Second, terrorism, unlike more traditional kinds of inter-
state conflict, has strong domestic factors.
This chapter will first survey the efforts against terrorism in Southeast Asia
that involve ASEAN as a whole, or one of its member states. Secondly, it will
contextualize these efforts by considering the prevailing security architecture
in the region, and the role that the US plays in these arrangements. It will also
consider attempts to shift the focus from the violent outcomes of terrorism to
its ‘root causes’. The chapter then examines the context of prevailing ideals.
Third, the chapter will analyze the need for interstate cooperation to deal with
terrorism and the longstanding concepts of sovereignty and security. Fourth,
there will be consideration of the interplay of interstate cooperation with
international law norms of cooperation, justice and power.
In sum, the argument is that, while ASEAN member states have offered
declarations, treaties and a considerable measure of response to American con-
cerns on terrorism, their commitment (and thus the effectiveness of the response)
depends on the absolute sovereignty practice in the region which limits coopera-
tion where domestic issues may be involved. In this chapter we suggest that while
cooperation in the region is limited, there is a need for ‘root causes’ to be addressed
to better provide justice in the world order. The challenge is therefore for the US
and her allies in the war on terrorism not merely to press for cooperation, but to
fashion policies that better recognize regional attitudes and practices and which
will have the support of governments and peoples of the region.

II. What has been promised: ASEAN, security
and terrorism
ASEAN was established in 1967 for the member states to attain economic,
social and cultural aims through ‘joint endeavours’ and ‘active collaboration
and mutual assistance’.2 Membership of ASEAN has always accommodated

2
See the ASEAN founding document, the Bangkok Declaration 1967, at http://www.asean
sec.org/1212.htm. For an overview of ASEAN, see http://www.aseansec.org/64.htm. See
also the ASEAN 1976 Treaty of Amity and Cooperation at http://www.aseansec.org/
1217.htm.
SOUTHEAST ASIAN COOPERATION ON ANTI-TERRORISM 401

the varied political and economic policies of its member states. Different
political structure or type of government is not a barrier to membership. The
present make-up of ASEAN ranges from the Philippine democracy to the
Myanmese military dictatorship.
ASEAN has been explicitly premised on shared convictions about national
priority objectives, such as economic development and political stability.
Moreover, ASEAN was an anti-communist grouping during the Cold War
and relied upon the US as a guarantor of stability. The contrast between an
explicit and an implicit rationale for ASEAN and its relationship with the US
can be seen in the individual foreign policy stances of its constituent member
states. Two ASEAN member states – Thailand and the Philippines – are
formal US allies, while Singapore is a close trading partner and affords port
and other facilities for American military use. Conversely, two founding
member states – Indonesia and Malaysia – have cultivated a more neutral
public stance, and shown themselves to be closer to Third World and non-
aligned movements, while maintaining vital relations with the USA.
While ASEAN has become an important regional grouping in political and
economic affairs, there is no imperative for ASEAN member states to be
unanimous in security and political policies. Member states maintain inde-
pendent laws and legal systems, and the sovereign right to determine internal
and external affairs, except for mutually agreed cooperation programmes
which must be established by a consensus among ASEAN member states.
This tradition of seeking uniform approval on all important policy decisions
and of non-intervention in each other’s affairs has resulted in a certain degree
of ‘bureaucratic inertia’. This is especially so in the field of counter-terrorism
as countries in the region ‘differ very much in their susceptibility to and
experience of terrorism and hence it is extremely difficult to obtain an
effective ASEAN-wide response to it’.3 Security processes have remained
limited to political dialogue and confidence-building, rather than actual
military measures. Indeed – while ASEAN has fostered dialogue in almost
all areas from foreign affairs to health – military and defence matters have not
been emphasized.
There are current considerations of forming an ASEAN Security
Community, a goal accepted by ASEAN leaders at their 2003 Bali summit.4
There are, however, those who argue that ASEAN is already a security com-
munity because, through more than thirty years of dialogue and cooperation,



3
Per Professor Robert O’Neill, former director and chairman of the International
Institute for Strategic Studies, at the Shangri-La Dialogue 2003 (May 30 to June 1, 2003), at
http://www.iiss.org/confPress-more.php?confID ÂĽ 306.
4
Among the steps proposed is for the formation of an ASEAN peace-keeping force, which
remains controversial.
SIMON S. C. TAY AND TAN HSIEN LI
402

major interstate armed conflict has been avoided, notwithstanding some
territorial and other disputes.
While some may argue that the ‘ASEAN way’ is excuse for the lack of
political will to commit resources to solve problems,5 others defend ASEAN
by focusing on the need to understand the organization in its local context.
ASEAN is only a norm-setting body which defines principles to guide actions.
This does not mean that ASEAN is not doing enough, for actual operational
cooperation is better done on a bilateral or trilateral basis. Full ASEAN
multilateral cooperation against terrorists is unlikely to occur in the near
future as ‘many wish to maximize the freedom to act according to their own
lights’.6 This is exemplified by how Malaysia constantly asserts that while
there must be maritime cooperation with the US, there is no question of the
US Navy patrolling the waters of the Malacca Straits.
This basic ASEAN characteristic remains, even with the ARF’s purpose of
dealing with the new security environment. Rather than promising a revolu-
tion, the ARF has taken an evolutionary approach in regional affairs. It plans
to extend its use over three broad stages: promoting confidence-building
among participants, developing preventive diplomacy, and elaborating
approaches to conflict prevention. This enables ARF participants to deal
constructively with political and security issues that bear on regional peace
and stability. Initially, ARF participants included ASEAN members, other
Southeast Asian states that were not yet ASEAN members, ASEAN’s then
seven dialogue partners, Papua New Guinea (an ASEAN observer), China and
Russia (then still ‘consultative partners’ of ASEAN). India became a partici-
pant in 1996. Mongolia and the Democratic People’s Republic of Korea were
admitted in 1999 and 2000.7
While the ARF has emerged as the leading process for multilateral dialogue
in the region, it has faced criticism for its inability to respond to different
crises such as the situation in East Timor (when violence erupted after the
vote for independence). Additionally, Myanmar, an ASEAN member, has
been under international pressure to proceed with its ‘roadmap to democ-
racy’ by restoring elections and a civilian government.



5
Per Jusuf Wanandi, Indonesia Centre for Strategic and International Studies, at the
Shangri-La Dialogue 2003, at http://www.iiss.org/confPress-more.php?confID ÂĽ 306.
6
Per Amitav Acharya, Singapore Institute of Defence and Strategic Studies, at the Shangri-La
Dialogue 2003, at http://www.iiss.org/confPress-more.php?confID ÂĽ 306.
7
The current participants in the ARF are as follows: Australia, Brunei Darussalam,
Cambodia, Canada, China, European Union, India, Indonesia, Japan, Democratic
Peoples’ Republic of Korea, Republic of Korea, Laos, Malaysia, Myanmar, Mongolia,
New Zealand, Papua New Guinea, Philippines, Russian Federation, Singapore, Thailand,
United States, Vietnam. At http://www.aseansec.org/3536.htm.
SOUTHEAST ASIAN COOPERATION ON ANTI-TERRORISM 403

Southeast Asian counter-terrorism initiatives
With the resurgence of Islamic fundamentalism within many Southeast Asian
states, ASEAN counter-terrorism efforts have been discussed at the highest
intra-regional level – the seventh, eighth and ninth ASEAN Summits.8
Counter-terrorism is of such critical importance to safeguarding regional
political stability and prosperity that new measures are constantly debated,
not only within ASEAN or with its cooperative partners, but also among
individual ASEAN member states. For example, the most recent point of
contention is the security of shipping lanes in the Straits of Malacca and other
waters flanked by Indonesia, Malaysia and Singapore, and whether foreign
powers such as the US should be allowed to help these countries patrol their
territorial waters.9 These trading lanes are susceptible to piracy, and the
potential for traditional armed aggression and biochemical attacks from
terrorist groups is believed to be very high.
Every ASEAN Summit after 9/11 has produced a declaration for joint effort to
eliminate terrorist activities.10 These Summits advance ASEAN’s efforts to fight
terrorism by undertaking practical measures such as the review and strengthen-
ing of national mechanisms to combat terrorism, and the early signing and
ratification of or accession to all relevant anti-terrorist conventions including the
International Convention for the Suppression of the Financing of Terrorism.
Enhanced cooperation among front-line law enforcement agencies in
combating terrorism and sharing ‘best practices’ among ASEAN states has
been also exhorted. This includes intelligence exchange to facilitate the flow
of information on terrorists and terrorist organizations. Other measures
include the study of relevant international conventions on terrorism with
the view to integrating them with ASEAN mechanisms for combating inter-
national terrorism, strengthened cooperation and coordination between the
ASEAN Ministerial Meeting on Transnational Crime (AMMTC)11 and other
relevant ASEAN bodies, and the development of regional capacity-building
programmes to enhance existing capabilities of ASEAN member countries to
investigate terrorist acts.
The ASEAN Ministers have tried to realize the Summits’ decisions, culmi-
´ ´
nating in joint communiques such as the Joint Communique of the Fourth
ASEAN Ministerial Meeting on Transnational Crime (2004) and the Joint

8
The 7th, 8th and 9th ASEAN Summits were held in Brunei Darussalam, November 2001;
Cambodia, November 2002; and Indonesia, October 2003 respectively.
9
‘Malaysia rejects US sea-patrols’, 4 April 2004, BBC News, at http://news.bbc.co.uk/2/hi/
asia-pacific/3598977.stm.
10
The declarations can be found at www.aseansec.org/5318.htm, www.aseansec.org/13154,
www.aseansec.org/15159 respectively.
11
´
For more on AMM counter-terrorist activities, see their joint communiques at
http://www.aseansec.org/89_3644.htm.
SIMON S. C. TAY AND TAN HSIEN LI
404

´
Communique of the Third AMMTC (2001) that detail ASEAN efforts to
eradicate regional problems such as terrorism.12 There was even a Special
ASEAN Ministerial Meeting on Terrorism convened in Kuala Lumpur in May
2002 that further communicated ASEAN’s counter-terrorism activities and
sought to establish the Work Programme to Implement the ASEAN Plan of
Action to Combat Transnational Crime, Kuala Lumpur, 17 May 2002,13 a
document that detailed a six-pronged strategy, including the establishment
of legal facilities and institutional capacities within the ASEAN member
states.
ASEAN also carried out counter-terrorism training programmes in 2003.
Courses on bomb and explosive detection, post-blast investigation, airport
security and passport and document security and inspection have also been
planned. After the 2002 Bali bombings, a Regional Conference on Combating
Money-Laundering and Terrorist Financing was held in December 2002.
The implementation of these counter-terrorism measures have since been
reviewed in the third annual Senior Officials Meeting on Transnational
Crime (SOMTC) in June 2003 in Hanoi.
Recognizing international cooperation as vital to Southeast Asian anti-
terror efforts, ASEAN has also included counter-terrorism in discussions
with its three partners, Japan, China and South Korea, at ASEAN Ăľ 3 (APT)
summits.14 This resulted in a Joint Declaration on the Promotion of Tripartite
Cooperation among the People’s Republic of China, Japan and the Republic of
Korea at the Bali Summit of October 2003.15 The APT framework was
extended to the AMMTC during the Bangkok meeting in January 2004. The
´
Joint Communique of the First ASEAN Plus Three Ministerial Meeting on
Transnational Crime noted that though substantive measures had not yet
been drafted, APT leaders reemphasized their determination to strengthen
cooperation in the field of non-traditional security issues, especially in
intensifying joint efforts to combat international terrorism in the region,
and to support the Bali Concord II, which includes close cooperation in
developing the ASEAN Security Community.16 ASEAN has also intensified
talks on transnational crime with its three partners in the first SOMTC Ăľ 3
meeting in June 2003 in Hanoi.



12
At http://www.aseansec.org/15649.htm and http://www.aseansec.org/5621.htm respectively.
13
For greater detail of the action plans at the intra- and extra-regional levels, including the
´
work of ASEANAPOL, see Joint Communique of the Special ASEAN Ministerial Meeting on
Terrorism, Kuala Lumpur, 20–21 May 2002, at www.aseansec.org/13075.htm and the Work
Programme at www.aseansec.org/5616.htm.
14
The 5th, 6th and 7th APT Summits were held simultaneously with the 7th, 8th and 9th
ASEAN Summits in Brunei, 2001; Cambodia, 2002; and Indonesia, 2003.
15
See http://www.aseansec.org/15284.htm. 16 See http://www.aseansec.org/15159.htm.
SOUTHEAST ASIAN COOPERATION ON ANTI-TERRORISM 405

ASEAN has also held individual talks with each partner state, termed
ASEAN Ăľ 1 Summits, on issues pertinent to the bilateral relations between
itself and its three partners. Beyond trade issues, there is discussion on
terrorism, nuclear proliferation and security matters on a deeper level than
at the APT meetings. ASEAN and China issued a Joint Declaration of ASEAN
and China on Cooperation in the Field of Non-Traditional Security Issues
in November 2002 where counter-terrorism was included as one of the
priorities for ASEAN-China cooperation.17 This cooperation was reinforced
in the Joint Declaration of the Heads of State/Government of the Association of
Southeast Asian Nations and the People’s Republic of China on Strategic
Partnership for Peace and Prosperity in October 2003.18
There has been increasing desire to engage the other (potential) Asian
power, India, which has been ASEAN’s partner in the Asia-Pacific security
framework set up by the ASEAN Regional Forum since 1996. Expanding on
this relationship, the 1st and 2nd ASEAN-India Summits of 2002 and 2003
saw the two parties agree to jointly contribute to the promotion of peace,
stability and development in the Asia-Pacific region and the world, including
cooperation in the area of security and counter-terrorism.19 This led to the
eventual institution of the ASEAN-India Joint Declaration for Cooperation to
Combat International Terrorism at the Bali Summit 2003.20
On the periphery of Asia, Russia has also been invited. On 19 June 2003 in
Phnom Penh, ASEAN and Russia signed the Joint Declaration of the Foreign
Ministers of the Russian Federation and ASEAN on Partnership for Peace and
Security, and Prosperity and Development in the Asia-Pacific Region, signalling
closer cooperation and greater effort to counter terrorism. At the 14th ASEAN-
EU Ministerial Meeting in Brussels on 27 January 2003, the European Union
(EU) signed an ASEAN-EU Joint Declaration on Co-operation to Combat
Terrorism. Similarly, the US and ASEAN signed the ASEAN-United States of
America Joint Declaration for Cooperation to Combat International Terrorism on
1 August 2002 at the 35th ASEAN Ministerial Meeting in Brunei. Again, these
political agreements aim to prevent and combat international terrorism through
the exchange of information, intelligence and capacity-building assistance.
Counter-terrorism has also come under the ARF’s ambit in managing Asia-
Pacific security. However, the ARF has focused on general issues of security like
preventive diplomacy, military and maritime security challenges.21 Much
effort has been channelled to questions of financing and linkages to transnational


17
See http://www.aseansec.org/13185.htm. 18 See http://www.aseansec.org/15265.htm.
19
The 1st and 2nd ASEAN-India Summits were held simultaneously with the 8th and 9th
ASEAN Summits in Cambodia, 2002 and Indonesia, 2003.
20
See http://www.aseansec.org/15276.htm.
21
These activities were part of the 10th and 11th ASEAN Regional Forum during the Inter-
Sessional years of 2002–2003 and 2003–2004 respectively.
SIMON S. C. TAY AND TAN HSIEN LI
406

crime. For instance, at the 9th Ministerial Meeting of the (ARF) in Brunei in July
2002, the ARF Statement on Measures against Terrorist Financing was adopted.
The participating states and the EU agreed on concrete steps that included the
freezing of terrorist assets, implementation of international standards, and
cooperation on exchange of information and outreach, and technical assis-
tance.22 However with the resurgence of violence in Southeast Asia, most notably
southern Thailand, traditional counter-terrorism measures need supplementa-
tion. Border security and maritime security are increasingly areas of urgency for
the region. Thus, the ARF Statements on Cooperation Against Piracy and Other
Threats to Maritime Security23 and Cooperative Counter-Terrorist Action on
Border Security24 at the 36th AMM in July 2003 in Phnom Penh, are indispen-
sable to setting a seamless security architecture.
On a smaller scale, similar efforts have been undertaken by smaller group-
ings of ARF member states outside the ASEAN framework. These collabora-
tions appear to be more effective, involving actual police work, information
exchange and the establishment of anti-terror operatives. For instance, the
signing of the Agreement on Information Exchange and the Establishment of
Communication Procedures between Indonesia, Malaysia and the Philippines
in May 2002 – Thailand and Cambodia have since acceded – is significant in
the international campaign against terrorism.25 Indonesian and Malaysian
police will soon launch joint operations to tackle international crimes occur-
ring at mutual border areas and a terrorism crisis centre is to be established in
Indonesia. The head of the Indonesian National Police Operations has said
that the operation, called Aman Malino (Safe Malaysia–Indonesia), was also
targeted at securing the Straits of Malacca, which the US believes to be a
prime terrorist target.26 Other intra-regional bilateral efforts include the
Thai-Malaysian border crackdowns on Islamic fundamentalist groups that
have increasingly caused much civil disturbance.27

22
10th ASEAN Regional Forum (2002–2003 Inter-Sessional Year) Workshop on Counter-
Terrorism Measures Japan, Republic of Korea and Singapore, September/October 2002.
11th ASEAN Regional Forum (2003–2004 Inter-Sessional Year). Inter-Sessional Meeting
on Counter-Terrorism and Transnational Crime of the ASEAN Regional Forum in
Karambunai in March 2003. Inter-Sessional Meeting on Counter-Terrorism and
Transnational Crime Manila, 30–31 March 2004. On terrorist financing, see ARF
Statement on Measures Against Terrorist Financing, 30 July 2002, at www.aseansec.org/
12001.htm.
23
See http://www.dfat.gov.au/arf/statements/index.html.
24
See http://www.dfat.gov.au/arf/statements/10_borders.html.
25
See www.aseansec.org/14825.htm.
26
‘Malaysia, Indonesia To Launch Joint Action On Terrorism’, 24 April 2004, Bernama –
Malaysian National News Agency (http://www.bernama.com/bernama/v3/news.php?id ÂĽ
63104).
27
‘Malaysia supports Thai crackdown’, 12 April 2004, CNN.com, http://www.cnn.com/
2004/WORLD/asiapcf/04/12/thailand.malaysia/.
SOUTHEAST ASIAN COOPERATION ON ANTI-TERRORISM 407

Other more long-standing bilateral agreements have been made between
non-Asian and Asian ARF members to counter terrorist operations. In 2002,
Australia signed individual agreements with Indonesia, Malaysia and
Thailand. Such Memoranda of Understanding provide frameworks for
Australia and these states to improve border controls, combat identity
fraud and eliminate the illegal traffic in arms and explosives. In addition, it
strengthens counter-terrorist capabilities through training, seminars and
exchange visits by officials and specialists. This has reaped results particularly
for Australia and Indonesia in the capture and prosecution of terrorist
suspects related to the Bali bombings.
The US remains a bulwark in Southeast Asian security. Unsurprisingly, its
presence in Southeast Asian counter-terror efforts has been the strongest.
Apart from the sole anti-terror agreement signed with ASEAN, the US has
largely preferred to enact bilateral agreements, practical plans of action and
information-sharing with many ASEAN states like Singapore and Thailand.28
This effectively affords the US a greater say and direction over counter-
terrorism efforts.
Traditional supporters of the US, the Philippines and Singapore, have
cooperated closely with the US in the global war on terrorism in the immedi-
ate aftermath of 9/11. In the Philippines, President Arroyo has allowed US
troops to conduct joint counter-terrorism military exercises in the south of
the country. While on a brief visit to the Philippines in October 2003,
President Bush promised to ‘help the country weed out terrorism’.29 By
sending troops to aid Filipino forces in defeating the Abu Sayyaf, the
Philippines has become the only country besides Afghanistan to receive direct
involvement of US troops in the fight against terrorism. Though their precise
role remains unspecified, to avoid further controversy and perceived intru-
sion by the Philippine domestic population, US troops will (officially) only
provide technical support, advice and training and take part in joint military
exercises, but will not participate in combat.30 In January 2004, Manila
announced its readiness to deploy air marshals on Philippine Airline flights
to the US if it reciprocates on US flights to the Philippines.
Singapore too supports the US as best as it can. As its Defence Minister put
it, ‘We will continue to support the anti-terrorism effort within our capabil-
ities to make a useful contribution.’31 Domestic measures were undertaken

28
See ASEAN-United States of America Joint Declaration for Cooperation to Combat
International Terrorism, 1 August 2002.
29
‘Bush promises to help Philippines weed out terrorism’, 8 October 2003, USA Today,
http://www.usatoday.com/news/world/2003-10-18-bush-philippines_x.htm.
30
‘Al-Qaeda in Southeast Asia: Evidence and Response’, 8 February 2002, Reyko Huang,
Center for Defense Information, at http://www.cdi.org/terrorism/sea-pr.cfm.
31
The comment was notably made at a news conference after awarding the commander in
chief of the US Pacific Command, Admiral Dennis Blair, the Meritorious Service Medal.
SIMON S. C. TAY AND TAN HSIEN LI
408

with laws to allow the country to implement UN Security Council resolutions
readily.32 Singapore authorities have also arrested over thirty alleged Jemaah
Islamiyah operatives in 2002, two-thirds of whom were arrested after the Bali
bombing, and a Southeast Asian-wide network of alleged terrorist groups said
to be linked to al Qaeda has since been uncovered. The Singapore government
subsequently published a Parliamentary White Paper on terrorism on
10 January 2003, detailing the aims and activities of the Jemaah Islamiyah
terrorist group.33 The US has also aided Malaysia and Indonesia extensively.
Although Malaysia had suppressed Islamic radicals even before 9/11 with its
Internal Security Act (ISA) that empowers the government to actively pursue
counter-terrorism measures domestically, it has also granted the US access to
intelligence and over-flight clearance.34 Not only did the US consequently
help Malaysia establish the first Southeast Asian anti-terror centre, it has
extended a non-military assistance to Indonesia, including US$10 million to
train Indonesian police, customs officers and the banking sector, and an offer
to enhance intelligence sharing. In January 2004, Indonesia and the US signed
an agreement on the peaceful exploitation of nuclear energy designed to
protect Indonesian facilities from terrorist attacks.
In this plethora of different statements, a number of key promises of action
can be identified. They are, in summary, undertakings for:
1. Non-discrimination. A particular point stressed in the ASEAN meetings was
that the region must ensure that efforts to eliminate terrorism must avoid
the identification of terrorism with any particular religion or ethnic group,
and that counter-terrorism cooperation respects and has regard to regional
sensitivities.
2. Examination of root causes. In addition to the current social and develop-
ment projects undertaken by ASEAN, ‘root causes’ of terrorism such as
poverty, economic development, education and other human security
issues should should be addressed.


See ‘Singapore pledges continued support for US-led anti-terror war’, 29 January 2002,
Agence France Presse, at http://www.singapore-window.org/sw02/020129a2.htm.
32
As early as September 2001 the government established an inter-ministerial anti-terrorism
task force, and in October 2001 issued regulations to facilitate implementation of UN
Security Council Resolutions on counter-terrorism; for example, UNSC Resolution 1373
on the suppression of terrorist financing. The Monetary Authority of Singapore (MAS)
instructed all banks and financial institutions to identify customers suspected of financing
terrorist operations or involved in money-laundering activities, while the police strin-
gently reviewed all financial transactions in Singapore.
33
See Singapore White Paper – The Jemaah Islamiyah Arrests and The Threat of Terrorism,
http://www2.mha.gov.sg/mha.
34
For more information on counter-terrorism action in South-East Asia, see ‘The Shape of
Anti-Terrorist Coalitions in Southeast Asia’ by Dana R. Dillon, Heritage Lecture #773,
17 January 2003, at http://www.heritage.org/Research/AsiaandthePacific/hl773.cfm.
SOUTHEAST ASIAN COOPERATION ON ANTI-TERRORISM 409

3. Transnational crime and connection to terrorism. It has been recognized
that there is a close connection between international terrorism and trans-
national organized crime As such, further initiatives like the Regional
Conference on Combating Money Laundering and Terrorist Financing,
held in Bali in December 2002, and the ongoing work of the Bali Process
on People Smuggling, Trafficking in Persons and Related Transnational
Crime should be encouraged to complement regional counter-terrorism
efforts as well as to consider adopting confiscation of the proceeds of crime
provisions to prevent funds obtained through illicit activities being used for
terrorist activities.
4. Safeguarding economic progress and APEC. Sustained economic develop-
ment has undoubtedly been a priority in the region. Thus ASEAN ministers
and its collaborators acknowledge the need for effective counter-terrorism
measures to provide a conducive climate for business activities. Consequently,
ASEAN Ministers welcomed the Asia-Pacific Economic Forum’s (APEC)
newly-created Counter-Terrorism Task Force and the development of the
APEC Counter-Terrorism Action Plans as a practical means to assist APEC
members in fighting terrorism and promoting economic growth. Other
APEC measures lauded were the Secure Trade in the APEC Region (STAR),
the Energy Security, Countering the Financing of Terrorism and the Cyber
Security Strategy initiatives. APEC’s decision to establish a regional trade and
financial security initiative within the Asian Development Bank to support
projects that enhance port security, combat terrorist finance and achieve
other counter-terrorism objectives was also encouraged.
5. Maritime and aviation security. Related to economic prosperity is the
need for enhanced maritime security, especially in combating sea piracy
and armed robbery at sea, to prevent and suppress maritime terrorism
so that the trade routes remain safe. In addition, there are renewed
calls for further steps to ensure aviation security to prevent aviation
terrorism.
6. Training and capacity-building programmes. There has been constant
emphasis on the importance of capacity building in law enforcement and
mutual legal assistance in dealing with terrorism.



III. Asian security architecture: who will act
and for whose benefit?
The declarations, treaties and plans summarized above are part and parcel of
public diplomacy. It is a more difficult question to ask if they have borne
results. It has often been said that collective regional efforts are mere political
documents while practical substantive action is taken at the national level,
especially in conjunction with the US. At the very least, they can be said
SIMON S. C. TAY AND TAN HSIEN LI
410

to evidence a norm in the region, both unilaterally and collectively, against
terrorism and non-state actors who perpetuate terrorist acts. Furthermore,
the central importance of the USA to the security and politics of the region is
explicitly demonstrated.
It is acknowledged that Southeast Asian relations are premised upon
absolute state sovereignty and non-interference in neighbouring states’ inter-
nal affairs. A stronger regional grouping that possesses the potential to
diminish sovereign integrity and personality especially in the area of security
may be too radical for current political sentiment. If the declarations are
merely non-binding political expressions, how does Southeast Asia actually
combat terrorism?
The coordination of legal initiatives for joint investigation, information-
exchange, and the setting up of legal mechanisms for extradition and prose-
cution require more cooperation and unity of purpose than what has been
evidenced thus far. Despite the many political documents signed, ASEAN
member states still refrain from actively pursuing the activation of such plans,
preferring anti-terror operations in smaller bilateral or multilateral initia-
tives, especially where the US is involved. It may even be said that there is
implicit agreement that while declarations are signed, the actualization of
plans will occur at the level of smaller groupings. This has been the long-
standing mode of operation and it is unlikely that things will change, not-
withstanding strong criticism.
It is implicitly understood that US presence in the region is necessary to
maintain peace and security. While some dissent, the thinking that it is better
to ally with the US prevails. Its policies of ‘benign selfishness’ offer the closest
match to world interest – the desire for free trade, rule of law, free movement
of capital and people, as well as security for persons and property.35 Stability
in Southeast Asia, in this view, is provided by a hegemonic power, provided it
is relatively benign. To many security analysts, such realist bilateral relation-
ships are vital to the region. They see multilateral institutions and processes
like the UN, APEC, ARF and ASEAN as epiphenomenal – nice to have, but
not essential. The leverage the US holds is therefore substantial.
However, the American agenda is not always deferred to. Due to the large
Muslim population in Southeast Asia, governments have had to balance
domestic public opinion and tread very carefully in identifying too closely
with the US. This is especially true when there does not seem to be a radical
difference in opinion among the ASEAN member states as to actual or
perceived terror threats. There are no asymmetries in threat perception
but rather varying degrees of how urgent the terror threat is according to
whether fundamentalist ideology is rife, the presence of dissatisfied Muslim

35
See ‘The acceptability of American power’, The Economist, 29 June 2002, at 10, for more on
countries jumping onto the American ‘bandwagon’.
SOUTHEAST ASIAN COOPERATION ON ANTI-TERRORISM 411

populations and other human security factors. Indeed, at the Shangri-La
Dialogue 2004 Singapore and Malaysia agreed that the United States needs
to adopt a more ‘balanced approach’ towards the Palestinian-Israeli issue so
that the rage which fuels terrorist acts is quelled. Singapore’s Deputy Prime
Minister, Tony Tan, said that the Israeli-Palestinian conflict and fighting in
Iraq remain ‘catalysts for rage, resentment and suicide bombers’ while
Malaysian Deputy Prime Minister Najib Tun Razak declared that injustices
committed against the Palestinian people ‘appear crystal clear to over one
billion Muslims around the world, and yet there are countries that continue
to promote an imbalanced view of this long-running conflict’.36
These statements echo what then Singapore Prime Minister, Goh Chok
Tong, frankly expressed at the Council on Foreign Relations in Washington
in May 2004. He said that
While most Muslims do not approve of suicide bombings, they all do
empathise with the plight of Palestinian Muslims. They are angered and
disappointed by what they perceive as America’s acquiescence in Israel’s
disproportionate use of force against the Palestinians and, most recently, its
policy of ‘targeted assassinations’. They are critical of what they regard as
America’s double standards, citing, for example, the US’ determination in
taking action against Iraq but not Israel for non-compliance of UN Security
Council resolutions. These are views expressed consistently by leaders of
Muslim nations . . . including those most strongly supportive of
America . . . I can think of no Muslim society anywhere in the world
where the Palestinian issue does not provoke a basic, common emotional
response no matter how it may be expressed or intellectually articulated.37
Southeast Asian states do object to over-intrusion on the part of the US into
their sovereign realms, most notably the recurring Malaysian rejection of the
US offer of naval patrols in the Straits of Malacca in April 2004. Moreover, the
Thai government reacted bluntly to suggestions from the US National
Republican Congressional Committee that the US expands its anti-terrorism
activities to Thailand, saying that Thailand would exercise its full right to
make its own foreign policy decisions. Government spokesman, Jakrapob
Penkair, said that while Thailand was happy to listen to suggestions from all
of its allies, US suggestions that it could extend its foreign policy ideals into
Thailand was unacceptable.38


36
See speeches of the Shangri-La Dialogue 2004, International Institute of Strategic Studies,
at http://www.iiss.org/shangri-la.php.
37
‘Madrid: Winning against Terrorism’, speech by PM Goh to the Council of Foreign
Relations, Washington DC, 7 May 2004, at http://app.mfa.gov.sg/pr/read_content.asp?
View,3900,_.
38
‘We can deal with terrorists ourselves’, 29 March 2004, MCOT News, at http://etna.m
cot.net/query.php?nidÂĽ26714.
SIMON S. C. TAY AND TAN HSIEN LI
412

With the upsurge in radical Islamic terrorism in the Middle East and
Southeast Asia, and the intense sporadic revolts by Iraqi guerillas, fears of
heightened terrorism by transnational terrorist cells have also increased in

<<

ńňđ. 14
(âńĺăî 23)

ŃÎÄĹĐĆŔÍČĹ

>>