Implementation of Article 23 of the Basic Law - National Security (Legislative Provisions) Bill

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