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China’s National Security Law: A Lawyer’s Plea for Hong Kong

  • July 16, 2020
  • Clayton Rice, Q.C.

On December 19, 1984, the United Kingdom and China signed the Sino-British Joint Declaration on Hong Kong. The treaty provides for the administrative region of the semi-autonomous city after the lease of the New Territories expired. On April 4, 1990, the National People’s Congress adopted the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China. The Basic Law implemented the Sino-British Joint Declaration and serves as the constitution of the Hong Kong administrative region. It came into effect on July 1, 1997.

The Basic Law (here) guarantees fundamental rights such as freedom of speech, privacy of communication and the right to confidential legal advice. It protects an independent judiciary and final adjudication by the Court of Final Appeal that may include non-permanent judges from other common law jurisdictions. It is the preservation of the common law that has created one of the world’s unique legal systems. Article 8 of the Basic Law provides for the continuation of the laws previously in force in Hong Kong including the common law, rules of equity and customary law. The tradition of the common law will anchor my comments about the pro-democracy protests that roiled Hong Kong last year and Beijing’s recent national security law that tightened its authoritarian grip on the region.

On June 30, 2020, the national security law was unveiled after it was secretly passed by the Beijing government without public debate. Many analysts immediately expressed grave concerns that the law, purportedly aimed at maintaining economic development and political stability in Hong Kong, effectively rang the death knell for the principle of “one country, two systems”. Sophie Richardson, the China director at Human Rights Watch, described the law as “devastating” in that it has no bounds. “Hong Kong activists, accustomed to operating in a mostly rights-respecting environment, now face a frightening void,” she said. (here)

The security law, titled The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (here), criminalizes four types of activity in broad and vague terms – secession, subversion, collusion with a foreign country, and organization and perpetration of terrorist activities. Article 12 requires the Hong Kong Special Administrative Region to establish a Committee for Safeguarding National Security. The committee will be under the supervision of the Central People’s Government in Beijing. Information relating to the work of the committee “shall not be subject to disclosure” and its decisions “shall not be amenable to judicial review”.

Under Article 55 the Office for Safeguarding National Security shall, upon approval by the Beijing government, exercise jurisdiction over national security cases that are complex, serious or involve an imminent threat to national security. Article 56 provides that the Supreme People’s Procuratorate (Prosecutor General’s Office) “shall designate a prosecuting body” to prosecute and the Supreme People’s Court in the mainland “shall designate a court” to adjudicate. The impact of these provisions is that China may assert jurisdiction to the exclusion of the Hong Kong legal system. China may therefore extradite suspects to the mainland to stand trial, a version of the extradition bill that sparked mass protests last year and was eventually abandoned by Carrie Lam, the Chief Executive of Hong Kong.

The law is breathtaking in extraterritorial scope. It purports to apply to everyone, everywhere. Article 29 specifically creates the offence of “collusion with a foreign country or with external elements to endanger national security”. Article 38 specifically applies to offences under the law committed “from outside the Region by a person who is not a permanent resident of the Region.” Three days later, on July 3, 2020, the United Nations High Commissioner for Human Rights in Geneva, Switzerland, issued a press briefing note (here) expressing concern that the definitions of some offences are “vague and overly broad”. It is essential that offences created under national security legislation comply with the principle of legality under Article 15(1) of the International Covenant on Civil and Political Rights (1966). No one may be found guilty of a criminal offence “on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”. (here)

The UN High Commissioner’s note went on to express concern about Article 29 which “may lead to a restriction of civic space and of the possibility for civil society actors to exercise their right to participate in public affairs.” The provision may be used to criminalize the exercise of the rights to freedom of expression, association and peaceful assembly by activists and human rights defenders. The High Commissioner was “alarmed” that arrests were made immediately without “full information and understanding of the scope of the offences”. On July 6, 2020, Tong Ying-kit was arrested after a video was posted online showing him knocking over several officers at a demonstration the day after the security law came into effect. He was denied bail under Article 42 by Hong Kong Chief Magistrate So Wai-tak because there were insufficient grounds to believe he “will not continue to commit acts endangering national security.” Tong Ying-kit appeared in court in a wheelchair. (here)

On July 3, 2020, Guardian journalist Helen Davidson reported an interview with an anonymous Hong Kong human rights lawyer who said many in the legal profession are “seriously worried” about speaking to the international press and non-government organizations “[b]ecause of the massive width of the provisions”. (here) Defence lawyers are concerned about “whether legal privilege still exists” in cases under the new law. The law authorizes warrantless searches and “does not include any carve-out for lawyers and legal privilege, which would be a complete and shocking reversal of one of the most important legal protections in the common law world…[S]o we will become like mainland defence lawyers who have to worry about ourselves being arrested just for defending our clients.”

The case of Yu Wensheng, a prominent Beijing human rights lawyer, is a recent example of the targeting of mainland lawyers. On January 19, 2018, he was arrested on suspicion of “inciting subversion of state power” and “obstructing the duties of public officers”. His wife, Xu Yan, received a phone call yesterday, July 15, 2020, from prosecutors in Xuzhou City advising that her husband had been sentenced to “four years imprisonment and a further three years deprivation of political rights.” Neither she nor Yu Wensheng’s lawyer knew about the trial. Yu Wensheng was previously detained in 2014 after expressing support for Hong Kong democracy. He told Amnesty International he was tortured in detention. (here)

Hong Kong lawyers have good reason, then, to be concerned about the expansive police powers to conduct warrantless searches under Article 43(1). In addition to any authority under other laws in force in Hong Kong, the police “may also” search premises, vehicles, vessels, aircraft and electronic devices that “may contain evidence of an offence” specifically under the national security law. The Chief Executive of Hong Kong is authorized, in conjunction with the Committee for Safeguarding National Security, “to make relevant implementation rules for the purpose of applying” this search power. Such implementation rules are not subject to judicial oversight. Many Hong Kong lawyers immediately began using stronger encryption to protect electronic devices and were deleting social media accounts and chat histories according to the lawyer interviewed by Ms Davidson.

The Chief of Police in Hong Kong, Chris Tang, apparently never shy of the limelight, said the national security law was necessary “to extinguish calls for the city’s independence”. Tong Ying-kit was not the only one arrested. On July 8, 2020, journalists Greg Torode, James Pomfret and David Lague reported for Reuters that about 360 people were arrested as protests erupted in response to the new law. “China’s most open and free-wheeling city began to clam up,” they said. “Political groups disbanded. Activists fled overseas. Shops ripped down posters supporting the protests that convulsed the city last year. And public libraries pulled books written by some pro-democracy authors from their shelves.” (here)

Also on July 8, 2020, Hong Kong’s education secretary, Kevin Yeung, said that Glory to Hong Kong, the anthem popularized during the pro-democracy protests last year, would be banned in public schools. (here) The announcement came at the same time as Beijing opened a high-profile national security office in the former Metropark Hotel in Causeway Bay, one of the most popular sites of the protests. At least nine books have become unavailable in Hong Kong public libraries or marked “under review” according to the South China Morning Post as reported by the BBC. (here) The books include works by Joshua Wong, a prominent pro-democracy activist, and pro-democracy politician Tanya Chan. As Joshua Rosenzweig of Amnesty International said, the aim of Beijing is to “govern Hong Kong through fear from this point forward.” (here)

On July 14, 2020, The New York Times announced (here) that it will relocate its digital news operation to Seoul, South Korea, over the next year. The editors concluded that another base of operations in the region is needed given the challenges that employees have faced in securing work permits in China, challenges that are commonplace there but rarely a problem in Hong Kong. “China’s sweeping new national security law in Hong Kong has created a lot of uncertainty about what the new rules will mean to our operation and our journalism,” the editors said in a memorandum. “We feel it is prudent to make contingency plans and begin to diversify our editing staff around the region.” However, correspondents will remain in Hong Kong to cover the city and region.

But, the fight against Beijing’s grip of repression is not over. On July 13, 2020, pro-democracy activist Nathan Law, who left Hong Kong for London, said Hong Kongers will never give up. “We aren’t fractured.” he said. “On the contrary, we’re well-equipped to face the next difficult battle.” (here) The same day, Hong Kong voters defied Beijing at the polls, endorsing protest leaders in an unofficial primary for the city’s pro-democracy camp. Hundreds of thousands of people chose “avowedly pro-democracy candidates” to run in citywide elections this year. “So many people came out to vote despite the threat that it may violate the national security law,” said candidate Lester Shum. “That means Hong Kong people have still not given up.” In the face of Beijing’s tightening grip, one remaining avenue they say “is to capture a majority in the legislature in September.” (here)

There is, however, one other avenue. The tradition of the common law has been continuously practiced in Hong Kong for over 170 years. Imbued with life by the substantive law and the rules of equity, preserved by Article 8 of the Basic Law, Hong Kong has a well-developed commercial case law and is party to over 260 multilateral treaties and over 250 bilateral agreements covering taxation, free trade and investment. The international legal profession that is heir to the British system of justice is the other avenue – an enduring legacy beyond Causeway Bay. We are one with Hong Kong as compatriots of the common law.

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