The Prime Minister and Foreign Secretary declare a breach of the Sino-British Treaty. Arrests are already taking place under the new Communist Party imposed Security Law. In one case a Hong Konger who chanted “Long Live Liverpool” was arrested. Collusion with foreigners can be grounds for arrest along with expressing support for independence – but if it were not so serious this would surely induce a belly laugh.
On Monday in Parliament I asked Foreign Office Ministers whether they regarded the breach of the British -China Joint Declaration guaranteeing Hong Kong’s freedoms.
Today we got the answer from the Prime Minister:
“The enactment and imposition of this national security law constitute a clear and serious breach of the Sino-British Joint Declaration,” Prime Minister Boris Johnson told Parliament.
Monday June 29th: House of Lords:
My Lords, following the question asked by the noble Baroness, Lady Warwick, what are we doing to support the seven United Nations special rapporteurs who last week expressed serious concern that Beijing’s new security law fails to comply with international human rights law? Do we regard that new security law as a formal breach of the Sino-British joint declaration?
My Lords, in answer to the noble Lord’s second question, we have made our position quite clear: it is a breach of that agreement, as well as a basic breach of Hong Kong’s own laws. On working in the UN and supporting what it is doing, he will be aware that we raised the issue at the UN Security Council on 29 May and continue to work with international partners on the issue of Hong Kong.
The South China Morning Post has reported that there have already been arrests in Hong Kong using the new legislation.
Joshua Wong gave an early example of how this new law will be used to arrest and imprison people on flimsy ground. In one case a Hong Konger who chanted “Long Live Liverpool” was arrested. Collusion with foreigners can be grounds for arrest along with expressing support for independence – but if it were not so serious this would surely induce a belly laugh.
This is a summary of the punitive new law and how it strikes at the heart of Hong Kong’s basic freedoms….
National Security Law Key Facts
The legislation creates four offences: secession, subversion, terrorism, and collusion with foreign nations or organisations to endanger national security. All four offences are arbitrary and ambiguously defined and the law criminalises many activities which are protected under the ICCPR, including the right to freedom of thought, the right to freedom of expression, the right to be elected at elections, and the right of peaceful assembly.
- Secession explicitly covers peaceful acts which has the aim of 1) seceding Hong Kong SAR from the People’s Republic of China, 2) changing the legal status of Hong Kong SAR or 3) transferring the sovereignty of Hong Kong SAR to another sovereign nation. This criminalises advocacy of Hong Kong Independence even if the means used are completely peaceful without any threat or use of force. Information given by the HKSAR government stated that people who chant slogans or display flags that contain Hong Kong Independence wording will be illegal under the new law and could be prosecuted. As of 1 July, 2020, arrests have been made for possessing Independence-related items.
- Subversion (Overthrowing the Chinese and HKSAR administration) criminalises all actions with the aim to 1) overturn or undermine the basic systems under the PRC Constitution, 2) overthrow the body of power of Hong Kong SAR, 3) interfere or disrupting with the Hong Kong SAR government’s exercise of its functions, or 4) attacks or destruction of government facilities in Hong Kong.
- Terrorism is similarly vaguely defined as acts with the aim of forcing the Chinese government, the Hong Kong SAR government or international organisations to realise a political manifesto, including the following means: 1) serious violence against a person; 2) damaging public transport and utilities; 3) interference with or damage of public utilities, networks or their control systems. This offence would cover vandalism of public transport vehicles with political messages. Worth noting this offence also carries a sentence of having one’s assets seized.
- Collusion with foreign nations or organisations to endanger national security is the offence which has the greatest potential to damage Hong Kong’s role as an international city. It criminalises all acts which involve:
- the provision of intelligence to foreign entities, organisation or persons;
- requests of actions from foreign governments, entities, organisation or persons; or
- accepting assistance from any foreign governments, entities, organisation or persons; with any of the following aims:
- creating serious threats on the national sovereignty of the PRC;
- serious hindrance on the formulation or implementation of policies or law of the Hong Kong SAR or PRC government;
- sanctions or blockades on the Hong Kong SAR or PRC government or other hostile activities; or
- provoking hatred of the Hong Kong SAR or PRC government by unlawful means
While this obviously hinders international lobbying activities, it is noteworthy that foreign businesses in Hong Kong will be caught by this offence if they recommend their home governments to exert diplomatic pressure on the Hong Kong SAR or PRC government to further their business interests. Banks could potentially break the law if they are required to implement sanctions measurements by other foreign governments. Reporters working for foreign press are also under substantial risk when they report news which may potentially embarrass the Hong Kong SAR or the PRC government.
All four offences carry the maximum penalty of life imprisonment.
- The NSL has an alarmingly extraterritoriality nature which criminalises even activities conducted wholly outside of Hong Kong by non-Hong Kong residents. The law asserts jurisdictions if any part of an act or if any result of the act happens in/influences Hong Kong.
- All Hong Kong permanent residents will be subject to the jurisdiction of this law even if they are not physically in Hong Kong. For non-Hong Kong residents, jurisdiction will be asserted for all acts which target the Hong Kong SAR. For example, an MP of the UK Parliament will be guilty of the offence of “connection with foreign nation or organization to endanger national security” if he voted for an Act of the Parliament to impose sanctions on the HKSAR government or condemns the HKSAR government for passing the NSL.
- This has potentially far reaching effects as Hong Kong currently has extradition agreements with 20 countries. Since this law is also a national law of the PRC, extradition potential is not limited to countries that have agreements with Hong Kong.
- The NSL overrides the pre-existing right to bail for persons charged with an offence. All persons charged under the NSL will be denied bail unless the court can be satisfied that the accused will not commit further NSL offences
- The NSL abolishes the jury system for NSL offences upon the decision of the Secretary of Justice to replace it with three High Court Judges from a list vetted by the Chief Executive
- Trials will no longer be public if it involves national security or public interest.
- Right of silence is abolished as everyone who is subject to investigation under the NSL has to provide information.
- The NSL overrides the Basic Law and implements a mandatory requirement to swear allegiance to Basic Law and Hong Kong SAR – this applies to the civil service, the judiciary, LegCo members and District Council members, and anyone who is holding a public office.
- The above-said personnel who are convicted of a NSL offence will also be deprived of their office immediately. This removes the protection granted to publicly-elected councillors and the judiciary by the Basic Law, where due process in removing them from office was guaranteed.
- Article 35 stated that a person who is convicted of a NSL offence will be disqualified to stand in both Legislative and District Councils elections, or to hold any public office. In the law it does not indicate how long will this disqualification last. HKSAR Justice Secretary Teresa Cheng indicated on 1 July that such disqualification could last for a lifetime. This is practically a Deprivation of Political Rights concept in Chinese Law and is in serious breach to the Basic Law provisions in political rights.
Key organisations created:
The Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region (Chinese government organ in HK)
- The staff and their work in the Office are not subject to the jurisdiction of the Hong Kong Special Administrative Region.
- Article 55 stated the Office could exercise jurisdiction under three categories
- 1) A case that is complex due to the involvement of foreign elements, 2) a serious situation occurs when the HKSAR government is unable to enforce the NSL, or 3) there is a major and imminent threat to national security.
- For cases where the Office has jurisdiction, the Office is overriding all existing legal procedure of Hong Kong set up by the Basic Law, as the investigation will be conducted by the Office, prosecution will be handled by China’s Supreme People’s Prosecutorate, and trial will be adjudicated by a court designated by China’s Supreme People’s Court. Potentially, all cases involving foreign nationals or foreign elements or deemed complicated will be subject to the jurisdiction of the Office, hence completely overriding Hong Kong’s judiciary.
- The Office will coordinate with other Chinese government organs in Hong Kong and the HKSAR government to “increase” the management of foreign and international organizations’ Hong Kong office, foreign / international NGOs and news outlets.
The Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (HKSAR government organ)
- Chaired by the Chief Executive, the committee will include the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Commissioner of Police, the Head of the Police National Security Department, the Director of Immigration, the Commissioner of Customs and Excise, and the Director of the Chief Executive Office.
- The Committee will establish a secretariat, headed by a secretary-general. The said role will be appointed by the Chinese government upon nomination by the Chief Executive.
- The work of the Committee will be secretive, and no government department, institution or individual could intervene with the work of the Committee. The decision made by the Committee cannot be challenged by judicially review. There is no legal method to scrutinise the Committee.
Police to set up National Security Department
This group will collect and analyse information related to national security, carry out the work given by the committee etc. The power of the police is significantly increased; for example they are allowed to recruit “professional and technical talents” from outside the HKSAR.
- The city will be required to establish its own national security commission to enforce the laws, with a Beijing-appointed adviser.
- Hong Kong’s chief executive will have the power to appoint judges to hear national security cases, a move which has raised fears about judicial independence.
* Beijing will have power over how the law should be interpreted. If the law conflicts with any Hong Kong law, the Beijing law takes priority.
“Unlike elsewhere in China, Hong Kong has an independent judiciary. For this reason, the Party’s leadership was not going to leave interpretation of this law in the hands of just any old judges.
No. Those who will be allowed to preside in these matters will be hand-picked by Carrie Lam, the city’s leader who was effectively installed by Beijing.”