Law Society: Article 23 legislation can balance security, human rights
Regina Ip says the public has no cause to fear law prohibiting national security offenses
The head of the Law Society of Hong Kong on Tuesday expressed his confidence that the Hong Kong Special Administrative Region government can strike a balance between protecting national security and upholding human rights and freedom, drawing on the city’s profound judicial and legal tradition.
National security and human rights are not a “zero-sum game”, said Chan Chak-ming, president of the Law Society of Hong Kong — a professional body for the city’s 13,000 solicitors.
He was discussing the organization’s views regarding the proposed legislation of Article 23 of the Basic Law, which is undergoing a monthlong public consultation that concludes today.
Among its suggestions, the Law Society said certain terms in the local national security law should be clarified, such as “secrets concerning the economic and social development of our country or the
HKSAR” and “secrets concerning the technological development or scientific technology of our country or the HKSAR”.
While recognizing the necessity for the law to have an appropriate extraterritorial effect, Chan suggested the government carefully consider the implementation of the extraterritorial application and related prosecution procedures.
Article 23 of the Basic Law requires Hong Kong to enact its own laws to prohibit seven categories of national security offenses, such as treason, secession, and theft of State secrets.
Chan said the Law Society had compiled feedback from foreign consulates, domestic and international chambers of commerce, and different organizations, saying the legislation is of significant concern to both the local and international communities.
According to Chan, there is a consensus regarding Hong Kong’s constitutional obligation to enact Article 23 legislation.
This legislation should be completed as soon as possible, Chan said.
There launch of legislationto implement Article 23 of the Basic Law to prohibit national security offenses, after a pause of more than 21 years, has sparked remarkably few controversies in the local community. In the light of the political upheaval in 2019, and evidence of dangerous activities emerging from cases currently on trial, the general public appears to have acceptedthe need for legislation to safeguard national security.
Yet there remain nagging doubt son whether offenses relating to“official secrets ”,“sedition” and“foreign interference” would curtail freedom of expression and other fundamental freedoms. Such concerns are understandable. To maintainHong Kong’s competitiveness asa premier global financial, trading and business hub, it is of paramount importance to maintain Hong Kong’s openness to the world and its web of international connections. The Hong Kong Special Administrative Region’ s value as China’ s gateway to the world and key intermediary will be greatly reduced if the new national security law resulted in a diminution of Hong Kong’s freedoms.
Scrutiny of the proposals in the HKSAR government’ s consultation document published on Jan 30 will show such concernstobe overblown. For example, take offenses relating to“official secrets ”. Laws
prohibiting unlawful disclosure of official secrets are nothing new. Such legislation, inherited from the British, has been in force for many years.
The Official Secrets Ordinance, which is a localized version of the United Kingdom’ s Official Secrets Act, requires six categories of official information to be protected. These six categories are information relating to security and intelligence;defense; international relations; commission of offense sand criminal investigation; information en trusted in confidence; and information relating to territories, states or international organizations.Under this ordinance, unlawful disclosure of such information isa criminaloffense punishable on indictment to a fine of HK$500,000 ($63,900) and two years’ imprisonment.
In my almost half-century of public service, I am not aware of any member of the public having been prosecuted for unauthorized disclosure of official information.The reason is very simple: The six categories of information protected under the Official Secrets Ordinance are not information that an ordinary member of the public would easily have access to in the normal course of his or her life.
A common concern raised by the media is that they might fall foul of the law if they report on certain sensitive information, say informationrelating to technological development, which is regarded as a State secret under proposals in the consultationdocument. The short answer is if journalists report on something that is already in the public arena, such informationis, by definition, no longer secret, and they cannot possibly be guilty of unauthorizeddisclosure. It is a different story if journalists obtained protected informationto which they have no authorized access and they did so by unlawful means.
One of the changes proposed to the existing law on official secrets is a terminologicalone. Although the term jimi is used in the Basic Law, the government proposes to adopt the same terminology as in the nation’ s law on safeguarding national secrets, in which the term mi mi is used.
The government also proposes to align the categories of official secrets with those listed in the nation’ s law safeguarding national secrets. The seven categories are listed in paragraph 5.8 of the consultationdocument. Concerns have also been raised that some of the categories of State secret proposed in the consultation document maybe too broad. A frequently cited example is“secrets concerning the economic and social development of our country or the HKSAR”. It is hard to think of any such“secret ”, but the threshold for prosecution is high. All national security offense prosecutions must be authorized by the secretary for justice. In the case of prosecution of unauthorized disclosure of State secrets, the secretary for justice must be able to prove that the secret was disclosed“without lawful authority ”, and that the disclosure“would likely en danger national security ”. These ingredients, together with the common law requirement of mens rea, that is, the criminal intention element of an offense, must be present for a prosecution to proceed.
Complaints have also frequently been raised about definitions of national security offenses being too broad or vague. The truth is that Hong Kong laws, whether existing provisions or improved versions proposed in the consultation document, are not broader or vaguer than similar provisions in many common law jurisdictions.
The National Security Act 2023 enacted by the UK Parliament last July is a good example. It makes frequent references to actions“prejudicial to the safety or interests of the United Kingdom ”. The UK authorities have never defined or explained in detail what“the safety or interests of the United Kingdom” en tail. The wording is deliberately broad, so that the law is flexible enough to deal with any eventuality which might“prejudice the safety or interest” of the country. Ultimately it will be for the courts to determine whether any alleged criminal actions do indeed“prejudice the interests or security” of the country, depending on a mixture of law and facts.
It is interesting to note that under the National Security Act 2023,“protected information” is defined as“any information,document or other article where, for the purpose of protecting the safety or interests of the United Kingdom ”, access to it is restricted in anyway, or it is reasonable to expect access to it to be restricted. A mouthful to a layperson, but necessarily broad for the protection of national security.
The national security laws of many common law jurisdictions do indeed have many similar provisions which could be accused of being“over-broad” or vague. Yet these governments have never been censured, let alone sanctioned by the United States or their allies, for introducing“draconian” laws infringing fundamental rights. There is no reason why Hong Kong’s proposals, carefully formulated to comply with our obligations under key international human rights covenant s while strengthening our protectionof national security, should be viewed differently in a negative light.