#HongKong. As the British govt announces measures following China's imposition of the national security law, this is a quick thread looking at some of the most alarming features of it. One might describe it as an ideological takeover. /1 xinhuanet.com/english/2020-0…
/2 After the early nods to #humanrights protected in Hong Kong's Basic Law and ICCPR, and the rule of law, and to One Country Two Systems, the provisions which follow install a political and judicial structure intended to be loyal to Beijing.
/3 The secrecy of the drafting, content and time of publication of the law stand in very marked contrast to the transparency of the aims "to safeguard the sovereignty, unification and territorial integrity of the People’s Republic of China".
/4 There is ambiguity in many of the key provisions.
It is remarkable, for example, that "national security" is not defined anywhere in this lengthy document. But "the power of interpretation of the law is "vested in the Standing Committee of the National People’s Congress."
It is remarkable, for example, that "national security" is not defined anywhere in this lengthy document. But "the power of interpretation of the law is "vested in the Standing Committee of the National People’s Congress."
/5 The definitions of the key four crimes themselves are left wide open to interpretation. "Subversion" includes "seriously interfering in, disrupting, or undermining the performance of duties and functions" of Central Govt or HK govt.
/6 In line with fears expressed by many inc. @BarHumanRights @UN_SPExperts, the definition of terrorism is cast v widely, including a catch-all provision on jeopardising public health, safety or security, throwing heavy shadows on the civil liberties to which lip service is paid.
/7 The net is widened dramatically further by Art.26 which , criminalises anyone who provides "information, funds, supplies, labour, transport, technologies or venues" to organisations or individuals labelled terrorist by the earlier provision, & Art.27 on advocating "terrorism".
/8 Another feature littering the provisions is what one might describe as a conspiracy theory drafted into law. The fear of foreign government & foreign interference - long cited by Beijing as the cause of HK's problems - makes for extraordinary provisions on extraterritoriality.
/9 Art. 38 beggars belief.
"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."
Apparently, any of us anywhere could be caught by it.
"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."
Apparently, any of us anywhere could be caught by it.
/10. Making good this conspiracy theory-in-law approach, there is an entire section headed: "Collusion with a Foreign Country or with External Elements to Endanger National Security." It almost needs capital letters.
Since national security is not defined, the scope is alarming.
Since national security is not defined, the scope is alarming.
/11. It captures "seriously disrupting the formulation and implementation of laws or policies" by Central Govt or HK govt, imposing sanctions or blockade, or engaging in other (undefined) "hostile activities against Beijing/HK govt.
/12. For added effect, it also includes the deeply vague and open-to-interpretation "provoking by unlawful means hatred among Hong Kong residents towards the Central People’s Government or the Government of the Region, which is likely to cause serious consequences."
/13 These "foreign collusion" provisions cover direct/indirect support by individuals & organisations, inside AND outside HK/China.
Seems squarely aimed at foreign NGOs or legal/political support for democracy/#humanrights campaigners within HK.
Likely to have chilling impact.
Seems squarely aimed at foreign NGOs or legal/political support for democracy/#humanrights campaigners within HK.
Likely to have chilling impact.
/14 These provisions appear designed to isolate those in or outside HK working for improved democracy and human rights.
So, we see mere language of human rights (free speech, free association, free expression etc) subsumed by what amounts to a legal & ideological takeover.
So, we see mere language of human rights (free speech, free association, free expression etc) subsumed by what amounts to a legal & ideological takeover.
/15 This is compounded by provisions which may have an equally chilling effect on the independence of the judiciary.
Art.44 sums it up. The Chief Executive will designate national security judges.
And this comes with a health warning.
Art.44 sums it up. The Chief Executive will designate national security judges.
And this comes with a health warning.
/16. Judges are curtly & clearly warned that they will not be so designated, or they will be removed "if he or she has made any statement or behaved in any manner endangering national security".
That is ANY statement, on a matter (national security)that is not defined.
That is ANY statement, on a matter (national security)that is not defined.
/17 That warning comes with a greater threat to the wider public, in Arts.55-6.
Trials may take place in the mainland, or with mainland prosecutors/courts in troublingly wide & ill-defined circumstances:
Trials may take place in the mainland, or with mainland prosecutors/courts in troublingly wide & ill-defined circumstances:
/18 So:-
- the case is complex due to "foreign involvement or external elements", so "making it difficult for the Region to exercise jurisdiction";
- a serious situation occurs where HK unable to effectively enforce nat sec law; or
- a major/imminent threat to nat security.
- the case is complex due to "foreign involvement or external elements", so "making it difficult for the Region to exercise jurisdiction";
- a serious situation occurs where HK unable to effectively enforce nat sec law; or
- a major/imminent threat to nat security.
/19 Whilst reassuring that cases will be heard in public trials, yet another non-exhaustive get-out clause for "circs such as State secrets or *PUBLIC ORDER*, where all or part of the trial *shall be* closed to media/public.
Huge compromise of open justice & fair trial rights.
Huge compromise of open justice & fair trial rights.
20. For good measure, there is also a presumption against bail in these cases and a curt warning to defence lawyers to remember their obligation to maintain state secrets.
/21 A quick word about the installation of new power structures, such as the National Security Committee/National Security Office which form part of this legal & ideological takeover. It provides a broad basis upon which Beijing can now interfere in local matters, incl judicial.
/22 Beijing's perceptions of foreign involvement are underlined by Art54.
Poses chilling threats to media, NGOs etc by empowering new structures to "take necessary measures to strengthen the management of & services for organs of foreign countries & international organisations"
Poses chilling threats to media, NGOs etc by empowering new structures to "take necessary measures to strengthen the management of & services for organs of foreign countries & international organisations"
/23. This law came into force, unpublished in advance, at 11pm last night. This is the impact in one day. Some of the reasons for arrests do not seem to fit easily into the new law. These cases will test the parameters of a restrictive new Hong Kong.
/24. This preliminary analysis shows why many people from Hong Kong will feel alarm at the shadows cast today.
Hong Kong has been plunged into a new constitutional & ideological framework, without consultation, without clarity & with great uncertainty ahead.
We stand with you.
Hong Kong has been plunged into a new constitutional & ideological framework, without consultation, without clarity & with great uncertainty ahead.
We stand with you.
