Hong Kong localism and independence

A threat to city’s freedom or a necessary step for security? Hong Kong National Party ban divides opinion

Some warn that banning separatist party creates a legal grey area and suppresses free speech, but other legal experts say move only concerns the party itself

PUBLISHED : Tuesday, 25 September, 2018, 7:49am
UPDATED : Wednesday, 03 October, 2018, 1:23pm

The basis for the ban on the Hong Kong National Party:

Secretary for Security John Lee Ka-chiu has decided to officially ban the Hong Kong National Party on grounds of national security, public safety, public order and the protection of the rights and freedoms of others

Lee said the party had taken actions in the past two years to build support for its cause to break away from China, and spread hatred and discrimination against mainland Chinese people in Hong Kong

Noting the separatist party had yet to resort to violence, Lee said he could not neglect its threats posed to public safety and order as the party had made it clear it would exhaust all means to its goals, including the option of using force

Lee said freedom was not without limits and the prohibition was “necessary and proportional”

The laws justifying a ban on the Hong Kong National Party (HKNP) on national security grounds lack clarity and could pose a threat to the city’s freedoms, several observers warned, even as other legal experts maintained the main target was the party and no one else.

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Critics expressed concern that it could force the public – including the media – to be cautious in their speech and actions, for fear of stepping on legal landmines.

In announcing his decision to ban the separatist party on Monday, Secretary for Security John Lee Ka-chiu warned that anyone who associates with the party by serving the group, taking part in gatherings, providing financial assistance or any aid could be liable on conviction to a fine and a jail sentence of two to three years.

He was citing the Societies Ordinance, the same law which has been invoked to prohibit the operation of the HKNP in the name of national security, public safety and the rights and freedom of others.

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But Lee was non-committal when presented with different scenarios at a press conference – such as whether citizens are allowed to share the information of the banned party on social media – and insisted the legal provisions were clear.

“I cannot give an answer on every speculative situation, but the legal provisions are clear,” he said.

Legal scholars and practitioners said the concept of “aid” had not been clearly defined because of the lack of case law, making it difficult to set parameters.

“Aid could be interpreted as providing a platform for the banned party to continue or promote its operation, and that does not necessarily involve money,” said Eric Cheung Tat-ming, a principal lecturer in law at the University of Hong Kong.

While Cheung said HKNP members were still allowed to speak in their personal capacity, he admitted the ban was set to create a lot of grey areas which could end up limiting the room for free speech in Hong Kong.

Professor Simon Young Ngai-man, the associate law dean in HKU who specialises in criminal law, said a mere media interview would not constitute giving aid to the HKNP, unless the subsequent publication of the interview would serve to promote the purposes of the party.

But he said the publication of an opinion piece penned by HKNP members on news outlets might be construed as giving aid to the party, offering it a platform to promote its calls for independence.

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Members of the public are free to participate in protests to criticise the ban, but Young argued they need to be careful that they are not giving aid to the HKNP’s purposes and that their attention should be focused on criticising the application of the Societies Ordinance.

Openly expressing support for the HKNP on social media, however, might constitute giving aid because that could be seen as giving “moral support” to its office bearers, he said.

“I accept this is a wide interpretation of the law and it is possible that the court might read the words ‘giving aid’ more narrowly to require some tangible benefit conferred,” Young said. “However, this is a legal issue that needs to be determined by a court and for now people would be wise to distance themselves from the HKNP lest they fall foul of Section 20 of the Societies Ordinance.”

Senior barrister Grenville Cross, the city’s former director of public prosecutions, said it was not a criminal offence for someone to simply express an opinion at an ordinary meeting, unless he or she was acting as a member of the HKNP.

“In any situation, it is the involvement of the HKNP which provides the toxicity,” he said. “The simple airing of a point of view does not of itself attract criminal sanctions, and enjoys a measure of protection under the International Covenant on Civil and Political Rights.”

“The criminality concerned relates specifically to the HKNP, and there are no wider implications for the basic rights and freedoms of the community,” Cross added.

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Lawmaker Priscilla Leung Mei-fun, who also sits on the Basic Law Committee, pointed to the law’s clarity in that any advocacy of Hong Kong independence would violate the city’s mini-constitution, the Basic Law.

On the impact of the ban on others, she said: “Sharing information [posted by the HKNP] on social media per se is already a form of assistance … and participation.”

Former Bar Association chairman Ronny Tong Ka-wah, now an executive councillor, said the government’s decision would have the intended deterrent effect on political groups advocating Hong Kong independence.

But following the ban, the city should now discuss ways to protect national security, as there was no law currently that dealt specifically with the act of secession.

Barrister Chris Ng Chung-luen, convenor of the Progressive Lawyers’ Group, said the lack of clarity and uncertainty would inevitably result in self-censorship.

“Citizens would tend to be very cautious in exercising their rights under such circumstances,” he said. “Even though the police might not take any action against their acts, one would not be sure when would it actually come and that would unavoidably exert pressure on them.”

More immediately, Ng said there was also the issue of access to justice for the banned party’s founders, as they now could not solicit funds as that was now deemed illegal. It remained unclear whether the party members would be able to secure legal aid to challenge the government’s decision.

A spokesman for the Security Bureau said law enforcement agencies would deal with each case in light of the actual circumstances and in accordance with the law, adding the order made by the minister under the ordinance had “no relation to press freedom”.