| National Security (Legislative Provisions) Bill:
Organizations to which the proposed section 8A
of Societies Ordinance applies
| Introduction |
This paper explains the
necessity of the proposed section 8A(2)(c),
in addition to section 8A(2)(a) and (b).
|
Need for the proposed section 8A(2)(c) |
| 2. |
The proposed section 8A(2) provides
that a local organization may be subject
to the proscription mechanism only if it
satisfies any of the following criteria
-
| (a) |
the objective, or one of the objectives,
of the organization is to engage in
treason, subversion, secession or sedition
or commit an offence of spying;
|
| (b) |
the organization has committed or
is attempting to commit treason, subversion,
secession or sedition or an offence
of spying; or
|
| (c) |
the organization is subordinate to
a mainland organization the operation
of which has been prohibited on the
ground protecting the security of the
People's Republic of China, as
officially proclaimed by means of an
open decree, by the Central Authorities
under the law of the People's
Republic of China. |
|
| 3. |
It should also be noted that all proscription
measures can only be lawfully taken in
compliance with the criteria as set out
in the proposed section 8A(1) and the proposed
section 2A, i.e. in compliance with the
standards of international human rights
covenants entrenched by Article 39 of the
Basic Law including the International Covenant
on Civil and Political Rights.
|
| 4. |
An organization which poses threats to
national security may not be attempting or
aiming to commit the narrowly defined offences
specified in the proposed section 8A(2)(a)
or (b). The following illustrates some of
the possibilities -
| (a) |
Offences besides the specified ones
which threaten national security
Threats to national security are
certainly not limited to the
narrowly defined offences mentioned
in section 8A(2)(a) and (b).
For example, a local organization
which is controlled by a prohibited organization in the Mainland may be involved
in activities in preparation for terrorist attacks, or aimed at the purchase
of chemical weapons for its parent organization. The commission of such activities
may not constitute the specified offences under section 8A(2)(a) and (b).
Nevertheless,
it is certainly in the public interest to cease the continued operation of
such organizations when this
is a necessary and proportionate
measure.
|
| (b) |
Preparatory acts of the specified
offences
The criteria in section 8A(2)(b)
above requires (at least) an attempt
to commit the specified offences.
At common law and also under section
159G of the Crimes Ordinance (Cap.
200), this requires an act "more
than merely preparatory" to
the commission of the offences. Organizations
involved in acts that fall short
of such criteria, such as recruitment
to form an army for a prohibited
organization in the Mainland to commit
secession by engaging in war, or
raising funds for subverting the
Central Peoples' Government
by force, would not be covered by
section 8A(2)(b). Furthermore, the
aim of such an organization, even
if it can be proven, may not satisfy
all the essential elements of the
criminal offences in section 8A(2)(a)
(for example, the organization may
not be aware of the entire plan of
its parent organization). As with
the case above, prohibition of the
continued operation of such organizations
would be in the public interest,
so long as this complies with international
human rights standards. |
|
| 5. |
It should be emphasized that the proscription
of a local organization would not directly
result in criminal offences. It would only
be an offence when one continues to be
a member of, or provide support to, a local
organization after it has been proscribed.
Proscription, nevertheless, means that
the operation of the organization has to
stop.
|
Security Bureau
June 2003
|
