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The Chief Executive-in-Council has endorsed the Bill to implement Article 23 of the Basic Law to protect national security.
Announcing details of the National Security (Legislative Provisions) Bill at a press conference today (February 13), the Secretary for Security, Mrs Regina Ip, said, "The draft legislation is formulated having taken into account public views expressed during the consultation period and in accordance with the way forward outlined on January 28.
"In accordance with the constitutional requirement under Article 23, the Hong Kong Special Administrative Region (HKSAR) is enacting laws on its own to protect national security.
"We are making use of existing laws which already criminalise certain acts that endanger national security, and are not extending Mainland laws to Hong Kong. The Bill will amend three pieces of existing legislation, namely the Crimes Ordinance, the Official Secrets Ordinance and the Societies Ordinance, which already deal with some of the activities prohibited under Article 23," Mrs Ip said.
"In formulating the Bill, the Government has made a careful effort to strike a balance between protecting national security and safeguarding fundamental rights and freedoms," she said.
Following are the main provisions of the Bill:
Treason
The treason offence is limited to:
*joining foreign armed forces at war with our country with the intent to overthrow or intimidate the Central People's Government, or to compel the Central People's Government to change its policies or measures;
*instigating foreign armed forces to invade our country with force; or
*assisting a public enemy at war with our country with an intent to prejudice the position of the country in the war.
The offence of treason will not apply to non-Chinese nationals. For clarity, various concepts involved are clearly defined. For example, a "state of war" is defined to mean "only open armed conflict between armed forces or publicly declared war".
General demonstrations or riots are not considered war.
To address people's concern, the common law offence of misprision of treason will be abolished, and no new statutory offence will be created.
Secession
The offence of secession is defined as withdrawing any part of the People's Republic of China from its sovereignty by using force or serious criminal means that seriously endangers the territorial integrity of the People's Republic of China or by engaging in war. The reference to "resisting the exercise of sovereignty" will be deleted in the secession offence.
Subversion
An offence of subversion means to:
*disestablish the basic system of the People's Republic of China as established by the Constitution;
*overthrow the Central People's Government; or
*intimidate the Central People's Government
by using force or serious criminal means that seriously endangers the stability of the People's Republic of China or by engaging in war.
The reference to "threat of force" will be deleted in both the secession and subversion offences and, apart from engaging in war, only the actual use of force or serious criminal acts similar to terrorist activities will be covered.
Sedition
An offence of sedition means to:
*incite others to commit the offence of treason, subversion or secession; or
*incite others to engage in violent public disorder that would seriously endanger the stability of the People's Republic of China.
In relation to the offence of dealing with seditious publications, the prosecution will have to prove beyond reasonable doubt the intention of the person concerned to incite others to commit the offence of treason, subversion or secession.
The offence of possession of seditious publications, which already exists in our statutes, will be abolished. The freedoms of speech, of publication and of academic research are fully protected.
Theft of state secrets
Only two slight amendments will be made to the existing "Official Secrets Ordinance".
Regarding the protection of information relating to "relations between the Central Authorities and the HKSAR", protection will be limited to information on matters concerning the HKSAR that are within the responsibility of the Central Authorities under the Basic Law. In addition, disclosure of such information will only be penalized when it endangers, or is likely to endanger, "national security". "National security" is defined as "the safeguarding of territorial integrity and the independence of the People's Republic of China". The free flow of financial information will not be impeded.
The second amendment is to plug a loophole relating to the damaging disclosure of protected information which has been obtained through illegal access.
"Illegal access" will be limited to criminal acts under Hong Kong law of unauthorised access to computer by telecommunication, access to computer with criminal or dishonest intent, theft, robbery, burglary or bribery.
Foreign political organisations
Existing provisions of the Societies Ordinance will be used to prohibit foreign political organisations or bodies from conducting political activities in the HKSAR and political organisations or bodies of the HKSAR from establishing ties with foreign political organisations or bodies.
No amendments to the provisions are proposed.
Proscription of organisations endangering national security
The Societies Ordinance already empowers the Secretary for Security to proscribe a society that endangers national security. This power can only be exercised where it is necessary and proportionate under the standards of the International Covenant of Civil and Political Rights (ICCPR) to do so in order to protect national security. The Bill sets out a similar power in respect of any type of organisation, but this new power can only be exercised under one of the following circumstances:
*the objective, or one of the objectives, of the organisation is to engage in acts of treason, secession, sedition, subversion, or spying;
*the organisation has committed or is attempting to commit acts of treason, secession, sedition, subversion, or spying; or
*the organisation is subordinate to a Mainland organisation which has been proscribed in the Mainland by the Central Authorities by means of an open decree and in accordance with the national law on the ground of protecting the security of the People's Republic of China.
A local organisation will be considered as subordinate to a Mainland organisation only if the former accepts substantial financial contributions from, is directed or controlled by, or has its policies determined by, a Mainland organisation.
A local organisation will not automatically be proscribed even if it is subordinate to a banned Mainland organisation. As mentioned earlier, the Secretary's power to proscribe organisations endangering national security will have to be exercised in strict accordance with the standards under the ICCPR.
Any person aggrieved by the Secretary for Security's decision to proscribe an organisation will be able to appeal to the Court of First Instance, both on points of fact and points of law. The proposal to establish a special appeal tribunal will be dropped.
The decision to proscribe an organisation in itself does not create a criminal offence. Only when individuals continue to support the operation of the organisation despite the proscription order will they commit a criminal offence.
Emergency investigation powers
It will be stipulated that only police officers at the rank of Chief Superintendent of Police or above could authorise the exercise of emergency investigation powers by police officers. The emergency powers can only be exercised if the police officer reasonably believes that the relevant offence has been or is being committed, and that unless immediate action is taken, evidence of substantial value to the investigation of the offence would be lost, and that the investigation would be seriously prejudiced as a result.
It will also be stipulated that the search or seizure of journalistic materials must under all circumstances be authorised by court warrants. The freedom of press will not be affected.
And as we pledged earlier, we will not seek to expand the Police's financial investigation powers.
Trial by jury
It will be stipulated that any person charged with treason, secession, subversion or the first limb of sedition must be tried by jury. Those charged with the second limb of sedition or unlawful disclosure may opt for trial by jury if they so wish.
Compliance with Article 39 of the Basic Law
The Bill also specifically provides that the interpretation, application and enforcement of the provisions implementing Article 23 shall be consistent with Article 39 of the Basic Law, which guarantees that the international human rights standards as applied to Hong Kong shall be implemented.
"The Government has taken heed of people's views and concerns and incorporated many suggestions in formulating the Bill, which has struck a good balance between protecting national security and safeguarding people's rights and freedoms," Mrs Ip said.
The Bill will be gazetted on Friday (February 14) and introduced into the Legislative Council for first and second reading on February 26.
"We will make copies of the Bill widely available to members of the public and will continue to listen to their views during the entire legislative process," Mrs Ip said.
To help the general public understand the Bill and rights and freedoms protected by the Basic Law, Mrs Ip said a leaflet and a booklet outlining various provisions in layman's language had been produced.
"The Government would also be producing a series of radio and television announcements in public interest. A dedicated website on Article 23 has also been set up to help members of the public familiarise themselves with the subject," she said.
Copies of the Bill, the leaflet and the booklet will be available for collection after 2 pm tomorrow (February 14) at all District Offices, Government Publications Centre at Queensway Government Offices, Central, Information Services Department's Marketing Office on 4/F., Murray Building, Garden Road, Hong Kong and the Housing Authority's shopping malls. Information relating to Article 23, including the Bill, the leaflet and the booklet, could also be viewed at www.basiclaw23.gov.hk.
End/Thursday, February 13, 2003
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