Article 23 legislation will ensure stability / 《基本法》二十三條立法將保障香港穩定
The relaunch of legislation to 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 accepted the need for legislation to safeguard national security.
Yet there remain nagging doubts on whether offenses relating to "official secrets", "sedition" and "foreign interference" would curtail freedom of expression and other fundamental freedoms. Such concerns are understandable. To maintain Hong Kong's competitiveness as a 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 concerns to be 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 offenses and criminal investigation; information entrusted in confidence; and information relating to territories, states or international organizations. Under this ordinance, unlawful disclosure of such information is a criminal offense 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 information relating to technological development, which is regarded as a State secret under proposals in the consultation document. The short answer is if journalists report on something that is already in the public arena, such information is, by definition, no longer secret, and they cannot possibly be guilty of unauthorized disclosure. It is a different story if journalists obtained protected information to 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 terminological one. 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 mimi 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 consultation document. Concerns have also been raised that some of the categories of State secret proposed in the consultation document may be 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 endanger 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" entail. 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.
Article 23 legislation will ensure stability (Authored by Regina Ip, posted on China Daily)