Why Hong Kong should heed UN condemnation of its failure to protect basic rights

The UN’s top human rights body has sharply criticised Hong Kong’s application of the national security law, making it clear basic freedoms and the rule of law are in jeopardy
Rather than trotting out the same tired responses, the government should take steps to repair Hong Kong’s reputation before it is too late

Michael C. Davis

Published: 9:30am, 2 Aug, 2022

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There is no way to sugarcoat it. Hong Kong’s obligations under the International Covenant on Civil and Political Rights to protect basic rights and maintain the rule of law have been sharply condemned by the United Nations’ leading expert body on human rights.

The national security law and so-called electoral reforms fail to comply with multiple requirements of this covenant. As a human rights professor who has taught the subject in Hong Kong for over 30 years, I have never seen such a comprehensive condemnation from the UN Human Rights Committee.

Both the Sino-British Joint Declaration and Basic Law place the obligations to protect basic freedoms and the rule of law at the heart of Beijing’s commitments to Hong Kong. These commitments were judged to be essential to maintaining Hong Kong as an open, rule-of-law-based society. Failure means Hong Kong’s basic freedoms and the rule of law are in jeopardy.

In response to the UN committee’s report, the Hong Kong government offered the same tired arguments it gave in the hearings, noting the need to end chaotic protests and that governments everywhere have national security laws.

As a matter of common sense, the expert committee probably recognised that Hong Kong’s protesters did not take to the streets without cause, and that they, as committed citizens, may have been reacting to government failures and to excessive police behaviour, which the committee also condemned.

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Hong Kong priest protests against detention of activists under national security law

It also makes clear that it is not the enactment of the national security law but Hong Kong’s version and application that is the problem. I address here only a few of the committee’s concerns.

It was “deeply concerned” that the national security law “prevails over other local laws in case of conflicts and consequently overrides fundamental rights and freedoms protected by the covenant”. In fact, the Court of Final Appeal has extended this override even to conflicts with the Basic Law, rendering any objectionable provisions beyond judicial oversight.

The committee was especially troubled that the national security law was imposed without public consultation; that the four crimes covered are vaguely defined; that it allows transfer of cases to the mainland beyond the covenant’s reach; that criminal investigations by mainland authorities can be conducted without judicial oversight; and, that regulations enacted to carry out criminal investigations allow for unrestricted surveillance.

That trial provisions create a presumption against bail and allow for denial of the right to a jury caused further alarm.

The committee especially condemned the “overly broad interpretation of and arbitrary application of the law”, noting it has been used to arrest over 200 people, including “journalists, politicians, academics, students and human rights defenders who have expressed dissenting opinions”. Both lawyers and legal academics are hard pressed to know the red lines, much less Hongkongers in general.

How stifling political dissent became part of Hong Kong’s rule of law

Such failings reach well beyond criminal prosecutions to include, as the report noted, the targeting of civil society organisations and unions, blocking of websites and media accounts, pressure on schools and libraries, and even “interfering with the editorial independence” of public broadcaster RTHK. Around 60 community organisations have reportedly closed under pressure.

Highlighted threats to criminal justice include the “extensive investigative powers” of the national security police, legal aid reform that would deny defendants receiving legal aid the right to choose counsel, and provisions allowing the prosecution to deny a defendant’s right to a jury.

The committee expressed special concern about the harassment of lawyers, such as Chow Hang-tung, who request judicial reviews or represent opposition figures or protesters. That many defendants facing national security charges have languished in jail, denied bail for well over a year, amounts to punishment without trial.

04:37

HK Journalists Association ‘assesses risk’, worries about press freedom and its own future

Targeted for the harshest condemnation are provisions allowing the government to designate a secret list of judges to hear national security cases and requiring dismissal of judges considered to have made statements against national security. This clearly signalled a distrust of independent judges. Secrecy regarding national security investigations further weakens independent judicial oversight.

The committee condemned the treatment of sedition as a national security violation, allowing application of the same procedural limitations. The colonial sedition charge has been used arbitrarily to target critical opinion, including clapping in court and publishing children’s books about sheep and wolves.

The committee recommends that the national security law and sedition ordinance be repealed, and that any application in the interim be fully consistent with the covenant. It further recommends that any planned national security laws be subject to public consultation and conform with the covenant’s requirements.

To meet these standards, such laws should not serve as a catch-all basket for public opposition but regulate only threats of violence or similar unlawful action.

John Lee must assure the world that Hong Kong’s freedoms aren’t lost

The committee also condemned the failure of the new electoral system to comply with the covenant. It notes the 2021 changes give “little or no chance for candidates of opposition parties to stand for election”. In fact, none did.

The excessive vetting processes to ensure a “ patriots only” election risk opposition candidates not only being disqualified, without reasons given, but also prosecuted for past actions.

I can no longer teach in Hong Kong what students should know about these critical issues without risking violation of the national security law; secondary and primary schoolteachers cannot offer a critical liberal education; journalists walk a fine line; community organisations must avoid politically sensitive issues; bookshops and publishers likewise; and we all must be careful about our social media posts.

The governments in Beijing and Hong Kong would be well advised to take the committee’s and similar views to heart before damage to Hong Kong’s reputation is irreparable.

Professor Michael C. Davis, formerly a professor the HKU, is currently a global fellow at the Wilson Center and a professor of law and international affairs at the Jindal Global University