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Editorial : New Attempt to Enact Article 23 Legislation

【明報專訊】LEGISLATION OF ARTICLE 23 OF THE BASIC LAW will be enacted this year. At a Legislative Council question and answer session, the Chief Executive mentioned that a special team would be set up to carry out explanations and rebut erroneous views.

Article 23 of the Basic Law stipulates that the HKSAR 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''. Of these "seven crimes", the offences of treason and sedition are currently mainly dealt with under the sedition provisions of the Crimes Ordinance.

The Hong Kong National Security Law implemented in 2020 covers four categories of crimes, namely secession, subversion of state power, terrorist activities and collusion with foreign countries or external forces to endanger national security. Of them, the crime of terrorist activities is not among the "seven crimes" listed in Article 23 of the Basic Law. It is believed that the upcoming Article 23 legislation will focus on crimes not yet covered by the Hong Kong National Security Law.

Article 23 legislation is a constitutional responsibility that the SAR must fulfil. However, it has been delayed for 26 years and has yet to be completed. In 2002, the SAR government published a consultation document on Article 23 legislation, and society was engulfed in ceaseless arguments. The next year July 1, 500,000 people took to the streets to protest the draft bill, forcing the government to withdraw it. After that, Article 23 legislation became a kind of "political taboo" that could not be touched. It was not until the anti-amendment protests broke out in 2019 and the central government enacted the Hong Kong National Security Law the next year that Article 23 legislation was put on the agenda again.

The government said earlier that it would enact Article 23 legislation this year. Yesterday (25 Jan), Chief Executive John Lee attended the Legislative Council QA Session. Even though he did not provide a concrete legislative schedule, he stated that preparations for Article 23 legislation have entered the final stage, expressing hope that the legislative work could be completed as soon as possible so that the government could then make an all-out effort to improve the economy. Judging from what John Lee has said, it is believed that the draft bill will soon be unveiled officially.

Over 20 years ago, when all sectors of society debated Article 23 legislation, there were no problems such as social media, fake news or false information, nor was there the Hong Kong National Security Law. Now that the government is reintroducing Article 23 legislation, it inevitably needs to adapt to the new situation and consider how Article 23 legislation will be in tune and compatible with the Hong Kong National Security Law. After all, the Hong Kong National Security Law is a national law introduced into Hong Kong by the Standing Committee of the National People's Congress by way of Annex III of the Basic Law, and local legislation in the SAR cannot conflict with it.

Back in 2003, when the government promoted Article 23 legislation, it stated that national security charges could be tried by jury in the Court of First Instance. Now is a different time. The Hong Kong National Security Law has established a system of designated judges. It is believed that this practice will be followed in the new Article 23 legislative draft bill.

John Lee has mentioned the creation of a task force providing explanations on Article 23 legislation. The government should take the initiative and contact foreign academic institutions, investment funds, multinational enterprises, etc., and actively provide explanations to avoid misunderstandings.

明報社評2024.01.26:23條立法再出發 兼顧一國與兩制

《基本法》23條今年立法,行政長官出席立法會答問會,提到將設立專隊,展開解說工作、反駁謬見。

《基本法》第23條訂明,香港特別行政區應自行立法禁止任何叛國、分裂國家、煽動叛亂、顛覆中央人民政府及竊取國家機密的行為,禁止外國政治組織在香港進行政治活動,禁止香港政治組織與外國政治組織建立聯繫。這「七宗罪」中,叛國及煽動叛亂罪,目前主要以《刑事罪行條例》有關煽動罪的條文處理。

2020年實施的《港區國安法》,涵蓋了分裂國家、顛覆國家政權、恐怖活動、勾結外國或境外勢力危害國家安全4個罪類,當中恐怖活動罪不在《基本法》23條羅列的「七宗罪」內。23條立法,相信將重點處理港區國安法尚未涵蓋的罪行。

23條立法是特區必須履行的憲制責任,然而拖了26年,至今仍未完成。2002年,特區政府發表《基本法》23條立法諮詢文件,社會爭論不休,翌年七一50萬人上街遊行,反對當時的條例草案,迫使政府撤回。此後,23條立法一度儼如不能碰的「政治禁忌」,直至2019年反修例風暴爆發,翌年中央出手制定港區國安法後,23條立法才再度提上議事日程。

政府早前預告,今年將就23條立法。行政長官李家超昨天出席立法會答問會,雖然未有具體交代立法日程,但表明有關23條立法的準備工作,已進入最後階段,希望盡快為立法工作畫上句號,然後全力拼經濟。觀乎李家超的說法,立法草案相信很快就會正式公布。

廿多年前社會各界討論23條立法時,未有社交媒體、未有假新聞假信息等問題,也沒有港區國安法。現在政府重推23條立法,無可避免需要因應新形勢,也要考慮與港區國安法接軌和兼容的問題,畢竟港區國安法是全國人大常委會以《基本法》附件三引入香港的全國性法律,特區本地立法不能與之相違。

政府2003年推動23條立法時,曾表示國安控罪在原訟法庭可按陪審團審訊。此一時彼一時,港區國安法確立了指定法官制度,相信新的23立法草案,也會沿用有關做法。

李家超提到將設立「解說專隊」,配合23條立法,當局應主動與外國學術機構、投資基金、跨國企業等接觸,積極進行解說,避免誤解。

■ Glossary 生字 /

rebut : to say or prove that a statement or criticism is false

erroneous : not correct; based on wrong information

implement : to make something that has been officially decided start to happen or be used

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