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Implementing Article 23 of the Basic Law of Hong Kong

November 21, 2002
Council on Foreign Relations

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[Note: A transcript of this meeting is unavailable. The discussion is summarized below.]

1. What we know:

On July 1, 1997, Hong Kong ceased to be administered by a British colonial administration, and was reunified with China. The content of the Basic Law—a work-in-progress since the Sino-British Joint Declaration of 1984—was agreed upon before the "handover" by members of the National Peoples' Congress (NPC) in Beijing, the Hong Kong Legislative Council (LegCo), and the outgoing British administration. After July 1997 and the creation of the Hong Kong Special Administrative Region of the Peoples' Republic of China (HKSAR or just SAR for short), the Basic Law was, in theory, to provide Hong Kong with a degree of political autonomy vis-à-vis Beijing. Final judiciary authority rests with the court of the SAR, whose independence is also mandated by the Basic Law. Chinese national law does not generally apply to Hong Kong. In theory neither the LegCo nor the courts of Hong Kong need refer to the Chinese Constitution or Chinese laws.

On September 24, 2002, the Hong Kong government published proposals to implement Article 23 of the Basic Law, with the aim of enacting the relevant legislation by July 2003. Article 23 of the Basic Law provides:

The Hong Kong Special Administrative Region shall 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 main stated purpose of the Basic Law is to be a cornerstone for "one country, two systems," the concept by which Hong Kong is to retain its way of life distinct from the socialist system of mainland China.

The Article 23 proposals include the following measures:

Treason:Article 23 is intended to repeal the outdated or ambiguous provisions such as those relating to killing or wounding the sovereign, or manifesting the intention of treason by an "overt act" (treasonable offences), restrict the offence to those involving foreign elements and codify the existing offences of misprision of treason and inchoate or accomplice acts as statutory offences so as to enhance transparency of the law.

Secession: To clearly define the concept of secession, now covered under "treason" as: (1) withdrawing a part of the People's Republic of China from its sovereignty; or (2) resisting the Central People's Government in its exercise of sovereignty over a part of China, by levying war, use of force, threat of force or other serious unlawful means.

Sedition: Existing offences include making any preparation to do, or conspiring with others to do, any act with an intention to bring into hatred against the government or the administration of justice, or with an intention to raise discontent among the inhabitants, etc, and uttering any words with such an intention. Currently, dealing with or possessing publications with such intention is also an offence.

The definition of sedition is to be substantially narrowed down to inciting others: (1) to commit the offence of treason, secession or subversion (inciting others to commit an offence is currently an offence under the common law); or (2) to cause violence or public disorder which seriously endangers the stability of the state or the HKSAR. The definition of seditious publications will be substantially narrowed down to refer only to publications that incite others to commit the offence of treason, secession or subversion. The current six-month time limit on bringing prosecutions against sedition would be removed under the proposals.

Subversion: The proposal clearly defines "treason" as levying war, use of force, threat of force, or other serious unlawful means in order to overthrow or intimidate the Government of the People's Republic of China, or to disestablish the basic system of the state.

Theft of state secrets: Existing law, criticized by human rights experts for being too broad, is further expanded. New areas covered include relations between Hong Kong and the central government in Beijing, a subject of legitimate public concern. There is no provision for defenses typical in other jurisdictions, as when publication of a "secret" is in the public interest or when the "secret" already has been publicized by others.

Foreign Political Organizations: The Secretary for Security would have wide authority to ban local and foreign political organizations.

Permanent Residents: The government seeks to extend the reach of the law so that all permanent residents (they include foreign nationals who meet a seven-year Hong Kong residency requirement) could be prosecuted for what they say in and out of Hong Kong.

The Government has announced that a bill will be introduced into LegCo early 2003 to be passed in July the same year. It is proposed that the legislation shall apply to all Hong Kong permanent residents for their acts in or outside Hong Kong, to all persons voluntarily in Hong Kong for their acts within Hong Kong, and to certain acts outside Hong Kong regardless of the status or nationality of the person who commits them.

2. What we don't know:

The Chinese government has been concerned that Hong Kong might become a base for destabilizing central authority since the suppression of the pro-democracy demonstrations in Beijing in June 1989. Today, five years after the handover, there is no evidence of Hong Kong being a source of threats in any way to national security. Some would question the need to enact Article 23 at this time, especially considering that existing Hong Kong law already adequately serves the purpose.

It has been a deep concern that the implementation of Article 23 would affect the rights and freedoms in Hong Kong and the Hong Kong way of life. Many worry that the beefed up laws would be backed by enormous increases in enforcement powers and penalties, including the following measures:

Exemptions for the police from the normal requirement of a court warrant for entry into private premises and for search and seizure.

Police also could compel financial institutions to divulge confidential client information without first obtaining a warrant.

Many Article 23 offenses would be punishable by life imprisonment. In stark contrast, existing Hong Kong law does not even specify some of the proposed Article 23 offenses, such as subversion, as crimes.

3. What are the next steps; what should be done and by whom?

The relevant laws must be accompanied by stringent safeguards to protect free expression and the free flow of information. This is particularly important given the severe democratic deficit in Hong Kong. Only by providing sufficient safeguards would the government fulfill its responsibility to fully implement "one country, two systems."

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