英文

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

《基本法》23條立法涵蓋竊取國家秘密,諮詢文件未有提及例外豁免,外界關注傳媒可否以「公眾利益」作為免責理由。

23條立法諮詢文件涉及5類罪行,其中「竊取國家機密及間諜行為」的篇章列明,建議「國家秘密」涵蓋7個範疇,包括國家或特區的重大決策、國防、外事、科技及經濟社會發展的秘密等。

雖然國家利益與個人權利常有矛盾,需要努力尋求平衡,惟理論上,國家的存在,就是為了抵禦外侮、保護集體,從這一角度而言,維護國家安全,就是為了公眾利益,這在大多數情况下的確可以成立。舉例說,有關軍事國防、經濟金融的秘密部署,若然泄露出去,確有可能牽動社禝安危。

可是現實中,總有各種各樣特殊情况,例如核電站發生堆芯熔毁危機、社區發現傳播力強兼致命的不明病毒,又或有主要官員嚴重瀆職等,倘若當局誤判將之列作機密,未有及時發布,確有可能對公眾利益帶來無法挽回的損害。這時候,公眾利益考慮理應具有凌駕性;傳媒若掌握可靠資料,也有專業責任告訴公眾。

西諺有云,凡事只要可能出錯,就一定會出錯;百年一遇、千年一遇的事情,始終有可能發生。23條立法有關國家秘密的部分,應否加入豁免條款,值得多從這角度思考。當局若擔心出現濫用「公眾利益作為抗辯理由」的情况,大可考慮採取高門檻高標準,例如被告必須證明事件的確涉及「重大公眾利益」。

問題的關鍵,不在於傳媒是否可以有什麼「特權」,而是加入豁免條款後,法庭就可以因應具體案情,合理判斷;倘若沒有相關條款,他日萬一真的出現涉及「重大公眾利益」的事態,知情者也可能因為擔心觸犯法例,而不敢講出內情,傳媒也未必「敢報敢揭」。

誠然,23條立法仍在諮詢,各項罪行內容尚待具體化和清晰化,事事寫得太死,也不似在諮詢各方意見,然而無可否認,各項罪行罰則輕重,必然是外界關注重點之一,諮詢文件未提相關建議,公眾難免有無從討論之感,期望當局在諮詢期內,可以就罰則問題,有更多介紹,以便各界討論。

■ 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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