Introduction
|
On 5 July 2003, the SAR
Government proposed further Committee Stage
amendments to address concerns in respect
of three areas of the National Security
(Legislative Provisions) Bill, namely the
proposed proscription mechanism, the absence
of a "public interest defence",
and the proposed emergency investigative
powers for the Police (please refer to
paper no. 111). This note sets out the
rationale for and discusses the effect
of the amendments.
|
| Proscription Mechanism |
| 2. |
Perhaps the most contentious issue has
been the proposed power to ban a local
organization that is subordinate to a Mainland
organization that has been banned by Central
Authorities on the grounds of protecting
the security of the PRC.
|
| 3. |
The proposal is consistent with the "One
Country, Two Systems" principle.
Any decision to ban a Mainland organization
would be made under PRC law, and would
not affect the lawfulness of its activities
in Hong Kong. If there were a local organization
that was subordinate to one banned in the
Mainland, it could not be banned in Hong
Kong under Mainland law. And it could only
be banned under Hong Kong law if its activities
were such that the Secretary for Security
reasonably believed that this was necessary
in the interests of safeguarding territorial
integrity and the independence of the PRC,
and that such a ban would be proportionate
to the threat that it posed.
|
| 4. |
When the Societies Ordinance was first
enacted in 1949 it gave the Executive the
power to refuse registration of any society
on the grounds that the society was likely
to be used for a purpose prejudicial to or
incompatible with peace, welfare or good
order in Hong Kong. Those grounds were amended
in 1992 to permit the operation of a society
to be prohibited if it might be prejudicial
to the security of Hong Kong or to public
safety or public order. They were further
amended in 1997 to permit prohibition on
the grounds of national security. The Governor
in Council (now the Chief Executive in Council)
also had a power to strike companies off
the register of companies on similar grounds
since 1959. |
| 5. |
Under the current law, any society or company
can be banned by the Executive on the grounds
of national security, provided that international
human rights standards are satisfied. Under
the proposed new section 8A(2) of the Societies
Ordinance to be added by Clause 15 of the
Bill, that power will be replaced by a power
to ban an organization on national security
grounds only in three circumstances. One
of these circumstances (under the new section
8A(2)(c)) is that it is subordinate to a
Mainland organization that has been banned
under PRC law. |
| 6. |
Under the Bill, before an organization
could be banned in Hong Kong, not only
must international human rights standards
be satisfied, but one of the three circumstances
mentioned above must also be satisfied.
The 'link' with the Mainland
does not, therefore, extend the power of
proscription, but acts as a limitation
on it.
|
| 7. |
Despite these considerations, it was
clear that there was widespread concern
about the proposal. The Government therefore
agreed to drop it. As a result, the Bill
as so amended would not contain any provision
referring to Mainland laws or decisions.
There is therefore no need for any further
concern that the Bill might blur the distinction
between the two legal systems. There is
also no need for any reference to a certificate
to be issued by the CPG regarding the fact
of the prohibition of a Mainland organization.
|
| 8. |
It should be noted, however, that the Bill
would still contain a power to proscribe
a local organization which -
| (i) |
has an objective of engaging in acts
of treason, subversion, secession,
sedition or spying, or |
| (ii) |
has committed or attempted to commit
such acts. |
Article 23 of the Basic Law requires the
Hong Kong SAR to prohibit such acts, and
creating a power to ban such organizations
is a legitimate way of prohibiting those
acts. |
| 9. |
If a local organization were banned, an
appeal would lie both on law and on facts
to the Court of First Instance, which would
be required to consider the issue in accordance
with international human rights standards.
If the Secretary for Security did not satisfy
the court that the proscription was justifiable,
the court would set it aside.
|
| "Public interest
defence" |
| 10. |
Criticism has also been directed at the
absence of any public interest defence in
respect of the unauthorized disclosure of
protected information. Such a defence has
never been provided either in Hong Kong's
official secrets legislation, or in the UK
legislation on which it is based. The issue
was thoroughly debated in the UK Parliament
in 1989, and in the Legislative Council in
1997. Both legislatures rejected the call
for such a defence. The main reason was that
the offence of unauthorized disclosure is
structured in such a way that it can never
be in the public interest to commit the offence.
So far as the media and general public are
concerned, only disclosures that are "damaging" in
defined ways are offences. Moreover, the
legislation has been in place for over ten
years and has clearly not had a "chilling
effect" on the media. |
| 11. |
The Bill retains the "damaging" test.
So far as the one newly defined category
of protected information of "Hong Kong
affairs within the responsibility of the
Central Authorities" is concerned,
unauthorized disclosure will only be an offence
if it endangers, or is likely to endanger,
the territorial integrity or independence
of the PRC. It can never be in the public
interest to commit that offence. |
| 12. |
Despite the fact that a general public
interest defence was not included in the
UK Official Secrets Act 1989, or in secrecy
laws based on the UK Act found in other common
law jurisdictions, the SAR Government has
announced that it is introducing a public
interest exception to alleviate concerns. |
| 13. |
The exception would apply in respect
of an existing offence of making a damaging
disclosure of protected information. A
member
of the media, or of the community, who
made such a disclosure would not commit
an offence
if -
| (i) |
the disclosure reveals any unlawful
activity, abuse of power, serious neglect
of duty or other serious misconduct
by any public official, or reveals
a serious threat to public order, public
security, or the health or safety of
the public, |
| (ii) |
the disclosure does not exceed the
extent that is necessary for revealing
that matter, and |
| (iii) |
having regard to all the circumstances
of the case, the public interest served
by the disclosure outweighs the public
interest served by not making that
disclosure. |
|
| 14. |
This provision is based on a defence
found in the Prevention of Bribery Ordinance.
It
is an offence to disclose the identity
of a person who is subject to an ICAC investigation,
or the details of such an investigation,
unless the disclosure is made with lawful
authority or reasonable excuse. A reasonable
excuse exists if, but only to the extent
that, the disclosure reveals -
| (i) |
any unlawful activity, abuse of power,
serious neglect of duty, or other serious
misconduct by any ICAC officer; or |
| (ii) |
a serious threat to public order
or to the security of Hong Kong or
to the health or safety of the public. |
|
| 15. |
Some of those who called for a public interest
defence in the Bill suggested that it should
be based on the provision in the Prevention
of Bribery Ordinance. The Government has
adopted that suggestion, but has modified
the defence by adding a balancing test. That
test requires that the public interest served
by disclosure must outweigh the public interest
in non-disclosure. This is considered necessary,
since it would be illogical for a seriously
damaging disclosure to be permitted on the
grounds of some trivial benefit to the public
interest.
|
| Emergency investigative powers
for the Police |
| 16. |
Under the Bill, the Police would be
able to exercise emergency entry and search powers,
without having to obtain a judicial warrant,
if a police officer of or above the rank
of chief superintendent of police reasonably
believes that -
| (i) |
a relevant offence has been or is
being committed; |
| (ii) |
evidence of substantial (i.e. not
nominal or incidental) value to the
investigation of the offence is in
the premises in question; and |
| (iii) |
such evidence will be lost unless
immediate action is taken, and such
loss would seriously prejudice the
investigation of the relevant offence. |
|
| 17. |
These proposed emergency powers are no
different in nature than existing powers
available to the Police for crimes like illegal
gambling, drug trafficking, vice and illegal
possession of fire arms. The Bill provides
that the proposed emergency powers can only
be exercised by a senior police officer at
or above the rank of Chief Superintendent
of Police. The rank of the authorizing officer
was later proposed to be raised to Assistant
Commissioner of Police. |
| 18. |
We have stressed that the emergency powers
could only be exercised under tightly-defined
circumstances, and that a judicial warrant
would have to be applied for before entry,
search and seizure powers could be exercised
in all other non-emergency situations. In
addition, the Bill specifically provides
that all search and seizure powers involving
journalistic materials could only be exercised
under authority of a judicial warrant. In
other words, the emergency powers would not
have applied to those materials. |
| 19. |
The Government is proposing to remove from
the Bill the proposed emergency investigation
powers. |
