***************************************************
Following is the question by the Hon James To and a reply by the Secretary for Security, Mrs Regina Ip, in the Legislative Council today (November 13):
Question :
Regarding the making of legislation to implement Article 23 of the Basic Law, will the Government inform this Council:
(a) As it is stated in the "Consultation Document on the Proposals to Implement Article 23 of the Basic Law" that prior to the Re-unification, information relating to the relationship between Hong Kong and the Mainland was protected under the rubric of "international relations", the Administration now proposes to protect information relating to the relationship between the Central Authorities of the state and the Hong Kong Special Administrative Region ("HKSAR") under the rubric of "relations between the Central Authorities of the People's Republic of China and HKSAR" ("relations between the Central Authorities and HKSAR"); however, the relationship between China and Hong Kong was that between China and the United Kingdom prior to the Re-unification and, following the Re-unification, this has become the relationship within the same country, why the Administration proposes to create a new class of protected information - relations between the Central Authorities and HKSAR;
(b) As the Secretary for Justice stated at the luncheon meeting of the Newspaper Society of Hong Kong on October 17 this year that information relating to the relations between the Central Authorities and the HKSAR "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'"; however, prior to the Re-unification, the relationship between the United Kingdom and Hong Kong was that between a suzerain state and a colony from a legal perspective whilst following the Re-unification, the relationship between China and Hong Kong was that between the Central Authorities of the state and its special administrative region, why the Secretary for Justice considers that the proposed new class of relations between the Central Authorities and HKSAR to be an adaptation of laws; and
(c) Whether it will consider stipulating, by provisions of law or in other forms, that apart from requesting the Central Authorities to issue a formal notification regarding the question of fact on whether a Mainland organization has been proscribed by the Central Authorities on national security grounds, the HKSAR Government shall not, in respect of issues relating to "foreign political organizations" set out in Chapter 7 of the above Consultation Document, request the Central People's Government to issue a certifying document on questions of fact concerning acts of state such as defence and foreign affairs in accordance with Article 19 of the Basic Law; if it will, of the form of such stipulation; if not, the reasons for that?
Reply :
Madam President,
(a) & (b) Under the Official Secrets Ordinance (Cap. 521, laws of Hong Kong), there are four categories of information the unauthorized disclosure of which could constitute an offence under Part III of the Ordinance. They are security and intelligence information, defence information, information related to international relations, and information related to commission of offences and criminal investigations. Under section 12(1) of the Ordinance, "international relations" is defined to mean, inter alia, "any matter relating to the relations between the United Kingdom and Hong Kong or the external relations of Hong Kong". After the Reunification, by virtue of the application of the well established principles of adaptation, "relations between the United Kingdom and Hong Kong" means "relations between the People's Republic of China and the Hong Kong Special Administrative Region". Thus, information related to the relations between the People's Republic of China and the Hong Kong Special Administrative Region is already covered under the Official Secrets Ordinance. However, given that it is inappropriate to refer to relations between the People's Republic of China and the Hong Kong Special Administrative Region as "international relations", we propose to amend the Official Secrets Ordinance to place information related to the relations between the People's Republic of China and the Hong Kong Special Administrative Region under the new heading of information related to the relations between the Central Authorities and the Hong Kong Special Administrative Region. The Administration's proposal would not extend the criminal law to any extent.
(c) The Administration had already submitted a paper to the joint meeting on Panel on Security and Panel on Administration of Justice and Legal Services, explaining that the doctrine of act of state under Article 19 of the Basic Law is irrelevant to the proposed proscription mechanism. Article 19 stipulates our constitutional obligations under the Basic Law. It would be inappropriate for the Administration to undertake to exclude any of our constitutional obligations under any specific circumstances.
End/Wednesday, November 13, 2002
NNNN
