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Speech by Acting Permanent Secretary for Security at the HKU Conference on National Security Legislation


Following is the full text of a speech by the Acting Permanent Secretary for Security, Mr Timothy Tong, at the HKU Conference on National Security Legislation today (June 14):

Professor Chan, Dr Forsyth, Distinguished Guests, Ladies and Gentlemen,

There is an old saying that always makes me think: "Which came first, the chicken or the egg?" In the same vein, one may ponder whether popular culture has given birth to the popular media, or vice versa; or whether public perceptions shape the political reaction to certain issues, or are themselves shaped by that political reaction.

I mention this because there have been some very strong, and I might say negative, perceptions in some quarters of our community about our proposed national security laws. My job today is to address those concerns. And what I am about to say is essentially what we have been saying since we published our proposals more than eight months ago - let judgement about this matter be based on a calm, rational and informed debate.

With this in mind, I plan to present the Government's view from the broader policy perspective and to provide the basic thinking behind the legislative proposals. My colleague, James O'Neil from the Department of Justice, will be concentrating on the more technical and legal aspects of the subject of our discussion.

Rational Discussion


So, let's put aside preconceived ideas or perceptions and take a close look at what is being proposed - for example, how we have taken the opportunity to modernize many of our existing laws and to narrow them considerably in scope.

A vital part of the legislative process continues today. As I speak, the Legislative Council Bills Committee on the National Security (Legislative Provisions) Bill is meeting. Like all Bills Committees, it conducts a clause-by-clause review of the proposed legislation. Like all Bills Committees, changes to wording are proposed and will be voted upon by members. Like all Bills Committee meetings, the media is following the process and will be briefed by committee members after the meeting. And, we'll read about it tomorrow in the papers. If there is one thing we should all agree on, it is the need to move forward with our proposals, and to eventually fulfil our constitutional duty and implement these laws, in accordance with our established rules and accepted values.

In many respects the deliberations on this bill are like that of any other bill. But we all know that this is not just any other piece of legislation - it is probably the most important piece of legislation we have discussed since Reunification. It is, in fact, the 'missing link' in the full implementation of the Basic Law. And it goes to the very heart of what 'One Country, Two Systems' is all about. Here we are, a Special Administrative Region of China, legislating on our own to protect the security of our country. We undoubtedly have a moral obligation to do so. We also have a constitutional and legal duty to do so under the Basic Law, which we must not forget is a national law of China. But we have been given the freedom to draw up these laws on our own so that they dovetail with our own common law system, and the rights and freedoms we enjoy as citizens and residents of Hong Kong under the Basic Law.

One Country Two Systems


I should elaborate further: the Basic Law is constituted under Article 31 of the Constitution of the People's Republic of China (PRC). The Basic Law is the constitutional basis of Hong Kong and, through its promulgation, enables the Hong Kong Special Administrative Region (HKSAR) to enjoy a high degree of autonomy. We have a separate legal system, a separate and independent judiciary. We are a separate customs territory, we have separate taxation and monetary systems, separate electoral systems, a regional flag and regional emblem, independent membership of international and regional trade and sports bodies such as the World Trade Organisation, Asia-Pacific Economic Cooperation and the Olympics - and the list goes on.

Indeed, the 'One Country, Two Systems' arrangement, guaranteed under the Basic Law, was, and still is, a unique and pragmatic example of how the historical problems of colonisation could be resolved. In Hong Kong's case, it has been implemented in a seamless manner since 1997.

The National Security (Legislative Provisions) Bill


As I alluded to earlier, it is this concept that allows us to enact laws to implement Article 23. And the heart of the issue is two fold - the subject of the protection provided by national security legislation, and the reasonableness of the provisions.

First, while 'Two Systems' allow for the continuation of our way of life, including the common law system we hold dear, it is clear the subject of the protection is the common interest of 'One Country', regardless of one's political views or ideological aspirations.

Perhaps, at this point, it is timely to remember that there is no obligation for Hong Kong residents to contribute towards the fiscal health of the Mainland or the stationing of the People's Liberation Army Garrison here; nor, for that matter, are Hong Kong citizens subject to conscription. The requirement imposed under Article 23 is clear and reasonable - to protect the security of our Country using our own Hong Kong laws.

Some may be prepared to argue that because of the fundamental difference in the political makeup of the Mainland and Hong Kong, there is no obligation for the HKSAR to protect something which may not sit well with some people. Or that because of the scheduled methods and timeframe for selecting the Chief Executive under Article 45 and forming the Legislative Council under Article 68, Hong Kong should not embark on implementing Article 23.

But we shouldn't lose sight of the new constitutional order following Reunification. The essence of 'One Country, Two Systems' can only be realised based on the common interest of One Country so as to give implementation of Two Systems its locus standi. Hong Kong is part of China.

The Central People's Government


In legislating, our concern is not to consider whether it is politically correct to 'advocate' the lawfulness of 'overthrowing' the Central People's Government by peaceful means, such as winning elections. Our concern is to ensure that there is nothing in the National Security (Legislative Provisions) Bill that suggests that doing so would be criminalised. And this brings me to my next point.

The second most important aspect of the proposals to implement Article 23 is whether the proposed criminal sanctions are justified vis-a-viz the acts that are sought to be prohibited, and also whether internationally-accepted standards on rights and freedoms are faithfully followed.

For example, is it right to overthrow the Central People's Government by war, or by serious force or criminal means akin to terrorism? Will it be justified and reasonable to do so because a person does not agree with certain ideological or political practices in the Mainland? Is it right to say that because a person does not agree with the Chinese brand of socialism, which is stipulated in the PRC Constitution, that Chinese socialism should not be protected from being overthrown by war or other atrocious means?

In today's modern civilised society, the answers are clearly no. Therefore, if the National Security Bill seeks only to penalise endangering the security of China, through acts done in Hong Kong or by a Hong Kong citizen, and those acts are as atrocious as waging war, or through other means that would endanger the safety or stability of the whole country, then no rational person could object to this.

The government has no intention of targeting political dissent or advocacy. Nor is it targeting particular people or groups. There is absolutely no hidden agenda.

Human Rights and National Security


The National Security Bill has been drafted with the protection of human rights uppermost. Indeed, it is stated not once, but three times, that all its provisions must be interpreted, applied and enforced consistent with Chapter III of the Basic Law, and consistent with international standards on the rights and freedoms of the individual. At the risk of overstepping my place in today's congregation of legal and constitutional law experts, I will add that the Basic Law is probably unique amongst other better-cited constitutions, in that it affords equal protection for the rights and freedoms of all residents in Hong Kong, without any prerequisites for nationality or citizenship.

But, we must not lose sight of the need to protect the security of the 'One Country' - a country which just happens to be the guarantor of the 'Two Systems'.

Even before Reunification, Hong Kong has been inextricably linked with the Mainland for its continued success, if not its survival, as an economic entity. The Mainland's steady growth in the midst of the Asian financial turmoil and beyond lessened the pain of our economic restructuring; while our increasing social and business ties with the Mainland are self-evident.

For example, last year cross-boundary passenger traffic reached a daily average of more than 350 000 - a 50 per cent jump over the 1998 figure. The Central People's Government has pledged its unfailing support for Hong Kong, including a Closer Economic Partnership Arrangement for which discussions are now in their final stage. Yet, our separate independent immigration and customs control systems remain intact. Although this physical barrier will stay, the Severe Acute Respiratory Syndrome epidemic clearly demonstrated that our ties with the Mainland go way beyond economic links. As the Chief Executive recently observed, we breathe the same air, drink the same water, and eat the food produced from the same farms. We are the same nation; and I will add that we share the same concerns about law and order although we have different ways to address them.

So, the task before us is to find the right solution to address the requirements of our unique position and to satisfy the diverse views of our people, using our own methods to balance the needs of 'One Country' and the core values of our open and plural society.

Open and Transparent Process


Our proposals have generated an enormous amount of interest among political parties, the media, academics and the business community. There have been many questions. We have been faithfully answered those questions.

The consultation that took place from September to December last year was one of the largest ever conducted in Hong Kong. I doubt if anyone has seen more vigorous debates, more colourful representations, or more detailed critiques from the community. The exercise itself attracted different comments and interpretations, but two points are beyond dispute. First, the full results of the consultation have been revealed to the public in the clearest and most objective manner possible. Second, a majority of people supported the constitutional duty to legislate to protect national security.



The presence today of so many distinguished professors and experts from places afar reminds me of why I simply could not subscribe to the more dramatic views such as those of Professor Samuel Huntington who, a decade ago, was predicting the 'clash of civilizations' between peoples belonging to different cultural entities. I prefer to believe that people from different cultures and systems can learn from each other because of, and despite, their diversities.

Hong Kong is a vibrant pluralistic, rules-based society; a cosmopolitan city embracing the cultures of the East and the West. But we are also an inalienable part of China. The National Security Bill now before the legislature and the people of Hong Kong has, we firmly believe, struck a fine balance between the undeniable need to fulfil our constitutional duty to protect national security, and to ensure that the rights and freedoms that we cherish are fully safeguarded.

Thank you.

End/Saturday, June 14, 2003


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