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. 2. 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 law. 3. 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 example – 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 the offences of possessing seditious publications, and of failing to report an act of treason would be repealed instead of liberalised.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. 4. 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 such offences. 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. 5. 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 appeals. 6. 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'. 7. 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.

April 2003

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