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1 November 2002

Mrs Regina Ip, JP
Secretary for Security,
Security Bureau,
6^th Floor, East Wing,
Central Government Offices,
Lower Albert Road, Central,
Hong Kong

Dear Regina,

ARTICLE 23 CONSULTATION

As you know, the Hong Kong General Chamber of Commerce has taken a close interest in the consultation paper "Proposals to implement Article 23 of the Basic Law". The paper has been the subject of extensive discussions in the relevant Chamber committees, including our General Committee and the Chairman's Committee. You have yourself addressed our General Committee on the issues involved, and we greatly appreciated you taking the time from your busy schedule to do so.

In the few weeks since the consultation paper was issued, we have studied it closely, assessed its contents and monitored with great attention the intensity of the public discussion it has provoked. For this reason, and the fact that you have spoken to us directly, I am writing ahead of the consultation deadline to ensure the Chamber's position is fully understood. I can tell you now that the result of our deliberation is that the Hong Kong General Chamber of Commerce fully supports the need for a legislation to implement Article 23 of the Basic Law. However, we have concerns on the government's proposed approach of reaching to that point and some of the details of such a Bill.

The Chamber's interest in the Article 23 stems from its overall mission "to promote, represent and safeguard the interests of the Hong Kong business community". It is because the implementation of the provisions of Article 23 could impact on, or affect perceptions of, the Hong Kong SAR as an international centre for business, finance and commerce that we are concerned about in the issues involved, and how they are resolved.

We do believe the consultation paper now being discussed was produced in good faith and provides a serious basis for discussing the broad principles regarding Article 23 implementation. However, we do have concerns that it does not, on its own, provide the detailed information necessary to ensure fully informed discussion of the prospective legislation and therefore reassure the community that it has a full grasp of the issues.

The Chamber's Position

• Agree that the Hong Kong SAR Government has the clear obligation to implement Article 23 of the Basic Law concerning the protection of the nation's sovereignty, territorial integrity and unity, and national security.

• Understand that the implementation of the requirements of Article 23 is of importance to the HKSAR and its future relations with the Central People's Government (CPG).

• Support in principle the proposals set out in the Consultation Paper in regard to the implementation of the provisions of Article 23 of the Basic Law.

• Respect the comments made, and assurances given, by Government officials, including yourself, subsequent to release of the consultation paper.

As for the "White vs. Blue" issue, we are of the view that:

• The government should seriously consider a White Bill for further public comment before a Blue Bill for legislative purposes is completed. But if there is to be a White Bill, the period of consultation on the White Bill should be subject to a very strict time constraint so that a Blue Bill be drafted in a timely fashion for Legislative Council consideration, with an eye towards passing the legislation by summer 2003. We expect that the comments and concerns are going to be numerous during the initial consultation period, therefore, it will actually be better for government to publish a White Bill first, thereby satisfying both the need for substantive "tightness of language" and the PR aspect of "going the extra mile" to allay the community's unease about the Bill.

• More practically, given the importance of the exact wording of the legislation, it would also serve to put the public more at ease, possibly avoid later damaging debate and would result in a better Blue Bill being produced for Legco consideration. No amount of verbal assurance by government officials on what is covered and what is not covered substitutes for the public looking at specific language.

• We do not believe the requests for a White Bill should be seen as a "stalling tactic" on behalf of those making them. Although we recognise that some in the community might have this objective, we certainly do not. Nor do many other very reasonable people in the community who have been involved in serious discussions on the consultation paper. We also believe that the time for consideration of a White Bill could be strictly controlled so as to meet the government’s objective of having the legislation quickly in place. Indeed, it could even serve to shorten subsequent legislative consideration. It would really give the sense to the community of a responsive and sensitive government to community concerns, and we refute the statement by some that it would show a "weak" government.

• Although we respect the explanations and opinions given by Government officials since the release of the consultation paper, we do not believe the likely impact or intent of specific aspects of the proposals can be fully known until the draft legislation is available. This is why we believe the Government should seriously consider producing a White Bill.

In drafting and introducing legislation, the Government should be careful of any acts on its part, which may, or may be seen to, undermine the Hong Kong SAR as the preferred place of business in the region. This is a very key concern of the Chamber.

The proposed legislation should, therefore:

• conform with international covenants on human rights,
• conform with other Articles of the Basic Law (guaranteeing fundamental rights),
• define the offences involved narrowly and in an unambiguous and precise manner to avoid uncertainties and , perhaps, abuses, and
• confer no investigative powers in excess of what is presently in existence.

Finally, as to the detailed content of the consultation paper itself, we have concerns on a number of issues. They are described in the next section.

Some Specific Matters

These concerns are not unique to the Chamber, although we perhaps approach them from a different perspective given our focus on business issues and our interest in maintaining the positive international perceptions of the Hong Kong SAR as a global business and financial centre. We seriously hope that these concerns be taken into account in drafting. Again, reassurances now by government are nice, but they are not meaningful in the entire exercise until we see the language of the draft Bill. Of particular concern to us are:

Definitions of Offences

The offences outlined in legislation implementing the requirements of Article 23 should be narrowly defined to avoid any abuse and/or misapplication. 　Furthermore, in defining the offences, reference to Mainland legal concepts should be avoided. 　 For instance, People's Republic of China (PRC) laws typically define offences with high degree of flexibility (e.g. PRC legal specialists would view the offence of sedition as extending to speeches or comments, and the PRC Law on Guarding State Secrets has a loose definition of "state secrets"). 　These should be avoided as not suitable for Hong Kong and particularly on such an important and controversial legislation.

Treason

While supporting the general concept of the offence, we are concerned about such concepts as "inchoate or accomplice acts" (paragraph 2.13), and "misprision of treason" (paragraph 2.14), as well as the extraterritorial application of the offence HKSAR permanent residents. Much will depend on the drafting of the ultimate legislation and the clear definition of these acts, but we wonder about their application on a modern society and, if they are indeed required, whether they will defined narrowly.

Secession

Again, we understand the necessity for the inclusion of the new offence of secession in the Article 23 legislation, but are concerned about "inchoate and accomplice acts"  (paragraph 3.9) and the "extraterritorial application paragraphs 3.10 to 3.12).

There is little justification for the offence of "seditious publications". 　A person found to have a demonstrated intention to incite could be charged with the substantive offence. 　He or she may also be charged for aiding and abetting the substantive offence. 　"Publication" is important as it relates to the freedom of speech and expression and should not be outlawed without due consideration.

In addition to the need to define the offence narrowly to avoid abuse, it will be beneficial, and conducive to public confidence, if there is a 'savings' provision in the legislation which allows legitimate activities such as appeals for government reforms/changes.

As drafted, "state secrets" include 　"information related to international relations" (paragraph 6.15), and information which "is likely to be useful to an enemy" (paragraph 6.19). 　This is too vague and may covers very general and non-secret information. 　To hold a person (e.g. the press) criminally liable for having obtained such information may be overkill. The necessity for an offence of such gravity and of such general application needs to be evaluated critically. We are therefore concerned about the breadth of the coverage of the offence of theft of State secrets, especially the new category of protected information "relating to relations between the central authorities of the PRC and the HKSAR (paragraph 6.19). We are concerned about how this offence might affect transparency, accountability, and the free flow of information in the community and the role of organisations dealing with government and having access to such information.

Foreign Political Organizations

It is clear from the public statements made by the Secretary for Security that the views of the Central Government will be taken into account in the "proscription mechanism". 　This is unexceptionable given HKSAR is part of the PRC. However, in satisfying herself (or his-self) "by evidence" that "it is necessary in the interests of national security or public safety or public order" to ban a certain organization, the Secretary should have regard to the legal principles governing "evidence" prevailing in the HKSAR legal system. This is in addition to any applicable international covenants on human rights, freedom of association, etc. The "appeal mechanism" should also be constituted in such a way that leaves no room for doubts as to its integrity. We note that this mechanism separates issues of "fact" (to be dealt with by the proposed Tribunal) and "law" (to be dealt with by the Courts). We believe that in some circumstances it may be difficult to distinguish between what is a matter of fact and what is a matter of law. We would like further details of the Tribunal, its membership and its independence, and whether the Courts would retain the right to review findings of fact.

The existing power of the Police is adequate and there is no real justification for the additional power, namely search without warrant – that is, the "emergency entry, search ands seizure powers" (paragraphs 8.4 and 8.5) and the "financial investigation power (paragraph 8.6). We note that in other jurisdictions that matters of national security are usually dealt with by bodies separate from the "normal" police force and that the establishment of these bodies provides for special protective mechanisms and safeguards to avoid abuse of their powers. Is it appropriate that the Commissioner for Police should have such powers in Hong Kong and if he/she does have them, what safeguards will there be against their mis-use?

Extra-territoriality

The implications are far-reaching, with expatriate permanent residents very much the core of the achievements of Hong Kong as an international business centre. We realize that overseas offenses by citizens of other countries would be covered in those countries' similar laws, but permanent residents of Hong Kong are an unusual category of residents with no analogy around the world. We call for the government to take a close look at the clauses on extra-territorially to fully understand the implications and narrow the scope to avoid them to be overwhelming and onerous - which ultimately would impact on Hong Kong as an world city drawing international talent.

Conclusion

We fully appreciate the sensitive nature of the issues involved in the implementation of Article 23 of the Basic Law. Because of this, we believe the consultation must be as broad, as patient, as forthcoming, and as detailed as necessary to ensure that key community concerns are received and addressed. Our view is that the Government should have an open mind on the need for a White Bill given the obvious level of public interest and concern with the contents of the Consultation paper. "Bending over backwards" to accommodate community concerns is one way to put it, especially since a large majority of the population believe legislation is necessary anyway.

We recognise the lengths to which the Government has gone to base the offences as outlined in the consultation document on existing laws, as far as that is possible. And we also appreciate the Government's efforts in ensuring the proposals conform to other Basic Law articles providing for basic rights and freedoms and the international covenants involving such rights and freedoms. However, community concerns need to be addressed.

Ultimately, it is the detailed drafting of the legislation itself that will determine community attitudes to, and acceptance of, the proposed changes to the laws regarding subversion, treason, secession, sedition, and theft of State secrets. It is crucial that the proposals and underlying principles, including the protection of existing civil rights, as outlined by the Government are ultimately reflected in the Bill as drafted.

Our general view is that while the implementation of Article 23 requirements is required to protect the Mainland and the SAR from subversion, this objective must be balanced against the need to maintain the HKSAR's basic freedoms. We say this because we believe these basic freedoms are necessary for the continuation of Hong Kong as a major international business and financial centre.

The Chamber hopes that the government recognises that this submission is presented in a constructive and sincere manner. We fully appreciate the difficulties the government has in this matter, but we believe that this is the best way to carry out our common objective of having a solid bill that implements Article 23. As you know, the Chamber has always been supportive of the SAR government and respects the decisions of the government, while at the same time not shying from what we feel are constructive suggestions to improve the policies for the betterment of Hong Kong. This case is no exception.

Yours sincerely,




Christopher Cheng
Chairman
　

c.c. Security Bureau (Attn: AS(F)2, F Division)