Implementation of Article 23 of Basic Law: National Security (Legislative Provisions) Bill: Explanatory Notes PDF
Preview Implementation of Article 23 of Basic Law: National Security (Legislative Provisions) Bill: Explanatory Notes
Implementation of Article 23 of the Basic Law National Security (Legislative Provisions) Bill Explanatory Notes )am :NR216 ^24 mmxmm Canada-Hong Kong Resource Centre Gift from Hong Kong Baptist University Library " Implementation of Article 23 of the Basic Law National Secur'^ (Legislative Provis' ^'-^ Explanatop' - /If jiX i^V-K- C- • •^"'^-Honp Kong Rsi"" Security Bureau February 2003 An Overview Afterextensive consultation, tlie Hong KongSpecial Administrative Region (HKSAR) Government has drafted the National Security (Legislative Provisions) Bill to implementArticle 23 ofthe Basic Law. The Bill has been drafted in accordance with the principle that the HKSARshall enact legislation on its own. In no way have Mainland legal concepts been extended to the HKSAR, nor is there any intention to create a new ordinance. Three existingordinances will be amended to clearlyspecify those acts endangeringnational securityas required to beprohibited bythe Basic Law. The Bill ftillycomplies with the International Covenant on Civil and Political Rights(lCCPR). Existing freedoms and rights enjoyed by HKSAR residents as guaranteed bythe Basic Lawwill continue to be protected. In linewith usual practice, the HKSAR Governmentwill submit the Bill to the Legislative Council afterpublishing it in the gazette. Furtherviews from residents and organizations are welcome. Proposed prohibition ofacts endangering national security Treason Treason refers to the instigation offoreign invasion, assistinga public enemy atwarwith the People's Republic ofChina (PRC), or joiningforeign armed forces atwarwith the PRC. Secession Secession refers to the use ofwar, force orserious criminal means to split the country. Subversion Subversion refers to the use ofwar, force orserious criminal means to overthrow or intimidate the Central People's Government (CPG), orto disestablish the basic system ofthe state bysuch means. Sedition Sedition refers to incitingothers to committreason, subversion orsecession, or inciting others to engage inviolent public disorderthatwould seriously endangerthe stability ofthe PRC. Theft ofstate secrets Slight amendments are proposed to the existing Official Secrets Ordinance to protect information related to national security. In particular, definitions ofinformation on the relations between the Central Authorities and the HKSAR, and information acquired by 'illegal access', are clearlyset out in the Bill. Foreign political organizations ExistingSocieties Ordinance definitions will be used to prohibit foreign political organizations or bodies from conducting political activities in the HKSAR, and to prohibit political organizations or bodies ofthe HKSAR from establishinglies with foreign political organizations orbodies. Organizations endangering national security The powerto proscribe organizations endangering national securit>'will be strictly regulated. The Secretary for Securitycan exercise the power only under stipulated conditions. A local organization will not automatically be proscribed even ifit is subordinate to a Mainland organization prohibited bythe Central Authorities by open decree. Emergenq^ investigation powers The Bill clearly specifies that only under exigent situations can a police officer at the rank ofChiefSuperintendent or above authorizethe exercise of emergency investigation powers. Trial by jury People charged with treason, secession orsubversion must be tried by jurv'. Those charged with sedition or unlawful disclosure may opt fortrial by jury ifthey so wish. Protection ofhuman rights The Bill explicitly stipulates that the interpretation, application and enforcement ofall provisions must comply with Article 39 ofthe Basic Law, which mandates compliance with the standards ofinternational human rights covenants. Main provisions ofthe Bill Treason, subversion and secession The provisions Synopsis The existing 'treason' offence is substantially narrowed, such as abolishingthe equation ofassaukingthe sovereign with treason. The scope ofthe offence will be clearly defined. 'War' is narrowed to declared waror open armed conflicts. General demonstrations or riots will be excluded. 'Assisting public enemy' refers to assisting a foreign government or foreign armed forces that are atwarwith China, and with an intent to prejudice the position ofChina in thewar. Humanitarian aid to ordinary peoplewill not constitute 'assisting public enemy'. The terms 'instigate' and 'intimidate' etc. originate from existing legislation, and are similar to those ofother common law jurisdictions. Theywill be interpreted in accordancewith common law precedents and principles. 'Misprision oftreason' is an existingcommon law offence, which refers to a person who, knowing that another person has committed treason, fails to report the offence to the proper authorities within a reasonable time. The Bill abolishes this offence to ease public concerns. 'Serious criminal means' originates from the definition of'terrorist acts' in the United Nations (Anti-Terrorism Measures) Ordinance, and must be a criminal act itselfto constitute an offence. The relevant offences are committed onlywhen the 'force' or 'serious criminal means' used is so serious that it would seriously endanger the stability or territorial integrity ofthe State. The scope ofthe ottence is narrowly defined and will not alfect human rights and freedoms. Sedition and seditious publication The provisions — Sedition Aperson commits sedition ifhe (a) incites others to commitan offence oftreason, subversion orsecession; or (b) incites others to engage in violent public disorderthat would seriouslyendangerthe stabilityofthe PRC. Possession of The existingoffence ofpossession ofseditious publication seditious is abolished. publication — Handling Aperson commits an offence ifhe seditious (a) publishes, sells, offers forsale, distributes ordisplays publication any seditious publication; (b) prints orreproduces anyseditious publication; or (c) imports orexports anyseditious publication, with intent to incite others, by means ofthe publication, to commit an offence oftreason, subversion orsecession. 'Seditious publication' means a publication that is likelyto causethe commission ofan offence oftreason, subversion orsecession. Synopsis The offence is committed only ifone incites others to seriously endanger the security orstability ofthe State by means ofwar, the use offorce, orserious criminal means akin to terrorist acts. The offence of'sedition' adopts the existing common lawconcept of 'incitement'. The scope ofcriminal law is notexpanded. Regardingseditious publication, the Bill not only abolishes the existing offence of'possession ofseditious publication', but also substantially narrows the existing scope of'seditious publication' by repealing definitions that are too broad and by including the intention to commit a crime as a necessaryelement. Human rights are fully protected. The amendments in the Bill are more protective ofthe freedom of speech, ofthe press, ofpublication, ofacademic research, literar\' and artistic creation, etc. compared with existing legislation. The offence ofunlawful disclosure The provisions Information A person who is or has been a public servant orgovernment related to contractor commits an offence ifhe makes, without l—awful Hong Kong authority, a damagingdisclosure ofany information affairs (a) that relates to any affairs concerning the HKSARwhich within the are, underthe Basic Law, within the responsibility ofthe responsibility Central Authorities; and ofthe Central Authorities (b) that is or has been in his possession byvirtue ofhis position as a public servant orgovernment contractor. A disclosure is 'damaging' ifit endangers orwould likelyto endanger national security. Information Aperson possessinganyinformation acquired bymeans ofillegal acquired by access, and discloses itwithout lawful authorityand knowing—, illegal access orhavingreasonablecauseto believe, thatthe information (a) belongs to a categoryprotected from disclosureunder the Official Secrets Ordinance; (b) the disclosure ofwhich would be damaging; and (c) is acquired by means ofillegal access commits an offence. 'Illegal access' t—o information is limited to the following circumstances (a) the information comes int—o orremains in his possession byvirtue ofan offence of (i) unauthorized accessto computerbytelecommunications; (ii) access to computerwith criminal ordishonest intent; or (iii) theft, robber)' orburglary, committed byhim in relation to the information; or (b) the information comes into or remains in his possession in exchange foran advantage the offeror acceptance ofwhich is an offence ofbribery.
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