眾新聞 Logo
眾新聞 CitizenNews
tri-angles

HONG KONG’S NATIONAL SECURITY LAW:A Human Rights and Rule of Law Analysis


Editor's Note:The following article is an Executive Summary of the report "HONG KONG’S NATIONAL SECURITY LAW:A Human Rights and Rule of Law Analysis". The report was researched and written by Lydia Wong, research fellow, Georgetown Center for Asian Law; and Thomas E. Kellogg, executive director, Georgetown Center for Asian Law, and adjunct professor of law, Georgetown University Law Center. (Ms. Wong, a scholar from the PRC, decided to use an alias due to political security concerns.)

The National Security Law (NSL) constitutes one of the greatest threats to human rights and the rule of law in Hong Kong since the 1997 handover. This report analyzes the key elements of the NSL, and attempts to gauge the new law’s impact on human rights and the rule of law in Hong Kong. The report also analyzes the first six months of implementation of the new law, seeking to understand how the law is being used, who is being targeted, and which behaviors are being criminalized. The report is based on interviews with Hong Kong actors from various backgrounds, and also a wide-ranging review of the public record, including press reports, court documents, and other publicly-available sources. Our key findings include:

• The Hong Kong Special Administrative Region (SAR) government and the central government have made vigorous use of the NSL over the past seven months, with over 100 arrests by the newly-created national security department in the Hong Kong police force, mostly for NSL crimes.

• The threat posed to Hong Kong’s autonomy by the passage of the NSL by the central government is significant. At the same time, the creation of hybrid Mainland-Hong Kong national security bodies also directly threatens the Basic Law’s One Country, Two Systems framework and the oft-cited mantra of Hong Kong people ruling Hong Kong.

• According to publicly-available information on the cases that have emerged thus far, the vast majority of initial NSL arrests would not be considered national security cases in other liberal constitutional jurisdictions. This raises questions about whether Hong Kong is beginning to diverge from its historically liberal, rule of law legal and political culture.

• The cases that have emerged thus far raise serious concerns that the NSL is being used to punish the exercise of basic political rights by the government’s peaceful political opponents and its critics. Prosecution of individuals for exercising their rights to free expression, association, or assembly would violate Hong Kong and Beijing’s commitments under international human rights law.

• The impact of the NSL has been felt well beyond the more than 100 individuals who have been arrested by the Department for Safeguarding National Security (NSD). According to our interviews, self-censorship – among journalists, academics, lawyers, activists, and members of the general public – has emerged as a serious problem, one that could blunt Hong Kong’s longstanding tradition of freewheeling and robust public debate.

• Many that we spoke to also feared that the NSL would have an impact on the day-to-day work of Hong Kong’s government bureaucracy, and that NSL values and norms could shape policy formation in potentially damaging ways for years to come.

If current trends continue, Hong Kong could become a fundamentally different place, one that enjoys fewer freedoms and rights, with social, political, and legal institutions that are less vibrant, less independent, and less effective than they once were. As our analysis makes clear, the future of the One Country, Two systems model, and of Hong Kong’s autonomy, are in jeopardy.

This report proceeds in two parts. In Part One, we offer a human rights and rule of law analysis of the NSL itself. We pay special attention to the ways in which the NSL infringes on the autonomy of Hong Kong’s core political and legal institutions, and also the ways in which the newly-created criminal provisions could be used to punish the peaceful exercise of core political rights, in potential violation of both the Basic Law and the obligation of the Hong Kong government to adhere to the International Covenant on Civil and Political Rights (ICCPR).

In Part Two, we focus on the implementation of the law thus far. Since its implementation on June 30, 2020, the law has been used in three key ways: to limit certain forms of political speech, with a particular focus on pro-independence speech and key slogans from the 2019 protests movement; to limit foreign contacts, and in particular to break ties between Hong Kong activists and the U.S. and European governments; and to target opposition politicians and activists, many of whom are longtime pillars of Hong Kong’s political scene.

Also in Part Two, we analyze some of the most high-profile arrests that have been carried out under the NSL to date, including the August 10, 2020 arrests of Jimmy Lai and Agnes Chow; the September 2020 arrest of prominent pro-democracy activist Tam Tak-chi, and his subsequent indictment for sedition under the Crimes Ordinance; and the January 2021 arrests of 53 pro-democratic politicians and activists for taking part in a primary election in July 2020. In all of these cases, we raise serious concerns about the potential for those arrested and charged to potentially be punished merely for the exercise of their core political rights, including the rights to expression, association, and assembly as protected by Hong Kong’s Basic Law.

The National Security Law: Undermining the Basic Law, Threatening Human Rights

Both the content of the NSL and the manner of its direct application to Hong Kong by the National People’s Congress Standing Committee (NPCSC) overturn longstanding and fundamental understandings of the Basic Law, including those provisions that delimit Beijing’s authority in Hong Kong. In the months since the implementation of the NSL, Beijing has largely refused to offer a detailed legal rationale for its radical shift in approach to key Basic Law provisions.

Crucially, the NSL marks a fundamental departure for the central government, from indirect influence to direct exercise of day-to-day authority in a broad swath of internal Hong Kong affairs, in ways that seriously degrade Hong Kong’s autonomy under the Basic Law. From Beijing’s perspective, the 2019 protests were a turning point: Beijing clearly viewed the SAR government as failing to rise to the challenge of dealing with the protests on its own, and also – rightly or wrongly – saw the protests as a direct challenge to its own authority.

Our analysis of the NSL makes clear that key elements are impossible to square with Hong Kong’s autonomy under the Basic Law, and with China’s human rights obligations under international law. We focus on five key elements of the law: the NSL itself, the passage of which would seem to infringe on the authority of the Legislative Council (LegCo) the new structures created by the NSL, and their implications for Hong Kong’s autonomy; the core criminal provisions – secession, subversion, terrorist activities, and collusion with external elements – and the ways that they may be used to punish peaceful political expression; the very real threats to judicial independence posed by the NSL; and, finally, the potential positive impact that the NSL’s human rights and rule of law provisions might have on implementation.

First and foremost, the NSL itself – and the process of its drafting and application to Hong Kong – stands out as a key violation of Hong Kong’s autonomy. In particular, in passing the NSL and applying it directly to Hong Kong, the NPCSC directly usurped the powers of Hong Kong’s LegCo, which has the authority to pass and amend laws for the Hong Kong SAR.

The Basic Law is quite clear on LegCo’s role as the legislative body for the SAR: under Article 17, legislative authority for Hong Kong rests with the SAR itself, and not with Beijing. Article 66 further clarifies that Hong Kong’s Legislative Council is the key legislative body of the SAR. Given this structural framework, Beijing’s decision to directly apply the National Security Law to Hong Kong is itself a direct affront to Hong Kong’s Legislative Council. By passing what is, in essence, a local law, applied only to Hong Kong, the NPCSC substituted its view of the right balance between domestic security and protection of political liberties for that of Hong Kong’s elected representatives.

The NSL’s core criminal provisions – on secession, subversion, terrorism, and collusion with foreign entities – are also deeply problematic. All four criminal provisions make use of vague and overbroad language, which could be used to punish peaceful acts of expression, association, and assembly.

Such language violates the international human rights covenants to which both Hong Kong and China are a party, and which are also embedded in Hong Kong Law. Article 39(1) of the Basic Law states that both the ICCPR and the International Covenant on Economic Social and Cultural Rights (ICESCR) “remain in force” in Hong Kong, and that those covenants should be implemented through the laws of the SAR.

Over the past seven months since the NSL went into effect, clear signs have emerged that the law is being used to target protesters, activists, journalists, lawyers, and others, merely for exercising their basic rights.

Implementation of the NSL

When the NSL went into effect on June 30, 2020, some observers hoped that it would serve more as a latent threat, and not as an active tool. Many hoped that both the Hong Kong government and Beijing might see the passage of the law itself as a sufficient deterrent, a clear signal to those in the pro-democratic movement that they were serious about ending the (from their point of view) chaos and instability of the 2019 protests.

Those hopes for restraint on the part of the authorities have been dashed. The law has been pressed into immediate and wide-ranging use, and its impact has been felt in virtually all sectors of Hong Kong society. The law’s aggressive implementation has deeply impacted both the legal system and political life.

The government’s use of the NSL started on its first full day as binding law. On July 1, 2020, 10 individuals were arrested under the NSL; all had been taking part in protests marking the 23rd anniversary of Hong Kong’s reversion to Chinese sovereignty. As of this writing, 86 individuals have been arrested for crimes under the NSL, including 14 individuals who have been arrested for a combination of NSL and non-NSL crimes. An additional 19 individuals have been arrested by the NSD for other non-NSL crimes, for a total of 105 cases.

The NSL remains in active use: Hong Kong police have made at least one arrest per month under the NSL since July, including a record 53 arrests in January. Given that the SAR is politically stable, and faces no known significant national security threats, the government’s use of the NSL over the past seven months seems excessively robust, and also disproportionate. By contrast, the government has gone decades without a single prosecution under the sedition provision of the Crimes Ordinance, and other national security-related criminal provisions have seen similarly low levels of use.

A closer look at the arrests that have taken place thus far reveals some interesting aspects of the government’s use of the NSL since its implementation. Over the past seven months, the NSL has been used repeatedly as a tool to threaten and suppress political expression, in particular pro-independence speech or other forms of expression. A full 22 of the initial 105 NSL arrests, and four of the first five cases charged under the NSL, have to do with so-called seditious or pro-secessionist speech, or possession of such materials. Of those, 12 are “pure” speech cases, such as chanting and displaying pro-independence slogans, and do not involve other alleged crimes. The other 10 involve a combination of alleged speech crimes and other acts.

The NSL has also been used to break ties between the Hong Kong pro-democracy movement and its supporters in the international community. Thirteen of the initial 105 cases involve contacts with foreign or overseas forces, and six involve allegations of the specific NSL crime of collusion with foreign forces. Those arrested for collusion include some of the highest-profile individuals yet arrested under the NSL, including both Jimmy Lai and Agnes Chow. The Lai and Chow cases are illustrative of the expanded scope of criminality under the NSL: now that some forms of contact with foreign actors have been criminalized, the authorities are now able to go after more high-profile individuals who, prior to July 1, were less vulnerable to criminal prosecution.

The third prong of NSL arrests includes the 53 pro-democratic legislators and activists who were arrested on January 6, 2021. Those arrests have hamstrung Hong Kong’s peaceful political opposition, and could mark the end of formal opposition politics in Hong Kong for years to come. The arrest of 53 opposition politicians and activists suggests that the NSL is being used to fundamentally reshape Hong Kong’s formal politics, with very real implications for who is allowed to run for office, how political parties can organize themselves, and whether and how opposition political parties are able to challenge government policy. [1]

The dozens of NSL arrests since July 1 have gotten perhaps the most media attention, and have unsurprisingly defined the NSL in the eyes of many. And yet, in some ways, the most pronounced effects of the law have been indirect. According to Hong Kongers we interviewed, the law has created a climate of fear, one that has permeated virtually all aspects of society, and that has influenced the willingness of a number of different players to take actions that might run afoul of the law. 

This fear has led activists, politicians, lawyers, and others to take steps to protect themselves from legal risk, in ways that have limited their own basic rights. In particular, the core basic political rights of free expression, free assembly, and free association have all been heavily restricted, merely by virtue of the fact that individuals are afraid to fully exercise these rights in ways that were commonplace before July 1.

Free expression in Hong Kong has taken perhaps the biggest hit. Perhaps the single most significant impact of the law has been the level of self-censorship it has generated, both at the individual and the organizational levels. The NSL’s core provisions are vague, which makes it impossible to discern what can be said and what can’t be.

Finally, the NSL also legally mandates bureaucratic reforms that aim to transform Hong Kong government agencies, in line with Beijing’s policy aims. These provisions aim to increase Beijing’s influence inside the Hong Kong government bureaucracy, allowing Beijing more direct oversight and control over the day-to-day administration of Hong Kong affairs, and over the formulation of key government policies. Many worry that Beijing’s increased policy role could have significant implications for basic rights.

Even in the seven months since the implementation of the NSL, the SAR government has taken a number of steps to implement key provisions of the law across the bureaucracy. Hong Kong’s bureaucratic system is known for both its professionalism and its political neutrality. The changes that have been implemented thus far are geared toward altering the fundamental character of the bureaucracy, encouraging civil servants to at times view their work through a more political lens.

As this brief summary makes clear, the NSL has had a wide-ranging impact on human rights and the rule of law in Hong Kong, and on Hong Kong’s autonomy under the One Country, Two Systems framework. Some have suggested that the events of 2020 and early 2021 are part of a larger effort to, in effect, remake Hong Kong in China’s image, to import key elements of China’s legal and political order into the Hong Kong context.

We believe that the goal might be somewhat different: instead, we fear that the central government will reshape Hong Kong’s liberal political order in a way that preserves many of the forms of liberal constitutional democracy, but weakens many of the core substantive components. If current trends continue, we may see the emergence of an altered political and legal system in Hong Kong, one that holds regular elections and permits the continued existence of opposition political parties, independent media, activist NGOs, and independent courts, but in a weaker and more circumscribed form, very different from their prior, pre-2020 incarnations.

Such an outcome, if it does indeed come to pass, would represent an unfortunate end to the very real promise of the Basic Law, and of the promises made to the people of Hong Kong.

__________

[1] Prominent pro-democracy activists Joshua Wong and Tam Tak-chi were also among those being investigated for their role in the primary election. Since they were already in custody on January 6, they were not counted among the 53 arrestees.


請加入成為眾新聞的月費訂戶,長期支持我們的工作。所有訂戶都可以收到我們的「每周時事」通訊 。

月費訂戶網址:hkcnews.com/aboutus/#subscribe