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Proposal to implement Article 23 of the Basic Law

Monday 23 December, 2002

Security Bureau
(Attn: AS(F)2, F Division)
6^TH Floor, East Wing
Central Government Offices
Lower Albert Road
Central, Hong Kong

Dear Sir/Madam,

The Hong Kong Democratic Foundation (HKDF) takes the view that the implementation of Article 23 is not necessary at this stage. Five years have elapsed since the reunification and nothing bad had happened. Hong Kong would be better off dealing with the more urgent problems, such as employment, budget deficits and the economy now.

However, we also recognise that Hong Kong has an obligation to implement Article 23 and that there is no "ideal" time to put forward such legislation. As the HKSAR Government has put forward a consultation document on Article 23, we should now focus on how Hong Kong could legislate "on its own", without constraint by extraneous concerns, in term of the content, the process and timing of the legislation. The important thing to do now is to get any legislative changes right first time and ensure that these are broadly acceptable to the public.

It is important that the HKSAR Government consult widely on this issue. We hope that the HKSAR Government’s consultation paper and participation in outreach events constitute a genuine attempt to gauge public reaction to the broadly indicated proposed legislation to implement Article 23 of the Basic Law.

As to the substantive proposals in the Consultation Document, we are particularly concerned about the consultation process itself:

1. Various constituencies (the press, human rights groups and the legal profession, etc.) making up Hong Kong society have expressed their concerns, particularly with regard to definitions of state secrets, secession, sedition, organisation, extraterritoriality, and certain police powers that could be used in ways likely to stifle the open atmosphere of Hong Kong. We associate ourselves with such concerns. It is now for Government to amend and refine its proposals having fully considered and given to appropriate weight to these concerns, and to put such refined proposals into proper legislative form.

2. To be credible and demonstrably fair and unconstrained by extraneous concerns, the consultation process should be conducted in at least two stages. The first stage that ends on 24 December 2002 is insufficient in itself. The second should comprise HKSAR Government's full consideration of all submissions made on the Consultation Document and the publication of a further document for further public comment, HKSAR Government's response to the various views and concerns expressed as well as drafts of the legislative changes ("White Bill") now proposed. As always with legislation, it is the precise meaning of the words in their legislative context which counts. Whether to conduct a third stage of consultation on any revised legislative proposals resulting from the second stage should not be ruled out but will depend on the public reaction to the draft legislation.

3. To miss out the second stage of the process by going straight to the Legislative Council with a Bill for enactment will be a great disservice to Hong Kong as a whole. The HKSAR Government will be severely criticised at home and abroad. Hong Kong's reputation as an open society and generally a good place to do business in will suffer. Even the Central Government’s reputation will be affected. To conduct the second stage consultation will greatly enhance the HKSAR Government's reputation for dealing fairly with the Hong Kong public and for conscientiously endeavoring to ensure that whatever legislative changes the Government decides to put to the Legislative Council for enactment are broadly acceptable to Hong Kong people.

Perceptions, both at home and abroad, matter to Hong Kong tremendously. The HKSAR Government must strive to make adequate clarification of the details to ensure final adoption of legislation that ensures maximum freedoms within the rule of law, while proscribing very narrowly defined offenses against the state. Trust is the key here. What is at stake is the trust, the confidence and the ultimate backing of the citizens of Hong Kong. For this to be secured, Hong Kong people have to know that they have influence over the laws and agree to the laws that govern them.

A "White Bill" provides an opportunity to bolster mutual confidence and strengthen citizens’ trust and loyalty in the HKSAR Government and the Central Government.

Denial of that will have the opposite effect.

Sincerely yours,

Alan LUNG Ka-lun
Chairman
Hong Kong Democratic Foundation

保安局

中央政府辨事處

敬啟者:

建議就基本法23條立法

民主促進會意見是現時港府不需要為基本法第23條立法。香港回歸五年來大致安定沒有任何負面事情發生，港府應該集中精神處理更加迫切問題例如就業，財政赤字及經濟問題。

雖然我們明白港府有責任為23條立法，及亦沒有理想立法時間。而特區政府已就23條立法展開咨詢，我們應該集中精神專注在不受外界限制情況下，香港“在”內容程序及時間來「自行立法」。現時最重要是如何第一次立法做得正確及受廣大市民接受。

現在港府應該廣泛咨詢。我們希望港府咨詢文件與參加外展辨論是真正收集公眾意見，對23條立法的反應的廣泛收集意見。

就咨詢文件具體建議，我們對咨詢程序尤其關注：

1. 香港不少團體（新聞界，人權組織，法律界等）尤其對國家機密，分裂，顛覆，組織，境外法權等定義表示關注某些警察權力可被用來壓制香港的開放氣氛，我們亦同意這些關注。港府需全面考慮及衡量這些關注現應修改及重新制訂建議，及將其立法。
2. 要達到明顯公平及不受外界關注影響，咨詢程序最少要分兩個階段。在12月24日完成第一階段本身是不夠。第二階段應包括港府考慮所有意見及其反應，及進一步刊登文件，再咨詢公眾意見，雖然提出建議立法更改草案（白皮書）。在所有法例，文字在其文義中確實詮釋是最為重要。因應公眾對立法草案反應，不要排除第三次咨詢的可能性。
3. 若繞過第二階段咨詢而直接走到立法程序對香港整體是不公平。特區政府在本地及海外都會受到嚴厲批評。香港為一個開放社會及良好經商城市美譽都受影響。進行第二階段咨詢會大大增加港府公平對待公眾及積極尋求保證任何法律改變都被廣大市民接受的聲譽。

香港對外或對內的形象是十分重要，特區政府必須充足澄清所有細節，保證最後立法能在法治之一保證最大程度自由，及盡量收窄叛國罪定義。關鍵就是信任。現在港府面對問題就香港市民對政府的信任，信心及最後支持。要達到這目標，香港市民必須知道他們能影響法律及同意管治他們的法律。

“白皮書”提供市民對特區及中央政府互相信任及忠心的機會，反之會構成反效果。

龍家麟

香港民主促進會主席

二零零二年十二月二十三日