The National Security (Legislative Provisions) Bill () was a bill proposed by the Government of Hong Kong in 2003. It aimed to amend the Crimes Ordinance, the Official Secrets Ordinance, and the Societies Ordinance, pursuant to the obligation imposed by Article 23 of the Basic Law, and to provide for related, incidental and consequential amendments. The proposed bill was introduced on 14 February 2003. It caused considerable controversy in Hong Kong and a massive demonstration on 1 July. On 6 July, James Tien resigned from the Executive Council. On 5 September 2003, Hong Kong chief executive Tung Chee-hwa announced that the bill had been officially withdrawn.
Background The Article 23 of the Basic Law (BL 23) states:
Before 1997, the government of British Hong Kong introduced the Crimes (Amendment)(No.2) Bill 1996 in an attempt to concretize the concepts of "subversion" and secession" by confining them to actual violent conduct but it failed as it was strongly opposed by the PRC government. The failure of this 1996 bill thus left a vacuum in the present legislation.
The government of the Hong Kong Special Administrative Region (HKSAR) had delayed the matter and had successfully warded off any suggestion to enact a law. However the controversy over Article 23 began in mid-2002 when Qian Qichen, Vice Premier of the State Council, expressed the PRC government's desire for Hong Kong to pass the required legislation quickly. This prompted the Chief Executive of Hong Kong Tung Chee-hwa to begin the process of drafting the said legislation. On 24 September 2002, the HKSAR government unveiled its Consultation Document on Proposals to Implement Article 23 of the Basic Law. Even before the publication of the consultation document, a number of groups such as the Hong Kong Bar Association and the Hong Kong Journalists Association had expressed grave concerns in July 2002 about the possible implementation of the Article 23. The three-month consultation ended in December after a demonstration on 15 December 2002 which drew almost 60,000 people against the proposal. In response, the government amended the proposal by giving several major "concessions" on the substance, but rejected the call for a white paper.
Content The National Security (Legislative Provisions) Bill was introduced to the Legislative Council on 26 February 2003 after a blue bill was published in the Gazette on 14 February. The bill was to provide for the following: the offences of treason, subversion, secession and sedition; the prohibition of unauthorized disclosure of certain official information; the proscription of certain organizations if it is necessary in the interests of national security and is proportionate for such purpose; the power of entry, search, seizure, detention and removal by the police without warrant for the investigation of treason, subversion, secession, sedition and handling seditious publication; the election of trial by jury in respect of sedition by inciting violent public disorder, handling seditious publication and any of the offences of unlawful disclosure; the removal of existing time limit for prosecution of offences; and related, incidental and consequential amendments. 50 out of the total 60 Legislative Council members joined the Bills Committee. Chaired by Ip Kwok-him of the Democratic Alliance for the Betterment of Hong Kong (DAB) and his deputy Ambrose Lau of the Hong Kong Progressive Alliance (HKPA), the committee oversaw the fierce battle between the pro-Beijing and pro-democracy members. During the Bills Committee's deliberations on the bill, the government agreed to some amendments, but the critics said they were insufficient and the government's timetable of passing the bill in the Legislative Council did not allow sufficient time for deliberation.
Positions Concern with the legislation arose because of the authoritarian nature of the PRC government: the bill would invoke concepts of treason against the PRC government in certain circumstances. Critics claimed that the legislation would erode freedom of speech. Suspicions were exacerbated by the refusal of the HKSAR government to issue a white paper on the legislation, causing groups such as Amnesty International to declare that it had "grave concerns about the proposals in the government's consultation document and the lack of a draft white paper which means that the public still do not know how the legislation will actually be worded." The government would be required to issue a blue paper containing the draft legislation when it presented the new bill to the Legislative Council, but this would leave no time for the public to voice its concerns, and the government might use its unelected majority in Legco to rush the bill through.
Concerns In the consultation document of Article 23 enactment, the following issues caused concern: Any branch of an organization that is part of an organization banned by the central government of the PRC under state security reasons can be banned in Hong Kong at any time, and the Hong Kong government does not have to conduct any independent investigation. This provision was of particular concern because the PRC government did not have a general legal mechanism for defining a banned organization or political dissidents. One consequence of this is that it would become somewhat harder to prosecute regular members of an organization disliked by the PRC government, as it would require the PRC government to try to find a crime which the individual had committed. The concepts of government and country are confused and exchangeable in the proposed document. In a democratic country, citizens are empowered with the right to monitor and check the government. The proposed enactment of Article 23 makes opposing the government the same as opposing the country. In the proposed enactment, police are allowed to enter residential buildings and arrest people at any time without court warrants or evidence. Any speech deemed as instigative can be regarded as illegal, including oral, written and electronic forms; it is a crime both to express, and to hear such speech and fail to report it. Permanent residents of Hong Kong must comply with this law, regardless of where they reside. People who are in Hong Kong are also subject to Article 23, regardless of nationality, including people who visit or transit through Hong Kong. Violations of Article 23 could result in a life term in prison.
Debate Supporters of the legislation, the most vocal of which is perhaps Hong Kong's Secretary for Security Regina Ip, viewed the introduction of the law as being quite ordinary and natural:
"Firstly, all countries have laws to protect national security but, in Hong Kong, the Mainland's national laws on this subject do not apply. It has been left up to the Hong Kong SAR Government to enact laws 'on its own'. This in itself shows a great measure of trust in Hong Kong people by the Central Government authorities. We are not introducing Mainland law into Hong Kong. We are developing our own approach. Can you imagine California or Connecticut enacting their own laws against treasonous acts or foreign organizations bent on the overthrow of the US Government?"Basiclaw23HK. "Basiclaw23 ." HK needs laws to protect national security by Secretary for Security, Mrs Regina Ip, January 2003. Retrieved on 2007-05-05.
"Secondly, we have a constitutional and legal obligation, under our Basic Law, to enact such laws. By doing so, we fulfil our role to implement One country, two systems. Five years after reunification, it is time to move ahead on a matter that is regarded as extremely important by our sovereign. By doing so, we will remove once and for all the uncertainties that have cropped up from time to time over the past five years as to when, and in what form, Article 23 will be implemented."
"We also have a moral duty, as a Special Administrative Region of the PRC, to protect the security and sovereignty of our country. Why should Hong Kong people be under any less obligation to do so, or indeed feel uncomfortable in doing so, compared to citizens in other countries?"
Ip has been criticised by the press and religious groups for her zealousness in pursuing the implementation of the legislation. Ip asserted that because the ordinary people would not "understand the legal language", there was no point in consulting them on it.
Bob Allcock, the Solicitor General of Hong Kong, was perceived as more even-handed in his approach and frequently argued that the laws proposed by the government are less restrictive than the colonial era laws that they were intended to replace:
"Contrary to what some have alleged, the bill to implement Article 23 of the Basic Law does not provide for 'secret trials'. Any criminal prosecution under the proposed new laws would be subject to normal trial procedures. In addition, if anyone were charged with one of the serious offences against national security, he or she would have the right to trial by jury."Basiclaw23HK. "Basiclaw23." There will be no 'secret trials' by Bob Allcock, Solicitor General, 25 March 2003. Retrieved on 2007-05-05.
"The proposed new offence of treason will be narrower than the existing offence. It will therefore impose no new restrictions on freedom of speech. The only situations in which words could amount to treason under the proposals would be where the words instigate a foreigner to invade the PRC or assist a public enemy at war with the PRC. For example, if the PRC is at war with a foreign country, and a Hong Kong permanent resident broadcasts propaganda for the enemy, he may be convicted for assisting that enemy."Basiclaw23HK. "Basiclaw23." Freedom of expression is NOT under threat by Bob Allcock, Solicitor General 28 January 2003. Retrieved on 2007-05-05.
Alcock also pointed out that under the new laws, a banned organization can appeal the ban to the judiciary, a right not available under the previous laws.
In response, opponents of the bill including Martin Lee have argued that a potentially repressive bill is more acceptable in a system of parliamentary democracy and that under British rule, the potential impact of security laws was minimised by the fact that political leaders would suffer political damage if they attempted to enforce these laws. The argument is that in the case where Hong Kong becomes authoritarian, there are fewer restrictions which prevent them drafting bad laws.
In response to the argument that Article 23 legislation is constitutionally required, opponents to the government bill point out that the Basic Law does not set up a specific time for passage of the legislation, and that the Basic Law also constitutionally requires that the HK government work toward a system of universal suffrage. Opponents argue that because both goals do not have time limits, there is no reason to implement Article 23 legislation before universal suffrage. Core group of lawyers and legal academics, called the Article 23 Concern Group, led the massive protests against the legislation, highlighting in a series of nine pamphlets the various concerns raise in the community, with special attention to free speech concerns.