| Proposals to Implement Article 23 Broadly Consistent with
Johannesburg Principles
Objective
This note explains why the legislative proposals to implement Article 23 of the Basic Law are already broadly consistent with the Johannesburg Principles, in response to the request raised at the joint meeting of the Panel on Security and Panel on Administration of Justice and Legal Services on 6 February 2003.
Introduction
| 2. |
The Government was determined to comply
with the human rights guarantees contained
in the International Covenant on Civil and
Political Rights (ICCPR). This is required
by the Basic Law. |
| 3. |
There are views that full compliance with
our human rights obligations is not sufficient;
and that our laws should also comply with
the Johannesburg Principles. This is notwithstanding
that the principles do not belong to any
international covenants and are not binding
on the HKSAR, and even the advocates of the
principles are unable to point to any other
jurisdiction or country which has adopted
that standard or which has laws which fully
comply with the Principles. Nevertheless,
we recognise that the Johannesburg Principles
provide a useful benchmark against which
the proposals may be judged. |
| 4. |
Broadly speaking, the Article 23 proposals
comply with most of the Principles. For example,
Principle 7 enumerates a list of protected
expression which should not be considered
a threat to national security, including
expression that advocates non-violent change
of government policy or of the government
itself; and criticism of, or insult to, the
nation, the state or its symbols, the government,
its agencies, or public officials, or a foreign
nation. The proposals to implement Article
23 of the Basic Law do not seek to prohibit
any such forms of expression. |
| 5. |
The Johannesburg Principles are concerned
with the protection of the freedom of expression
and information in the area of national security.
They are particularly relevant to two areas
where we are constitutionally obliged to
legislate - sedition and theft of state secrets. |
Sedition
| 6. |
Some commentators have suggested that
the proposed offence of sedition would
not comply with Principle 6. A similar
comment might be made in respect of those
aspects of treason that touch upon expression.
Principle 6 states that expression may
be punished as a threat to national security
only if a government can demonstrate that
-
| |
(i) |
the expression is intended to incite
imminent violence; |
| |
(ii) |
it is likely to incite such violence;
and |
| |
(iii) |
there is a direct and immediate
connection between the expression
and the likelihood or occurrence
of such violence. |
|
| 7. |
We consider that Principle 6 is unnecessarily
restrictive. |
| 8. |
First, there may be many situations
where it would be consistent with international
human rights standards, and also appropriate,
to prohibit the incitement of non-violent
acts. Examples of non-violent acts that
have the potential of threatening a legitimate
national security interest include -
| |
(i) |
the disabling of a national defence
computer system; |
| |
(ii) |
the use of biological or chemical
weapons; and |
| |
(iii) |
broadcasting propaganda for the
enemy during a state of war. |
It should be possible to criminalise
not only these acts but also the incitement
of such acts. Principle 6 would seem
to prevent this.
|
| 9. |
Secondly, Principle 6 provides that incitement
to violence cannot be punished as a threat
to national security unless the intention
is to incite imminent violence. |
| 10. |
However, where a person intentionally urges
another to commit a crime of violence, there
is no justifiable reason to distinguish between
imminent violence and violence at a later
date. Our general law of incitement makes
no such distinction. For example, inciting
someone to murder another person is an offence
regardless of whether the murder being urged
is immediate or in a few weeks' time. |
| 11. |
The are three major difficulties in
adopting the imminent violence test into
our laws, namely -
| |
(i) |
it is contrary to general principles
of our criminal law; |
| |
(ii) |
it introduces great uncertainty
into a serious offence, since “imminent” is
a vague concept; and |
| |
(iii) |
most importantly, it appears to
be illogical. For example, can a
state not legitimately prohibit a
terrorist group from inciting others
to prepare for a secessionist war
say six months in the future, by
arming themselves with missiles and
other weapons? The “imminent
violence” test would seem to
leave the state powerless to deal
with such a threat. |
|
| 12. |
Thirdly, Principle 6 states that incitement
to violence can only be punished if it is
likely to succeed. If a person intentionally
incites violence, whether against an individual
or the State, he has demonstrated behaviour
that is unacceptable. Long established common
law principles provide that the law can legitimately
punish such behaviour, irrespective of its
chances of success, in the same way that
it punishes attempted crimes which may have
had no chance of success. |
| 13. |
The well-intentioned attempt to limit restrictions
on freedom of expression in Principle 6 does
not produce appropriate results in all cases.
The prevailing tests as are now applied by
the courts in respect of the ICCPR and the
European Convention on Human Rights (ECHR)
are that of balancing competing interests. |
| 14. |
Weighing the competing interests in
a candid and informed manner, the proposed
offences of treason and sedition, i.e.
-
| |
(i) |
instigating foreign armed forces
to invade the PRC; |
| |
(ii) |
assisting by any means a public
enemy at war with the PRC, with intent
to prejudice the position of the
PRC in the war; |
| |
(iii) |
inciting others to commit the offences
of treason, secession or subversion;
and |
| |
(iv) |
inciting others to violent public
disorder that seriously endangers
the stability of the state, |
are entirely justifiable restrictions
on the grounds of national security.
The fact that Principle 6 may not in
all cases be satisfied would not prevent
a court from upholding these offences
as being consistent with the Basic Law
or ICCPR. Nor should it be a valid ground
for not enacting the proposed offences.
|
Theft of state secrets
| 15. |
The Official Secrets Ordinance largely
fulfills our obligation to legislate against
the theft of state secrets. The National
Security (Legislative Provisions) Bill seeks
to slightly amend the Ordinance to, inter
alia, fill one loophole and to delineate
the offences more clearly. |
| 16. |
Principles 15 and 16 of the Johannesburg
Principles are relevant. The first part of
Principle 15 states that no person may be
punished on national security grounds for
disclosure of information if the disclosure
does not actually harm, and is not likely
to harm, a legitimate national security interest. |
| 17. |
With regard to the unauthorized disclosure
of protected information, with one exception,
our proposed laws will fully comply with
the first part of Principle 15. That is,
an offence will only be committed if the
disclosure was damaging, or was likely to
be damaging, in the manner specified in the
current law. The exception relates to unauthorized
disclosures of security or intelligence information
by members of the security and intelligence
services. This is not consistent with the
first part of Principle 15, but the British
House of Lords has recently decided that
such a restriction is consistent with the
UK's Human Rights Act, and through it the
ECHR, which is similar to the ICCPR in the
relevant aspects. |
| 18. |
The second part of Principle 15 provides
that no person may be punished on national
security grounds for disclosure of information
if the public interest in knowing the information
outweighs the harm from disclosure. Principle
16 contains a similar principle in respect
of disclosures by public servants. |
| 19. |
Neither our current law, nor the National
Security (Legislative Provisions) Bill, incorporate
such a principle. Our law is based on the
UK's Official Secrets Act 1989. During the
debate on the Act in the UK Parliament, a “public
interest defence” was rejected for
two reasons. First, a central objective of
the reforms to the Act was to achieve maximum
clarity in the law and in its application.
A general public interest defence would make
it impossible to achieve such clarity. Secondly,
the intention was to apply criminal sanctions
only where this was clearly required in the
public interest. It was considered that no
one should be allowed to disclose information
which he knows may, for example, lead to
loss of life, simply because he has a general
reason of a public character for doing so. |
| 20. |
The enactment of the UK's Human Rights
Act in 1998 enabled defendants in the UK
(as in Hong Kong) to challenge criminal offences
as contravening the guaranteed rights. Questions
were raised as to whether offences relating
to unauthorized disclosure could be reconciled
with the guarantee of freedom of expression.
The concern was focused, on the perceived
need to allow “whistleblowers” to
reveal public wrongdoing, on the grounds
that this would be in the public interest. |
| 21. |
Those concerns were answered by the House
of Lords in its decision in Shayler in 2002.
The relevant offence was held to be consistent
with the Human Rights Act. The court considered
that the law provides sufficient protection
for a “whistleblower” to reveal
wrongdoings in appropriate cases. |
Conclusion
| 22. |
The Johannesburg Principles are in no way
binding on the HKSAR. While we do not propose
to implement a few of the principles on grounds
of policy and consistency with other laws,
our proposals are broadly in line with the
principles. As required, they are consistent
with the Basic Law and the ICCPR. We therefore
consider our present proposals strike the
right balance between the protection of national
security and the freedom of expression and
information. |
Security Bureau
March 2003
|
