Hong Kong localism and independence

Peacefully advocating Hong Kong independence does not pose threat to national security, law expert says

Law professor at University of Hawaii said government would have to demonstrate action was intended to incite imminent violence

PUBLISHED : Monday, 04 December, 2017, 10:01pm
UPDATED : Monday, 04 December, 2017, 11:07pm

Peaceful advocacy of Hong Kong independence should not be prohibited under a future national security law as it does not pose any threat to the country’s national security, according to an international law expert.

Professor Carole Petersen, a law professor at the University of Hawaii, was among 20 local and international scholars who spoke at a conference on national security held at the University of Hong Kong on Monday.

The city is under renewed pressure to enact its own legislation to prohibit treason, secession, sedition and subversion against the country amid the rise of separatist sentiment.

Given the latest developments, a number of panellists thought the new law would be much harsher than the 2003 version, which was shelved by the administration after half a million Hongkongers took to the streets to condemn the bill which they believed would curb residents’ freedoms.

“If a student posts a banner endorsing peaceful negotiation for Hong Kong independence, does that really pose a genuine threat to the [People’s Republic of China’s] national security? How would it actually interfere with the PRC’s existence as a nation or its capacity to protect its territorial integrity? It simply wouldn’t,” said Petersen, who taught law in Hong Kong from 1989 to 2006.

She cited the Johannesburg Principles, an international legal instrument which stipulates that expression may be punished as a threat to national security only if the government can demonstrate it is intended to incite imminent violence.

Petersen called on the government to make a “genuine effort” in drafting a national security law which would comply with international standards, as enshrined in the International Covenant on Civil and Political Rights.

The city’s Law Reform Commission should also conduct a comparative study by examining similar laws in other countries, she said.

Last month, Basic Law Committee chairman Li Fei criticised the city’s slow progress in legislating its own national security law as required by Article 23 of the Basic Law, the city’s mini-constitution, suggesting some separatists were exploiting the situation. That came as pro-independence groups tried to revive the controversial drive on school campuses.

But former HKU law dean Professor Johannes Chan Man-mun said he was sceptical about claims that the city had failed to fulfil its “institutional responsibility” to enact its national security law, as he said existing local laws already covered the offences listed in Article 23.

Speaking at the same forum, he said the real issue was whether peaceful calls for independence should be criminalised in Hong Kong. Discussion should therefore be reframed as reform instead of enacting a new national security law, he said.

When asked if Beijing would invalidate or send back the national security bill if it was not in line with the requirements of Article 23, Basic Law Committee member Albert Chen Hung-yee revealed that was a view that he heard which could “arguably be justified” under the city’s mini-constitution.

But he said that view did not come from mainland officials and he believed it would be quite unlikely to happen.

Separately, Legislative Council president Andrew Leung Kwan-yuen ordered a single debate, which he said could last 30 hours, on proposals to amend the rule book. That means pan-democrats will have less chance to drag out discussion of the amendments that will effectively curb their filibustering tactics.

The camp slammed Leung’s decision as it called for a separate debate on each resolution. The debate is set to start on Wednesday.