New HK security law ‘unduly limits’ rights and freedom

Hong Kong’s new homegrown national security law will “unduly limit” human rights and freedom in the city, six UN experts have said as they urged authorities to review and reconsider the legislation.

Hong Kong officials including Chief Executive John Lee and Secretary for Security Chris Tang leave the Legislative Council chamber after the passing of Article 23 on March 19, 2024. Photo: Kyle Lam/HKFP.

The new security law – commonly known as “Article 23” – targets five types of crimes including treason and insurrection, with sentences ranging up to life imprisonment. It is the city’s second security law after the one Beijing imposed in June 2020. Officials say the two laws would work in tandem to protect the city against “external threats” to national security.

“The Ordinance includes numerous measures that would significantly and unduly limit the exercise of human rights and fundamental freedoms,” including freedom of expression and of peaceful assembly, said the six UN special rapporteurs in a co-signed letter to China.

The key offences of the "Article 23" national security law. Graphic: Shan Chan/HKFP.The key offences of the "Article 23" national security law. Graphic: Shan Chan/HKFP.
The key offences of the “Article 23” national security law. Graphic: Shan Chan/HKFP.

The letter – dated March 22, one day ahead of the enactment of the law – was shared online on Thursday by Margaret Satterthwaite, the UN’s special rapporteur on the independence of judges and lawyers and one of the co-signatories.

The experts said the key concept of national security was broadly defined and based on vague and contestable terms such as “the welfare of the people” and “sustainable economic and social development.”

“These concepts may reasonably mean different things to different individuals and groups,” the letter said, adding that “over-broad definitions necessarily entail risks of arbitrary and discriminatory enforcement.”

They also said the definition of “external force” – a key element which could add extra jail time to an offence – was “broad, vague, and capable of reasonably disagreement.”

The newly enacted law includes foreign governments, political parties, and external organisations “that pursue political ends,” as well as their related personnel, as external forces. Working with an external force in the commission of offences such as sedition and sabotage would incur a higher penalty.

The experts said the definition appeared to include the UN and its human rights mechanisms as “external forces” and warned that it could hinder legitimate activities such as international collaboration and academic exchanges.

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File photo: United Nations via Wallpaperflare

“[The law] creates legal uncertainty and could affect cooperation with the United Nations, including its Special Procedures, contrary to the international obligations and practice of [China],” they added.

Authorities maintain that normal international exchanges would not be hampered by the law, which only targeted those intending to endanger national security through taking part in international activities.

‘Arbitrary detention’

The experts also took aim at the new power of the police to hold national security suspects for 16 days without charge and to restrict them from meeting lawyers during detention.

Such pre-charge detention would be contrary to the internationally accepted standard to “promptly inform an arrested person of any charges against them,” and that would likely constitute “arbitrary detention,” the experts cautioned.

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Legislative Council president Andrew Leung and lawmakers address reporters after the passing of Article 23 on March 19, 2024. Photo: Kyle Lam/HKFP.

Under the new law, police can restrict detainees from meeting specific lawyers – or ban them from consulting any attorney for two days – on national security grounds.

“This broad ability, which apparently can be exercised without appeal, would allow the police to hinder individuals’ access to a lawyer of their choosing on an entirely uncertain basis,” the experts said.

“The spectre of being banned in this manner is likely to have a chilling effect on lawyers more generally, as they may wish to avoid the scrutiny and reputational harm that could accompany representation in national security cases.”

A man outside a police station in Hong Kong. Photo: Kyle Lam/HKFP.A man outside a police station in Hong Kong. Photo: Kyle Lam/HKFP.
A man outside a police station in Hong Kong. Photo: Kyle Lam/HKFP.

Officials said some lawyers could exploit their privilege when meeting detainees to facilitate acts that endanger national security or impede investigations.

Last week, the UN’s High Commissioner for Human Rights Volker Turk slammed the “rushed” adoption of the law after it was fast-tracked through the legislative process and passed unanimously by the city’s opposition-free legislature.

Turk called the law “a regressive step for the protection of human rights” while describing its provisions as “broadly defined and vague.”

Authorities, however, cited perceived foreign interference and a constitutional duty to “close loopholes” after the 2019 protests and unrest.

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