| National Security (Legislative Provisions) Bill:
Basic system of the People's Republic of China
| Introduction |
This paper sets out the
Administration's response to a number of
questions raised during the meetings of
the Bills Committee on 8 April 2003 and
15 April 2003 concerning the phrase "basic
system of the People's Republic of China
(PRC) as established by the Constitution
of the People's Republic of China."
|
Protection of the Constitution |
| 2. |
The proposed section 2A(1) of Crimes
Ordinance in the Bill stipulates that it
would be an offence of subversion to, inter
alia, disestablish the basic system of
the PRC as established by the Constitution
of the PRC by using force or serious criminal
means that seriously endangers the stability
of the PRC, or by engaging in war.
|
| 3. |
The Constitution is the fundamental law
of the state. It has supreme legal authority,
and stipulates, among others, the fundamental
system and task of the state. A number of
jurisdictions specifically protect the constitution
or laws of their countries from being overthrown
by illegal means, by considering such acts
as an offence against the state. For example,
it is treachery in Australia to overthrow
the constitution of Australia by
revolution or sabotage1 ; high
treason in Germany to
change the system of government established
by the constitution by violence or threat
of violence2 ; and insurrection in Japan
to create a disorder for the purpose of subverting
the national constitution3 . In the
US, whoever incites, sets on foot, assists
or engages
in any rebellion or insurrection against
the authority of the United States or
the laws thereof would be committing
an offence under the section of the US Code
against
"treason, sedition and subversive activities."4 |
| 4. |
As explained in an earlier paper to the
Bills Committee (Paper No. 31), the Central
People's Government exists and operates under
and in accordance with the Constitution,
and it is considered that protection of the
Constitution is appropriate in the context
of our proposed offence of subversion. The
Constitution of the PRC comprises of the
Preamble and 138 Articles in four Chapters,
stipulating fundamental issues such as the
basic system, rights and duties of citizens
and the structure of the state. In line with
our guiding principle to define the offences
as clearly and tightly as appropriate, however,
we consider that instead of specifying the
Constitution as a broad target of protection,
the provision should be narrowly drafted
to focus on the most relevant aspects of
the Constitution, so far as our purpose of
protecting the state against subversion is
concerned. This is achieved with the present
qualification to focus scope of the protection
on the "basic system" of the state. |
Basic system of the state |
| 5. |
The nature of the state is provided in
Article 1 of the Constitution, which states
clearly that the socialist system led by
the working class and based on the alliance
of the workers and farmers is the fundamental
system of the People's Republic of
China. |
| 6. |
The fundamental system of the state includes
the fundamental political system, the organizational
form for the state power to exercise its
governance of the state. This is dependent
on the nature of the state. In our Constitution,
Article 2 states that all the power in the
country belongs to the people, who exercise
their power through the National People's
Congress (NPC) and local people's congresses
at all levels. Article 3 further provides
that the NPC and local people's congresses
are established through democratic elections,
responsible to and supervised by the people,
and state administrative, judicial and procuratorial
organs are created by, responsible to and
supervised by the people's congresses.
Chapter 3 of the Constitution provides, among
others, the responsibilities and functions
of the NPC and local people's congresses
in details. |
| 7. |
The reference to "socialist system" in
Article 1 should be understood in the light
of the Preamble and other Articles of the
Constitution. Paragraph 7 of the Preamble,
as last amended in March 1999, states that "China
will stay in the primary stage of socialism
for a long period of time. The basic task
of the nation is to concentrate its efforts
on socialist modernization by following the
road of building socialism with Chinese characteristics." Article
6 of the Constitution elaborates on "primary
stage of socialism" -
| |
"During the primary stage of
socialism, the State adheres to the
basic economic system with the public
ownership [of the means of production]
remaining dominant and diverse sectors
of the economy developing side by side,
and to the distribution system with
the distribution according to work
remaining dominant and the coexistence
of a variety of modes of distribution." |
|
The Administration's
view on the term |
| 8. |
While it is our view that Articles 1 and
2 of the Constitution are the most important
provisions on what constitutes the "basic
system" of the state so far as the
Bill is concerned, the Constitution, as with
other legal documents, should be understood
in its entirety. The Preamble and other Articles
may therefore assist in the comprehension
of the term, the extent and specifics of
which would depend on the circumstances.
Similarly, while socialism is understood
to encompass economic and social elements,
whether the disestablishment of, say, part
of the socialist economic system as established
in the Constitution would amount to the disestablishment
of the basic system of the state would also
depend on the circumstances. |
Further definitions
on the reference to "basic system"? |
| 9. |
As discussed above, the extent to which
the Constitution is referenced to comprehend
the "basic system" of the state
depends on the circumstances. It would be
impossible to foresee all the possibilities,
and in such case the court should be provided
with appropriate flexibility in determining
what is encompassed. Moreover, the current
formulation of the offence is already as
tightly defined as appropriate, and adequately
convey the legislative intention to protect
the essential system of the state. As currently
formulated, there is no room for a person
to "inadvertently" breach the
law. It should also be noted that in term
of clarity and preciseness, the formulation
compares favourably with similar legislation
in other jurisdictions. |
| 10. |
We therefore consider it inappropriate
and unnecessary to further define the reference
to "basic system." |
1 See section 24AA at Part 2 of the Australian
Crimes Act 1914
2 See section 81 of the German Penal Code of 1871
3 See Article 77 of the Japanese Penal Code
4 See 18 USCS §2383. |
Security Bureau
June 2003
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