Article 23 Legislation:
The Proper Way Forward
Published by: Article 23 Concern Group
August 2003
Members:
Professor Johannes Chan, Honarary S.C.
Denis Chang S.C.
Mark Daly
Professor Michael Davis
Audrey Eu, S.C.
Alan Leong, S.C.
Gladys Li, S.C.
Christine Loh
Margaret Ng
Ronny Tong, S.C.
The National Security (Legislative Provisions) Bill was introduced into the Legislative Council on 26 February 2003. The Government set a deadline for the bill to be passed by July 2003. Despite strong opposition, on 24 June the bills Committee, with its pro-government majority, supported the government's proposal to resume the second reading of the bill on 9 July 2003. On 1 July 2003, more than 500,000 people marched in protest. On 2 July, a rally around LegCo for 9 July was called. On 5 July, Chief Executive Tung Chee-hwa announced that the bill would go ahead as scheduled but with 3 new amendments. On 6 July James Tien, Chairman of the Liberal Party resigned from the Executive Council, taking with him 8 pro-government votes. On 7 July, Tung postponed the second reading of the bill. On 9 July, 50,000 people turned up at the rally. On 17 July, Tung promised a "wide consultation" on the bill, but stated that legislation is required under Article 23 of the Basic Law. This pamphlet sets out the proposal of the Article 23 Concern Group on the proper way forward.
1. Does Article 23 require the enactment of legislation to protect National Security?
No. Article 23 does not require legislation to protect "national security". It only requires that the HKSAR enacts on its own legislation prohibiting acts of treason, secession, sedition, subversion against the Central People's Government, theft of state secrets, prohibiting foreign political organizations or bodies from conducting political activities in the SAR, and political organizations and bodies of the SAR from establishing ties with foreign political organizations or bodies.
2. If the Government's "National Security" bill is not passed into law, does this mean that the interests of national security are left unprotected?
No. Many laws already exist in the HKSAR to protect the interest of national security and prohibit the theft of state secrets.
3. What legislation is required under Article 23?
Amendment of the Crimes Ordinance to create express offences criminalizing acts of secession and subversion against the Central People's Government. Every other requirement of Article 23 is already met by existing legislation.
4.
If that is all that is
required under Article 23, why has the Government included in the bill
amendments to the Official Secrets Ordinance and the Societies Ordinance and
other amendments to the Crimes Ordinance?
The Government considers it desirable to make certain amendments to these Ordinances. It has taken the opportunity to put forward amendments to these Ordinances presumably because it considered that by attaching the label "National Security" and "Article 23" to the bill, it should be easier to get the bill passed.
5.
Are these amendments
desirable?
Some are desirable: for example, the abolition of some obsolete common law offences such as misprision of treason and compounding treason and some of the offences relating to sedition.
Other amendments have been introduced to modernize the law and to reflect the change in sovereignty. The objective is desirable but the way in which the exercise has been carried out is wrong and the proposed provisions are defective.
Still other amendments have been made to make the laws more restrictive and to give greater power to the Government. These amendments are objectionable in principle and detail.
6.
How should the
Government proceed now?
Each Ordinance should be separately considered so that any amendment to the Ordinance can be viewed in the context of that Ordinance as a whole. Piece-meal amendment is never the best way to proceed. Still less, lumping together amendments to different Ordinances in one bill.
Separating the bill into its distinct component parts will also make the entire legislative process simpler and faster.
7.
What process does the
Article 23 Concern Group propose?
(a) New provisions for "secession" and "subversion":
Currently, acts of treason and sedition are prohibited through provisions in the Crimes Ordinance. What Article 23 requires is that the Crimes Ordinance should be amended to define the offences of secession and subversion against the Central People's Government.
(b) Adaptation:
The Ordinance should be amended to reflect Hong Kong's new status as a part of the People's Republic of China. References to "Her Majesty" and to "Offences against the Crown" should be removed.
(c) Liberalization:
Existing offences of treason and sedition should be amended to ensure compatibility with the rights and freedoms of Hong Kong residents as set out in the Basic Law.
In making amendments, the following principles should be followed:
1) Modernize the law to reflect the values of an open and democratic society
2) State clearly and unambiguously what constitutes the criminal act
3) Ensure the provisions comply with the Basic Law, the two International Covenants on human rights and the international labour conventions applicable to Hong Kong and the Joint Declaration
4) Follow basic common law principles in the formulation of offences.
The Official Secrets Ordinance was enacted in June 1997 as agreed between the Governments of the United Kingdom and China as being adequate for prohibiting the theft of state secrets under Article 23 of the Basic Law. Therefore, no change is necessary.
The amendments proposed in the bill are considered desirable by the Government. We disagree.
We do however agree that amendment of the Official Secrets Ordinance is needed to strike an appropriate balance between the need for open government and the protection of what are truly state secrets. This should be done in a separate exercise, together with the introduction of an Access to Information Bill. Since 1995, Hong Kong already has a Code for Access to Information that could be adapted to become law.
Legislation had already been passed by the Provisional Legislative Council in July 1997 in the form of amendment to the Societies Ordinance to bar from registration a political body that has a connection with a foreign political organization or a political organization of Taiwan.
There is therefore no need for any further legislation to be enacted under Article 23.
Specifically, Article 23 does not require organizations to be proscribed on national security grounds. Despite this, an amendment was passed by the Provisional Legislative Council to do so. In the bill, the Government has sought to add yet another proscription mechanism. This is neither necessary nor desirable.
The above amendments had given too much power to the Government. For instance, the Societies Officer (the Commissioner of Police), if he reasonably believes it necessary to do so in connection with the performance of his functions, has the power to enter without warrant any premises which he has reason to believe is kept or used by any unlawful society or any of its members as a place of meeting or business.
We believe the Ordinance should be revised separately to ensure that it is compatible with the rights and freedoms in the Basic Law including freedom of association, of assembly, of demonstration and the right and freedom to form and join trade unions.
8.
Would this process delay
Article 23 legislation indefinitely?
No. By keeping amendments to the minimum, the process may be faster and smoother. However, what is important is getting the content of the law right. To facilitate consultation, the Government should now proceed on the basis of separate amendment exercises to the 3 Ordinances. Each should proceed at their own pace with full consultation and explanation.
On the definition of treason, secession, sedition and subversion, there is a particular need for the Government to explain and justify the content of its proposals. If the Government proposes to press ahead with any proscription mechanism, it also needs to provide explanation and justification for such mechanism and the safeguards against abuse.
For inquiries and copies, please call Margaret Ng's Office:
Tel: 2537 2725/2869 8317
Electronic version available at http://www.margaretng.com