Why we need BL 23 offences by Bob Allcock, Solicitor General
All countries need laws to protect their sovereignty, territorial integrity, unity and national security. In the case of China, the national laws on these subjects do not extend to Hong Kong. Instead, the Hong Kong SAR has been given the responsibility of enacting relevant laws to fill the gap that would otherwise arise. This is in full accord with the "one country, two systems" arrangement.
Why aren't our existing laws on this subject adequate? According to many lawyers, those existing laws already cover most of the activities referred to in Article 23.
This is true. But those laws suffer from a number of defects. The law of treason, for example, is based on the antiquated British law of treason, which largely protects "Her Majesty" or the "Crown of the United Kingdom". The offence therefore needs to be both modernised and adapted to reflect our new constitutional order.
The current law of sedition has been criticised for being too broad. An offence can be committed by a person who utters "seditious words" even though he has no intention of causing violence or creating public disorder or a public disturbance. Such an offence has been criticised for interfering with freedom of expression. We propose to restrict the offence accordingly.
Can't we achieve these reforms through amendments to existing laws? Why do we need new offences of secession and subversion? According to the Bar Association, the existing laws are sufficient to deal with subversive activities and activities which advance a secessionist cause. Moreover, secession and subversion are not common law offences. Won't additional laws on these subjects encroach upon our freedom of speech and other treasured liberties?
The answers to these questions are given in the Consultation Paper. Instead of duplicating existing offences, or creating wholly new types of offences, it is proposed to implement Article 23 mainly by restructuring existing offences.
The current wide-ranging and antiquated law of treason should be replaced by three new offences focused on different types of activities.
- the offence of treason will be narrowed in scope so that it relates only to external threats to the nation.
- the offence of secession will deal with threats to territorial integrity.
- the offence of subversion will deal with internal threats to the PRC Government and Constitution.
Most of the elements of the proposed offences of secession and subversion are already covered by the existing offences of treason or treasonable offences. The only acts that will be covered by those proposed offences are "levying war", the use or threat of force, and "serious unlawful means". "Levying war" is an element of the current law of treason, both here and in most common law jurisdictions. The use or threat of force, with the proposed mental elements, is either covered by current treasonable offences or is akin to criminal intimidation directed against the government. And "serious unlawful means" will be restricted to criminal conduct that is akin to a terrorist act.
The proposed new law relating to sedition will be narrower in scope than the existing offence -
- by requiring an intention to incite violence or public disorder that seriously endangers the stability of the state or of the HKSAR, and
- by restricting the definition of seditious publications to those that are likely to incite treason, secession or subversion.
The offence of sedition will also be amended to cover an act of inciting others to commit treason, secession or subversion. But such conduct would already be an offence under the general principles of our criminal law.
The current law relating to official secrets will also remain largely unchanged. The only significant proposal is to create a new offence of making an unauthorized and damaging disclosure of protected information obtained, directly or indirectly, by unauthorized access. The reference to "protected information" is a reference to the four categories of information currently covered by offences of unauthorized disclosure (namely, information relating to security or intelligence, defence, international relations, and the commission of offences or criminal investigation), plus information relating to relations between the Central Authorities and the Hong Kong SAR.
The remaining areas included in Article 23 relate to foreign political organizations. The current provisions that prohibit certain types of "connections" between narrowly-defined foreign political organizations and narrowly-defined political bodies in Hong Kong are not to be enlarged.
It is, however, proposed to create a new power to proscribe an organization that -
- commits, or aims to commit, an Article 23 offence.
- is affiliated with a Mainland organization that has been proscribed in the Mainland on the ground that it endangers national security, or
- is connected with an organization that has been proscribed in Hong Kong.
However, this new power is no wider than existing powers under the Societies Ordinance. Moreover, it is subject to several safeguards. In particular, an organization can only be banned in circumstances that are permitted under the International Covenant on Civil and Political Rights. And there will be a right of appeal against any banning.
I hope this summary will help to reassure those who feared that the Article 23 proposals would be draconian. They are not. The Administration is committed to the protection of fundamental human rights enshrined in the Basic Law and the International Covenant on Civil and Political Rights. There is no intention to interfere with those rights.
Other important aspects of the Article 23 exercise are the process that will be adopted and its timing.
Some commentators have suggested that the issue should have been referred to the Law Reform Commission. There are two reasons why this was not considered appropriate. Firstly, the formulation of proposals to protect national security involves issues of policy that are, perhaps more than any others, the responsibility of the government. Secondly, if the Law Reform Commission were to tackle such a controversial issue, it would risk losing its standing as a politically neutral body.
A thorough review of comparative laws has, however, been conducted. And the process that is being adopted for this exercise will ensure that there is ample time for all members of the community, including lawyers, to participate. Their comments are invited both during the consultation period and when the Bill is eventually published.
As to timing, some have asked why legislate now? If we didn't need the legislation during the past five years, why can't we wait a few more years? Ideally, Article 23 laws should have been in place soon after Reunification. But, at that time, there were other priorities. The fact that there was no need to prosecute anyone for a relevant offence during that period does not, of course, mean that the laws are not needed. It would be irresponsible to delay the enactment indefinitely.
There is an additional reason why I think this is the right time to deal with the matter. Our five years of experience under "one country, two systems" has helped dispel certain concerns. On the one hand, Hong Kong has not become a base for subversive activities against the Central Authorities. On the other hand, the Central People's Government has not interfered with Hong Kong's high degree of autonomy, or sought to restrict human rights here.
That experience should now enable the community to discuss the Article 23 proposals calmly and rationally. The process need not be divisive. With goodwill on all sides we can try to build a consensus on the types of laws that are considered to be best both for the people of Hong Kong and for China.