The Canadian Chamber of Commerce in Hong Kong

La Chambre de Commerce Canadienne a Hong Kong

香港加拿大商會

 

March 7, 2003

 

Hon James To Kun-sun

Room 601, Citibank Tower

3 Garden Road

Central

H.K.

 

Dear Hon James To Kun-sun,

 

Re: National Security (Legislative Provisions) Bill

 

The Canadian Chamber of Commerce in Hong Kong realizes the importance and necessity of tabling National Security legislation according with Article 23 of the Basic Law and commends the HKSAR Government for tackling this important issue. The Canadian Chamber of Commerce would like to contribute to the discussion by adding some of our views and experience.

 

The Chamber met with Security Secretary, Regina Ip, during the consultation stage and voiced concerns over the process involved in drawing up the legislation. Although the Canadian Chamber would have preferred that the government issue a White Bill at that time, we welcome the Blue Bill along with the invitation to stay involved in the process and give our comments.

 

We commend the Government of the HKSAR for making meaningful amendments based on community feedback during the consultation stage. We particularly welcome the changes to the Official Secrets Ordinance and the limitation of the offence of treason to Chinese nationals. We also acknowledge the efforts made by the Government to reduce the potential limitations on the freedom of the press in Hong Kong.

 

There are, however, several comments that we would like to make based on the draft legislation:

 

1.          Section 8A: Proscription of organizations endangering national security – This section is perhaps one of the more contentious parts of the proposed legislation. In our view, part of the reason for the public concern over this provision is that it may go beyond the strict requirements of the Basic Law. Specifically, the Canadian Chamber of Commerce believes that subsection (2) (c) remains problematic, even taking into account changes made thus far.

 

Article 23 requires that:

 

The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.

 

In our view, provisions 8A(2)(a) and (b) are sufficient for this purpose. Article 23 does not require that a body proscribed in the Mainland be proscribed in Hong Kong. Indeed, the phrase "…shall enact laws on its own…" in Article 23 would imply that such a linkage to PRC law was not intended in the agreement.

 

We submit that subsections (a) and (b) are sufficient to safeguard the national interest as they provide the Secretary for Security with the tools to proscribe organizations posing a threat to national security. Certainly the proscription of a mainland organization by the PRC would provide strong prima facie evidence that the same body should be proscribed in Hong Kong, or that the potential for proscription warranted further investigation. For example, if the PRC proscribed a terrorist organization such as Al-Qaeda on the basis that it threatened national security, it would appear self-evident that sufficient evidence would be available for the Secretary for Security to reach the same conclusion independently.

 

It is our recommendation, in view of the wording of the Basic Law and the principle of "one country, two systems" that aspects of the PRC law should not be linked, directly or indirectly, into the National Security legislation.

 

In the event that the government does not share our view that subsection (c) is unnecessary, we offer a few proposals for the modification of section 8A with a view to minimizing impairment to the independence of the HKSAR.

 

First, the structure of 8A is such that it automatically applies to any organization proscribed by the PRC Central Authorities. For the reasons set out above, this creates an unnecessary and controversial linkage to the PRC Central Authority. A similar result could be achieved by the removal of subsection (c) and the replacement with a provision to the effect that:

 

"in determining whether a local organization falls within the provisions (a) or (b), the fact that such local organization is subordinate to a mainland organization the operation of which has been prohibited on the ground of protection the security of the People's Republic of China, as officially proclaimed by means of an open decree by the Central Authorities under the law of the People's Republic of China may be accepted as prima facie evidence that such local organization falls within the provisions (a) or (b), subject to the provision of evidence to the contrary."

 

In our view, this represents an improvement, as it does not shift the burden of proof to the organization, as is the case in the current legislation. Rather, it provides an evidentiary burden that may be overcome by the provision of evidence to the contrary. While this still places a burden on the organization, and acknowledges the security interest of the PRC Central Authority, it does not automatically trigger the application of Hong Kong law based on the application of PRC law.

 

As a further protection, we recommend that provision 8B(2) should include less ambiguous guidelines for situations where the Secretary for Security intends not to afford an organization the opportunity to be heard. It could read:

 

(2) Subsection (1) does not apply where the Secretary for Security reasonably believes that affording the organization an opportunity to be heard or to make representations in writing would in itself represent a danger to national security in the circumstances of the case.

 

The basis for this recommendation is one of the foundations of a society based on the rule of law: An accused should have an opportunity to face his accuser and rebut the charges against him. Only in the most exigent of circumstances should the State override this right. In our view, "practicable" represents too low a threshold to deny such a basic right since it implies convenience as a potential excuse. Recognizing that genuine emergencies may exist requiring immediate action, we intend by our proposal to recognize the government's legitimate interests while minimizing potential impairment of human rights.

 

2.          Potential additions based on Canadian legislation – Based on our experience as Canadians, the members of the Canadian Chamber of Commerce in Hong Kong believe that there are a few provisions of Canadian legislation in this area that Hong Kong legislators might usefully include in the proposed National Security Legislation.

 

l          First, under the Treason Ordinance, we suggest adding an element of corroboration in order to safeguard against false accusations of treason. The Canadian Criminal Code contains the following provision:

 

¨           No person shall be convicted of treason on the evidence of only one witness, unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.

 

In our view, this provision is justifiable in the interests of preventing the vindictive denunciation of one individual by another. For a crime carrying such serious consequences, and acknowledging the fallibility of even the most honest of eyewitnesses, the uncorroborated evidence of a single witness should be insufficient for conviction.

 

l          The HKSAR Government should consider a limitation period for the act of treason (and indeed the other offences) similar to that provided in Canadian legislation. This would help to ensure that changing political situations and social contexts do not operate retrospectively, so that activities acceptable today are later deemed to have been treasonous and thus liable to prosecution. Quite simply, a statement made today might not, in the prevailing social and political climate, be considered offensive, let alone treasonous, subversive or seditious. In a different social and political context, with the passage of time, the same comment could take on entirely new connotations. An individual should not have to fear the repercussions of actions from his distant past in a different context. The relevant Canadian legislation reads:

 

¨           No proceedings for an offence of treason…shall be commenced more than three years after the time when the offence is alleged to have been committed.

 

l          Lastly, we would like to see a provision acknowledging the legitimate right of labour to engage in organized action and protest. We do not believe that a policeman, fireman, nurse or air traffic controller commits treason by virtue of a work stoppage as part of a labour dispute. It is possible to interpret the current wording of the legislation in that manner, so for the sake of clarity we would recommend the introduction of explicit safeguards. Canadian law provides that:

 

¨           No person does a prohibited act within the meaning of this section by reason only that

 

(a)    he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;

 

(b)   he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or

 

(c)    he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.

 

The Canadian Chamber of Commerce in Hong Kong sees the healthy community debate around Article 23 as a very positive development in the political evolution of Hong Kong. Indeed, political awareness seems to be growing in the Hong Kong community and this bodes very well for Hong Kong's political development as stipulated in the Basic Law. It also indicates that respect for the rule of law, the cornerstone of our society, is alive and well.

 

Sincerely,

 

 

Janet De Silva

President

 

CC: Mrs Regina Ip, Secretary for Security