英文

Editorial : Article 23 Clauses Need Clarity to Reassure Foreign Businesses

【明報專訊】IN THE CONSULTATION DOCUMENT FOR LEGISLATION ON ARTICLE 23 OF THE BASIC LAW, a number of measures against external forces are proposed. Some foreign chambers of commerce have said they are not worried about being affected by Article 23 legislation, adding that they look forward to further discussions with the Hong Kong government during the consultation period to clarify issues such as information circulation and the business environment.

One of the focuses of Article 23 legislation is tackling external forces' behaviours in Hong Kong that endanger national security. When formulating the clauses, the authorities should strive for clarity and concreteness to respond to reasonable concerns of foreign businesses and NGOs so that they can pursue their activities in Hong Kong with peace of mind. This will also be very important for accentuating Hong Kong's internationality and uniqueness.

Article 23 of the Basic Law stipulates that the HKSAR shall enact laws on its own to deal with seven categories of crimes endangering national security. Apart from prohibiting acts such as treason and the theft of state secrets, it should also prohibit foreign political organisations from conducting political activities in Hong Kong and Hong Kong political organisations from establishing ties with foreign political organisations. The struggle between major powers is fierce. The international situation is also far more treacherous than it was in 2003, when the government first launched Article 23 legislation.

The consultation document for the legislation prepared by the government this time contains many suggestions that target external forces and espionage. The most prominent is the new crime of "external interference", which prohibits anyone from collaborating with external forces to interfere in the affairs of China and the SAR through improper means. These affairs include influencing the policies of China or the SAR, interfering in elections, and influencing the discharge of functions of the Legislative Council and courts.

The consultation document also recommends empowering the government to outlaw "external organisations which are affiliated with the SAR" that endanger national security from operating in Hong Kong. In terms of combating espionage, the crime of the theft of state secrets is certainly applicable. Furthermore, the document proposes the prohibition of anyone from colluding with external forces to publish false or misleading statements.

Over the past few days, the British Minister of State for Security and an EU spokesperson have mentioned Hong Kong's Article 23 legislation. Despite the different wording, what they have said is critical in tone with questions on the impact of Article 23 legislation on foreign investment confidence.

Meanwhile, China's Ministry of Foreign Affairs has emphasised that the completion of Article 23 legislation is the constitutional duty of the HKSAR and an urgent requirement to respond to profound changes in the internal and external environments. It also mentioned the UK's introduction of a new "National Security Act" only last year and criticised the UK for double standards.

What Article 23 legislation targets is external political forces' employment of different means or channels to engage in activities that endanger national security in Hong Kong. Whether the law is violated depends not only on the act itself, but also on the intention. The responsibility of the court is to determine whether the defendant has the intention to endanger national security based on the law and the evidence adduced by both the prosecution and the defence and in accordance with common law principles.

The president of the German Chamber of Commerce has said that not only should the clauses of Article 23 legislation be as specific and clear as possible, but how frequently the law is enforced will also affect overseas perception of Hong Kong. If people are accused of violating national security laws for whatever they do, such an atmosphere will make it very difficult for foreign businesses and NGOs to feel at ease.

明報社評2024.02.02:23條立法應付境外勢力 條文清晰可令外商安心

《基本法》23條立法諮詢文件,提出多項針對境外勢力的建議。有外國商會表示不擔心受23條立法影響,同時亦期待諮詢期內進一步與港府討論,釐清有關資訊流通、營商環境等問題。

23條立法,重點之一是針對境外勢力在港從事危害國家安全的行為。當局制訂條文時,應力求清晰和具體,回應外商和外國NGO的合理關切,讓他們安心在港發展,這對於彰顯香港的國際性和獨特性,也非常重要。

《基本法》23條規定,特區應自行立法,處理7類危害國家安全的罪行,除了禁止叛國、竊取國家機密等行為,也禁止外國政治組織在港進行政治活動、禁止本港政治組織與外國政治組織建立聯繫。當今大國鬥爭激烈,國際形勢凶險,遠甚於 2003年政府首度推動23條立法之時。

這次政府提出的立法諮詢文件,多項建議都是針對境外勢力及間諜活動,當中最突出的是新增「境外干預罪」,禁止任何人以不當手段配合境外勢力,干預國家和特區事務,包括影響中央或特區政策、干預選舉、影響立法會及法院履行職能等。

諮詢文件亦建議賦權政府,禁止危害國安的「與特區有關聯境外組織」在港活動。打擊間諜活動方面,竊取國家秘密罪固然適用,另外,文件亦提出禁止任何人勾結境外勢力發布虛假或誤導陳述。

過去數天,英國保安國務大臣和歐盟發言人等均有談及本港23條立法,措辭用語雖不一,但主旋律都是批評,質疑23條立法影響外資信心。

國家外交部則強調,完成23條立法是香港特區憲制責任,也是應對內外環境深刻變化的迫切要求,又指英國去年才推出新的《國家安全法》,批評英方雙重標準。

23條立法所要針對的,是境外政治勢力以不同手法或途徑,在港從事危害國安的活動,犯法與否除了看行為,更要看意圖,而法庭的責任,就是根據法律和控辯雙方舉證,按照普通法原則,判斷被告是否有危害國安意圖。

德國商會主席提到,23條立法,除了條文應該盡可能具體清晰,也提到日後執法的頻率,會影響海外對香港的觀感,倘若動不動就有人被指摘涉嫌違反國安法例,這樣的氛圍,很難令外商和外國NGO感到安心自在。

■ Glossary 生字 /

accentuating : to emphasise something or make it easier to notice

treacherous : dangerous, especially when seeming safe

at ease : confident and relaxed

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