National Security (Legislative Provisions) Bill

Protection of rights and freedoms

The Basic Law

The Basic Law was enacted by the National People's Congress in accordance with the Constitution of the PRC and is the constitutional document of the HKSAR. The systems and policies practised in the HKSAR, including the social and economic systems, the system for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and judicial systems shall be based on the provisions of the Basic Law.

No law enacted by the legislature of the HKSAR shall contravene the Basic Law, including its provisions on the protection of freedoms and rights.

Freedoms are fundamental rights

In an open and democratic society, the government is subject to close public scrutiny. Protection of the freedom of speech serves to guarantee the rights of the public to form and effectively communicate their opinions, including those that are critical of government policies and measures. The right of assembly and the freedom of association enable citizens to join forces to express their views more effectively.

Freedom of speech, of assembly and of association are not absolute, as the exercise of the rights of the individual can have a detrimental effect on the rights of others and on society as a whole and should therefore be subject to necessary restrictions. As recognized under many international covenants, constitutions and legislation, the exercise of freedoms and rights of the individual carries with it special duties and responsibilities.

Constitutional protection under the Basic Law

Chapter 3 of the Basic Law protects the freedom of speech, of the press, of publication, of association, of assembly, of procession, of demonstration, of religious belief, and the freedom to engage in academic research, literary and artistic creation. Restrictions on such rights and freedoms must comply with the provisions of the two international human rights covenants as applied to Hong Kong.

The ICCPR, which is applied to Hong Kong through Article 39 of the Basic Law, spells out the responsibilities carried with the exercise of the rights and freedoms.

"Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. .... (The exercise of the right to freedom of expression) carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals." - for details, see Article 19 of the ICCPR "Everyone shall have the right to freedom of association .... No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public) ...." - for details, see Article 22 of the ICCPR

All laws that implement Article 23 must not contravene the human rights protections stipulated in the Basic Law.

Clear safeguards stipulated by the Bill

The offences are strictly defined in the Bill and they are consistent with the human rights provisions of the Basic Law. No one will mistakenly breach the law.

An internationally renowned specialist in human rights law, Mr David Pannick, QC, pointed out in his opinion to the HKSAR Government that the proposals in the consultation paper are consistent with the protection of human rights.

The Bill is based on existing legislation. All provisions will be interpreted by the Hong Kong courts in accordance with the common law principles. Mainland legal concepts will in no way be extended to Hong Kong.

Compliance with Chapter III of the Basic Law explicitly specified

To further protect human rights, the Bill explicitly specifies that all provisions must be enforced, applied and interpreted in accordance with Chapter III of the Basic Law. In other words, the provisions must comply with the standards of international human rights covenants.

Freedom of speech will not be undermined

The proposed offence of 'sedition' under the Bill adopts the existing common law concept of 'incitement'. Under common law, 'inciting' others to commit a substantive offence, such as murder or theft, is itself an offence.

To convict a person of the common law offence of 'incitement', the prosecution must prove beyond reasonable doubt that : (a) he has compelled or encouraged others to commit a crime; and (b) he has the intention that others, after being incited by him, shall commit the crime. Therefore, if the person does not believe that others would commit the offence incited, he does not commit an offence of 'incitement' because he lacks the requisite intention.

Sedition is defined in the Bill to mean 'inciting' others to commit treason, secession or subversion, or inciting others to engage in violent public disorder which would seriously endanger the stability of the PRC. The offence is firmly based on common law principles and is consistent with the international standards on protection of freedom of speech. The scope of criminal law has not been expanded.

The 'intention' and 'likelihood' principles of the Johannesburg Principles are included in the proposed amendments to the Bill to further safeguard the above freedoms.

Freedom of the press is fully protected

To ensure that the offence of unlawful disclosure would not impede the freedom of the press and the free flow of information, and to ensure that the Government remains open and transparent, the Bill explicitly stipulates that the interpretation of the provisions of unlawful disclosure must also comply with Chapter III of the Basic Law.

When investigating any of the Article 23 offences, judicial warrants must be obtained before journalistic materials can be searched or seized. The proposed emergency investigation powers will not apply to the search and seizure of journalistic materials.

Judicial safeguards

The independence and integrity of the judiciary of Hong Kong is well-recognized by the international community.

Provisions implementing Article 23 are local laws, and will operate entirely within the existing common law framework. The rights of residents are fully protected.

As an additional safeguard, the Bill further provides that the consent of the Secretary for Justice must be obtained before prosecution of the relevant offences can be instituted.

The Bill clearly stipulates that people charged with treason, secession, subversion, sedition or unlawful disclosure will either be tried by jury or given a right to opt for jury trial if they so wish. Whether a person is convicted would ultimately be determined by a jury. Jurors are selected randomly from members of the public, thus guaranteeing that the widely accepted social values will be reflected.

To find out more about the Bill to implement Article 23 of the Basic Law, please obtain the text of the Bill at the Public Enquiry Service Centres of District Offices or visit the website: www.basiclaw23.gov.hk