立法會
Legislative Council
LC Paper No. CB(2) 1082/02-03(01)
Panel on Security and Panel on Administration of Justice and Legal Services
Summary of concerns and queries raised by Members at the joint meetings
on 26 September 2002, 21 October 2002, 19 December 2002 and 7 January 2003
prepared by the Legislative Council Secretariat
A. General issues
Major area Concerns and queries raised by Members Administration's response
1. Timing to enact (a) The phrase "enact laws on its own" in Article 23 (i) With matters of principle having been discussed
laws to implement of the Basic Law (BL23) meant that the Hong and the detailed proposals being made Article 23 of the Kong Special Administrative Region (HKSAR) available, and with sufficient time to examine Basic Law could decide when and how local legislation was professional views, there was no reason why
to be introduced. It was presently not an the legislation to be proposed could not be
appropriate time to enact laws to implement enacted in July 2003, especially under the
BL23. principle that any matter should be dealt with
efficiently. It was undesirable to leave a gap
(b) There was no need to pass any legislative in the legislation of Hong Kong.
proposals in a hurry, especially in view of the
fact that there had not been any cases of treason
or sedition in the past five years after
Reunification.
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A. General issues
Major area Concerns and queries raised by Members Administration's response
(c) What was the way forward and timetable (ii) The Administration intended to issue a report
regarding the Administration's proposals to setting out the pattern of views received in the
implement BL23. public consultation exercise. The submissions
received would be made public, unless
requested otherwise, with the report. The
Administration also hoped to make public the
way forward, both in terms of the timetable and
its latest position on the proposals in the
Consultation Document.
(iii) It was the Administration's intention that the
draft legislative provisions would be
supplemented by explanations in layman terms
to facilitate the public's understanding of the
provisions.
(d) Whether legislation to implement BL23 must be (iv) While the Administration hoped that legislation
enacted by July 2003. to implement BL23 would be enacted by July
2003, it was not a deadline for the enactment of
such legislation.
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A. General issues
Major area Concerns and queries raised by Members Administration's response
(e) What was the timetable for the issuing of the (v) The Administration hoped to issue the report on
draft provisions. the consultation exercise in January 2003 and
introduce a blue bill in February 2003.
2. Consultation with (a) Whether the Administration had discussed and (i) Consultation had been made with the Central the Central People's reached an agreement with the Mainland People's Government (CPG) on matters of Government regarding its proposals and legislative timetable principle and concepts such as national security,
to implement BL23. territorial integrity and unity. Technical
issues, points of law and enforcement aspects
would be dealt with by the HKSAR on its own.
(ii) The common wish regarding the legislative
timetable was that the proposals to implement
BL23 should be enacted as soon as possible.
3. Issuing of a white (a) The Administration should, after the (i) It was not the Administration's usual practice to bill consultation period, issue a white bill in early issue a white bill before the introduction of a
2003 setting out the details of legislative blue bill.
proposals to implement BL23 for a consultation
period of a few months before introducing a blue
bill in mid-2003.
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A. General issues
Major area Concerns and queries raised by Members Administration's response
(b) From a constitutional point of view, a white bill (ii) The introduction of a blue bill after the
differed from a blue bill in that the consultation period would be the most efficient
Administration had not taken a position on the way to deal with the matter. A blue bill and a
provisions to be enacted and the legislative white bill could equally serve the purpose of
process had not yet commenced. providing details about the legislative
proposals.
(c) Why the Administration would not issue the (iii) It was the Administration's general practice to
draft legislative provisions in the form of a white issue a blue bill after a public consultation
bill, which would set out the draft provisions exercise. Over the past 18 years, only 18
clearly while providing room for public white bills had been introduced, among which
discussion. three were subsequently withdrawn. The
Administration considered that what could be
(d) A white bill differed from a blue bill in that the achieved by way of a white bill could also be
Administration did not take a stand on the achieved by way of a blue bill.
proposals in a white bill, while it took a stand on
the proposals in a blue bill. After a blue bill (iv) The Administration did not take a stand on a
was introduced into LegCo, it would be up to the white bill. However, the issuing of a blue bill
Bills Committee formed to study the bill to did not mean that the Administration had taken
decide how to carry out public consultation, a stand on the blue bill.
including the scope and period of consultation.
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A. General issues
Major area Concerns and queries raised by Members Administration's response
(e) A white bill differed from a blue bill in that the
former could not be enacted by LegCo.
4. Human rights (a) Whether the enacted legislation would override (i) The enacted legislation would not override the implications existing provisions in the Hong Kong Bill of provisions in BORO. Under BL39, the laws
Rights Ordinance (BORO). enacted by the HKSAR ought to be consistent
with the provisions in International Covenant
on Civil and Political Rights (ICCPR).
(b) Whether the proposed proscription mechanism (ii) The human rights enjoyed by the people of
would restrict freedom of association. Hong Kong, such as the freedom of speech,
freedom of expression, freedom of association
(c) Whether the increase in Police power arising and freedom of assembly, would not be
from the proposed emergency powers for undermined. Where an act had gone beyond
investigating some BL23 offences would the limits and was in breach of local legislation,
undermine the human rights of the people of it would become an offence and it would no
Hong Kong. longer be a matter of freedom.
(d) The Chief Executive of the HKSAR (CE) had (iii) Holding or expression of opinions would not
emphasised on 24 September 2002 that the constitute an offence under the Administration's
Administration's proposals would not undermine proposals. Thus, the rights as guaranteed
in any way the existing human rights and civil under the ICCPR would not be undermined.
liberties enjoyed by the people of Hong Kong.
With the proposals regarding secession and the (iv) In respect of the legislation to be proposed on
proposed proscription of organisations affiliated secession, there would not be any extension of
with a proscribed Mainland organisation, how the existing criminal law in relation to acts or
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A. General issues
Major area Concerns and queries raised by Members Administration's response
CE could conclude that the existing human speech of people.
rights enjoyed by the people of Hong Kong
would not be undermined.
(e) The last sentence of paragraph 1.11 of the (v) The rights enshrined in ICCPR could be
Consultation Document indicated that the restricted in certain circumstances, such as for
proposals would impose restrictions on human the purpose of national security. The
rights and freedoms. Whether this indicated proposals in the Consultation Document were
that the rights and freedoms enjoyed by the therefore not infringing ICCPR or human
people of Hong Kong would be infringed. rights.
5. Rendition-related (a) Whether people who committed offences such (i) There was not yet a rendition agreement issues as subversion, sedition or theft of state secrets in between the Mainland and the HKSAR.
the Mainland and escaped to Hong Kong might
be surrendered to the Mainland for trial, after (ii) None of the extradition agreements entered into
legislation to implement BL23 was enacted and by Hong Kong and other countries covered
a rendition agreement was reached between the such offences. A person could be extradited
Mainland and Hong Kong. only if the offence concerned fell within the list
under the agreement and that it was an offence
(b) Whether the Administration would take steps to in both jurisdictions. It was not a practice at
ensure that the offences under legislation to the international level to extradite individuals
implement BL23 would not be covered by the for offences endangering national security.
rendition agreement, if any, to be reached
between the Mainland and Hong Kong.
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A. General issues
Major area Concerns and queries raised by Members Administration's response
6. Proscription of local (a) While the Societies Ordinance (SO) sought to (i) SO was not only restricted to a society which
organisations prohibit the operation of a society which had a had connection with a foreign political
connection with a foreign political organisation organisation or a political organisation of
or a political organisation of Taiwan, the Taiwan. Existing provisions in SO already
Administration proposed to extend the coverage provided for the Societies Officer to
to a society which had a connection or affiliation recommend to the Secretary for Security (S for
with a proscribed Mainland organisation. S) the making of an order prohibiting the
operation or continued operation of a society on
(b) BL23 provided, among others, that the HKSAR the grounds of national security, public safety
should enact laws to prohibit foreign political or public order (ordre public).
organisations or bodies from conducting
political activities in the HKSAR. It was (ii) Even after S for S had proscribed a local
doubtful whether the proposed proscription of organisation, the proscription would not come
an organisation affiliated to a proscribed into force until the appeal process was
Mainland organisation was within the scope concluded. Where a proscription came into
BL23, as it was not a foreign organisation. force, it only involved prohibiting the operation
of an organisation but not the arrest of persons.
(c) Proscriptions made by the Central Authorities (iii) As the continental law system was adopted in
were based on rule of man rather than common the Mainland, a decision of the Central
law principles. The proposed proscription Authorities to proscribe a Mainland
mechanism might result in the introduction of organisation in the Mainland was not made in
Mainland's rule of man and legal system into accordance with the common law. It was a
Hong Kong. This would undermine the rule of lawful decision made in accordance with
law and the legal system in Hong Kong. national laws on the ground that the particular
Mainland organisation endangered national
security.
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A. General issues
Major area Concerns and queries raised by Members Administration's response
(d) Whether it was appropriate for S for S to (iv) There was no reason why Hong Kong should
proscribe a local organisation on the basis of a not consider whether such a decision made in
proscription by the Central Authorities of a accordance with the law by the Central
Mainland organisation to which it was affiliated. Authorities, especially under the "one country"
principle, would impact on Hong Kong.
(v) Before proscribing a local organisation
affiliated with a proscribed Mainland
organisation, S for S had to be satisfied by
evidence that it was affiliated to the proscribed
organisation in the Mainland, and there was a
threat to national security that it was both
necessary and proportionate to proscribe the
local organisation. S for S's power of
proscription was subject to the safeguards of
appeal to an independent tribunal on points of
fact and the court on points of law, and the
ordinary remedy of judicial review.
(e) Whether S for S or the court could come to the (vi) The proscription of a Mainland organisation by
decision that a local organisation should not be the Central Authorities would be a fact that the
proscribed, if the CPG had certified that a court must accept. However, sufficient
Mainland organisation to which the local evidence admissible to the court would have to
organisation was affiliated had been proscribed be presented by the prosecution to prove that
on the ground of national security. the local affiliated organisation was a threat to
national security.
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A. General issues
Major area Concerns and queries raised by Members Administration's response
(f) Why an independent tribunal was to be (vii) It was an established practice to establish
established to consider points of fact while the tribunals to handle appeals on points of facts,
court would only consider points of law. while appeals regarding points of law were
dealt with by the court. The decision of the
tribunal was subject to judicial review.
(g) It would be very difficult for an accused to (viii) As the nature of evidence likely to be
defend himself, if information heard by the considered in an appeal was highly confidential,
independent tribunal was confidential. the establishment of an independent tribunal
was appropriate. Special tribunals were also
established in many other jurisdictions to deal
with similar matters.
(h) If the CPG certified that a Mainland organisation (ix) A certification by the Mainland authorities of
was proscribed on national security ground, and the proscription of a Mainland organisation
that a certain organisation in Hong Kong was would be conclusive evidence that the
affiliated to that proscribed organisation, the Mainland organisation had been proscribed in
proscription and certification would be an act of the Mainland on the grounds of national
state over which the courts of Hong Kong had security. It would not be conclusive for any
no jurisdiction. other purpose.
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A. General issues
Major area Concerns and queries raised by Members Administration's response
(i) Whether the "points of fact" as referred to in (x) In relation to a Mainland proscription, the
paragraph 7.18 of the Consultation Document Administration was proposing a system of
were "facts concerning acts of state" as referred certification which was similar to that referred
to in BL19. to in BL19. However, it did not mean that the
proposed system would operate under BL19.
It only meant that the court must accept the fact
that the Mainland organisation had been
proscribed, if there was a certificate to such
effect.
(xi) While a decision by the Mainland to proscribe a
Mainland organisation would be based on the
interpretation of national security in the
Mainland, S for S would make an independent
decision as to whether a local organisation was
a threat to national security.
(j) Whether a local organisation would be (xii) The proscription was not automatic. If S for S
automatically proscribed, once any of the three proscribed a local organisation merely on the
pre-conditions set out in paragraph 7.15 of the basis of one of the three pre-conditions without
Consultation Document was satisfied. examining whether the local organisation was a
threat to national security as defined in the laws
of Hong Kong, the decision might be struck
down by the court.