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Written by: Hong Kong 01
2020-06-14 19:56
Date of last update: 2020-06-14 19:56On May 28, the Third Plenary Session of the Third Session of the Thirteenth National People’s Congress adopted the “Decision of the National People’s Congress on Establishing and Perfecting the Legal System and Enforcement Mechanism of the Hong Kong Special Administrative Region to Maintain National Security”, announcing the Central Committee A "Hong Kong version of the National Security Law" will be tailor-made for Hong Kong, but the "Decision" also mentions that "The Hong Kong Special Administrative Region should complete the national security legislation provided by the Basic Law of the Hong Kong Special Administrative Region as soon as possible," meaning that Hong Kong still needs to continue The long-awaited local legislative work in Article 23 of the Basic Law.
For how to accomplish this, "Hong Kong 01" has the following five suggestions: First, use the "white draft" method for consultation beforehand, second, follow the 2003 draft as the legislative basis, third, set up provisions to protect the rights and interests of Hong Kong citizens, and fourth, give The detailed definition of crimes against national security violations is to strengthen supporting measures for the protection of human rights outside the legislation. Article 23 of the Basic Law stipulates: "The Hong Kong Special Administrative Region shall legislate to prohibit any acts of treason, split the country, incite rebellion, subvert the Central People's Government and steal state secrets, and prohibit foreign political organizations or groups from carrying out politics in the Hong Kong Special Administrative Region. Activities, it is forbidden for political organizations or groups in the Hong Kong Special Administrative Region to establish contact with foreign political organizations or groups." From September to December 2002, the SAR Government issued the "Consultation Document on the Implementation of Article 23 of the Basic Law" to consult the public on the Basic Law. "Article 23 of the Legislative Opinion was published in February 2003 gazetted "National Security (Legislative Provisions) Bill", but finally withdrew the draft in September of the same year with the opposition of all parties, and has not yet restarted the legislative process to complete the Basic Law 》Constitutional responsibility required to be completed.
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One. Extensive consultation using white paper draft
A major controversy surrounding the legislation of Article 23 of the Basic Law seventeen years ago was that the bill should be proposed in the form of a "blue paper draft" or "white paper draft." The so-called "blue paper draft" refers to the publication of the draft law in the Government Gazette No. 3 supplement printed on blue paper. Once this form of bill is gazetted, it will directly start the formal legislative process, so the content of the bill is often implicit. The bottom line of the legislation of the authorities, the actual room for modification of the provisions will not be too large.
As for the "white draft", it is to use other channels to publish the legal draft for public viewing, allowing the public to learn about the drafting of specific provisions and make comments, and then continue to publish the "blue draft"; such drafts have mainly been published in the past The government gazette No. 5 supplement printed on white paper, but later will also be published through the public consultation document appendix and other methods.
At that time, a group of members of the community led by members of the democratic camp advocated the publication of a "white draft" first so that the public could discuss the details of the provisions in depth. However, for political reasons, the authorities are eager to pass legislation to complete the constitutional responsibility as soon as possible, in the form of a "white draft" that excludes more time. Other officials also believe that the general public may not be able to read the provisions, so they have declared the use of it very early. The "Blue Paper Draft" approach was adopted to propose the National Security (Legislative Provisions) Bill. Ironically, it was precisely because the Hong Kong government rejected the "white draft" form in a high-profile manner, and even deliberately disparaged the public's interest and understanding of related issues, which made the legislative environment full of political prejudices as soon as it started. State, it is difficult to calmly and objectively review and discuss the content of the bill.
Times have changed, with the experience of the National Security (Legislative Provisions) Bill 2003, and the apparent occurrence of national security risk incidents in recent years, the Hong Kong public must have a higher interest and awareness of related issues than in those years. Moreover, the National People’s Congress decided not long ago that before the local legislation of Article 23 of the Basic Law was completed in Hong Kong, "the authorizing the Standing Committee of the National People’s Congress to formulate relevant laws on the establishment and improvement of the legal system and enforcement mechanism for the maintenance of national security in the Hong Kong Special Administrative Region …Decided to include the above-mentioned relevant laws in Annex III of the “Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China”, which shall be promulgated and implemented locally by the Hong Kong Special Administrative Region”. This shows that the rationale for the Hong Kong Government's eager introduction of the "Blue Paper Draft" no longer exists.
On May 28, 2020, the National People's Congress of China passed the "Hong Kong version of the National Security Law" by 2,878 votes in favor, 1 against and 6 abstentions. (Profile picture/Associated Press)
On the other hand, although the SAR Government has rarely proposed a "white draft" in recent years, individual bills proposed in this form have benefited a lot from this and succeeded in gaining wider public participation, improved opinions and social approval. Taking the draft "First-hand Residential Property Sales Ordinance" passed in June 2012 as an example, the "Consultation on Public Proposals to Regulate the Sales of First-hand Residential Property Sales" conducted by the Transport and Housing Bureau in November 2011 contains a "white draft". It was only after the completion of the consultation report in March 2012 that the "blue paper draft" was submitted to the Legislative Council, and the latter made a series of amendments based on the absorption of public consultation results, including the expansion of the definition of "seller", the Listed as first-hand factors, etc. During this period, the Administration also described them to the Bills Committee as "more specifically and clearly reflecting the relevant policy objectives."
At that time, the National Security (Legislative Provisions) Bill was deeply controversial and eventually withdrew. The Hong Kong Government's blind adherence to the "Blue Paper Draft" will undoubtedly have a certain impact. It's just that the Hong Kong community's awareness of national security issues has increased a lot compared to that of that year, and the upcoming "Hong Kong version of the National Security Law" can also temporarily fill in the lack of relevant laws. The choice to use the "white paper draft" is naturally more reasonable than that of that year; The example of the Ordinance also proves that the "white draft" form does indeed help to improve the provisions of the bill and make it more relevant to the people of Hong Kong.
Based on the above reasons, "Hong Kong 01" advocates that the Hong Kong Government should restart Article 23 of the Basic Law. It is best to use the "white draft" for extensive consultation first. This process can not only allow the public to fully discuss, but also increase the public's details on the regulations. Understand, so as to resolve unnecessary worries.
At that time, 23 legislations were filled with political prejudice as soon as they started. The picture shows the public sitting around the Legislative Council sitting quietly. (Profile picture/Getty Images)
two. Adoption of the revised proposal of the O3 draft
The legislative approach is not appropriate to use the "blue paper draft" of the year, and does not mean that the legislative content needs to abandon the original plan together. When Chief Executive Tung Chee Hwa announced the withdrawal of the National Security (Legislative Provisions) Bill in September 2003, he only said "to give the public enough time to understand and think" and "to focus on economic development and increase employment", and Later, when answering a reporter’s question, he bluntly said that he would restart Article 23 of the Basic Law. Legislation must not forget the original draft. "Because in the past year, we have conducted a very wide range of consultations and heard many professionals, the legal profession, and society. There are a lot of good opinions for us, and we will re-digest these opinions, which I believe is a good foundation for the next step in the future." In other words, the Hong Kong Government has already set down to follow along early The policy of existing results.
The National Security (Legislative Provisions) Bill mainly adds several crimes to the three existing laws of the Criminal Offences Ordinance, Official Secrets Ordinance, and Societies Ordinance. Among them, the Criminal Crimes Ordinance has changed the most. The content includes the deletion of colonial "treason", "misprision of treason", "assaults on the queen", "seditious intention" and illegal oaths for crime (Unlawful oaths) and other crimes, instead of "treason" (treason), "subversion" (subversion), "secession" (secession), "sedition rebellion" (sedition) and "handling seditious publication" (handling seditious publication) ) And other crimes.
As for the amendments to the "Official Secrets Ordinance", under the heading "Information on Hong Kong Affairs under Central Administration", if a person who is or was a public servant or government contractor without legal authority "Disruptive disclosure" is regarded as a new crime, and "illegal access" is added as the standard for judging the disclosure of illegal information alongside "unauthorized" and "trusted in confidential situations". A large number of provisions added to the Ordinance are aimed at allowing "the Secretary for Security to reasonably believe that it is necessary to ban any local organization to which this section applies for the purpose of national security interests, and reasonably believe that the ban on this local organization and the purpose is Proportionately, the local organization can be banned by order."
Chief Executive Tung Chee-hwa when he had after the 2003 seventy-one Parade announced modify the provisions of the original draft, but Bill was eventually escape the fate of Toru back. (Profile picture/photo by Yu Junliang)
There were indeed some merits in the draft proposal that year, and it is worth taking back as the basis for future re-enactment. For example, the new section 9B of the Criminal Offences Ordinance states that "incitement to incite insurgency is not a crime." Section 9D restricts disclosure. Mistakes in governance, correction of lack of management, promotion of legal reforms, elimination of social disputes, and other "prescribed actions" are not incitement. Articles 18D and 18E require jury trial of relevant crimes against national security, and "Official Confidential The new section 16A of the Ordinance allows uninformed acts as an excuse for the disclosure of information on the central management of Hong Kong affairs, and the new sections 8D and 8E of the Societies Ordinance allow the banned organizations to rule within one month under the Court of Final Appeal Appeal to the Court of First Instance, etc.
In addition, the Administration proposed an amendment to the National Security (Legislative Provisions) Bill in July 2003, which included the deletion of local organizations banned from Mainland organizations that were banned by the central government, and the abolition of police officers to search houses without court warrants Powers, as well as adding defense reasons for exposing officials’ mistakes and protecting the “public interest” for the illegal disclosure of official secrets. The then Secretary for Constitutional Affairs, Lin Ruilin, said that the relevant amendments "respond to the demands of the community and the public's concern... Everyone's doubts can be relieved." Dong Jianhua also said that they "make the National Security Bill to Hong Kong more similar to other common law regions. The law is looser, in many ways, it is more relaxed than the original law in Hong Kong." In order to increase Hong Kong people's support for the legislation of Article 23 of the Basic Law, these arrangements of the amendment should also be retained.
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three. Clearly protect citizens' rights and freedoms
Article 39 of the Basic Law stipulates that: "The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Labour Convention, the relevant provisions applicable to Hong Kong continue to be valid, and are passed through the laws of the Hong Kong Special Administrative Region Implementation. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted except as required by law, and such restrictions shall not contravene the provisions of the first paragraph of this article. Articles 24 to 42 including it constitute Chapter 3 of the Basic Law on Basic Rights and Duties covers the freedoms of election, speech, publication, association, assembly, demonstration, strike, migration, faith, occupation, academics, creation, marriage, etc. Most of the voices that have rejected legislation on national security issues are considered to endanger the rights and freedoms granted to Hong Kong residents by the relevant provisions of the Basic Law.
In order to protect the rights and freedoms of the citizens, before the Hong Kong Government introduced the National Security (Legislative Provisions) Bill, he had consulted the legal opinion of British lawyer David Pannick, and his proposal was "to avoid doubts. It should be stipulated in the new law that its provisions will not contravene Article 27 or Article 39 of the Basic Law, and the restrictions will only apply if they comply with the relevant provisions of the Basic Law." It is also true that Section 18A of the Criminal Offences Ordinance, Section 12A of the Official Secrets Ordinance and Section 2A of the Societies Ordinance are newly added, all of which are "the provisions of this Part must be in a manner consistent with Article 39 of the Basic Law" "Interpretation, Application and Enforcement", these provisions are called "Penric Clauses", and the amendments have extended their restrictions from Article 39 of the Basic Law to the entire Chapter 3.
However, the review process to discuss the bill, we can see that alone, "PANNICK Terms" does not seem to be sufficient vetting. After the meeting of the Bills Committee of the Legislative Council in May 2003, the legal adviser was immediately asked to write to the authorities regarding the validity of the relevant provisions to raise doubts: "If anyone intends to invoke or enforce the provisions covered by the Penrieck Clause, but does not comply with these The clauses will not incur any punishment. How can these clauses effectively protect the freedoms guaranteed by the Basic Law?” Later, the Attorney General’s reply also only referred to “if someone’s actions go beyond the scope of the law and thus violated In the case of human rights, the victim may get a civil remedy, and in some cases, the relevant behavior may be a criminal offense,” and he did not directly respond to the specific effect of the “Penric Clause” itself in this regard.
Legislation should also prevent law enforcement officers from obtaining excessive discretion and making indiscriminate charges, and allow the court to obtain clear guidelines to determine related issues. (Profile picture / Photograph by Liang Pengwei)
In view of this, when Hong Kong re-enacts local legislation on Article 23 of the Basic Law in the future, it is not possible to rely solely on the "Penlex Clause" to require compliance with Article 39 or Chapter 3 of the Basic Law, but to formulate various Protection of rights and freedoms.
For example, on the basis of the amendments to the National Security (Legislative Provisions) Bill, we should clearly exclude the use of force slogans that are not included in the crimes of "subversion" and "secession of the country" that are displayed or chanted in legal assemblies or demonstrations. "Serious criminal means" prevent law enforcement officers from obtaining excessive discretion to make indiscriminate charges, and allow the court to obtain clear guidelines to determine related issues, thereby ensuring that the freedom of speech and assembly granted to Hong Kong residents by Article 27 of the Basic Law is not violated.
Even the existing protection provisions in the amendments to the bill still have room for improvement and optimization. For example, there were a lot of opinions that required reference to section 30 of the "Prevention of Bribery Ordinance" to introduce a defense of "public interest" for the disclosure of official secret crimes. The scope of the article was originally allowed to be disclosed as "illegal activities, abuse of power, serious negligence of duty or other serious misconduct" or "serious threats to Hong Kong's public order or safety or public health or safety". This proposal was added to the test of weighing the interests, and added the condition that "the public interest taken care of by the disclosure is more important than the public interest taken care of by making the disclosure, taking into account the overall circumstances of the case." Since the "public interest" is more difficult to objectively and quantitatively compare, this condition is likely to constitute an obstacle to defense in the long run.
"Force" a special need to get to the bottom. (Profile picture)
four. The Ordinance must have a fine definition of crime
Now that we have talked about the content of the legislative provisions of Article 23 of the Basic Law, it is of course more worthy of attention whether its definition of crime is rigorous and clear. In all fairness, the National Security (Legislative Provisions) Bill 2003 has done some work in this regard. The crime of "treason" is limited to acts involving "foreign armed forces" or "state of war" and constitutes " "Subversion" and "divide the country" crime "serious criminal means" is roughly equivalent to the "Terrorist Act" in the "United Nations (Anti-Terrorism Measures) Regulations" excluding the "threatening to act" (see Table 2), Later, the official amendment also added the word "intentional" for the intention of "inciting rebellion" and replaced the expression "causing" the crime of "managing" others with the crime of "handling inciting publications" to "encourage". The above efforts are worthy of recognition and should be Used in subsequent legislation.
However, in April 2003, the Hong Kong Bar Association’s submission to the National Security (Legislative Provisions) Bill found that there were still several concepts in the bill that were not fully understood, such as acts of "treason" and "subversion". The criminal intent to "intimidate the Central People's Government", "subversion" and "divide the country" as a criminal means of "force", "handling seditious publications" as the definition of seditious publications "probably lead to the crime... ”, “Severely jeopardize the territorial integrity of the People’s Republic of China” as the motive for the crime under the crime of “secession of the country”, and “interpretation of “Hong Kong affairs of the Central Administration” as “related to the Hong Kong Special Administrative Region and under the Basic Law’s central administration Affairs" etc. It should be fine when officials define their meaning in the future draft legislation to avoid ambiguities appear, and then provoke controversy.
(Hong Kong 01 Cartography)
In the above concept, "force" is a special issue that needs to be investigated in detail. At that time, the Bar Association's opinion stated that "the proposed new crime did not define "force". This is not ideal. The term should be clearly defined, otherwise The word should not be used."
In fact, the term "force" has appeared many times in the "Crime Crimes Ordinance", "Electoral (Fraud and Illegal Conduct) Ordinance" and many other legislative provisions, but it has never been clearly defined. It is an element that constitutes crimes such as “attacking others’ intentions to cause or do not do certain actions”, “applying force or coercion to voters”, and it is often used to describe the means by which law enforcement officers respond to specific situations. In fact, there is an urgent need to clarify whether the concept of "force" must involve issues such as physical injury, use of firearms or blades.
In order to relieve Hong Kong people’s worries about suffering after-autumn accounts, the provisions on various national security crimes should not only set a retrospective period that is too long. (Profile picture)
It is also important to point out that the National Security (Legislative Provisions) Bill 2003 implies an important assumption that participation in anti-government public riots does not necessarily constitute "treason", "subversion" or "separatism" "Country" and other crimes. The bill recommends that the new section 9A of the Crimes Ordinance will incite others to commit "treason," "subversion," or "secession of the country" and "incite others to conduct in Hong Kong or elsewhere will seriously endanger the stability of the People's Republic of China." "Public riots" are listed separately. The former can be imprisoned for life, while the latter can only be fined and imprisoned for seven years. Articles 18D and 18E also refer to the two as "incitement for inciting treason, subversion, or secession." "Rebellion", "Incitement to rebellion by inciting public riots", the former must appear in the Court of First Instance, the latter is at the discretion of the defendant.
Taking into account the political situation in Hong Kong in recent years, it is necessary for future provisions to further highlight the distinction between these public riots and crimes such as "treason," "subversion," and "secession of the country," so that the public can clearly understand that simply participating in related activities does not directly contact these criminals. offense.
At the same time, in order to relieve Hong Kong people’s worries about suffering after-autumn accounts, the provisions on various national security crimes should not only set a long retrospective period, but should also be handled as leniently as possible in the prosecution period; in the past, the government Only the two-year prosecution period for the crime of "handling seditious publications" has been set in the amendment to the bill, but it is still much longer than the six months of the various "seditious intention" crimes of the current Criminal Offences, while the crime of "rebellion" The old three-year prosecution period has not been reflected in new crimes such as "treason," and this treatment method seems not very appropriate.
The authorities can also consider cooperating with other actions to alleviate the general public's worries about the erosion of rights. One of the feasible ways is to set up a long-established "Hong Kong Human Rights Commission". (Profile picture)
Fives. Set up a Human Rights Commission to cooperate with legislation
In addition to the method and content of the legislation in Article 23 of the Basic Law, the authorities may also consider cooperating with other actions to alleviate the general public's worries about the erosion of rights. One feasible method is to establish a long-established "Hong Kong Human Rights Commission."
The Human Rights Commission belongs to a national human rights institution. Related initiatives originated from the seminar of the International Workshop on the Protection and Promotion of Human Rights held by the United Nations Center for Human Rights in Paris in October 1991. Representatives of the committee and similar institutions were the main representatives. At the meeting, they formulated the "Principles on the Status of National Institutions" (hereinafter referred to as the "Paris Principles"), and made a series of recommendations for the authority, responsibilities, composition and business methods of national human rights institutions.
The Paris Principles were adopted by the United Nations Commission on Human Rights, the World Conference on Human Rights and the General Assembly of the United Nations General Assembly in March 1992, June 1993, and December 1993. The Vienna Declaration issued after the World Conference on Human Rights "reaffirmed the country The important and constructive role of institutions in the promotion and protection of human rights, especially the role of providing advice to the competent authorities, and their role in correcting human rights violations, disseminating human rights information and conducting human rights education."
Affected by this trend, and when Hong Kong discussed the "Hong Kong Bill of Rights Ordinance", the community has already begun to call for the formation of a local human rights committee. In 1994, the then Legislative Council Member Hu Hongyu submitted the Human Rights and Equal Opportunities Commission Bill, but unfortunately it was not accepted by the last Governor, Chris Patten.
Since Hong Kong's return, the situation of Fu Zhiru, an independent and legal local human rights institution, has not changed. The UN Human Rights Committee, the Economic, Social and Cultural Committee and the Committee on the Rights of the Child are considering the submission of the Hong Kong Special Administrative Region under the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child During the report, he repeatedly expressed concern about the failure to establish such a human rights institution. Reluctantly, the Hong Kong Government has always refused to accept the existing mechanisms such as the Office of The Ombudsman, the Equal Opportunities Commission, the Office of the Privacy Commissioner for Personal Data, the Independent Police Oversight Complaints Committee (formerly known as the Independent Police Oversight Committee) and legal aid services. Set up offices with wider functions to coordinate all local human rights affairs.
In 1994, the then Legislative Council Member Hu Hongyu submitted the Human Rights and Equal Opportunities Commission Bill, but unfortunately it was not accepted by the last Governor, PATTEN. (Profile picture/Getty Images)
In February this year, Hong Kong submitted its fourth report in accordance with the International Covenant on Economic, Social and Cultural Rights, and the first proposal of the Equal Opportunities Commission’s submission in January of this year was clearly the “establishment of a human rights committee”. Straightforwardly, the few statutory human rights institutions in Hong Kong that are only responsible for certain areas of human rights, including the committee itself, are "incomplete arrangements that make it difficult to provide comprehensive protection for the rights recognized in the Convention... A single statutory body with broad mandates should be established, In order to cover all international human rights standards accepted by Hong Kong,” the principal officials still ignored the final report and continued to say to themselves that “the existing mechanism works and there is no need to identify a human rights institution and repeat the functions of the existing mechanism”. It is quite easy Give the outside world a sense that Hong Kong’s human rights are not valued
With the advent of the "Hong Kong version of the National Security Law" and the initiation of local legislation in Article 23 of the Basic Law, Hong Kong people will inevitably fear that their basic rights and freedoms will be weakened. In view of this situation, in order to calm the public’s doubts, the Hong Kong Government now needs to make up for the lags in promoting human rights work over the years. In accordance with the Paris Principles, a Hong Kong Human Rights Commission, including experts in human rights law and criminal law, was established. Responsible for proposing to the government legislative proposals to promote compliance with international standards, and has independent power to investigate and handle various complaints and disputes related to human rights legislation, thereby monitoring the government's implementation and compliance with the provisions of international human rights conventions. Through this human rights institution, officials can send a clear message to the local and international community that the improvement of national security laws will not hinder their determination to safeguard local human rights.
Safeguarding national security is indeed the proper meaning of "one country, two systems", and the "International Covenant on Economic, Social and Cultural Rights" and the "Hong Kong Bill of Rights Ordinance" do point out that "national security" and "public order" can be used as legal restrictions on migration. Justification for free exchanges, public hearings, public opinions, peaceful assembly, group associations, etc., but national security laws should limit and protect citizens’ rights. At present, some people are eager to deal with the threat of national security in their eyes, often ignoring the meaning of "Hong Kong people ruling Hong Kong" which also belongs to "one country, two systems", and over-emphasizing the goal of safeguarding national security by restricting human rights, so as to put forward legislative issues Extremely rigorous content, and full autonomy by the central government, this attitude has to be described as a shallow vision and an upside down.
The above excerpt is from the 218th issue of "Hong Kong 01" Weekly Report (June 15, 2020) "Employing Two Countries to Protect the National Security and Five Measures and Carrying Out 23 Legislations".
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