I. The Creation of Article 23
VI. Theft of state secrets
VII. Foreign Political Organizations
I. The Creation of Article 23
After China and the United Kingdom signed the Joint Declaration in 1984, Beijing set to work immediately on creating the legal framework for resumption of sovereignty over Hong Kong. In June 1985, the 59-member Basic Law Drafting Committee, newly created by the National People's Congress, began the drafting process. The Drafting Committee, which consisted of thirty-six mainland members and twenty-three members from Hong Kong, had working committee status directly under the NPC. The Committee issued the first draft of the Law in April 1988, and comments were sought from the Hong Kong community by the Consultative Committee for the Basic Law (CCBL), a body created by the Drafting Committee expressly for this purpose. Markedly different from the final version of Article 23, the draft version of the Article (Article 22 in the first draft) read:
"The Hong Kong Special Administrative Region shall prohibit by law any act designed to undermine national unity or subvert the Central People's Government."
The call for comments was open to all, and the response was significant: the CCBL received over 73,000 submissions. On Article 22, recommendations included elimination of the word "subversion," given its absence from the common law and its misuse in many jurisdictions. Other submissions also called for clearer definitions of the crimes to be legislated under the Article.
These concerns were only partially addressed in the second draft of the Basic Law, which was issued in February 1989. Although the word subversion had been eliminated from the second draft, the revised Draft Article 23 was still a source of concern. The revised Article read:
"The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, or theft of state secrets."
Once again, lack of precise definition was a concern in the commentary solicited by the CCBL. The Committee's summary included the following points:
This article gives no definition of the expression 'an act of treason, secession, sedition or theft of state secrets.' Who will be responsible for giving a definition to such an act? Will speech, publication and artistic creation within this realm be prohibited?
Treason first emerged in English common law, and was legislated by the English Parliament for the first time in the Treason Act of 1351. Originally broadly defined as any breach of faith owed to the king and severely punished, treason has since been limited to levying war against the state or aiding and abetting enemies of the state, usually in wartime. Intent is a necessary element of the offence in most jurisdictions; any accidental or unintentional aiding of the enemy cannot be considered treason, though it may be actionable under other laws.
Sedition is related to treason in that it is incitement to insurrection against the government. In its premodern form, sedition was a distressingly broad offence:
Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes treason by a short interval... The objects of seditions generally are to induce discontent and insurrection, and stir up opposition to the Government¡K the very tendency of sedition is to incite people to insurrection and rebellion. Sedition has been described as disloyalty in action.
Thus defined, sedition was an effective tool against speech that was critical of the government, although it was also initially used against "unlawful societies" and other assemblies judged to have "seditious intent." The crime was narrowed considerably in most jurisdictions by the introduction of an intent requirement, a requirement that the actor actually intend that her or his words or actions incite violence against the government. The U.S. has gone one step further: under the U.S. Supreme Court decision in Brandenburg v. Ohio, speech is protected from prosecution "unless it (is) directed to inciting imminent lawless action and (is) likely to incite that action. " In other words, there must not only be intent that a threat to the government follow from the speaker's words, but also a likelihood that it will indeed emerge. Canadian case law also sets a high standard: the courts have emphasized that incitement to violence alone is insufficient to constitute the offence. The violence or defiance incited by the speaker must be "for the purpose of disturbing constitutional authority."
Secession is the attempt to break off from the central government and declare an independent state or allegiance to the government of another state. Because any actual secessionist activity would likely be actionable as either treason or terrorism, the value of anti-secession legislation is questionable in the modern era. Anti-secession legislation could potentially be used against peaceful and law-abiding advocates of political change or even political independence.
Secession is an especially thorny issue in the Chinese context, given the longstanding feud between Beijing and Taipei over the status of Taiwan, as well as the questions surrounding the status of Tibet, Xinjiang, and, to a lesser extent, Inner Mongolia. Given these crucial issues, the SAR government should be extremely careful in drafting legislation on secession so as not to criminalize free and open debate on the future of Taiwan, Tibet, or any part of China.
Perhaps the most open to manipulation and abuse is the offence of subversion. Because subversion does not exist in English common law, it is difficult to precisely define. In the small handful of common-law countries where the offence does exist, subversion is usually associated with the overthrow of the government by force. Australia, one of the few common-law countries to introduce subversion into the law, defined the offence primarily as an act whose purpose is to "overthrow or destroy the constitutional government of the Commonwealth or of a State or Territory." Force or an unlawful act was a necessary element of the offence, and certain activities directed against the military or against society and public order as a whole were also covered by the subversion statute.
As with secession, much of what is covered by the subversion statute might be better covered by either by anti-terrorism legislation or by treason. In their commentary on the Australian law, the drafters emphasized that subversion can only cover that activity "whose purpose is, directly or ultimately, to overthrow constitutional government and in the meantime to weaken or to undermine it," and that any constitutionally approved methods of advocating change in the government could not be considered subversion. Even this comparatively tight language, however, could be potentially abused: whether a particular activity's "ultimate purpose" is the overthrow of the government could easily become a subjective inquiry, thus putting protected speech and assembly at risk.
Concern over the vagueness of the term "subversion" is reflected in the Australian government's decision to remove the term from the law in 1986, replacing it with the phrase "politically motivated violence." The change in language increased the emphasis on the necessary element of force, and distanced Australian law from the misuse of anti-subversion statutes in other jurisdictions.
Perhaps more typical of the use of subversion in the law is its use in mainland China. Subversion is found in Article 105 of the Criminal Law, which criminalizes "organizing, scheming or acting to subvert the political power of the state and overthrow the socialist system" and "incitement to subvert the political power of the state and overthrow the socialist system by spreading rumors, slander, or other means." No definition of the key terms is given, leaving the government a high degree of flexibility in pursuing its critics. As with all crimes relating to the endangering of state security, it is not necessary to show intent to do harm to the government or to show actual harm. After the revision of the Criminal Law in 1997, it was predicted that Article 105 might become the most commonly used provision for the suppression of peaceful political dissent. As expected, a number of high-profile activists have been prosecuted for subversion over the past four years, including many activists jailed in 1998 and 1999 for attempting to form the China Democracy Party.
Ominously, some of the commentary on the revision of the PRC Criminal Law in 1997 focused on updating Chinese law so as to be more "compatible" with the laws of Hong Kong, despite the Basic Law's clear stipulation that the legal systems would remain distinct. If harmonization of the two legal systems is, in the view of mainland Chinese legal scholars, one of the goals of the resumption of sovereignty, then the mandate of Article 23 becomes more troubling. Given that Chinese law on subversion and other state security crimes is well below international standards, the use of Article 23 to bring Hong Kong law closer to the mainland's will have serious consequences for rights protection in Hong Kong.
Since a democratic state and a communist state may have its own conceptions and interpretations of expressions such as 'treason,' 'secession,' 'sedition' and 'theft of state secrets,' some people hold that as the power of interpretation of the Basic Law is not vested in the Hong Kong SAR, the implementation of Article 23 may¡K undermine freedom of the press and freedom of speech in the HKSAR.
Despite this commentary, the Drafting Committee actually presented a more conservative final draft of Article 23, reinserting subversion and adding the additional language on political organizations. The final draft, which was incorporated without change into the Basic Law, read:
"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."
As with other draft articles, the Drafting Committee's decision to ignore the substantial input on Article 23 it received from the public in the second round was due in large part to a stiffening of backs inside the Central Government in the wake of Tiananmen Square. Support for the protesters in Beijing was strong in Hong Kong: the people of Hong Kong not only voiced their support, they also raised funds and sent supplies to the students in Beijing in the weeks leading up to June 4. After the crackdown, the criticism from Hong Kong of Beijing's decision to use force likely further solidified Beijing's fears that Hong Kong would become a center for what it considered anti-government subversive activity. As a result, the scope of Article 23 was broadened, and the concerns raised about its flaws ignored.
VI. Theft of state secrets
This area of law was extended to Hong Kong by the Official Secrets Act 1989 in colonial era. It was domesticated by the enactment of the Official Secrets Ordinance in the last days before the 1997 handover. This kind of legislation was open to abuse by Mainland government because it related to the protection of sensitive official information. To promote an open government, the SAR Government should amend the Ordinance to prevent abuses and to bring it into line with international standards set out by the Johannesburg Principles on National Security, Freedom of Expression and Access to Information. The Ordinance aims to criminalise spying activities and unauthorised disclosure of official information. Unfortunately, a presumption is bode ill for the defendant as it states that the defendant may be convicted if, from the circumstances of the case, his conduct or known character, it appears that his purpose was prejudicial to the safety or interests of the PRC or Hong Kong. It is unnecessary to show that he was guilty of any particular illegal act.
Any person undergoing spying activities with purpose prejudicial to the safety or interests of the PRC or Hong Kong is punishable by law. However, the vague definition of ¡§safety or interests¡¨ which is susceptible to abuses. On unauthorised disclosure of official information, it was queried by some members of bills committee how the offence was related to in Article 23 of the Basic Law; the latter had a narrower meaning than the former. The offence is to prohibit public servants to disclose, without proper authorisation, information related to security and intelligence information; defence; international relations and commission of offences and criminal investigations. Moreover, it is an offence for any person, who received information by an unauthorised disclosure by public servant, discloses that information and causes harm.
VII. Foreign Political Organizations
There was no such restriction before the handover. By amending the Societies Ordinance through undemocratically selected Provisional Legislative Council, section 5 of the Ordinance prohibit local political body (i.e. political party or the body's main object is to promote or prepare a candidate for an election) to have a connection with a foreign political organization (FPO) or a political organization of Taiwan (POT). "Connection" is defined as financial support, an affiliation, policy determination or control in decision making process. The Societies Officer may refuse or cancel registration of a local political body being connected with an FPO or a POT after consultation with the Secretary for Security; or he may recommend to the Secretary for Security to prohibit the operation of the body.
Apart from that, if the Societies Officer reasonably believes that they are necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others, he may exercise the same powers as above after consultation with the Secretary for Security. The 1992 Societies Ordinance has copied "public safety" and "public order" from the ICCPR and modified "national security" to "security of Hong Kong" as basis for restrictions. In the 1997 amendments "security of Hong Kong" is dropped and "national security" and "the protection of the rights and freedoms of others" are added to the grounds of prohibition. While there is no demonstrated need to add grounds for prohibition, the use of the term "national security" is particularly objectionable because the concept has frequently been used in Mainland China to criminalise the peaceful exercise of the rights of expression and to persecute those with legitimate demands like democracy and human rights. Its inclusion raises fears of extension of such Mainland Chinese practices to Hong Kong especially in the light of Article 23 of the Basic Law.
¡iNote: The above information is mainly taken from the Hong Kong Human Rights Monitor's publication, "A Ticking Time Bomb? - Article 23, Security Law, and Human Rights in Hong Kong "(August 2001)¡j