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Administration's

By Alice Simmons,2014-11-09 23:54
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Administration's

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.

    - 2 -

    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.

    - 3 -

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.

    - 4 -

    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.

    - 5 -

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

    - 6 -

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.

    - 7 -

    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.

    - 8 -

    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.

    - 9 -

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.

    - 10 -

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.

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