of 'One Country, Two Systems' Safeguarding
||The Hong Kong Special Administrative Region (HKSAR) has
a constitutional duty to enact laws to give effect to Article
23 of the Basic Law.
||The National Security (Legislative Provisions) Bill proposed
by the Government amends and improves upon the existing
laws on treason, sedition and official secrets, resulting
in more liberal provisions.
||The Bill stipulates explicitly that the interpretation,
application and enforcement of all its provisions must comply
with Chapter III of the Basic Law, which incorporates international
human rights standards. The freedoms and rights of Hong
Kong residents as stipulated in the Basic Law will continue
to be protected.
|Enacting laws now to give effect to Article 23 of the
Basic Law is beneficial to the implementation of 'One
Country, Two Systems' principle and is in the long-term
interests of Hong Kong. We appeal to the public to support
the enactment of the Bill to safeguard national security
under the Basic Law and the 'One Country, Two Systems' principle.
and thorough discussions
|Proposals to give effect to Article 23 have
been fully and thoroughly discussed by all sectors of the
community since the publication of the Consultation Document
|After three months of extensive public consultation,
Government introduced the National Security (Legislative
Provisions) Bill into the Legislative Council for detailed
scrutiny in February this year. After fully taken into account
public views, appropriate amendments have also been made
to the proposals.
and scrutiny of the Bill
of Consultation Document and Leaflets
|Submissions to the
more than 100,000
|Meetings and interviews
attended by officials
more than 300
|Joint panel meetings
held by Legislative Council
more than 30
and individuals attending public hearings of LegCo
more than 110
of the Bill)
|Bills Committee meetings
more than 90
|Documents and submissions
presented to the Bills Committee
more than 290
laws will not be introduced
||The Bill was drafted in accordance with the principles
of 'One Country, Two Systems' and that the HKSAR
shall legislate on its own, on the basis of existing laws
and the common law. The laws enacted will operate under
the framework of the present legal system of Hong Kong.
All provisions, including the meaning of 'national
security' and categories of information protected
under the Official Secrets Ordinance, will be defined by
the laws of Hong Kong, and will ultimately be interpreted
by the courts of Hong Kong.
safeguards for human rights and freedoms
||The rights and freedoms of HKSAR residents, including
the freedom of speech, of the press, of procession, demonstration
and association, and freedoms stipulated under international
human rights covenants, are protected through Chapter III
of the Basic Law.
|All local legislation, including those implementing Article
23 of the Basic Law, cannot override these protections under
the Basic Law.
|To underline these protections, the Bill explicitly stipulates
that the interpretation, application and enforcement of
all provisions must comply with Chapter III of the Basic
|The provisions of the Bill have been clearly and tightly
drafted. Existing definitions and provisions that are too
wide in scope have been repealed, resulting in national
security laws that better comply with the present constitutional
arrangements and human rights standards.
Defendants of relevant offences will have the right to
be tried by jury. Whether a person is convicted will ultimately
depend on the jurors who are selected randomly from the
population and reflect the values of the community.
and clear definition of offences
The present definition of treason is narrowed to acts
that involve foreign elements and war. Only the instigation
of a foreign invasion with force, the assistance of a
public enemy at war with China or the joining of foreign
armed forces at war with China would amount to treason.
The definition of 'war' is limited to actual
war or open armed conflict, and does not include ordinary
demonstrations or even riots. The freedom of speech,
of the press, of procession, of demonstration and of
are fully protected.
The offence of misprision of treason under common law
will be abolished. This will allay public concerns about
criminalising the failure to report the crime and that
relatives and friends would be keeping each other under
surveillance. Treason will apply only to Chinese nationals
whether within or outside the HKSAR.
Secession refers to the use of war, or force or serious
criminal means of an extent that seriously endanger territorial
integrity, to split the country. Subversion
Subversion refers to the use of war, or force or serious
criminal means of an extent that seriously endanger the
stability of the state, to overthrow or intimidate the
Central People's Government, or to disestablish the basic
system of the state by such means.
Only the actual use of force or serious criminal means
akin to terrorist activities could make one liable to
the secession or subversion offences. Expressing views
by means of peaceful procession, assembly, demonstration,
etc. will not be criminalised.
Sedition refers to intentionally inciting others to commit
treason, subversion or secession, or to engage in violent
public disorder that would seriously endanger the stability
of the state. The offence has been substantially narrowed
compared with existing provisions.
Under the common law, 'inciting' others to
commit a crime, i.e. compelling or encouraging another
person with the intent of causing him to commit a criminal
offence, is itself an offence.
On top of the common law offence of 'incitement',
the provision also introduces the test of 'likelihood' as
an additional safeguard. The act of incitement must be
likely to induce the relevant serious crimes before it
could amount to an offence of sedition.
'Seditious publication' is confined to those
that would be likely to incite others to commit treason,
subversion or secession.
The existing offence of possessing seditious publications
will be abolished, and the reformed offence of 'dealing
with seditious publication' requires an intention
of inciting others to commit relevant offences. The freedom
of speech, of publication, and of academic research are
fully protected under the tight definitions. Whether a
publication is seditious will be determined by a jury.
|Theft of state secrets
Slight amendments are proposed, based on the existing
Official Secrets Ordinance. 'Information relating
to relations between the Central Authorities and the HKSAR' will
be clearly defined as information concerning the HKSAR
for which the Central Authorities are responsible under
the Basic Law. In relation to this category, an offence
may only be committed when one knows, or has reasonable
cause to believe, that the disclosure would endanger the
territorial integrity or independence of China, but still
discloses the information. The free flow of financial
information will not be impeded.
'Illegal access' to information is strictly
limited to obtaining protected information through the
five specified criminal means of hacking, theft, robbery,
burglary, or bribery. 'Public servant' is
clearly confined to public servants of the HKSAR.
Whether the disclosure of information would be damaging
or constitute an offence will be determined by a jury.
Values of the community will be fully reflected. The freedom
of the press and the free flow of information are fully
|Foreign political organisations
Existing Societies Ordinance provisions will be retained
to prohibit foreign political organisations or bodies
from conducting political activities in the HKSAR, and
to prohibit HKSAR political organisations or bodies from
establishing ties with foreign political organisations
|Organisations endangering national security
The power to proscribe organisations endangering national
security will be strictly regulated. The existing criteria
of proscription will be more tightly defined. A local
organisation can only be proscribed under the following
||The decision to proscribe a local organisation complies
with various freedoms and international human rights standards,
as protected under Chapter III of the Basic Law;
||The measure is necessary and proportionate to safeguard
national security; and
||One of three preconditions must be satisfied, i.e. the
local organisation aims at the commission of specified crimes
against the state, or has committed or is attempting such
crimes; or the local organisation is subordinate to a mainland
one which has been prohibited by the Central Authorities
on grounds of national security.
|A local organisation will not automatically
be proscribed even if it is subordinate to a Mainland organisation
prohibited by the Central Authorities by open proclamation.
A local organisation that is proscribed will have the
right to appeal to the courts. Prosription itself does
not constitute an offence. An offence will only be committed
if the proscription is disregarded and the organisation
continues to operate.
|Prudent enforcement of investigation powers
The Bill clearly specifies that only under
exigent situations can a police officer at the rank of Assistant
Commissioner of Police or above (of which there are now
21 in the Police establishment) authorise the exercise of
emergency investigation powers. The search or seizure of
journalistic materials may be carried out only if officers
have obtained a judicial warrant in advance. The freedom
of the press will not be affected.
|Questions and Answers
||Will processions, public assemblies, demonstrations, etc.
be affected under the legislation?
||The rights of assembly, procession and demonstration are
protected under the Basic Law and will not be affected.
Offences such as 'subversion' and 'sedition' are
tightly defined. There is no offence without the intention
of causing war, violence or criminal means akin to terrorist
||After enactment of the legislation, can criticism of government
policies or officials continue?
||The freedom of speech is fully protected under the Basic
Law. 'Sedition' is limited to intentionally
inciting others to commit the serious criminal offences
of treason, subversion etc. under Hong Kong laws. Conviction
is possible only if there is a likelihood of inducing the
||Will the organisation of processions
without a proper application that results in traffic congestion
criminal means' and hence be regarded as a subversive
||Serious criminal means must be a criminal act. The offence
of 'subversion' is not committed if the criminal
act has not reached an extent that would seriously endanger
the stability of the entire state. Processions without prior
application and which caused traffic congestions are unrelated
to national security, and would be dealt with in accordance
with the existing Public Order Ordinance.
||Will reports on information in relation to diseases in
the Mainland, or that embarrasses the government be banned
under the legislation?
||The proposals are based on the existing Official Secrets
Ordinance, which clearly and narrowly defines the scope
of protected information. Information about diseases in
the Mainland is not a category protected under the law.
Furthermore, disclosures made by those who are not public
servants must be 'damaging' (such as endangering
national security or causing deaths, etc) to constitute
an offence. Embarrassing the government does not amount
to 'damaging'. In addition, there are different
criteria between the Mainland and Hong Kong regarding which
kinds of information are protected. Whether a piece of information
is protected would ultimately be adjudicated by Hong Kong
courts, rather than defined by government or Mainland standards.
Whether one would be convicted will be determined by a jury.
||Can local religious or political organisations be proscribed
arbitrarily by the government under the legislation?
||It is explicitly stipulated in the Bill that a local organisation
can be proscribed only when it is necessary in the interests
of national security and is proportionate for such purpose.
Furthermore, the measure must be taken in compliance with
the protection of various rights under Chapter III of the
Basic Law, which entrenches international human rights standards.
Any measures taken that breach these paramount principles
would be unlawful. Organisations that have been proscribed
will have the right to apply for a judicial review, or to
appeal to the court.
||Can a person be subject to a 'secret trial' if
he or she commits an offence under Article 23 legislation?
||All trials for criminal offences under the Bill will follow
the usual procedures. The defendants and their lawyers can
attend the entire trial process. There is no question of
a 'secret trial'. The special appeal mechanism
proposed is limited to the appeal procedure for the administrative
decision to proscribe an organisation. The present appeal
avenue for organisations proscribed on national security
grounds is the Chief Executive in Council. The proposed
mechanism has in fact enhanced the independence of the appeal
To find out more
about the Bill to give effect to Article 23 of the
Basic Law and other relevant information, please visit
the website: www.basiclaw23.gov.hk