Bar says security laws exceed what Article 23 requires

PUBLISHED : Saturday, 12 April, 2003, 12:00am
UPDATED : Saturday, 12 April, 2003, 12:00am

The Hong Kong lawyers' body criticises the legislation as excessive, and sees appeal rules embarrassing the Judiciary

Hong Kong's proposed national security laws go beyond what is required by the Basic Law, the Bar Association said yesterday.

The association also criticised a proposal to give the Judiciary responsibility for developing rules of procedure for special appeal hearings concerning groups banned under the laws.

The Bar has had a team of specialists study the blue bill drafted under Article 23 of the Basic Law, which requires laws to be passed against treason, sedition, secession and subversion. Yesterday, the team produced its first paper on the draft legislation.

Bar Association chairman Edward Chan King-sang warned that giving the chief justice the power to make rules for appeals by groups against their banning would embarrass the Judiciary.

The draft law states that the chief justice may make rules enabling appeal proceedings to take place in the absence of appellants and their legal representatives, a provision that has been criticised as unconstitutional by lawyers and human rights experts, but defended by the government as necessary to protect security interests.

'We think this is a controversial matter of great importance - not just procedural in nature - and should be dealt with through primary legislation,' Mr Chan said.

'Asking the chief justice to make rules will embarrass our Judiciary, as [the rules] are bound to be challenged on constitutional grounds and [are] likely to fall foul of Article 35 of the Basic Law.'

Article 35 affirms Hong Kong residents' rights to a choice of lawyers, confidential legal advice and access to the courts.

'The government may have made the mistake of equating the chief justice with the Lord Chancellor in the United Kingdom, but the Lord Chancellor wears three hats: as a member of cabinet, the chief of the House of Lords, and also the nominal head of the judiciary, but our chief justice wears only one,' Mr Chan said.

The paper, which Mr Chan said would not be the last issued by the Bar on Article 23, also noted that the bill has gone beyond what is mandated by the Basic Law, especially in its proposals to change the Official Secrets Ordinance and the Societies Ordinance.

It would not be a defence under the laws to say unauthorised information was disclosed because of overriding public interest.

'We feel that the legislation is not paying sufficient regard to public interest, in particular if the information is already in the public domain,' Mr Chan said.'The amendments to the Official Secrets Ordinance are quite unnecessary and go beyond what the Joint Liaison Committee had already said was sufficient to deal with Article 23 before the handover.'

The Bar called for the offences of treason, subversion and secession to require specific intent and for the government to justify seeking the power to conduct searches without warrants.

Mr Chan also criticised the Legislative Council Bills Committee for holding just two public hearings on Article 23, one this morning.

Several groups have complained they were left out of the public hearings. Law Yuk-kai, director of Hong Kong Human Rights Monitor, complained he did not even know of today's hearing.