HK’s legislation protects human rights at higher standard
It is regrettable and condemnable that the International Bar Association’s Human Rights Institute (IBAHRI) has made unsubstantiated claims regarding Hong Kong’s enactment of the Safeguarding National Security Ordinance (the Ordinance), which took effect on March 23. The promulgation of the Ordinance is to fulfill Hong Kong’s duty, as stated in Article 23 of the Basic Law. It provides protection, not only for national security but also for human rights, at a much higher standard than many Western countries do.
All nations can enact national security laws to protect their territorial integrity or political independence. This right is protected by Article 2(4) of the United Nations Charter, which prohibits the threat or use of force and calls on respect for sovereignty, territorial integrity and political independence: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”
The Universal Declaration of Human Rights (UDHR), proclaimed by the United Nations General Assembly on Dec 10, 1948, sets the expected standard of rights and freedom for all human beings. It protects freedoms of speech, peaceful assembly and association, and full equality to a fair and public hearing. However, such freedom and equality are subject to limitations, as Article 29 of the UDHR stresses: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
Based on the rights granted by the United Nations Charter, Hong Kong, as part of China, has the right to enact national security laws to ensure its stability. The highest principle of the Ordinance is to safeguard national sovereignty, security, and development interests. The legislation outlaws treason, insurrection, incitement to mutiny and disaffection, acts with seditious intention, theft of State secrets and espionage, sabotage of public infrastructure, and external interference. Only acts and activities endangering national security will be suppressed and punished.
Hong Kong’s Ordinance fully complies with the United Nations Charter and the UDHR. The law clearly states, “Human rights are to be respected and protected, the rights and freedoms, including the freedoms of speech, of the press and of publication, the freedoms of association, of assembly, of procession and of demonstration … are to be protected in accordance with the law.”
The Ordinance also protects freedom of speech and publication. For example, although the legislation criminalizes the act of importing a publication that has seditious intention, the new Ordinance provides a defense for it: The person being charged can provide sufficient evidence that he or she did not know about the seditious intention of the publication (Article 26).
In addition, unlike some Western countries, Hong Kong’s Ordinance protects whistleblowers if the purpose of disclosing a State secret is to reveal a severe threat to public order, public safety, or public health in an emergency — and the disclosure does not exceed what is necessary — providing that the public interest is served by making the disclosure manifestly outweighs the public interest served by not making the disclosure (Articles 30 and 32).
Some Western countries, such as the United Kingdom, set up the “special advocacy system”, which does not exist in Hong Kong’s Ordinance. Special advocates are lawyers appointed by the government to represent defendants at secret hearings, particularly those relating to national security. They can access the evidence but cannot communicate with the defendant they represent other than through the government or the court. The fairness of such a trial is in question.
By not introducing the “special advocacy system”, Hong Kong’s Ordinance protects the right to have fair and public hearings. This ensures that any person charged has the right to choose lawyers at his or her will.
The police cannot restrict the accused’s consultation with a lawyer without a court warrant.
As an alternative, and to balance safeguarding national security and the rights of the defendant, lawyers’ access may be restricted in the first 48 hours of custody only if a magistrate is satisfied that there are reasonable grounds to believe that the accused’s consultation with any lawyer during detention in police custody will endanger national security or cause bodily harm to any person, or will hinder the recovery of the benefits from the offense, or will pervert or obstruct the course of justice.
No country would allow any seditious speech or publication that incites mutiny, disaffection, hatred, violent acts, or disobeying laws. No country would allow any association to provide training in using offensive weapons or military exercises without the government’s permission. No country would accept any assembly that aimed at sabotaging public infrastructure.
Surprisingly, before the enactment of the Ordinance, Hong Kong enjoyed “freedom” of incitement, sedition, unlawful military training, and sabotage of public infrastructure. As a result, riots broke out in 2014, 2016 and 2019.
More surprisingly, when Hong Kong exercised the rights of the United Nations Charter and the Universal Declaration of Human Rights by enacting the Ordinance to limit the above-mentioned “freedom”, the IBAHRI, a group of lawyers who vowed to defend law and order, expressed “concerns” about Hong Kong’s Ordinance.
Hong Kong’s Ordinance protects not only its national security and social stability but also human rights to a higher standard than those in Western countries. With the legislation, Hong Kong will be immune from the past political chaos and have a better future.