China’s National Security Law for Hong Kong contrary to rule of law

We, the undersigned, find the action of the Chinese Mainland legislature in enacting the new National Security Law in Hong Kong Special Administrative Region (SAR), without proper consultation with Hong Kong SAR peoples and institutions, fundamentally objectionable.

The new law is:

• contrary to the norms of international law;
• incompatible with the rule of law and fundamental human rights; and
• inconsistent with the Basic Law of the Hong Kong SAR.

The National Security Law in its present terms is a grave departure from the fundamental principles upon which the People’s Republic of China (PRC) agreed with the United Kingdom to govern Hong Kong after its transfer to the PRC. The National Security Law has been enacted by the PRC without meaningful engagement with the people of Hong Kong SAR in the legislative process. This bodes ill for the survival of even the attenuated conditions of democracy and human rights that have been practised in recent times in Hong Kong SAR.

We urge that the new law not be adopted or implemented without full and uninhibited consultation with the people of Hong Kong SAR who are affected by it. This may not be the law and custom of the PRC, however, it is a basic norm of universal human rights that is observed in democratic countries and expected in Hong Kong SAR.

Furthermore, we are concerned that, despite the text of the National Security Law not being released to the people of Hong Kong SAR, in the few short hours in which the sweeping law has been enacted, the world has witnessed prominent Hong Kong SAR activists shut down their campaign groups and delete their social media profiles for fear of being arrested and sent to mainland China – where ‘secession’, ‘subversion’ and ‘collusion with foreign forces’ are criminalised – to be tried.

In addition to the above, our other concerns include:

• the non-existent ability of legal experts to review the compatibility of the law with Hong Kong SAR’s legal and constitutional framework, and China’s international legal obligations;
• the purported imposition of retrospective legislation;
• reports that the National Security Law will take precedence over Hong Kong SAR law, and, where disputes may arise, China’s Standing Committee of the National People’s Congress will adjudicate;
• the Chief Executive of Hong Kong SAR will be given the power to appoint former judges and magistrates to particular National Security Law cases. Presently, it is senior judges who undertake such actions in assigning cases as enshrined in Article 85 of the Basic Law; and
• the opaqueness of criteria for identifying cases which will result in rendition to mainland China, and the insufficient safeguards to protect such individuals.

Effectively, law is being used to curtail the democratic freedoms of the semi-autonomous territory. This is a sad and deeply worrying time for the people of Hong Kong SAR and for their friends across the globe.

Horacio Bernardes Neto
President, International Bar Association

The Hon Michael Kirby AC CMG
Co-Chair, International Bar Association’s Human Rights Institute

Anne Ramberg Dr jur hc
Co-Chair, International Bar Association’s Human Rights Institute

Mark Ellis
Executive Director, International Bar Association

Baroness Helena Kennedy QC
Director, International Bar Association’s Human Rights Institute
 

ENDS

Notes to the Editor

1. The International Bar Association (IBA), the global voice of the legal profession, is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, it was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice. The International Bar Association’s Human Rights Institute (IBAHRI), an autonomous and financially independent entity, works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.

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