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IMPLEMENTATION
OF ARTICLE 23 OF THE BASIC LAW -
NATIONAL SECURITY (LEGISLATIVE PROVISIONS)
BILL
The Bar Association will take time
to come up with a considered response
to the Bill which will have to be
studied by its Constitutional Affairs
and Human Rights Sub-Committee and
by the Bar Council.
On a preliminary reading of the
Bill the areas that seem to warrant
close attention are:
Clause 6: The new offence
of handling a seditious publication
with intent to cause others to commit
an offence of treason, subversion
or secession is contained in the
proposed new section 9C of the Crimes
Ordinance. There would appear to
be no need for the new offence given
the elements of the offence of sedition
provided for in the proposed new
section 9A deals with incitement
generally.
Clause 10: The proposed
new section 16A Official Secrets
Ordinance creates a wholly new category
of protected information, namely
information related to Hong Kong
affairs within the responsibility
of the Central Authorities. There
needs to be a close examination
of what categories of information
will in future be protected which
are at present not protected.
Clause 11: The proposed
new section 18(5A) makes it a criminal
offence to publish protected information
that comes into a person's possession
through, directly or indirectly,
criminal means. The new offence
does not appear to recognize that,
notwithstanding the fact that it
has been obtained by illegal means,
it may be in the public interest
to publish information. There appears
to be no exception made for information
obtained by such illegal means which
is in fact in the public domain.
Clause 15: The proposed new
section 8A allows for additional
powers of proscription of organizations
in Hong Kong in the interests of
national security. It allows decision-making
in the Mainland to be the basis
for proscription in the HKSAR. The
procedural mechanism for proscription
and appeals from orders of proscription,
which may involve the exclusion
the person affected from the hearing,
may give rise to questions of compatibility
with Article 35 of the Basic Law
which guarantees persons right of
access to a court.
The Bar Association hopes that
the passage of this important Bill
will not be rushed. In particular,
it hopes that the First and Second
Readings of the Bill will be deferred
until the public has had time to
consider the Bill and make its views
known to the Administration so that
amendments could still be made to
the Bill before the legislative
process gets under way.
Dated 13th February 2003
Hong Kong Bar Association
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