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Speech by the Secretary for Justice,
Ms. Elsie Leung, in a motion debate on
the Appeal by the Hon. Lee Cheuk-yan to the people
of Hong Kong to take part in lst July march
to oppose the enactment of legislation to implement
Article 23 of the Basic Law in the Legislative Council on
Wednesday the 25 June, 2003
Madam President,
It was just six and a half months ago that in this Chamber, I
spoke in the debate of the motion by the Hon. Albert Chan on the
enactment of laws to implement Article 23 of the Basic Law. I went
at length to illustrate why the rights and freedoms of Hong Kong
citizens would not be reduced with the passing of such laws, why
the rule of law would not be damaged as a result of the implementation
of Article 23, and how the proposals put forward in the Consultation
Paper on the subject published on the 24 September, 2002 would
pass the litmus test of "one country, two systems".
I also responded to the comments by the Hon. Members on drafting
of offences, the appeal mechanism, and whether the proposals went
further than Article 23 of the Basic Law required. |
| 2. |
It seems that today, we are going over the same process once
again. However, I can now speak with greater confidence, given
that the National Security (Legislative Provisions) Bill 2003 has
since been introduced into this Council, and will pass all these
tests. After the full text of the bill was published, many of the
worries have disappeared.
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| 3. |
Shortly after the Reunification, the Department of Justice started
to collect information on legislation relating to national security
of other jurisdictions, including those with the common law system
and with the civil law system. We studied the existing legislation,
the international covenants, and principles and case law on the subject.
We prepared ourselves for rendering advice to the policy bureau,
namely, the Security Bureau, and for drafting legislation for the
implementation of Article 23 of the Basic Law when the time was ripe
to do so. |
| Misconceptions |
| 4. |
Throughout the process of preparation for the enactment of law,
we have adhered to certain guiding principles. They were:
- Any
legislation introduced into this Council must not contravene
the Basic Law (Article 11).
- Any restriction of rights and freedoms must be consistent
with the continued application of the International Covenant
on Civil
and Political Rights (Article 39).
- Offences to implement Article 23 should be clearly and
tightly defined to avoid uncertainty and in accordance
with the common
law system.
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| 5. |
Had we introduced a bill for the implementation of Article 23 of
the Basic Law in September, 2002, the bill might have fallen short
of the expectations of the people of Hong Kong. Crimes against national
security are sensitive issues. Without listening to people's
voices, we would not have been able to see the matter from their
angle. For example, librarians worried about the offence of possession
of seditious publication, although that has always been part of our
law. However, the Administration arranged three months of consultation,
meetings with various sectors of the community, and over 250 forums,
seminars and meetings. It received more than 100,000 submissions
from all walks of life (many of them containing knowledgeable and
considered opinions) and some 250,000 signatures. As a result, the
bill introduced into the Legislative Council on the 26 February 2003
was not the product of the Security Bureau and the Department of
Justice alone, but also incorporated the views of a large number
of people. The consultation and debates over the proposals were unmatched
in the recent legal history of Hong Kong. Indeed, a survey on news
stories published a couple of days ago showed that the implementation
of BL 23 attracted greater public attention than the promulgation
of the Basic Law itself. |
| 6. |
The Bill incorporates following changes to the proposals contained
in the Consultation Paper:
- The definition of "war" in
treason is restricted to publicly declared war or open armed
conflicts so as to exclude demonstrations and riots; the common
law of misprison
of treason is expressly abolished; and treason will not apply
to non-Chinese nationals.
- "Threat of force" is deleted as an element of
secession and subversion so that the offences would be limited
to those who
engage in war or the use of force or serious criminal means
that seriously endanger the stability or territorial integrity
of the
PRC.
- "Resisting the exercise of sovereignty" is deleted
from secession.
- There must be an intention to incite treason, subversion,
or secession in an offence of handling seditious publication
and the
offence of possessing seditious publication is abolished.
- Information relating to the relationship between the
Central Authorities and Hong Kong will only be protected
if it relates
to affairs for which Central Authorities are responsible
under the Basic Law, and the unauthorized disclosure
of the same
would only be penalized if it endangers "national
security" as
defined. Furthermore, under the newly added s.18(2)(d)
of the Official Secrets Ordinance, the damaging disclosure
of protected
information
acquired by means of illegal access would only be an
offence if it is unauthorized, and the information
is obtained through
criminal
means such as computer hacking, theft or bribery. Unauthorized
disclosure of protected information leaked by public
servants would not apply to leaks by mainland officials.
- Persons aggrieved by a decision of the Secretary
for Security to proscribe an organization subordinate
to
a Mainland organization
which is banned on the ground of national security
may appeal to the Court of First Instance on points
of both
law and
fact.
l Investigative powers of the police under the new
Part IIA of the Crimes Ordinance shall not be exercised
in
respect of journalistic
materials and the proposal to seek additional financial
investigation
powers was withdrawn.
- Safeguards for human rights are added by ensuring
that the application, interpretation and enforcement
of the
new provisions must be in
a manner consistent with Article 39 of the Basic
Law.
- Right to elect for trial by jury is made available
to all Article 23 offences.
These changes were proposed by legal academics, legal professional
bodies, Chambers of Commerce, consular representatives of several
countries, political parties, media organizations, librarians,
non-governmental organizations, etc. who made representations to
the Government during the consultation period.
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| 7. |
Honorable Members are aware that since the Bill was introduced
into this Council, a Bills Committee was established and has to date
met 25 times (more than 90 hours), in addition to hosting four public
hearing sessions to receive the views and comments of more than 100
individuals and organizations. Some 100 information papers and 200
written submissions have been considered by the Committee. As a result,
the Government has announced that it will make the following Committee
Stage Amendments:
- A likelihood test is introduced so that the offence
of sedition would be limited to situations where a person intends,
and is likely to, induce others to commit treason, subversion
or secession, or engage in violent public disorder; and a three
year
time limit is imposed for prosecuting an offence of handling
seditious publications.
- The reference of "national security" is removed
from the existing section 8 of the Societies Ordinance, so
that the
Secretary for Security could only proscribe an organization
on the ground of national security in the limited situations
specified
in the new section 8A. In addition, the rules governing the
special appeal arrangements shall be made by the Secretary
for Security,
subject to the positive approval of this Council (as opposed
to what the Hon Yeung Sum said that the Secretary for Security
was
free to make whatever rules she wanted), instead of by the
Chief Justice as originally proposed.
- The exercise of emergency search powers under Part IIA
of the Crimes Ordinance must be authorized by a police
officer at or above
the rank of Assistant Commissioner of Police.
- The application, interpretation and enforcement of the
relevant Ordinances must be in a manner consistent with
the human rights
guarantees entrenched in Chapter III of the Basic Law
instead of Article 39 only.
These changes were again made on the recommendation of Honourable
Members, the legal profession, academics, the media and non-governmental
organizations, etc. who made representations to the Bills Committee.
They include, amongst others, the views of Prof. Albert Chen, The
Hong Kong Bar Association, The Law Society of Hong Kong, The Association
of the Bar of the City of New York, The Society of Publishers in
Asia, News Executives Association, etc. The Government does listen
to their views and takes the legislative process seriously.
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| 8. |
Because of the sensitivity of the Bill, we have taken meticulous
care to maintain a good balance between protecting national security
and safeguarding the fundamental rights and freedoms of Hong Kong
people. Indeed, the Bill contains more human rights safeguards than
any other ordinance. To name a few, they are:
- An express provision
that the application, interpretation and enforcement of the
law must be in a manner that is consistent with Chapter III of
the
Basic Law.
- The use of force, violence, serious criminal means or public
disorder is an element of the offences of treason, subversion,
secession and sedition.
- The right to elect trial by jury.
- The repeal of overly broad provisions relating to treasonable
offences and offences relating to the head of state.
- The retention of provisions to ensure that expressions
of opinion and criticism of the government remain lawful.
We are convinced that the Bill complies with the human rights
standards set by the ICCPR. The dispute is how far above this yardstick
we should place our level of acceptance. The fact that we do not
agree to certain demands of some Honourable Members does not mean
that we are in breach of the ICCPR. The government must find a
proper balance between national security and the rights and freedoms
of the citizens.
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| 9. |
Time does not permit me to deal with all the controversial issues
in respect of which requests for amendments have not been acceded
to. I would deal with some major ones:
| (1) |
Proscription of a local organization that is subordinate
to a Mainland organization that has been banned on the grounds
of national security: It has been alleged that this introduces
Mainland law into Hong Kong, blurs the distinction between
the two systems and is targeted at certain identified local
organizations. All these allegations are incorrect. Since 1949,
the British government made it known that Hong Kong should
not be used as an anti-China base. Is it even more so when
China has resumed the exercise of sovereignty over Hong Kong?
Because of the free flow of information and people across the
border, there is a need to prevent local organizations from
being used for endangering national security. Crimes against
national security cause calamities, resulting in the loss of
lives and enormous damage to property, and every effort should
be taken to prevent them from happening. Terrorist associates
can be proscribed under the United Nations (Anti-Terrorism
Measures) Ordinance without having committed any crime of terrorism.
By the same token, it should be possible to proscribe local
organizations if they are subordinate to organizations which
endanger national security in the Mainland, and they are themselves
a threat to national security. When we talk about national
security, there is only one nation, that is, the People's
Republic of China. But the manner in which national security
is to be protected and the procedure for proscription must
be dictated by the laws of the respective jurisdictions, i.e.
the laws of the PRC applies to Mainland organizations and the
laws of Hong Kong apply to local organizations. If an organization
in the Mainland is banned on the ground of national security,
the Secretary for Security is, of course, put on alert whether
a similar threat to national security would be perpetrated
by a local organization whose funding comes mainly from such
Mainland organization, or is under the direct direction or
control of the Mainland organization, or has its policies determined
directly or indirectly by the Mainland organization. Procedurally,
the Mainland organization is banned in accordance with the
Mainland law, and the Hong Kong organization may be proscribed
in accordance with the Hong Kong law, which gives the Secretary
for Security the discretion whether or not to proscribe. In
the exercise of such discretion, the Secretary for Security
must have reasons to believe that the proscription is necessary
in the interests of national security and is proportionate
for such purpose. On appeal, if the Court is not satisfied
that the Secretary for Security has correctly applied the law,
or that there is sufficient evidence to prove that the ground
exists or that there is sufficient evidence to justify a reasonable
belief that the proscription is necessary in the interest of
national security and is proportionate for such purpose, it
will set aside the proscription. It can be seen therefore,
the provisions for proscription is an exact illustration of "One
country, two systems": the enactment of the law is necessary
for the protection of one country, but what would justify a
proscription and the procedure for proscription are determined
by the respective laws and procedures of the two jurisdictions.
The issuance of a certificate is to facilitate the proof of
the fact of proscription of the organization in the Mainland
in accordance with the legal system in the Mainland, and does
not affect the right of the court to set aside the proscription
of the local organization if the Secretary for Security does
not exercise his power properly.
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| (2) |
The offence of handling seditious publications: It has been
said that the retention of this offence is a threat to the
free flow of information. This is untrue. The Bill defines
sedition so narrowly that it takes away from the current law
of seditious intention concepts such as "hatred", "contempt", "discontent", "feelings
of ill-will" or "enmity". It replaces them
with incitement to commit the offence of treason, subversion,
or secession, or incitement to engage in violent public disorder.
Furthermore, the proposed Committee Stage Amendment to add
a "likelihood to induce" test introduces a further
safeguard. The new offence cannot be a threat to the media
or to the free flow of information.
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| (3) |
Public interest as a defence to unauthorized disclosure
of protected information: much controversy has arisen on this
subject. Such a defence has never been provided either in Hong
Kong's official secrets legislation, or in the UK legislation
on which it is based. The issue was thoroughly debated in the
UK Parliament in 1989 and in Legislative Council of Hong Kong
in 1997 when the Official Secrets Act was localized. Both legislatures
rejected the call for such a defence. Unauthorized disclosure
of protected materials would only constitute an offence if
the protected materials were obtained through a leak by a Hong
Kong public servant or through defined illegal means and the
disclosure is damaging. It is unsafe to ask journalists or
others to decide what is and what is not in public interest,
because the damage would be irreparable if later on they are
found to have made a wrong judgment. Without such a statutory
defence, the public interest is still a matter to be taken
into consideration in exercising the prosecutorial decision,
and as a matter of mitigation. |
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| 10. |
Madam President, I speak against the resolution not because I am
against people taking to the streets. The 1st of July is a day of
celebration in Hong Kong: the anniversary of its reunification with
the Mainland and the establishment of the HKSAR, and when families
will come out in a jovial mood to enjoy themselves after overcoming
SARS. The enactment of law and the scrutiny of a bill is best done
in this Chamber, by those in whom the public has placed its trust,
and where the public has already had plenty of opportunity to express
their views. Be that as it may, I respect people's freedom
of procession and of demonstration so long as they exercise their
right in an orderly way in accordance with the law. I rise to speak
against the motion because I cannot agree that the enactment of legislation
to implement Article 23 of the Basic Law should be protested against.
It is our obligation to enact laws to protect national security in
accordance with Article 23, and the Bill enables us to fulfil such
obligation. All the talk about erosion of human rights and freedoms,
damaging the rule of law and destroying "one country, two systems" is
a repetition of what has been said in the past 6 years on almost
every issue when people hold different views from the Government.
In the Asian Intelligence published by the Political and Economic
Risk Consultancy Ltd. on the 4 June 2003, our current situation in
respect of the legal system was described as "Very good" with
the perception trend of "improving". It said, and I quote: "There
is probably no aspect of Hong Kong that better illustrates how the 'one
country, two-systems' concept works in practice than Hong Kong's
judicial system." It is unfortunate that we cannot appreciate
our strength and use it in reviving our economy, improve our public
hygiene and make Hong Kong a better place in which to live, but frighten
people with doomsday prophecy that never come true, while people
from outside acclaim our success in maintaining "one country,
two systems", the rule of law and independence of judiciary,
transparency and the combat against SARS. I urge Honourable Members
to vote against the motion. |
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