The Basic Law

Chapter 28: L egislative proposals to implement Article 23 of the Basic Law

Part A: General

324. The legislative proposals introduced in early 2003 and subsequently withdrawn in the latter part of the year have attracted extensive and detailed comment. While we cannot possibly present every such comment in this report, we consider it appropriate to advise the Committee of the current position, and to respond to the main points of contention1. In part B below, we address the principal concerns of our interlocutors in general terms. The official closing date for this report is 30 June 2003 and, for the most part, the report does not discuss events that took place after that date. However, because of the importance of the issue and because there were significant developments after

30 June, this chapter occasionally departs from that practice in order to present as complete a picture as possible.

325. In paragraph 357 of the initial report, we explained that -

"Article 23 of the Basic Law states that the HKSAR shall enact laws

on its own to prohibit any act of treason, secession, sedition and

subversion against the Central People’s Government2. The provision

entails complex issues that require careful study with particular

regard to the provisions of the Covenant. For these reasons, the

1 But we will send the Committee a copy of every written submission received in the pre-drafting consultations on this report. 2 Article 23 also requires the HKSAR to enact laws to prohibit "theft of state secrets, to prohibit foreign political organisations from conducting political activities in the HKSAR, and to prohibit HKSAR political organisations from establishing ties with foreign political organisations."

166 Government has yet to formulate legislative proposals to implement

the provision. When such proposals are ready, there will be

extensive public consultations before they are introduced into the

Legislative Council. Any such proposal will need to address the

concern - expressed by many commentators - that the requirements

in Article 23 should not compromise the freedom of expression.

And, by virtue of Article 39 of the Basic Law, they will need to be

consistent with the provisions of the Covenant as applied to Hong

Kong."

326. In paragraph 18 of its concluding observations, the Committee expressed the concern “that the offences of treason and sedition under the

Crimes Ordinance are defined in overly broad terms, thus endangering freedom of expression guaranteed under article 19 of the Covenant. All laws enacted under Article 23 of the Basic Law must be in conformity with the Covenant.”

327. Since then, we have formulated proposals to implement Article 23 of the Basic Law (BL23). In February 2003, following extensive public consultation, we introduced the National Security (Legislative Provisions) Bill

(the Bill) into the Legislative Council. In taking our proposals to this stage, we took full account of the 1999 concluding observations, and we rigorously adhered to our undertaking to ensure that the proposals were fully consistent with the rights and freedoms guaranteed in the Covenant, the Basic Law

(particularly those in Article 39), and the BORO. Nevertheless, and

167 unsurprisingly in the context of Hong Kong's tradition of free speech and vigorous public debate, the proposals engendered much public debate.

Part B: response to commentators

328. The responses we present in this section are in summary form only.

Almost all of them have been the subject of extensive and detailed discussion papers that we have submitted to the Legislative Council in the course of the legislative process. Those papers - and, indeed, the Bill itself - are too extensive to incorporate here. But they are publicly available on a special website:

(www.basiclaw23.gov.hk). And we will provide any or all of them to the

Committee should Members so wish.

329. The concerns that the Bill has raised relate principally to the freedom of expression. But concerns have also been expressed regarding its implications for other provisions, such as those in Articles 14, 17, 18, 21, and 22. With a view to cohesion, we have opted to address all concerns relating to the Bill in a discrete section of the report, rather than to address the individual concerns in the sections dealing with the rights in question.

The Basic Law and the constitutional duty to legislate

330. All nations have laws protecting national security. China is no exception. But Article 18 of the Basic Law provides that "National laws shall not be applied in the Hong Kong Special Administrative Region except those listed in Annex III to this Law". Annex III does not include the national security laws that apply in Mainland China. Instead, BL23 imposes a

168 constitutional obligation on the HKSAR 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 organisations or

bodies from conducting political activities in the Region, and to

prohibit political organisations or bodies of the Region from

establishing ties with foreign political organisations or bodies.”

The intent of Article 23 is to require the HKSAR to enact laws on its own to prohibit acts that would undermine China's sovereignty, territorial integrity, unity and national security.

Constitutional protections under the Basic Law

331. The legislation to meet the BL23 obligation must be consistent with the Basic Law as a whole. That includes the protections of fundamental rights and freedoms enshrined in Chapter III of the Basic Law3, in particular BL394, which imposes a constitutional obligation to ensure that the 'BL23 law' is consistent with the Covenant and the ICESCR.

Legislative process

3 In this context, key rights and freedoms include Article 27 on the protection of the freedom of speech, of the press, of publication, of association, of assembly, of procession, and of demonstration; Article 32 on the protection of the freedom of religious belief; and Article 34 on the protection of the freedom to engage in academic research, literary and artistic creation. 4 BL39 provides that "The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedom enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article."

169 332. In September 2002, we published a public consultation document, explaining the guiding principles on which we had formulated our proposals for implementing BL23. The aim was to solicit public views before drafting legislation. The proposals had been formulated after extensive examination of our existing laws, the national security laws of other jurisdictions, and the relevant legal and human rights principles. They sought to modernise the existing laws and were comparable with laws of other major common law jurisdictions. That these proposals complied with the international human right standards enshrined in the Basic Law has been confirmed by an internationally renowned human rights law specialist5.

333. The process of consultation was open, transparent and widely publicised by the media. Over 70,000 copies of the consultation document and one million copies of an explanatory leaflet were distributed. The proposals and related materials were made available on the Government website. Government representatives discussed the proposals and listened to opinions at over 250 forums, seminars, and media interviews, and public hearings held by the

Legislative Council and all 18 District Councils.

334. More than 100,000 submissions on the proposals were received and were published in 'Compendium of Submissions', which was made available for public inspection. The compendium is also available on our website.

335. We introduced the Bill into the Legislative Council in February 2003.

5 Mr. David Pannick QC.

170 The Bill sought to implement BL23 by amending existing Ordinances, primarily the Crimes Ordinance (Chapter 200), the Official Secrets Ordinance (Chapter

521), and the Societies Ordinance (Chapter 151). It took full account of the views expressed during the public consultations and the guiding principles in paragraph 331 above. In particular, it explicitly provided that all provisions in the relevant parts of each Ordinance being amended must be enforced, applied, and interpreted in accordance with Article 39 of the Basic Law6, and hence with the Covenant as applied to Hong Kong.

336. The Bill was openly and rigorously scrutinised by a Bills Committee of the Legislative Council in over 100 hours of meetings held between March and June 2003. Over 100 individuals and NGOs made representations to the committee in four special sessions. More than 100 papers relating to the Bill were prepared for legislators. The papers are publicly available, and most can be accessed on the BL23 website (paragraph 328 above).

337. In June and July 2003, in the light of the views expressed by legislators and the public, we proposed further amendments to narrow the definitions and scope of offences and to provide additional safeguards. A key proposal was explicitly to provide in the Bill that its provisions must be enforced, applied, and interpreted in accordance the whole of Chapter III of the

Basic Law, rather than Article 39 alone as previously proposed, so ensuring the new law's compliance with all the human rights guarantees specified in that

6 See Clause 7 (new section 18A of Cap 200); Clause 9 (new section 12A of Cap 521); and Clause 14 (new section 2A of Cap 151) of the Bill.

171 Part. Three further amending proposals sought to alleviate public concerns about the proposed proscription mechanism, the emergency investigative powers of the Police, and the absence of a 'public interest' defence for the offence of unlawful disclosure.

338. We firmly believe that, if enacted, the Bills proposals would have complied fully with international standards on the protection of fundamental rights and freedoms, including the Covenant. The additional safeguards and tighter definitions proposed during the course of the Bill’s security would further enhance that protection. At the same time, we fully agree that public understanding and acceptance is essential and, in the light of continued public concern, we decided (in September 2003) to withdraw the Bill from the legislative programme, and to re-examine the issues. In so doing, we pledged to consult the community extensively before taking forward any legislative proposals. There is no predetermined timetable for the re-examination or legislative work.

Way forward

339. We will now re-examine the issues in the light of public comment and will continue fully to engage the public and all concerned parties in the ongoing discussion of the way forward. There is no pre-determined timetable for the exercise. But, at the risk of repetition, we must emphasise again that the

HKSAR has a clear constitutional duty to implement Article 23 of the Basic

Law. The community also recognises that obligation.