Statement Against Hong Kong National Security Law

The NSL effectively ends the PRC’s commitment to the policy of “One Country, Two Systems,” under which China bound itself to accord Hong Kong a “high degree of autonomy,” under the Sino-British Joint Declaration[3] including a “basically unchanged”[4] common law legal system enjoying “independent judicial power” and various internationally recognized fundamental freedoms.[5] As a bar association whose attorney members regularly travel to and from Hong Kong, and which has issued numerous statements confirming its commitment to upholding the rule of law and human rights in Hong Kong and elsewhere, and whose members regularly conduct business in Hong Kong, we are concerned that this law threatens the future viability of Hong Kong as a region that protects the rule of law and as a commercial center in Asia. Already twenty-seven countries, including many of China’s and Hong Kong’s largest trading partners — Australia, Austria, Belgium, Belize, Canada, Denmark, Finland, France, Iceland, Ireland, Germany, Japan, the Kingdom of the Netherlands, New Zealand, Norway, Slovakia, Slovenia, Sweden, Switzerland, and the United Kingdom — have jointly called on China and Hong Kong to reconsider implementation of this legislation.[6]

The Association calls upon the PRC to uphold its international obligations and withdraw the NSL. In particular the NSL violates the Sino-British Joint Declaration, the ICCPR as it applies to Hong Kong, and the Hong Kong Basic Law.  Article 39 of the Hong Kong Basic Law directly incorporates the ICCPR and prohibits legislation that conflicts with the ICCPR.

Many aspects of the NSL generate concern.  Of these, some of the most alarming are: 1) the NSL’s vague and overbroad definition of offenses such as “secession,” “subversion,” “terrorism,” and “sedition”; 2) the creation of a mainland security apparatus in Hong Kong; 3) granting both mainland and local authorities the option of bypassing the Hong Kong legal system to permit the prosecution and trial of cases on the mainland; 4) placing the NSL beyond the international rights protections previously in force under Hong Kong’s Basic Law and legislation; and 5) functionally according the NSL near-universal jurisdiction, such that by its terms it threatens the fundamental rights of persons around the world in applying its provisions to persons physically present in Hong Kong, regardless of whether they are a resident or a citizen of Hong Kong or the PRC, and to conduct, which by its vagueness and breadth, may have taken place substantially outside of Hong Kong.  These and many other features of the NSL violate the PRC’s commitments under the Sino-British Joint Declaration, Hong Kong Basic Law, international human rights treaties, and international standards recognized by the United Nations.

Vague and Overbroad Criminal Offenses

The NSL defines national security offenses broadly in a manner that invites arbitrary enforcement and is inconsistent with international law.  The crime of “Secession” applies to any person who “organizes, plans, commits or participates . . . whether or not by force or threat of force, with a view to committing secession or undermining national unification,” such as acts separating the Hong Kong Special Administrative Region, or any other part of the People’s Republic of China, from the People’s Republic of China.  (NSL, art. 20).  “Subversion” applies to any person who incites, assists in, or abets the commission of secession.  (NSL, art. 21) “Terrorism” applies to any individual who, among other things, “organizes, plans, commits, participates in or threatens to commit, among other things, “interruption . . . of public transport” with a view to “intimidating the public in order to pursue a political agenda.” (NSL, art. 24).[7] Of special concern for foreign organizations, the NSL defines “collusion with a Foreign Country or with External Elements” to include working with a foreign country, organization, or individual to “provoke by unlawful means hatred among Hong Kong residents” to the mainland government or government of the region. (NSL, art. 29).

Hong Kong is an important regional hub for many lawyers – local and foreign — engaged in helping support civil society across Asia. It is also a key location for many law firms; and for such firms, commercial lawyers and their clients engaged in litigation or difficult negotiations where the opposing party may be connected to the PRC government, this raises significant concerns. Law firms will need to reconsider whether Hong Kong will continue to be a safe place from which to conduct due diligence on Chinese assets and companies, store sensitive client information, and conduct client business without fear that simply advocating, investigating facts or storing the information for their clients will bring them under the purview of this law. Broadly defined offenses in the Criminal Law of the PRC have already been widely used to silence critics of the PRC government and the Chinese Communist Party (CCP), and also to constrain or attack foreign businesses.  From its first day of enforcement, the signs are already troubling, as the Hong Kong Police Force has publicized the fact that persons merely carrying paper stickers with the words ‘liberate Hong Kong’ were arrested for violating the law.[8]

Mainland National Security Office in Hong Kong

Augmenting the concern about broadly defined offenses is the NSL’s introduction of PRC functionaries into Hong Kong who will have the power to administer the law should they find enforcement by local authorities insufficient.  In particular, the NSL sets up a PRC “Office for Safeguarding National Security” in Hong Kong with a power to oversee, and at its discretion, “handle” cases under the NSL. (NSL, art. 48).

Mainland Authorities Not Subject to Hong Kong Law

Of further concern, the NSL provides the new PRC Office for Safeguarding National Security with immunity from the application of Hong Kong law (NSL, art. 60).  The result will be a mainland China law enforcement office in Hong Kong that will not be subject to Hong Kong’s Bill of Rights Ordinance, Hong Kong’s criminal law,[9] the Hong Kong Basic Law, or the provisions of the International Covenant on Civil and Political Rights that these instruments incorporate into Hong Kong law.

Removal of Cases to the Mainland

An especially alarming provision permits the Mainland Office for Safeguarding National Security or the Hong Kong authorities to refer NSL cases: a) to mainland prosecutors (NSL, arts. 55 & 56) and b) to mainland courts (id.).  The latter provision in particular violates the Sino-British Joint Declaration’s guarantee that Hong Kong will continue to enjoy “judicial independence,” as well as the UN Basic Principles on the Independence of the Judiciary (see art. 1). In stark contrast to Hong Kong judges, the PRC judiciary remains subordinate to the Chinese Communist Party; are subject to oversight by Party Political-Legal Committees; and are required to support the Party’s leadership, and “resolutely safeguard the Party” and the socialist system.[10] In cases adjudicated on the mainland, Hong Kong’s criminal procedures and laws will not apply, and instead the PRC Criminal Procedure Law will apply. Article 59 of the NSL reflects language in Article 120 of the PRC Criminal Procedure Law by requiring suspects and defendants to “tell the truth” without any concomitant protection of the right to silence. Also concerning is the provision that only Hong Kong judges designated by the Chief Executive may hear cases under the NSL, with media reporting that judges who have previously had so-called “speech violations” will not be appointed to try cases (NSL, art. 44).[11]

Universal Jurisdiction

Article 38 of the NSL provides that, “This Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region.”  As written, this provision would permit prosecution under the NSL of anyone who violates the law even if committed outside Hong Kong and even if the person is not a Hong Kong resident.”  Thus a U.S. lawyer who represents a client who advocates independence for Hong Kong (or Taiwan, Tibet or Xinjiang) in the United Kingdom or South Korea would have considerable concerns about entering Hong Kong or any location which has extradition treaties with Hong Kong or the People’s Republic of China; moreover, advocacy of independence for Hong Kong, protected speech in the U.S., would be subject to prosecution under Article 38.  Assuming the third country has an extradition treaty with the PRC that would apply in such a case, this provision could result in a trial in the PRC under the procedure contained in NSL Articles 55-57.

Early signals from the Hong Kong government in implementing the law suggest that enforcement of the NSL will be as broad as possible, with libraries removing and reviewing books written by Hong Kong political figures,[12] the Secretary for Mainland and Constitutional Affairs Erick Tsang stating that primaries for the pan-democratic camp of the Legislative Council (who won a landslide victory in the Nov. 24, 2019 elections) “might violate the National Security Law,”[13] and with police conducting searches at the offices of an independent political opinion pollster, Robert Chung.[14]  The City Bar is concerned that Instrument A406A, “Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region,” grants the police new powers to engage in warrantless searches,[15] to seize or forfeit property,[16] to compel internet service providers to censor content[17] and provide information to law enforcement,[18] and to engage in warrantless covert surveillance.[19]

Previously, the City Bar expressed its concern that the proposed national security legislation would threaten fundamental rights guaranteed under both international law and the Hong Kong Basic Law which Beijing is committed to uphold. Among others, Hong Kong is guaranteed the rights of peaceful assembly and free speech under international and municipal law. The Sino-British Joint Declaration, a binding international agreement between China and the United Kingdom, guarantees that Hong Kong shall enjoy separate legal and economic systems through 2047 under the policy of “One Country, Two Systems.” Among the fundamental rights to be preserved are: freedom of speech, of the press, and of publication, as well as freedom of association, of assembly, of procession, and of demonstration.  Moreover, Hong Kong’s Basic Law, which implements the agreement, incorporates the International Covenant on Civil and Political Rights into local law.

We conclude with regret that the NSL exceeds our previous fears. Accordingly, the City Bar calls upon the PRC to repeal the NSL and to dismiss all charges that have already been brought under the new law.  Finally, we once more urge authorities both in Hong Kong and Beijing to honor their obligations under international and domestic law and renew their commitments to the rule of law and human rights under their pledge to maintain “One Country, Two Systems.”