Mixed messages
We are being exhorted to unite behind the government at a time when Hong Kong is beset internally by Sars and besieged externally by countries fearful of being infected. Now is not the time, we are told, for divisive steps, such as calling for a vote of no confidence in Financial Secretary Antony Leung Kam-chung. Now is the time for unity. And yet, where Article 23 is concerned, the government does not feel now is the time for unity. Instead, it is intent on pushing through the National Security (Legislative Provisions) Bill, which is meant to implement Article 23 of the Basic Law.
It is actually rather curious that the government is calling this national security legislation. Nowhere in Article 23 does the term appear. And yet, both the Hong Kong and central governments use this term for Article 23 legislation. Does that mean the Basic Law has been amended without the required legal processes?
If this is not the case, then we have to look at the language of Article 23, which stipulates that the 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 organisations or bodies from conducting political activities in the region, and to prohibit political organisations or bodies of the region from establishing ties with foreign political organisations or bodies'.
Many people have pointed out that the term 'state secrets' in the mainland is extremely flexible. To circumvent this problem, our legal draftsmen have cleverly worded the bill to avoid using this term.
In attempting to implement Article 23's requirement for a law to prohibit the theft of state secrets, the Hong Kong government proposes to amend the existing Official Secrets Ordinance. The original legislation did not contain the term 'state secrets', and neither do any of the proposed amendments.
This way, when Hong Kong courts are called upon to interpret the bill in future, they will not be encumbered by the mainland's loose definition. That is fine as far as Hong Kong's courts go, but what if the Standing Committee of the National People's Congress were to be called upon for an interpretation of the Basic Law to see if the local legislation is consistent with Article 23? The situation would be totally different. The Standing Committee, no doubt, would look at the language of Article 23 and decide that since the Hong Kong legislation was designed to implement Article 23, the intent of the law must have been to protect 'state secrets' of the central government. There would be no way, in those circumstances, that the mainland's definition of 'state secrets' would not apply in Hong Kong.
Among the government's amendments to the Official Secrets Ordinance is a new provision, known as Section 16A. That introduces the concept of 'affairs concerning the Hong Kong special administrative region which are, under the Basic Law, within the responsibility of the central authorities'. Such information, not defined as state secrets, is to be protected.
We have been told by relevant authorities, including Solicitor-General Robert Allcock, that this narrows things down to information concerning defence and foreign affairs, which the Basic Law says are the responsibility of the central government. There are two points worth noting. First, the Basic Law does not specifically limit the central government's responsibility to defence and foreign affairs. Second, the term 'foreign affairs' in China is extremely wide - just like state secrets.
'Foreign affairs' in the Chinese context is not limited to diplomatic affairs. It is not just the central government that is involved in foreign affairs. Every provincial government and municipality has a foreign-affairs office. When the Ministry of Health holds a press conference at which foreign journalists are present, it is dealing in foreign affairs. When a retired Chinese physician tells foreign journalists that the government is lying and suppressing information about Sars, he is, in the government's view, involving himself in foreign affairs.
Oh all right, the Hong Kong government may respond, but disclosure of the information has to be damaging to national security. But just how does the mainland define national security? It is also a very vague concept. It means whatever the communist party says it means.
Besides, the Standing Committee can point out, quite rightly, that Article 23 does not mention national security at all. It can authoritatively declare that the requirement that disclosure of information be damaging to national security is itself inconsistent with the Basic Law.
