| File Reference
: SBCR 2/1162/97
LEGISLATIVE
COUNCIL BRIEF
National Security (Legislative Provisions) Bill
INTRODUCTION
At the meeting of the Executive Council on 11 February 2003, the Council ADVISED and the Chief Executive ORDERED that the National Security (Legislative Provisions) Bill, at Annex A, should be introduced into the Legislative Council in order to implement Article 23 of the Basic Law (Article 23).
JUSTIFICATIONS
| 2. |
Every nation has laws to protect its sovereignty,
territorial integrity, unity and national
security. |
| 3. |
In line with the high degree of autonomy
for the Hong Kong Special Administrative Region
(HKSAR) as provided under Article 2 of the
Basic Law, and the guarantee that the socialist
system and policies shall not be practised
in the HKSAR as set out in Article 5, national
laws for the protection of essential interests
of the state and national security have not
been promulgated in Hong Kong. |
| 4. |
The HKSAR is constitutionally obliged under
Article 23 to "enact laws on its own
to prohibit any act of treason, secession,
sedition, subversion against the Central People's
Government, or theft of state secrets, to
prohibit foreign political organizations or
bodies from conducting political activities
in the Region, and to prohibit political organizations
or bodies of the Region from establishing
ties with foreign political organizations
or bodies." The intent of Article 23
is to prohibit by law acts that would undermine
the sovereignty, territorial integrity, unity
and national security of our country. |
| 5. |
The Government launched a large-scale public
consultation exercise on 24 September 2002
on its proposals to implement Article 23.
After taking into account the views expressed
during the three-month consultation period,
the Government has clarified a number of issues,
and has undertaken to introduce a clear and
precise Bill into the Legislative Council. |
| 6. |
The Basic Law provides for the continuity
of the common law system of the HKSAR, and
it follows that the implementation of Article
23 should be effected by building on existing
legislation as far as possible. We have
also taken into account the following guiding
principles -
| (a) |
the need to meet fully the requirements
of the Basic Law, including Article
23 which stipulates the acts to be prohibited;
and other relevant provisions in Chapter
III, in particular Article 27 which
guarantees certain fundamental rights
and freedoms of Hong Kong residents,
and Article 39 which stipulates, inter
alia, that the provisions of the International
Covenant on Civil and Political Rights
(ICCPR) and the International Covenant
on Economic, Social and Cultural Rights
(ICESCR), as applied to Hong Kong shall
remain in force, and shall be implemented
through the laws of the HKSAR; |
| (b) |
the need to protect adequately the
state's essential interests, namely
sovereignty, territorial integrity,
unity and national security; |
| (c) |
the need to ensure that all offences
encompassed by local legislation to
implement Article 23 are as clearly
and tightly defined as possible, so
as to avoid uncertainty and the infringement
of fundamental rights and freedoms guaranteed
by the Basic Law; and |
| (d) |
the proposed measures should be broadly
acceptable to the majority of the community. |
|
| 7. |
Some of the Article 23 offences are already
dealt with under existing legislation. Parts
I and II of the Crimes Ordinance (Cap. 200)
deal with treason and sedition respectively.
Where the protection of official information
is concerned, the Official Secrets Ordinance
(Cap. 521) deals with spying and unlawful
disclosure of official information. The Societies
Ordinance (Cap. 151) regulates, inter alia,
the activities of local political organizations
and ties with foreign political organizations.
We will propose amendments to these Ordinances
to meet our obligations to implement Article
23. |
THE BILL
| 8. |
The main provisions are set
out in the following paragraphs. |
Amendments to the Crimes Ordinance
Clause 4
Treason
| 9. |
The existing treason and treasonable
offences in the Crimes Ordinance will be
repealed. Clause 4 adds a new section 2
which limits the treason offence to -
| (a) |
joining foreign armed forces at war
with our country with the intent to
overthrow or intimidate the Central
People's Government, or to compel
the Central People's Government
to change its policies or measures; |
| (b) |
instigating foreign armed forces to
invade our country with force; or |
| (c) |
assisting a public enemy at war with
our country with an intent to prejudice
the position of the country in the war. |
A state of war is defined to mean only open
armed conflict between armed forces or publicly
declared war. The common law offences of misprision
of treason and compounding treason will be
abolished. |
| 10. |
Moreover, the offence of treason will not
apply to non-Chinese nationals, irrespective
of whether the offence occurred in or outside
of the HKSAR. |
Subversion
| 11. |
The new section 2A provides that it is
an offence of subversion to -
| (a) |
disestablish the basic
system of the People's Republic
of China as established by the Constitution; |
| (b) |
overthrow the Central People's
Government; or |
| (c) |
intimidate the Central People's
Government |
by using force or serious criminal means
that seriously endangers the stability of
the People's Republic of China or
by engaging in war. |
Secession
| 12. |
The new section 2B provides that it is an
offence of secession to withdraw any part
of the People's Republic of China from
its sovereignty by using force or serious
criminal means that seriously endangers the
territorial integrity of the People's
Republic of China or by engaging in war. |
Clause 6
Sedition
| 13. |
The existing sedition offence in the Crimes
Ordinance will be repealed. Clause 6 adds
a new section 9A which provides that it is
an offence of sedition to incite others to
commit the offence of treason, subversion
or secession; or to incite others to engage
in violent public disorder that would seriously
endanger the stability of the People's
Republic of China. The reformed offence of
sedition is based on the well-established
common law principle of incitement, and does
not criminalize peaceful advocacy. |
| 14. |
In response to concerns raised, the new
section 9C provides that it is an offence
of dealing with seditious publications only
when the accused has an intention to incite
others, by means of the publication, to commit
the offence of treason, subversion or secession.
The new section 9D retains the existing safeguards
for advocacy under the Crimes Ordinance. |
Clause 7
Enforcement powers, safeguards and trial by jury
| 15. |
Clause 7 adds a new section 18A which specifically
provides that the interpretation, application
and enforcement of the provisions on Article
23 offences under the Crimes Ordinance shall
be consistent with the international human
rights standards promulgated in Hong Kong
by virtue of Article 39 of the Basic Law.
Specific safeguards are also provided for
in the Official Secrets Ordinance and the
Societies Ordinance under clauses 9 and 14
of the Bill respectively. |
| 16. |
The new section 18B provides for the exercise
of emergency investigation powers by police
officers at or above the rank of chief superintendent
of police. The emergency powers can only be
exercised if the police officer reasonably
believes that the relevant offence has been
or is being committed, and that unless immediate
action is taken evidence of substantial value
to the investigation of the offence would
be lost, and that the investigation would
be seriously prejudiced as a result. It also
provides that the search and seizure of journalistic
materials must under all circumstances be
authorized by court warrants. |
| 17. |
The new section 18D puts it beyond doubt
that any person accused of treason, subversion,
secession or sedition offences will be tried
by jury. |
Amendments to the Official Secrets Ordinance
Clause 10
| 18. |
Clause 10 adds a new section 16A to the
Official Secrets Ordinance to protect information
relating to affairs concerning the HKSAR for
which the Central Authorities are responsible
under the Basic Law. In addition, disclosure
of such information will only be penalized
when it endangers "national security",
which is defined as "the safeguarding
of territorial integrity and the independence
of the People's Republic of China." |
Clause 11
| 19. |
Clause 11 amends section 18 of the Official
Secrets Ordinance to provide that it is an
offence to make a damaging disclosure of protected
information which has been obtained through
illegal access. "Illegal access"
will be limited to mean only criminal acts
of unauthorized access to computer by telecommunication,
access to computer with criminal or dishonest
intent, theft, robbery, burglary or bribery. |
Clause 12
Trial by jury for unlawful disclosure offences
| 20. |
Clause 12 adds a new section 24A to the
Official Secrets Ordinance to provide that
anyone accused of an offence of unlawful disclosure
under the Ordinance could opt for a trial
by jury. |
Amendments to the Societies Ordinance
Clause 15
Proscription of organizations endangering national security
| 21. |
To thwart organization of activities
that would genuinely endanger the state,
clause 15 adds a new section 8A to the Societies
Ordinance to empower the Secretary for Security
to proscribe an organization that endangers
national security. This power can only be
exercised where it is necessary and proportionate
under the standards of the ICCPR to do so
in order to protect national security, and
one of the following circumstances exists
-
| (a) |
the objective, or one of the objectives,
of the organization is to engage in
acts of treason, secession, sedition,
subversion, or spying; |
| (b) |
the organization has committed or
is attempting to commit acts of treason,
secession, sedition, subversion, or
spying; or |
| (c) |
the organization is subordinate to
a Mainland organization which has been
prohibited in the Mainland by Central
Authorities, by means of an open decree
and in accordance with the national
law on the ground of protecting the
security of the People's Republic
of China. |
A local organization would be subordinate
to a Mainland organization only if the former
accepts substantial financial contributions
from, is directed or controlled by, or has
its policies determined by, a Mainland organization.
The new section 8C provides that it will
be an offence to support or organize activities
for a proscribed organization. |
| 22. |
The new section 8D provides that any person
aggrieved by a decision of the Secretary for
Security to proscribe an organization will
be able to appeal to the Court of First Instance
to set aside the proscription. The new section
8E provides that the Chief Justice may make
rules governing the proceedings of such appeals. |
Clause 16
| 23. |
Clause 16 and the Schedule provide
for related and consequential amendments. |
| 24. |
The existing provisions being
amended are at Annex B. |
LEGISLATIVE TIMETABLE
| 25. |
The legislative timetable will be - |
|
| |
Publication in the Gazette |
14 February 2003 |
| |
First Reading and commencement of Second
Reading debate |
26 February 2003 |
| |
Resumption of Second Reading debate, committee
stage and Third Reading |
to be notified |
IMPLICATIONS OF THE PROPOSALS
| 26. |
The proposals are in conformity with the
Basic Law, including the provisions concerning
human rights. They implement Article 23. The
proposals have no productivity, environmental
or significant sustainability implications.
They have no significant economic and financial
and civil service implications. |
PUBLIC CONSULTATION
| 27. |
On 24 September 2002, the Government issued
a consultation document on the proposals to
implement Article 23 of the Basic Law for
public consultation. The consultation period
ended on 24 December 2002. The public has
responded enthusiastically to the consultation,
as evidenced by the more than 100 000 submissions
received. |
| 28. |
During the consultation period, Security
Bureau and Department of Justice officials
attended over 250 meetings and seminars to
consult the community. These included public
hearings at the Legislative Council, forums
and interviews by the media and seminars organized
by chambers of commerce, professional bodies,
academics, trade unions and other interested
groups. Government officials also attended
meetings of the Legislative Council Joint
Panel and all 18 District Councils to explain
the proposals. |
PUBLICITY
| 29. |
A press conference will be held to introduce
the Bill. A Legislative Council Brief and
a press statement will be issued. A spokesman
will be available to answer media and public
enquiries. |
| 30. |
In addition, a series of publicity programmes
and campaigns have been scheduled to explain
to the public that their concerns of Article
23 have been adequately addressed through
clear and tight drafting of the Bill. Television
and radio "Announcements of Public Interest"
to promote positive messages about the need
to protect national security and to dispel
fears and misunderstandings on the proposals
to implement Article 23 will be launched.
We will continue to engage the Legislative
Council and concerned parties and organizations
to take the matter forward. |
ENQUIRIES
| 31. |
For any enquiries on this brief, please
contact Mr Johann Wong, Principal Assistant
Secretary for Security, at telephone number
2810 2448. |
Security Bureau
13 February 2003
|
