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Following is a question by the Dr Hon Lam Tai-fai and a written reply by the Acting Secretary for Constitutional and Mainland Affairs, Mr Ronald Chan, in the Legislative Council today (April 20):
Question:
Recently, some people have announced the establishment of the Hong Kong National Party (HKNP) which has a mission to seek the independence of Hong Kong, arousing concerns among various sectors. The Central Authorities, the Government of the Hong Kong Special Administrative Region (SAR) and members from the pro-establishment camp have, one after another, criticised that such a move is in contravention of the Basic Law. The Director of the Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region has pointed out that the incident has far exceeded the limit of freedom of speech and touched the bottom line of the "one country, two systems", and that he trusts that the SAR Government will handle the issue in accordance with the law and never allow this carbuncle to turn into a big trouble. The Chief Executive has stated that the interests of Hong Kong people have all along come first when the SAR Government implements policies, and there is no need for people to take the issue onto the level of safeguarding their interests through advocating independence of Hong Kong. Furthermore, in response to media enquiries, a spokesperson for the Department of Justice (DoJ) has stated that advocacy of the independence of Hong Kong is contrary to Articles 1 and 12 of the Basic Law, and DoJ will keep a close watch on the issue and take appropriate actions as necessary. However, according to a professor from the Faculty of Law of the University of Hong Kong, the Basic Law only governs the power of the Government and it does not bind the general public. Some members from the pro-democratic camp have opined that a person does not contravene any provision of the existing legislation merely by expressing views advocating the independence of Hong Kong. There are comments that the emergence of views advocating the independence of Hong Kong is related to the fact that SAR has not, after a long time, enacted laws in accordance with Article 23 of the Basic Law to prohibit any act of treason, secession, etc., and it is therefore necessary for Hong Kong to get well prepared for enacting legislation on Article 23. In this connection, will the Government inform this Council:
(1) whether it has assessed if HKNP is a legitimate organisation; if it has assessed, of the outcome and justifications; if not, the reasons for that;
(2) as the Government has made it clear that views advocating the independence of Hong Kong are in contravention of the Basic Law, and the SAR Government will "take action according to the law", how and when the authorities will "take action according to the law" about such views;
(3) whether it has assessed if views the advocacy of independence of Hong Kong are in contravention of the existing legislation; if it has assessed and the outcome is in the affirmative, of the legal provisions involved, as well as how and when the authorities will deal with the contravention cases concerned; if they will not deal with those cases, of the reasons for that;
(4) whether it will apply to the Court for an injunction to prohibit organisations advocating the independence of Hong Kong from organising any activities; if it will, of the details; if not, the reasons for that;
(5) whether it has assessed why some people advocate the independence of Hong Kong; if it has, of the details; if not, the reasons for that;
(6) whether it has assessed the impacts of the views advocating the independence of Hong Kong on the development of Hong Kong; if it has, of the details; if not, the reasons for that;
(7) whether it has conducted any survey on Hong Kong people's response to the views advocating the independence of Hong Kong; if it has, of the details; if not, the reasons for that;
(8) whether it has assessed if any foreign forces are involved in the actions striving for and advocating the independence of Hong Kong; if it has assessed, of the details; if not, the reasons for that;
(9) whether it has found out in what ways views advocating the independence of Hong Kong have touched the bottom line of the "one country, two systems"; if it has, of the details;
(10) of the specific measures and strategies to curb the continued dissemination of views advocating the independence of Hong Kong;
(11) given that Article 27 of the Basic Law stipulates that Hong Kong residents shall have freedom of speech, of the press and of publication, as well as freedom of association, of assembly, of procession and of demonstration, whether it has assessed if the expression of views advocating the independence of Hong Kong has exceeded the limit of the freedom of speech which Hong Kong residents enjoy under the Basic Law; if it has assessed and the outcome is in the affirmative, of the details; if the outcome of the assessment is in the negative, the justifications for that;
(12) whether it has assessed if the emergence of views advocating the independence of Hong Kong is related to the fact that the SAR still has not yet enacted legislation on Article 23 of the Basic Law; if it has, of the details; if not, the reasons for that; and
(13) whether it has reviewed the effectiveness of the work carried out by the SAR Government in the past to promote the Basic Law, and reviewed if there are any inadequacies in such work, which have resulted in some people putting forward advocacies that are in contravention of the Basic Law; if it has, of the details, and how it will enhance the effectiveness of such work; if not, the reasons for that?
Reply:
President,
Our consolidated reply to the Dr Hon Lam's question, after consulting the relevant Government departments, is as follows:
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (the Basic Law) is the constitutional document for the Hong Kong Special Administrative Region (HKSAR), enacted by the National People's Congress in accordance with the Constitution of the People's Republic of China (the Constitution). The Basic Law prescribes the systems to be practised in the HKSAR, in order to ensure the implementation of the basic policies of the People's Republic of China (PRC) regarding Hong Kong, i.e., "one country, two systems", "Hong Kong people administering Hong Kong" and a high degree of autonomy. The Preamble of the Basic Law spells out clearly that Hong Kong has been part of the territory of China since ancient times. Upholding national unity and territorial integrity, maintaining the prosperity and stability of Hong Kong, and taking account of its history and realities, the PRC has decided that upon China's resumption of the exercise of sovereignty over Hong Kong, a HKSAR will be established in accordance with the provisions of Article 31 of the Constitution.
Article 1 of the Basic Law clearly points out that the HKSAR is an inalienable part of the PRC. Article 12 of the Basic Law also clearly elucidates that the HKSAR shall be a local administrative region of the PRC, which shall enjoy a high degree of autonomy and come directly under the Central People's Government.
The Chief Executive (CE), the Chief Secretary for Administration (CS) and the Secretary for Justice (SJ) have earlier and respectively reiterated on different occasions that the HKSAR is an inalienable part of the country. As the CE has stated explicitly, that the HKSAR is an inalienable part of the country (whether that fact itself or its stipulation in the Basic Law) does not have any time limit. The provision in the Basic Law stating "remain unchanged for 50 years" refers to the preservation of the previous capitalist system and way of life of Hong Kong for 50 years after its return to the motherland. It does not mean that the sovereignty over Hong Kong can be changed after 50 years.
The CS also pointed out earlier that Hong Kong has always been an inalienable part of China, and that "one country, two systems" is a constitutional requirement. Therefore, any views that advocate the independence of Hong Kong ("Hong Kong independence") are wrong, and are in themselves in contravention of "one country, two systems" and the Basic Law, and in complete disregard of the well-being of seven million Hong Kong people.
The SJ has also made it clear that any action to advocate "Hong Kong independence" is in breach of the relevant provisions of the Basic Law and incompatible with the legal status and the overall interests of the HKSAR. Just as all acts that contravene the Basic Law or those that may constitute criminal offences, the Department of Justice will keep a close watch and maintain close contact with the relevant law enforcement agencies, and the HKSAR Government will take appropriate action when necessary.
Hong Kong is governed by the rule of law. Irrespective of his/her age or background, any person must abide by the law and must exercise his/her rights and freedoms lawfully. In fact, Article 42 under Chapter III of the Basic Law on "Fundamental Rights and Duties of the Residents" states clearly that "Hong Kong residents and other persons in Hong Kong shall have the obligation to abide by the laws in force in the HKSAR". Although Article 27 of the Basic Law stipulates that Hong Kong residents shall have freedom of speech, such freedom is not entirely without restrictions. As a matter of fact, according to Article 19 of the International Covenant on Civil and Political Rights, everyone shall have the right to freedom of expression, but the exercise of the relevant right carries with it special duties and responsibilities. It may therefore be subject to certain restrictions that are provided by law and are necessary: (1) for respect of the rights or reputations of others; (2) for the protection of national security or of public order (ordre public), or of public health or morals. Similar provisions are also found in Article 16 of the Hong Kong Bill of Rights.
Hong Kong citizens have an obligation to safeguard national sovereignty and territorial integrity. The great majority of the community do not accept proposals and actions advocating "Hong Kong independence", and they do not wish to see any harm done to the relationship between Hong Kong and our country or to the relationship between Hong Kong residents and Mainland residents. The HKSAR Government has stressed repeatedly that any proposals or actions advocating "Hong Kong independence" are in contravention of the constitutional order of Hong Kong and the provisions of the Basic Law, and are against the overall and long-term interests of Hong Kong society.
Ends/Wednesday, April 20, 2016
Issued at HKT 14:50
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