Freedoms will be preserved
by Bob Allcock, Solicitor General
Hong Kong Special Administrative Region
|Instead of having mainland China's national security laws applied
to it, the Hong Kong SAR has a constitutional duty to enact such
laws on its own in accordance with Article 23 of the Basic Law.
It also has a constitutional duty to comply with the International
Covenant on Civil and Political Rights as applied to Hong Kong.
The SAR Government is committed to fulfilling both obligations.
||In a public Consultation Document issued last September,
the Government set out its initial proposals. These
were in many ways more liberal than the existing
security laws, which were enacted under British administration.
The proposed new laws were based upon common law
traditions, and would be entirely different from
those in the Mainland. One of the UK's leading human
rights experts, Mr David Pannick QC, was satisfied
that the proposals were consistent with human rights
By the end of the three-month consultation period,
over 100,000 submissions had been received. In
January, the SAR Government announced its plans
for the way forward. In doing so, it made a sincere
effort to meet many of the concerns raised. For
- the offence of treason will apply only to Chinese nationals.
- the offences of possessing seditious publications, and of failing
to report an act of treason would be repealed instead of liberalised.
- trial by jury would be available for all serious offences, and
- the concept of 'levying war' (found throughout the common law
world) would be replaced by a narrower concept of engaging in war
in the normal sense of the expression.
On February 14, the much-awaited Bill was published.
This contains further limitations on the offences,
and more safeguards of freedoms.
- The offence of treason will apply only in war-time, or to those
who instigate foreign armed forces to invade.
- Secession and subversion will only be committed by those who
engage in war, or who use force or serious criminal means that
seriously endanger (respectively) the territorial integrity or
stability of the PRC.
- Sedition will be limited to the incitement of acts or treason,
secession or subversion, or of violent public disorder that would
seriously endanger the stability of the PRC.
- A person will commit an offence of handling seditious publications
only if the publications are likely to cause acts of treason, secession
or subversion, and he has an intent to incite others to commit
- Unauthorized disclosures of information concerning relations
between Hong Kong and mainland Central Authorities will be limited
to affairs which are, under the Basic Law, the responsibility of
mainland Central Authorities. An offence will be committed only
if the disclosure was likely to endanger 'national security', which
is defined as safeguarding the territorial integrity or independence
of the PRC.
- Certain local organizations can be banned, but only if the Secretary
for Security, acting in accordance with human rights guarantees,
reasonably believes that the ban is necessary for and proportionate
to the safeguarding of 'national security', as so defined.
||Initial reactions to the Bill indicate that some
people still remain concerned about certain proposals.
The power to ban a local organization that is subordinate
to one banned in the Mainland on the grounds of protecting
the security of the PRC is criticised by some, despite
the restrictions mentioned above. However, appeals
will be possible to the courts, which are fiercely
independent and committed to preserving human rights.
A proposed rule-making power which may lead to an
appellant and its legal representative not hearing
some evidence relating to sensitive national security
issues is modelled on UK legislation concerning immigration
||Some commentators call for a public interest defence
in relation to unauthorized disclosures of official
secrets. Such a defence is not provided under UK
law, on which Hong Kong's legislation is based. Moreover,
as stated above, the unauthorized disclosure of a
newly defined category of information will only be
an offence if it is likely to endanger national security.
In such circumstances, it does not seem appropriate
to permit disclosures 'in the public interest'.
||The publication of the Bill signals the beginning
of the legislative process. That process will enable
the public debate of the proposals to continue, both
inside and outside the legislative chamber. Amendments
are commonly made to Bills, and the Article 23 Bill
is unlikely to be an exception. What is crystal clear
is that the SAR Government has done its best to address
concerns raised by members of the public. In so doing,
it has produced a Bill that strikes a fair balance
between protecting national security and safeguarding
rights and freedoms in Hong Kong.