Hong Kong Bar Association calls for clearer provisions in home-grown national security law, warns of ‘chilling effect’ in absence of certainty
- Legal sector group submits views as part of public consultation over security law, which authorities say recorded overwhelming support
- Bar Association calls for clearer definitions and narrower scopes for proposed offences
A position paper released by the legal sector body on Thursday urged the increased clarity and was among the 13,147 submissions authorities received in a month-long public consultation over the security law. The period ended on Wednesday, with authorities claiming that about 99 per cent of submissions voiced support for the legislation.
Bar Association chairman Victor Dawes said it recognised that Article 23 of the Basic Law, the city’s mini-constitution, imposed an important constitutional obligation on the city to pass the legislation, and that national security was of fundamental and critical importance to the country.
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“I want to emphasise that the imperatives of protecting national security and the fundamental rights in Hong Kong can and should be understood and pursued as complementary parts of a single constitutional vision, that of a flourishing ‘one country, two systems’ [governing principle],” he said at a press conference.
But it was of vital importance that authorities made a proper and careful balance taking into account the constitutional guarantees of human rights and the rule of law, he said.
The proposed legislation, which will sit alongside the 2020 Beijing-imposed national security law, was designed to target five new types of offences – treason, insurrection, theft of state secrets and espionage, sabotage and external interference.
Many of the suggestions made by the association, which regulates the city’s 1,600 barristers, called for clearer definitions and narrower scopes for the offences proposed in the legislation’s consultation paper.
In its position paper, the association said it recognised that the government might prefer to draft the law in terms that “allow the authorities to properly respond with sufficient flexibility” to the varied and unpredictable ways security threats might emerge.
“On the other hand, there is a countervailing need for the proposed legislation to be drafted in sufficiently prescriptive terms, as the greater the uncertainty surrounding the practical impact of a statute, the more likely it is to have a chilling effect on lawful conduct,” the position paper said.
The body urged the government to consider narrowing the scope of the proposed sedition offences by introducing “incitement to violence” as a requirement for some of the behaviour.
“Even with it, the offence would likely capture most of the instances where protection is needed,” the association said. “Its alignment with the position in a number of major common law jurisdictions will give welcoming assurance to the local and international community alike.”
The association also said the treason offence should not include “a riot or disturbance of a local nature that amounts to an armed rebellion”, and suggested spelling out four specific criteria for conviction of a proposed crime of conduct in relation to a computer.
Echoing concerns voiced by the European Chamber of Commerce, the association called for clearer definitions involving the proposed offences of theft of state secrets and foreign interference.
The body also noted the consultation paper “advocates” a “wide approach” in defining external forces under the proposed external interference offence, as it could legitimately include “anyone who is subject to the lawful authority of another jurisdiction at any point in time”.
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It gave three examples where a sovereign fund operating in the city, a foreign firm subject to a worldwide tax regime and a Hongkonger who travelled abroad could also be considered external forces.
“The Bar therefore recommends that the definition of ‘external forces’ should be further refined and should not be cast too widely,” it said.
Meanwhile, a Security Bureau spokesman said on Thursday that 98.6 per cent – 12,969 of the 13,147 submissions received – over the month-long consultation period “supported or raised positive views”.
Authorities said only 93 submissions, or 0.71 per cent, opposed the bill, of which more than 10 were from “overseas anti-China organisations” or absconders.
“We are encouraged by the proactive expression of support for the legislation work by various sectors, which demonstrates a strong ambience [of] support [for] the Basic Law Article 23 legislation in society,” the spokesman said.
Hong Kong launched the 30-day consultation period at the end of January.
Hong Kong’s Article 23 security law needs public interest defence: lawyers
The proposal has won the backing of the city’s legislature, revamped under the “patriots-only” rule, but several chambers of commerce and press groups have expressed concerns.
The Foreign Correspondents’ Club of Hong Kong and the Hong Kong Journalists Association have asked the government to consider the inclusion of a public interest defence clause in the legislation and to ensure journalists would not be targeted for doing their jobs.
The suggestion was shared by the Bar Association, which said the public interest defence provision should apply to anyone and not just journalists.
British Foreign Secretary David Cameron and the US State Department issued statements on the final day of the public consultation, raising concerns about the new legislation’s potential curb on the freedom of expression and diplomatic activities.
Chinese foreign ministry spokeswoman Mao Ning on Thursday expressed firm objections to Cameron’s statement, maintaining that the new legislation would respect and protect human rights.
