The Bar Human Rights Committee (BHRC) expresses grave concern about the draft national security legislation that is set to be imposed on Hong Kong following the anticipated passage of the draft decision on establishing and improving the legal system and enforcement mechanisms for the Hong Kong Special Administrative Region (HKSAR) to safeguard national security (“the Draft Decision”) following a vote by China’s National People’s Congress (NPC) tomorrow.
The Draft Decision authorises the Standing Committee of the NPC to formulate laws to “prevent and penalise foreign interference of Hong Kong affairs and any actions that endanger national security such as succession, subversion, and organisation of terrorism acts”. The details of the national security legislation are yet to be formulated but the NPC decision will authorise its Standing Committee to draft the legislation, and then add it to Annex III of the Basic Law of Hong Kong, which relates to defence, foreign affairs or other matters outside the limits of the Hong Kong Special Administrative Region’s (HKSAR) autonomy. At that stage, the law can be promulgated by Hong Kong’s Chief Executive.
As part of the ‘One Country, Two Systems’ policy, the Basic Law of Hong Kong guarantees freedoms to Hong Kong residents that are not available to those in mainland China until 2047. Article 39 of the Basic Law expressly preserves and entrenches the ICCPR within the HKSAR. These include the rights to freedom of expression, association and assembly, and the right to not be subjected to arbitrary or unlawful arrest, detention or imprisonment. The independence of Hong Kong’s judiciary is guaranteed by Articles 19 and 85 of the Basic Law.
The imposition of this alleged national security legislation effectively bypasses Hong Kong’s Legislative Council and damages the integrity of the ‘One Country, Two Systems’ policy.
Although the details of the new law are yet to be confirmed, BHRC is alarmed that the Draft Decision contains no assurances as to compliance with the International Covenant on Civil and Political Rights (ICCPR) and the international human rights obligations to which Hong Kong is committed. There are well-grounded reasons to fear that the new law will be used to suppress the fundamental rights of a very wide range of individuals and society, and in particular those who are connected, even loosely, with the pro-democracy movement. Further, there are strong reasons to fear that vague or overly-broad definitions of national security, terrorism and subversion will criminalise those who seek to rely on their fundamental rights. The Draft Decision follows growing concerns for the steady erosion of civil liberties and the rule of law in Hong Kong. Those concerns have built upon the widely-held legitimate anxiety over the flawed Extradition Bill into what has become a wider protest for their right to live in a free and democratic society in which human rights are respected. This has been escalated by the response of the authorities, which has included the rising and dramatic use of excessive force. Such concerns have been compounded by the recent arrest and criminal prosecution of 15 veteran pro-democracy figures, including Martin Lee and Margaret Ng.
In that context, there are legitimate concerns raised, including by the Hong Kong Bar Association, that the new security law will place strain on the independence of the judiciary, weakening the rule of law.
BHRC calls on the NPC to withdraw the Draft Decision with immediate effect. Any proposed national security legislation must be subject to genuine public consultation and guarantee the protection of the fundamental rights Hong Kong residents in accordance with the Basic Law, the ICCPR and other international human rights standards. Again, BHRC urges the Hong Kong government instead to engage in constructive dialogue with the leaders of the pro-democracy movement to foster a climate in which their legitimate concerns over democracy and human rights can be met.
NOTES FOR EDITORS
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- The Bar Human Rights Committee of England and Wales (BHRC) is the international human rights arm of the Bar of England and Wales, working to protect the rights of advocates, judges and human rights defenders around the world. BHRC is concerned with defending the rule of law and internationally recognised legal standards relating to human rights and the right to a fair trial. It is independent of the Bar Council.