Immunity Clauses Can Be Considered for Article 23 Legislation

【明報專訊】The upcoming legislation on Article 23 of the Basic Law will cover the theft of state secrets. The consultation document makes no mention of exceptions or immunity. The public is concerned about whether the media can cite the "public interest" as a reason for immunity.

The consultation document for Article 23 legislation details five types of crimes. As is clearly delineated in the chapter on "Theft of state secrets and espionage", it is suggested that "state secrets" cover seven categories, such as secrets concerning major policy decisions on affairs of our country or the HKSAR, national defence, foreign affairs, technological and economic and social development.

There are often conflicts between the national interest and individual rights, and efforts need to be made to find a balance. That said, the raison d'être of the state, in theory, is to resist foreign aggression and protect the collective existence. Seen from this perspective, to safeguard national security is to protect the public interest, which can indeed be true in most circumstances. For example, if secret planning related to the military, national defence, the economy and finances are leaked, society might indeed be at risk.

However, in reality, there are always all sorts of special circumstances, such as a core meltdown in a nuclear power plant, the discovery in the community of an unknown virus that is highly transmissible and deadly, or a serious dereliction of duty on the part of a prominent official. If the authorities make a misjudgment, classify these incidents as secrets and fail to release the information in time, that might indeed cause irreparable damage to the public interest. On such occasions, public interest considerations should be of overriding importance. If the media gets hold of reliable information, it has a professional responsibility to inform the public.

"Anything that can go wrong will go wrong", as a Western saying goes. The bottom line is that things that happen once in a hundred years or a thousand years might still happen. When it comes to whether immunity clauses should be included in Article 23 legislation related to state secrets, it is worth further consideration from this perspective. If the authorities are worried about the abuse of the public interest as a defence, they can consider setting high thresholds and standards by, for example, requiring that the defendant must prove that the incident indeed involves "significant public interest".

The crux of the matter is not whether the media can have any "privileges". It is that the addition of immunity clauses will allow the court to make reasonable judgments based on the specific circumstances of the case. If such clauses are absent and an incident involving significant public interests does arise one day, people with knowledge of the matter, worried about violating the law, might not dare to tell the inside story. The media might also baulk at reporting and exposing the matter.

It is true that, given the ongoing consultation on Article 23 legislation, the details of each crime have yet to be specified and clarified. It would not look like a consultation exercise with different sectors of society if everything were laid down too rigidly. However, it is undeniable that the severity of the penalties for each crime will definitely be one of the concerns of the public. The fact that the suggested penalties are not mentioned in the consultation document will inevitably make the public feel that there is no way to discuss it. It is hoped that the authorities can provide more information in this regard during the consultation period to facilitate discussion by all sectors of society.

明報社評2024.02.01:國家秘密可設豁免條款 加入重大公眾利益考慮








■ Glossary 生字 /

upcoming : going to happen soon

immunity : the state of being protected from something

cite : to mention something as a reason or an example, or in order to support what you are saying

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