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Speech by SJ


Following is the full text of a speech delivered by the Secretary for Justice, Ms Elsie Leung, entitled "A Legal Perspective of the Proposals to Implement Article 23 of the Basic Law" at the luncheon meeting of Newspaper Society of Hong Kong today (October 17):

On 24 September 2002, the Security Bureau of the Hong Kong Special Administrative Region (HKSAR) Government published the Consultation Document on the Proposals to Implement Article 23 of the Basic Law ("Consultation Document") for public consultation on the legislative proposals to implement that Article. The consultation period will last until 24 December this year. Since the publication of the Consultation Document, the public has been actively expressing its views. These views, irrespective of whether they are for or against, have been given prominent coverage by the media. The fact that these views could be expressed so freely is a testament to the breadth and openness of the consultation. It also reflects the democracy, openness and freedom of Hong Kong society.

Whether the legislative proposals could adequately and effectively protect the nation's sovereignty, unity and territorial integrity as well as preserving the long-term stability and prosperity of Hong Kong is a matter for the professional judgment of the relevant policy bureau, i.e. the Security Bureau. Today, I would like to share with you from a legal perspective the concepts behind the legislative proposals.

Constitutional Requirements

From the perspective of the law, we have taken into account the following constitutional requirements -

(1) Hong Kong is an inalienable part of the People's Republic of China (PRC). Any act in Hong Kong which endangers the state will inevitably affect the Mainland.

(2) It is the duty of every citizen to safeguard the security of his nation. Every country has its own law in safeguarding national security.

(3) The fundamental rights of Hong Kong residents are protected under Chapter III of the Basic Law, including the freedom of speech, of the press and of publication; freedom of association, freedom of conscience, freedom of thought and belief. No law enacted by the Hong Kong legislature shall contravene the Basic Law. Article 39 of the Basic Law guarantees that the provisions of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) as applied to Hong Kong shall remain in force; these rights and freedoms shall not be restricted unless as prescribed by law. Such restrictions must be reasonable, rational and proportionate to their objectives. They must also be necessary in a democratic society for safeguarding national security, public safety or public order, or for the protection of the rights of others. And such restrictions shall not contravene the above-mentioned Article 39(1).

(4) The legislative proposals shall be founded on the principles of the laws and legal system previously in force. They must therefore comply with common law principles. The laws previously in force that were adopted by the HKSAR shall continue to be used.

The entire proposal has strictly subscribed to these principles.

Background of Legislating on Article 23 and Social Development of Hong Kong

On 19 December 1984, the United Kingdom and PRC signed the Joint Declaration on the Question of Hong Kong which clearly set out the fundamental policies of China regarding Hong Kong upon resumption of sovereignty over Hong Kong. These fundamental policies include: the current life-style would remain unchanged; rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be protected by the law in the HKSAR. With a view to maintaining the prosperity and stability of Hong Kong and taking into consideration the interests and concerns of Hong Kong people as well as the unique nature of the composition of Hong Kong residents, multi-layered provisions were incorporated into the Basic Law when it was drafted so as to safeguard the rights and freedoms of Hong Kong residents in a comprehensive manner. During the drafting process, the Central People's Government (CPG) adopted a very liberal and open attitude. This policy has not changed since then.

When Article 23 was drafted, the Drafting Committee had carefully considered various options. Far-reaching terms such as "causing" a breach of the national unity or "causing" subversion of the CPG were dropped. No doubt the final version of Article 23 had drawn on the experience of the June 4 incident. But the objective of Article 23 is to prevent any act which will endanger national security. These acts may include a number of offences. The Hong Kong members of the Drafting Committee for the Basic Law regarded the fact that Hong Kong was able to enact the relevant laws on its own as a very favourable outcome for the Hong Kong people.

On the other hand, Hong Kong has undergone tremendous social changes over the past 20 to 30 years. In 1976, two international covenants on human rights, i.e. the ICCPR and the ICESCR were extended to Hong Kong. But these international covenants had not been implemented through local legislation until the enactment of the Hong Kong Bill of Rights Ordinance (Cap 383) (HKBORO) on 8 June 1991. This being the case, Hong Kong people only had a vague idea of human rights and seldom took the government to the court. I recall that, when I was practising as a lawyer, I represented a Hong Kong woman who applied for judicial review against the decision of the Director of Immigration for refusing her application for her Taiwanese husband to come and settle in Hong Kong. At that time, it was very common for a Hong Kong man to be able to apply for his Taiwanese wife to come and settle in Hong Kong. We submitted to the court that the policy of 'a woman following her husband no matter what his lot is" contravened Article 26 of ICCPR. The Article stipulates that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. The law shall prohibit any sex discrimination and guarantee equal protection under the law. We argued that the failure to implement the international covenant would mean a breach of Hong Kong's international obligations and the court should reverse the decision of the Immigration Department. Despite the persuasive arguments, the court refused to reverse the decision of the Immigration Department because the international covenants had no legal effect in Hong Kong unless and until it had been implemented through local legislation.

On 8 June 1991, the HKBORO was enacted. Following a number of precedent cases and publicity, members of the public have a clearer understanding of their rights and are more prepared to assert these rights. It is therefore impossible for society to turn the clock back in this respect.

Meanwhile, the common law has evolved in response to social changes. Let's take the case of Ta Kung Pao as an example. The newspaper was charged with sedition in 1952. Despite the vigorous defence of the newspaper's counsel that the newspaper had not incited others to violence, the trial judge returned a guilty verdict following the precedent set by a 1940 case in another colony, on the ground that it was not necessary for the relevant law to stipulate that 'inciting others to violence' was an essential element of the offence. With the advance of society, precedent cases of the common law have established that a seditious intent must include inciting others to cause violence or public disturbance or disorder. Therefore, any legislative proposal regarding Article 23 must take into account the background of the legislation, the social progress and the legal development.

Inadequacy of the Existing Legislation

The existing legislation does not cover all the acts prohibited under Article 23. Some existing provisions are not in step with the development of our society. The seven categories of acts to be prohibited under Article 23 are fully discussed in Chapters 2 to 7 of the Consultation Document. I will not go into detail here. At the press conference announcing the Consultation Document, the Secretary for Security presented a paper which made a very useful comparison between the existing legislation and the legislative proposals. In gist, the paper points out that -

* It is necessary to amend Sections 2, 3 and 4 of the Crimes Ordinance (Cap 200) and provide clearly for a foreign element in the treason offence; to delete the offence of assaults on the sovereign; to incorporate the common law inchoate and accomplice offences (i.e. to attempt to commit a substantive treason offence, or conspire with others, to aid and abet, counsel and procure the commission by another person of a substantive treason offence); and to incorporate the common law offence of misprision of treason into the new legislation. The HKSAR should also be granted extra-territorial criminal jurisdiction over any treason offence committed by its permanent residents outside the HKSAR.

* As no definition of "secession" is given under the existing Crimes Ordinance, it is necessary to clearly define such an offence, namely, withdrawing a part of the PRC from its sovereignty, or resisting the CPG in its exercise of sovereignty over a part of China. We consider that the offence must involve the use of force, violence or serious unlawful means. Similarly, inchoate or accomplice acts should give rise to criminal liability. HKSAR courts shall have extra-territorial jurisdiction over any secession offence committed by HKSAR permanent residents or committed by any other persons outside the HKSAR if the offence has a "link" with the HKSAR.

* With regard to sedition, which is an existing offence under sections 9 to 14 of the Crimes Ordinance, it is proposed that the definition of the offence should be narrowed so as only to include inciting others to commit the offences of treason, secession or subversion; or to cause violence or public disturbance which seriously endangers the stability of the state or the HKSAR. The existing defenses and the requirement for corroboration should be retained. Possession and dealing with seditious publications by a person knowing or having reasonable grounds to suspect that the publication would be likely to incite others to commit the offence of treason, secession or subversion shall also be specified as an offence. The HKSAR shall have extra-territorial jurisdiction over any sedition offence committed by HKSAR permanent residents or committed by any other persons outside HKSAR if the offence has a "link" with the HKSAR.

* It is necessary to clearly define the subversion offence in the legislation. It is therefore proposed to make it an offence of subversion to intimidate the PRCG or to overthrow the PRCG or disestablish the basic system of the state as established by the Constitution, by levying war, use of force, threat of force, or other serious unlawful means. Inchoate or accomplice acts are also specified as statutory offences. The HKSAR shall have extra-territorial jurisdiction over any subversion offence committed by HKSAR permanent residents anywhere, or committed by any other persons outside the HKSAR if the offence has a "link" with the HKSAR.

* Theft of state secrets is governed by the Official Secrets Ordinance (Cap. 521), which is a localized UK Official Secrets Act as agreed by the Sino-British Joint Liaison Group before the re-unification. Offences include espionage and unauthorized disclosure of official information. As there are express provisions specifying the targets and the categories of information to be protected, the ordinance may be retained. However, there should also be a new offence of making a damaging disclosure of protected information that was obtained by unauthorized access to it. In the past, the relationship between the United Kingdom and Hong Kong was covered by "international relations". As the relation between Hong Kong and the Mainland should not be included in "international relations", it is proposed that information concerning relations between the CPG and the HKSAR shall be included as information that requires protection, it also proposed that certain persons who are not public officers (such as agents and informants) shall be included in the definition of "government contractors". Extra-territoriality already applies to most offences related to unauthorized disclosure, and such provisions should be retained.

* As the purpose of Article 23 is to prohibit acts endangering national security, we think that both foreign political organizations and local political bodies should be prohibited from engaging in any act of treason, secession, subversion, sedition or theft of state secrets in Hong Kong, and that it should be an offence to manage or to act as an office-bearer for these unlawful organizations. In accordance with the existing Societies Ordinance, the Societies Officer may, on national security grounds, refuse to register or cancel the registration of any society after consultation with the Secretary for Security. The Secretary for Security may make an order for cessation of operation of a society on the recommendation of the Societies Officer. If the society fails to comply with the order, its office-bearers shall be held criminally liable. Any Hong Kong political body having connection with foreign or Taiwan political organization may be refused registration or have its registration cancelled, or may have its operation prohibited, regardless of whether it endangers national security. 'Local political body' and 'foreign (or Taiwan) political organization' have narrow definitions. These provisions intending to prohibit foreign governments and political organizations from taking part in the political affairs of the HKSAR1 should be retained. However, we should also make it an offence to organize or support activities of an organization proscribed in the interests of national security, especially if the organization is affiliated with a Mainland organization which has been proscribed by the CPG on the grounds that it endangers national security. An organization proscribed or declared unlawful may appeal to an independent tribunal in respect of points of fact, or may appeal to the court or seek a judicial review regarding points of law.

* Moreover, the Consultation Document proposes, inter alia, to give the police greater investigation powers to prevent serious damage caused by relevant offences; to repeal offences relating to unlawful oaths; to remove the time limits for bringing certain prosecutions and to amend the penalties.

My short summary cannot do full justice to the whole 50-page Consultation Document. For further details, I would therefore commend the Consultation Document to you. There are some parts of the proposals which have caused some public concerns. I would like now to address some of these concerns.

Major Concerns

It is very common for people to associate secession with the Taiwan issue. It is an indisputable fact that Taiwan is part of China. When dealing with the Taiwan issue, the HKSAR Government must follow the PRC's policy on Taiwan. Since 1979, the PRC Government has adopted 'peaceful reunification; one country-two systems' as the fundamental principle to address the issue. Under this principle, the wishes and interests of the majority of our compatriots in Taiwan have been taken into account. The separation of the two places across the Strait is a historical problem and should be addressed in accordance with the one-China principle through dialogue and negotiation on an equal footing. In enacting laws to implement Article 23 of the Basic Law, the HKSAR Government needs to adopt a consistent principle: whereas treason, subversion, sedition, violence, force and riots are the major elements endangering national security, likewise secession should be regarded as such an element. Viewed in this light, only an attempt to withdraw a part of the PRC from its territory or to resist the PRC in its exercise of sovereignty over that part by force or violence or by other serious unlawful means will be an offence of secession. The mere uttering of words and comments without action would not constitute an offence of secession. If Taiwan declares independence or decides by referendum on independence, the PRC will inevitably resort to resolving the Taiwan issue by force and any armed resistance from Taiwan will constitute secession. The HKSAR Government supports our national policy of peaceful reunification and will not, under any circumstances, allow any person to make use of Hong Kong to carry out any activities endangering the sovereignty and territorial integrity of the PRC. This being the case, any person or organisation could be prosecuted according to the law for committing treason, subversion, sedition, secession, or for inciting, aiding and abetting any other person(s) to commit such offences. If someone simply raises the idea of independence of Taiwan in Hong Kong without calling for direct or indirect use of force or violence or commitment of serious unlawful acts, the HKSAR Government and the community at large will condemn their acts. But the act will not be dealt with under the criminal law if it does not constitute an offence of secession.

Some people are concerned that discussions, promotions or forming of associations with a view to bringing changes by lawful means to matters established by the constitution (e.g. by amending the constitution) would amount to an offence of subversion against the CPG. It is true that some constitutions do provide that no changes shall be made to the established government system. For instance, the French Constitution and the Italian Constitution both stipulate that their republican systems shall not be altered in any circumstances. Article 79(3) of the German Constitution even states specifically that the demarcation of lander under the federal system, the adherence to the legislative procedures, as well as the stipulations in Article 1 (no infringement of human dignity) and Article 20 (democratic and social federal state systems) shall not be altered in any circumstances. Even when no specific provisions have been made, government systems shall not be altered easily, since they are the modes of operation chosen for a country by its people. Despite these precedents, we have, after making reference to international precedents, decided not to make discussions or peaceful and legal means to bring changes to constitutionally established matters a criminal offence. Nor would we prohibit the act of association for such a purpose. However, should anyone use force, violence or other serious unlawful means to make changes, or to attempt, conspire, aid, abet, counsel and procure changes by such means, we shall of course prohibit such acts through criminal sanctions. This policy tallies with the positive approach adopted by the PRC Government in its participation in international human rights cooperation and its determination to make progress with human rights development26ˇFand is also in line with the commitment made by the PRC Government to the United Nations in the notification dated 20 June, 1997 that the provisions of the two international human rights covenants as applied to Hong Kong shall remain in force.

I am aware that since the release of the Consultation Document, our friends in the media are very concerned as to whether they would be held criminally liable in respect of the offences of sedition or theft of state secrets. With regard to sedition, the proposals are more liberal than the existing legislation. The fact is that criticisms made by the press of the government will not be regarded as seditious if the criticisms are made to show that the government has been misled or mistaken in any of its measures, or to point out errors or defects in the government or constitution or in its legislation or in the administration of justice with a view to remedying such errors or defects, or to persuade Chinese nationals or HKSAR residents to attempt to procure by lawful means the alteration of any legally established matter, or, alternatively, to point out, with a view to their removal, any enmity that exists between different walks of people from the HKSAR. It is stated clearly in the Consultation Document that the mere expression of views, or mere reports or commentaries on views or acts of others will not be criminalized. The act of a member of the press will not constitute sedition if his or her act, speech or publications do not incite others to commit treason, secession, or subversion, or cause violence or public disturbance that seriously endangers the state or the HKSAR. Members of the press do not commit any offence if the publication they possess or handle is not likely to incite others to commit treason, secession or subversion. And a person who possesses or handles such materials would not commit an offence if he did not know, or have reasonable grounds to suspect, that the publication would be likely to incite such offences, or if he had a reasonable excuse for possessing them.

As regards the Official Secrets Ordinance, half of the current Legislative Councillors were members of the Legislative Council that supported the passage of the Ordinance at that time. The only significant addition to the law that is proposed is to criminalize the unauthorized and damaging disclosure of specified protected information that has been obtained (directly or indirectly) through unauthorized access. The proposal concerning the protection of information relating to the relations between the People's Republic of China and the Hong Kong Special Administrative Region is merely an adaptation of the provision on "relations between the United Kingdom and Hong Kong" as originally contained in the part on "international relations".

There have been concerns that expansion of police powers to investigate the offences specified in Article 23 would lead to abuse of police power. Yet, similar provisions are already found in the Official Secrets Ordinance (Cap. 521), the Dangerous Drugs Ordinance (Cap. 134), the Prevention of Bribery Ordinance (Cap. 201), and the Organized and Serious Crimes Ordinance (Cap. 455). We must bear in mind the consequences when national security is endangered. In view of the catastrophic effect and huge loss of lives and property that this may bring about, it is imperative that it be forestalled in time. Hence, it is necessary to expand the necessary powers. We have adequate mechanism in place to safeguard the rights of the public.

Since the release of the Consultation Document, the public has generally accepted the necessity of enacting the law. Naturally, some people still express concerns over a number of issues, mainly because many of them are unfamiliar with the existing law and do not understand the proposals. We hope to explain the issues to them through the consultation process. We would also take into account their legitimate concerns during the drafting of the legislation. I only hope that the public can engage in rational discussion of the Consultation Document.

The proposals conform to the policies of the state and of the HKSAR

In recent years, China has committed to advancing economic and trade developments. She has also taken an active part in international affairs. At the diplomatic level, she has consistently adhered to the Five Principles of Peaceful Co-existence, Independence and Autonomy. She has fulfilled the duties and obligations of a permanent member of the United Nations Security Council, and has gracefully handled some international problems, thereby building up a good international reputation. The PRC Government signed the ICCPR, and the ICESCR in October 1997 and October 1998 respectively. On 28 February 2001, the ICESCR was examined and ratified at the 20th Meeting of the Standing Committee of the Ninth National People's Congress. It fully shows that the Chinese Government has taken an active attitude towards international cooperation on human rights issues. It also indicates China's determination and confidence in promoting and protecting human rights. China has been advocating the development of human rights according to the national conditions and the wishes of the people. This is why the CPG adopts a relatively positive attitude towards the development of human rights in the HKSAR.

The proposals in the Consultation Document are put forward after thorough study of the above-mentioned provisions of the Basic Law, the existing laws of HKSAR and the meaning of Article 23. We have made reference to the laws of other jurisdictions and exchanged views with the relevant departments of the CPG. Some people are strongly against our act of seeking the CPG's opinion on the proposals to implement Article 23 of the Basic Law, on the ground that it amounts to undermining the principle of "one country, two systems". In fact, we carry out public consultation because the proposals concern Hong Kong people's criminal liability. We seek the opinion of the CPG because what Article 23 protects is national security. Hong Kong is not a sovereign region. The HKSAR Government does not have sufficient information on national defense and international relations to fully understand what threats to national security may arise. It is also necessary for the HKSAR Government to avoid the possibility of the return for amendment of any law reported for the record to the Standing Committee of the National People's Congress because of its failure to conform with Article 23 of the Basic Law. Besides, the legal system and social environment of the two places vary greatly. The fact we had the opportunity to explain to the CPG the origin of the proposals, the aspirations of Hong Kong society, the laws of HKSAR and relevant international laws is exactly the reason why we were able to come to consensus with the CPG. It was not because we had to stand up against Beijing. Moreover, we consulted the CPG only on the major principles, not the detailed legal proposals. In the entire process, both sides have strictly adhered to the principles of "one country, two systems" and "Hong Kong people ruling Hong Kong". Moreover, the HKSAR Government has exercised a high degree of autonomy and enjoys legislative power in accordance with Article 2 of the Basic Law. The proposals entirely conform with the principles of the common law. They do not import any laws or legal principles from the Mainland.

Understanding our country's policy is essential to the implementation of Article 23 and securing the CPG's support, but it is not our only consideration. The design of the entire legislative proposal focuses on how to meet the society's aspirations. In his re-election speech entitled "My Pledges to Hong Kong" delivered in January 2002, the Chief Executive said that -

"I fully recognise that Hong Kong people attach great importance to the ideal of democracy. In the process of striving for democracy, I will join hands with all the sectors in Hong Kong to lay down a sound foundation for these developments, which include our continued efforts to uphold the rule of law, to protect human rights, to build an open government, to provide more opportunities for the public to participate in public affairs, in order to facilitate the smooth development of democracy in Hong Kong."

We understand that the majority of the Hong Kong people are willing to shoulder the responsibility of maintaining national security. For them, the ideal society is an orderly society, a society in which human rights are protected. A democratic society is a pluralistic society. This existing feature of Hong Kong is highly regarded by the international community, and is something that we treasure. The proposals of the Consultation Document make it clear that the Government has no intention to persecute dissidents' organisations and to make them disappear from Hong Kong. Nor is it the Government's intention to clear all Hong Kong's newspaper stalls of diversified publications and to drive all the foreigners and their organisations out of Hong Kong. The development of democracy and human rights is the aspiration of the people of Hong Kong, and is also the ideal shared by both the HKSAR Government and the Chief Executive.

In sharing my views on the concepts behind the legislative proposals, I do not have the slightest intention of glossing over the issue. What I am trying to do is to provide you with the background information obtained through research, in order to facilitate a better understanding of the proposals. Some of you may not agree with my views. This is your prerogative. The HKSAR Government understands that enacting laws to implement Article 23 is a comparatively sensitive issue. In formulating the proposals, apart from ample preparations, we have taken into account many representative views. The Consultation Document is presented to the public in a solemn manner, and we sincerely hope to listen to the views of the public. In the next two months or so, my colleagues at the Department of Justice and the Security Bureau would like to listen to your views and are willing to answer your queries concerning the Consultation Document. I hope that we can work together to study the existing legal provisions and discuss the legislative proposals in a serious manner, so as to help us in drafting a piece of legislation that could both maintain national security and offer full protection to the rights of our citizens.

End/Thursday, October 17, 2002


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