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New York City Bar Association Statement on Hong Kong National Security Law

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New York City Bar Association Statement on Hong Kong National Security Law FOR IMMEDIATE RELEASE Contact: Eric Friedman [email protected] Eli Cohen [email protected] New York City Bar Association Statement on Hong Kong National Security Law: “The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” The New York City Bar Association condemns the “Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” [“NSL”],1 which the Standing Committee of the National People’s Congress [“NPCSC”] adopted and which came into force on June 30, 2020. The new law, which was drafted behind closed doors in Beijing without input by the people of Hong Kong and the text of which was released to the public after the law had taken effect, is inconsistent with People’s Republic of China’s [“PRC”] and Hong Kong’s international obligations to protect fundamental human rights and the rule of law. The PRC is party to six of the core international human rights conventions.2 The Hong Kong Special Administrative Region is separately a party to the International Covenant on Civil and Political Rights. The NSL effectively ends the PRC’s commitment to the policy of “One Country, Two Systems,” under which China bound itself to accord Hong Kong a “high degree of autonomy,” under the 1 XINHUA NEWS AGENCY, (Jul. 1, 2020) available at http://www.xinhuanet.com/english/2020-07/01/c_139178753.htm . 2 The conventions are: the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the International Convention on the Elimination of All Forms of Racial Discrimination (CERD); the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child (CRC), including its Optional Protocol; the Convention on the Rights of Persons with Disabilities (CRPD); and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). China has also signed and at its most recent Universal Periodic Review promised to ratify the International Covenant on Civil and Political Rights (ICCPR). Sino-British Joint Declaration3 including a “basically unchanged”4 common law legal system enjoying “independent judicial power” and various internationally recognized fundamental freedoms.5 As a bar association whose attorney members regularly travel to and from Hong Kong, and which has issued numerous statements confirming its commitment to upholding the rule of law and human rights in Hong Kong and elsewhere, and whose members regularly conduct business in Hong Kong, we are concerned that this law threatens the future viability of Hong Kong as a region that protects the rule of law and as a commercial center in Asia. Already twenty-seven countries, including many of China’s and Hong Kong’s largest trading partners — Australia, Austria, Belgium, Belize, Canada, Denmark, Finland, France, Iceland, Ireland, Germany, Japan, the Kingdom of the Netherlands, New Zealand, Norway, Slovakia, Slovenia, Sweden, Switzerland, and the United Kingdom — have jointly called on China and Hong Kong to reconsider implementation of this legislation.6 The Association calls upon the PRC to uphold its international obligations and withdraw the NSL. In particular the NSL violates the Sino-British Joint Declaration, the ICCPR as it applies to Hong Kong, and the Hong Kong Basic Law. Article 39 of the Hong Kong Basic Law directly incorporates the ICCPR and prohibits legislation that conflicts with the ICCPR. Many aspects of the NSL generate concern. Of these, some of the most alarming are: 1) the NSL’s vague and overbroad definition of offenses such as “secession,” “subversion,” “terrorism,” and “sedition”; 2) the creation of a mainland security apparatus in Hong Kong; 3) granting both mainland and local authorities the option of bypassing the Hong Kong legal system to permit the prosecution and trial of cases on the mainland; 4) placing the NSL beyond the international rights protections previously in force under Hong Kong’s Basic Law and legislation; and 5) functionally according the NSL near-universal jurisdiction, such that by its terms it threatens the fundamental rights of persons around the world in applying its provisions to persons physically present in Hong Kong, regardless of whether they are a resident or a citizen of Hong Kong or the PRC, and to conduct, which by its vagueness and breadth, may have taken place substantially outside of Hong Kong. These and many other features of the NSL violate the PRC’s commitments under the Sino- British Joint Declaration, Hong Kong Basic Law, international human rights treaties, and international standards recognized by the United Nations. 3 Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, Dec. 19, 1984, U.K.-P.R.C., 1984 Gr. Brit. T.S No. 20 (Cmd.9352) 1399 U.N.T.S. 33, Art. 3(2) 4 Id., at Art. 3(3). 5 Id. 6 “UN Human Rights Council 44: Cross-regional statement on Hong Kong and Xinjiang,” UK's Ambassador to the WTO and UN in Geneva, Julian Braithwaite, delivered this cross-regional joint statement on behalf of 27 countries,” (June 30, 2020) available at: https://www.gov.uk/government/speeches/un-human-rights-council-44-cross-regional-statement-on-hong-kong-and-xinjiang . 2 1. Vague and Overbroad Criminal Offenses. The NSL defines national security offenses broadly in a manner that invites arbitrary enforcement and is inconsistent with international law. The crime of “Secession” applies to any person who “organizes, plans, commits or participates . whether or not by force or threat of force, with a view to committing secession or undermining national unification,” such as acts separating the Hong Kong Special Administrative Region, or any other part of the People’s Republic of China, from the People’s Republic of China. (NSL, art. 20). “Subversion” applies to any person who incites, assists in, or abets the commission of secession. (NSL, art. 21) “Terrorism” applies to any individual who, among other things, “organizes, plans, commits, participates in or threatens to commit, among other things, “interruption . of public transport” with a view to “intimidating the public in order to pursue a political agenda.” (NSL, art. 24).7 Of special concern for foreign organizations, the NSL defines “collusion with a Foreign Country or with External Elements” to include working with a foreign country, organization, or individual to “provoke by unlawful means hatred among Hong Kong residents” to the mainland government or government of the region. (NSL, art. 29). Hong Kong is an important regional hub for many lawyers – local and foreign — engaged in helping support civil society across Asia. It is also a key location for many law firms; and for such firms, commercial lawyers and their clients engaged in litigation or difficult negotiations where the opposing party may be connected to the PRC government, this raises significant concerns. Law firms will need to reconsider whether Hong Kong will continue to be a safe place from which to conduct due diligence on Chinese assets and companies, store sensitive client information, and conduct client business without fear that simply advocating, investigating facts or storing the information for their clients will bring them under the purview of this law. Broadly defined offenses in the Criminal Law of the PRC have already been widely used to silence critics of the PRC government and the Chinese Communist Party (CCP), and also to constrain or attack foreign businesses. From its first day of enforcement, the signs are already troubling, as the Hong Kong Police Force has publicized the fact that persons merely carrying paper stickers with the words ‘liberate Hong Kong’ were arrested for violating the law.8 7 For example, under mainland law, human rights lawyer Jiang Tianyong was sentenced for subversion of state power for receiving interviews with foreign media and publishing articles online. See Zeng Yan, 江天勇煽动颠覆国家政权罪一审获刑二 年当庭表示不上诉 (“Jiang Tianyong sentenced at first instance to 2 years for inciting subversion of state power, states that he will not appeal”) , PEOPLE’S COURT DAILY (November 21, 2017) available at https://www.chinacourt.org/article/detail/2017/11/id/3083482.shtml. In addition, economics professor Ilham Tohti, winner of the PEN/Barbara Goldsmith Freedom to Write Award (2014), the Martin Ennals Award (2016), the Václav Havel Human Rights Prize (2019), and the Sakharov Prize (2019) was sentenced to life imprisonment in 2014 for words said in the classroom and online. See, GUIYANG PEOPLE’S GOVERNMENT, 【国家安全教育日】国家安全就在身边！典型案例触目惊心！ (“National Security Education Day, National Security is By Your Side! Shocking Typical Cases!”) (April 15, 2020) available at http://www.guiyang.gov.cn/zwgk/zwgkxwdt/zwgkxwdtjrgy/202004/t20200415_56007003.html. 8 Radio Television Hong Kong (RTHK) @rthk_enews (Jul. 1, 2020, 7.06AM), https://twitter.com/rthk_enews/status/1278283944262111234?fbclid=IwAR1MP6anxbXXI1wDFfjSuPNFJG2g2t7gBKGxeV2fk dTYqmMKzFBO-AfHKWY 3 2. Mainland National Security Office in Hong Kong. Augmenting the concern about broadly defined offenses is the NSL’s introduction of PRC functionaries into Hong Kong who will have the power to administer the law should they find enforcement by local authorities insufficient. In particular, the NSL sets up a PRC “Office for Safeguarding National Security” in Hong Kong with a power to oversee, and at its discretion, “handle” cases under the NSL. (NSL, art. 48). 3. Mainland Authorities Not Subject to Hong Kong Law. Of further concern, the NSL provides the new PRC Office for Safeguarding National Security with immunity from the application of Hong Kong law (NSL, art. 60). The result will be a mainland China law enforcement office in Hong Kong that will not be subject to Hong Kong’s Bill of Rights Ordinance, Hong Kong’s criminal law,9 the Hong Kong Basic Law, or the provisions of the International Covenant on Civil and Political Rights that these instruments incorporate into Hong Kong law.
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