Misunderstandings about "National Security"
The following statement is issued by the Attorney General, Mr Jeremy Mathews:
"I wish to clear up some misunderstandings about what is meant by national security, and the role of the courts in respect of national security.
"There is no authoritative definition of the term 'national security' for the purposes of the ICCPR. However, the principles adopted by a conference of human rights experts in 1984, which are regularly relied upon, state that:
'National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force. National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order'.
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"A leading academic commentary on the ICCPR states that 'restrictions protect national security are permissible only in serious cases of political or military threat to the entire nation'.
"There is no comprehensive authoritative common law definition of the term.
"Article 21 (right of peaceful assembly) and 22 (right to freedom of association) of the ICCPR allow restrictions to be placed on the exercise of those rights only if they are 'necessary in a democratic society' in the interests, among other things, of national security. This means that there must be a convincing need for imposing restrictions on this ground. Moreover, according to the international jurisprudence, any restriction must be 'proportionate' to the aim pursued.
"As was stated in the Government paper issued in response to the Consultation Document, no justification has been given for using national security as a ground for restricting freedom of assembly under the Public Order Ordinance. Given the meaning of national security, it is difficult to see its relevance in the context of that Ordinance.