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Following is the speech delivered by the Acting Chief Executive, Mr Donald Tsang, at the Hong Kong Bankers' Association Half-Yearly Dinner tonight (December 10):
Mr Liu, ladies and gentlemen,
Thank you for those kind words of introduction. The last time I addressed the Hong Kong Association of Banks, I was Financial Secretary and Hong Kong was putting the finishing touches to the ceremonies and celebrations for the handover, which was to take place a month later. A lot has happened in the years since June 1997. I am delighted you have given me this opportunity to speak to you. The association plays such an important role in maintaining Hong Kong at the forefront of global banking and in the development of our financial services - a sector I'm pleased to see is broadening its base with new products and new legislation to enhance the quality of the market.
Today I am not going to talk about markets or making money, despite the temptation as a former Financial Secretary surrounded by so many people connected with the industry. I will leave that to Antony for another occasion; although I readily acknowledge that my subject tonight has been drawing just as much media and public attention as the economic problems facing us. I'm referring, of course, to our decision to draft legislation, albeit with caution, transparency and honesty to implement Article 23 of our Basic Law.
No one is surprised at the intensity of the reaction and the diversity of views in the community over the issue. We knew this would be the case whenever we began the consultative process on BL 23. Indeed, no matter where you live - whether it is in Hong Kong, Europe, North America or Australia - national security laws, by their very nature, are controversial. We all want to live in a safe and secure environment and be protected by laws that are fair, transparent and that ensure the safety of our city and the nation as a whole. We also know that the freedoms we enjoy in Hong Kong are fundamental to our present way of life. The free flow of information, the freedom to say and do what we want - are the very fabric of Hong Kong society.
I stand here tonight to give you a personal guarantee that in no circumstances will we allow these freedoms to be undermined.
So why, you might ask, are we proceeding now with our plan to draft a bill to implement BL 23? It comes back to the system that underpins the creation of the Hong Kong Special Administrative Region - our unique 'One Country, Two Systems'.
Normally laws relating to national security are the preserve of the national, or in our case, the Central Government. In order to ensure our separate way of life, our legal, financial and other systems remained unchanged after reunification, it was written into the Basic Law that it would be left to us, the people of Hong Kong, to draw up our own laws to safeguard national security, sovereignty, territorial integrity and unity. The Central Government cannot impose its own national security laws on Hong Kong. It's up to us to determine for ourselves the type of legislation we need and to do so in accordance with our Common Law traditions. So, this is as much a constitutional duty for Hong Kong as it is an opportunity to highlight the fact that 'One Country, Two Systems' applies even to an issue as critically important as national security. It boldly underlines our 'high level of autonomy'.
Some have argued that we don't need to legislate now and we can put it off to some date in the distant future. I look at the situation from another perspective. Every nation has laws to protect its national security. And it is universally accepted that a citizen owes allegiance to his or her country in return for the protection afforded by the state against foreign aggression, and for the provision of a stable, peaceful and orderly society. This applies equally to the citizens, or nationals, of all countries, whether they observe the common law system or the civil law system. The fact that there is no immediate crisis threatening our national security is no excuse for inaction. Indeed, this is the right environment for a more rational, open and transparent debate.
If we go back in history, for example, we find that the UK Official Secrets Act of 1911 was enacted during a time of instability in the lead up to the outbreak of the First World War. That Act was notorious for the broad coverage of its provisions. The law was only liberalised and modernised by the Official Secrets Act of 1989, more than 70 years later. Perhaps I can add here that our Officials Secrets Ordinance was adapted from the liberalised and modern UK statute, and we are proposing to retain its tried and tested provisions in our new laws.
At the same time, I believe any reasonable person would agree that after a period of five years, the time is right to start the consultation process - a process that involves the whole community; and then to draft a bill that will be widely debated in the Legislative Council before it is implemented.
Our public consultation exercise on BL 23 is well underway. The government is listening with an open mind to the opinions of all sectors of the community. Ultimately, it will be up to our legislature to control the passage of any Bills put before it, no doubt with full and thorough public participation. We are making sure the issue is being discussed and debated now in a most open and transparent way and under the most intense scrutiny from local and international commentators. We would want it no other way. And I certainly appreciate the wish of those who want to see the details of our proposals in the form of a legal document. Indeed, we propose to publish a bill as soon as practicable after the end of the consultation period. You have my word; we are listening carefully and with an open mind to all the views being expressed. We hope the bill will be able to address these concerns as well as serve the long term interests of Hong Kong.
It's not as if our proposals have been drawn up in a vacuum. We have carefully studied similar legislative provisions as well as law reform recommendations in other jurisdictions around the world. We want to ensure that our proposals are not any more stringent. We believe they are clear, reasonable and proportionate and will not infringe on the freedoms that all of us in Hong Kong have come to respect and enjoy.
I know many of you here tonight have been watching the debate with keen interest and some have expressed concern as to whether the proposals will affect the free flow of information in Hong Kong. For example, would we prohibit analysts from using official documents in publishing their market analysis, even if this might impact on the market? I can assure you this would not be the case. The proposals will not impose any new limitations on the type of information that may be disclosed. We will not prohibit the disclosure of information on the grounds that it is official information relating to financial matters whether originating from the Mainland or Hong Kong.
The Consultative Document originally proposed the creation of additional financial investigative powers for the police in dealing with BL23 offences. In the light of comments received, we have publicly announced that we will drop this proposal. Instead, the police will rely on existing powers, which have been in place since 1983. In the intervening period, the application of these powers has not hindered in any way the development of the financial markets in Hong Kong. Indeed, Hong Kong has matured into an international financial centre during this period.
In drawing up the proposals, we have made a conscious decision to use, as far as possible, the provisions in our existing laws. Our intention is to improve and clarify these provisions, not to make them tougher. In certain cases, the offences are more clearly and tightly defined to avoid uncertainty. All proposals are consistent with constitutional protections in the Basic Law, the common law principles, as well as international conventions on the protection of human rights, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). As I said earlier, and it is worth repeating, the existing rights, freedoms and lifestyle of Hong Kong people will not be touched.
Let me now turn to the proposals in relation to treason, subversion, sedition and theft of state secrets, so I can try to dispel any other lingering doubts you may have over our intentions.
An act of treason is a serious offence in all jurisdictions. Existing Hong Kong laws already include offences of treason covering not just betrayal of one's country in conjunction with a foreign enemy, but also internal rebellion and outdated elements associated with the monarchy, such as treating an attack on the sovereign as an act of treason.
We propose to update and improve the treason provisions by restricting the offence to levying war against the PRC government by joining forces with a foreigner; instigating a foreigner to invade the PRC; or assisting a public enemy at war with the PRC. The offence of treason will be narrowed in scope so that it relates only to external threats to the nation.
At present there are no specific offences of 'secession' or 'subversion' in Hong Kong law. But these concepts are inherent in the existing treason offence, such as 'deposing the sovereign from her name and style from any of her dominions'. What we have proposed is to carve out the elements of secession and subversion from the existing treason provisions to create specific offences in accordance with the requirements of Basic Law Article 23.
In the offences of secession and subversion, we are proposing that there must be a necessary condition of 'use of force', 'threat of force' or 'action of a grave criminal nature' for the secession or subversion offence to take place. There is no question of using these offences to restrict freedom of speech. They will not cover criticisms against the State, but rather the use of violence or serious unlawful means directed at it. As such, normal business of financial dealings with Taiwanese clients will not therefore be affected simply because they advocate a particular political view.
In relation to 'sedition', it is widely recognised that fundamental national security interests and stability of the state may sometimes be seriously endangered by verbal or written communications. As a result, many jurisdictions, including the most liberal and democratic societies, retain sedition as a serious criminal offence to protect the state and key institutions from stability-threatening communications. In line with most common law jurisdictions, there are existing provisions in our Crimes Ordinance that deal with seditious acts and seditious publications. However, we all know the critical importance of the right for people to tell others what they don't want, or like, to hear, especially in a pluralistic and multi-cultural society as diverse as Hong Kong. This freedom of information and access to information is a right we cherish. And, it is incumbent on us to make sure the free flow of speech and information is not impeded.
To ensure this is the case, we propose to narrow the scope of sedition so that it is an offence to incite others to commit treason, secession or subversion and to incite acts of violence or public disorder that seriously endangers the stability of the state or the SAR. In other words, there must be a clear intention to incite crimes against the state or violence or public disorder before an offence is constituted. Our proposal is based on the well-understood common law offence of incitement. Indeed, the incitement of criminal actions is already an offence under existing laws, both in Hong Kong as well as in other common law jurisdictions. But, I can state categorically, there is no question, whatsoever, of criminalising dissenting views or criticisms. This would be unconstitutional.
On the question of 'theft of state secrets', let me make it clear, we are not introducing new laws to protect 'state secrets'. That is a myth. We are only proposing to retain the exiting Official Secrets Ordinance, which is itself based on the 1989 UK Official Secrets Act. Under our proposals, which are based on the existing law, 'protected information' only includes five tightly defined categories of information relating to: (i) security and intelligence; (ii) defence; (iii) international relations; (iv) relations between the Central Authorities of the PRC and Hong Kong; and (v) the commission of offences and criminal investigations. It will be for Hong Kong courts, rather than the executive authorities, to decide whether particular information falls within the list of 'protected information', and whether its disclosure amounts to a 'damaging disclosure'. The judgments will be made locally, based on local laws, in accordance with common law principles and international human rights covenants. No more, no less.
And, in order to highlight the importance we attach to press freedom, we will go one step further. We shall spell out in the proposed legislation that journalistic materials will be subject to additional safeguards against searches and seizures of the police. The powers of search and seizure of the police will only be drawn from existing enforcement and investigative powers against other serious crimes such as vice, possession of illegal firearms or dangerous drugs.
Ladies and gentlemen, I don't want to take up much more of your time. But, in view of the passion that has been injected into the debate in relation to our freedoms, I thought it would be timely to run through in short-hand, so to speak, some other relevant provisions of the Basic Law on how our freedoms are protected against abuse by the authorities. I will start with Article 25 - which says all Hong Kong residents shall be equal before the law; Article 27 - Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession; and of demonstration; Article 28 - the freedom of the person of Hong Kong residents shall be inviolable; Article 29 - the homes and other premises of Hong Kong residents shall be inviolable; Article 30 - the freedom and privacy of communication of Hong Kong residents shall be protected by law; Article 31 - guarantees the freedom of movement in Hong Kong and to emigrate; Article 32 - the freedom of conscience and freedom of religious belief; Article 34 - the freedom to engage in academic research; and Article 39 - the provisions of the ICCPR and the ICESCR shall remain in force in Hong Kong.
As you can see, Hong Kong people are protected by an armoury of provisions in the Basic Law. No legislation can contravene the guarantees under Article 27. No laws can infringe our fundamental rights and freedoms. Certainly no laws to be made under Article 23 can take away any of these rights and freedoms. In short, we all have the right to tell people what they don't want or like to hear. We have a right to tell the government what it doesn't want to hear, to criticize its policies and measures, and to demand for changes. All opinions, including expressions of dissent and criticisms of the HKSAR Government or the Central People's Government will not be caught up in our proposals. But these demands and criticisms must not involve violence. In the unlikely event that violence happens, we will deal with the perpetrators in our courts. And that's where matters of this sort should be settled.
Thank you.
End/Tuesday, December 10, 2002
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