1/ Here is my observations on HKSAR v Ma Chun Man (2021), which has a Chinese verdict and an English Press Summary for now: legalref.judiciary.hk/lrs/common/ju/… (20 tweets,beware!)
2/x The reasons for verdict have 84 paragraphs, and only 4 of them discuss the court’s view on human rights jurisprudence. Sadly, they are insufficient, incoherent and not up to international standard. (See para.46-47, 64-65) #HK #NSL …
3/x in para.46, The verdict cited the Jimmy Lai case at the CFA (FACC1/2021) to state article 4 of the NSL safeguards basic rights and freedoms according to Hong Kong law…
4/x In the next paragraph, however, the verdict jumps to the conclusion that everyone would accept rights and freedoms are not unlimited in a rule of law society, otherwise their “destructive powers and subversiveness” are self-evident (不言而喻）…
5/x There are restrictions of free speech under international standard, but this verdict doesn’t follow. It even doesn’t dare to discuss it…
6/x As @tom_kellogg and I explained in our briefing paper,the court’s failure to engage in a serious rights-based analysis is all the more strange,given that Art.39 of the Basic Law states that the International Covenant on Civil and Political Rights remains in force in HK…
7/x The United Nations Human Rights Committee states that seek to restrict speech on national security grounds must draw a direct causal link between the speech in question and the threat to national security, and must adopt the least restrictive means…
8/x No such specific security threat was cited in this verdict, nor was any causal connection established between Ma’s actions and a specific and legitimate threat to national security…
9/x this verdict exaggerates the threat of pure speech and exercise of rights without clear reasoning. Citing the CFA judgement is meaningless here as it fails to address how the rights warranted are applied in this case…
10/x In paras 64, the court says that it cannot see the defendant recognised his right to free speech and free assembly, but failed to acknowledge the restrictions of his rights…
11/x Again the court fails to recognise its own failure of not seeing the restrictions of restricting free speech under international human rights law…
12/x Finally in para 65, the court says the defendant only “depended and stressed on the rights in the Basic Law”, but “ostensibly ignored the GRAND PRINCIPLE of article 1 of the Basic Law: HKSAR is inseparable from PRC”…
13/x However, the court does not go further to explain why upholding free speech that doesn’t lead to imminent violence is irreconcilable with upholding territorial integrity of PRC…
14/x As our briefing paper stressed, the Johannes Principle forbids any criminalisation of non-violent activities that do not bring imminent violence. The HK gov had appreciated the Principles in 2003…
15/x Para 65 implies that, the court is now eager to replace human rights jurisprudence with sovereignty jurisprudence. It confuses the public that protecting human rights subordinates to defending the national security and territorial interests of the sovereignty…
16/x Yet if the court follows international standard to give ruling, such tensions can be reconciled, and such dichotomy would not exist…
17/x This verdict affirms the expansive, arbitrary power under the incitement offences of the NSL. Indeed, incitement has been a controversial charge in the history of common law. Without rigorous analysis between human rights and national security, a low quality judgement comes.
18/x Ma’s sentence will be announced next month by judge Stanley Chan, who also tries another speech crime case of Tam Tak Chi (快必), whereas Tong Ying Kit’s appeal is not scheduled yet…
19/x There are still many issues that worth discussion in this verdict, but I would stop here for now. People who concern HK’s rule of law would remain pessimistic as the courts work like rolling back to the old colonial times.
20/x Sorry for the long thread here, for more detailed analysis of NSL incitement offences, see our briefing paper @tom_kellogg @GeorgetownCAL @GeorgetownLaw here: law.georgetown.edu/law-asia/wp-co… #Hongkong #NSL #MaChunMan #Incitement #RuleOfLaw #StanleyChan #TamTakChi #TongYingKit
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