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Article 23 of the Basic Law provides that the Hong Kong SAR shall enact laws on its own to prohibit (amongst other things) any act of subversion against the Central People's Government. |
| 2. |
It would be unacceptably vague to enact a law that simply makes it an offence to commit "any act of subversion against the Central People's Government". It is therefore necessary to specify more precisely what acts are to be prohibited on the grounds that they would amount to subversion. It is for the HKSAR to determine precisely what acts are to be prohibited. |
| 3. |
In deciding what acts should be prohibited, the Administration has considered the ordinary meaning of "subversion" and the use of that term, or that concept, in common law jurisdictions. Relevant information is summarised in paragraphs 5.2 and 5.3 of the Consultation Document (attached). A further example is found in the Canadian Security Intelligence Service Act, under which "threats to the security of Canada" are defined as including "activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada". Although the term "subversion" is not used in that provision, writers commonly refer to that subhead of threats to the security of Canada as the subversion section. |
| Disestablishing the basic system of the PRC |
| 4. |
The Central People's Government exists and operates under and in accordance with the Constitution of the PRC. Under the Constitution, the Central People's Government (the State Council) is the executive body of the highest organ of state power (i.e. the National People's Congress) and is the highest organ of state administration. Its functions and powers include "to adopt administrative measures, enact administrative rules and regulations and issue decisions and orders in accordance with the Constitution and the law" (Article 89(1)), "to draw up and implement the plan for national economic and social development and the state budget" (Article 89(5)); and "to direct and administer economic affairs" (Article 89(6)). |
| 5. |
If the basic system of the PRC as established by the PRC Constitution were disestablished by force or serious criminal means that seriously endangered the stability of the PRC, or by war, the nature and functions of the Central People's Government would have been fundamentally subverted. It could no longer operate in the manner envisaged by the Constitution. For example, if the National People's Congress were disestablished, the Central People's Government could no longer submit proposals to it as envisaged by Article 89(2) of the Constitution; the CPG could not report its work to it under Article 92; and the CPG could not look to a non-existent NPC for assignment of powers and functions under Article 89(18). |
| 6. |
It is therefore considered appropriate to protect the Central People's Government from such subversion by including head (a) in the proposed offence of subversion. |
| Intimidating the CPG |
| 7. |
In order to fully discharge its responsibilities under the Constitution, the Central People's Government must be able to exercise its power at its free will. If policies or measures are forced onto it by those using force or serious criminal means that seriously endangers the stability of the PRC, or by those engaging in war, the function of the Central People's Government in carrying out its responsibilities would undoubtedly have been seriously hampered. Such means of intimidation could legitimately be regarded as a form of subversion against it. For example, a group that organized nationwide terrorist attacks in order to intimidate the Central People's Government into changing its policies in a certain area could be considered to have conspired to commit subversion. |
| 8. |
For these reasons, it is considered appropriate to include head (c) in the proposed offence of subversion. |
