By Alvin Y.H. Cheung
The Hong Kong National Party (HKNP) has drawn no shortage of vitriol in the short time since its foundation. Liaison Office chief Zhang Xiaoming blustered that its formation “far exceeded the topic of freedom of speech.” Chief Secretary Carrie Lam was equally bombastic, suggesting that “the suggestion [of independence]… violates the Basic Law”.
Secretary for Justice Rimsky Yuen also got in on the act, insisting no fewer than three times in a single paragraph that the mere suggestion that Hong Kong should become independent violated the Basic Law – and adding for good measure that freedom of expression was irrelevant when it came to “suggestions… contrary to the fundamental principle expounded in the Basic Law.” As officials and sycophants in Tamar, Western, and Beijing fall over each other to out-harangue the HKNP, it’s become increasingly obvious that their responses obscure three very simple principles – two legal, one political.
No Crime Without Law (nullum crimen sine lege)
Notably, neither the government’s statement on 30 March nor Secretary Yuen’s comments on 1 April were able to identify any specific provisions criminalising the mere suggestion that Hong Kong should become independent.
When pressed, Secretary Yuen gave a distinctly mealy-mouthed response – one conspicuously devoid of any reference to substantive law:
What we are saying is, since someone has openly come out to suggest that they are going to act contrary to our Basic Law, therefore, I think as a responsible government and insofar as the Department of Justice is concerned, as a responsible department administering the issues concerning the law, I think we would have to closely monitor the situation. As to what we would do, we would follow the same procedure as in other cases, namely, when things happen, the law enforcement agency would decide whether or not to conduct investigation and if they have the results, they would pass on the investigation results to DoJ. We would look at it. My colleagues would consider the applicable law and the evidence and then will decide what to do. So at this stage, we would not be commenting whether we would be taking what actions.
The bluster from Yuen and his colleagues distracts from a non-trivial hurdle: to convict HKNP of anything, there has to be an underlying offence – one that Yuen et al. seem to be either unable or unwilling to identify. Although District Councillor Maggie Chan has suggested that sections 9 and 10 of the Crimes Ordinance would prohibit any advocacy for Hong Kong’s independence, the enforceability of these sections is open to question – for the very reason that Secretary Yuen so casually dismisses: freedom of expression.
Exceptions should be interpreted narrowly
To be fair to Secretary Yuen et al., freedom of expression is not without limits. But his claim that the mere suggestion that Hong Kong should be independent is not protected because it is “contrary to the fundamental principle expounded in the Basic Law” is fanciful at best. So, too, is Maggie Chan’s suggestion that the advocacy of independence is itself a national security threat.
It is a basic proposition of statutory and treaty interpretation – almost as basic as nullum crimen sine lege – that exceptions to general propositions should typically be interpreted narrowly. The Bill of Rights Ordinance, for instance, states that restrictions on the freedom of expression “shall only be such as are provided by law and are necessary (a) for respect of the rights or reputations of others; or (b) for the protection of national security or of public order (ordre public), or of public health or morals.” The Bill of Rights is based on the International Covenant on Civil and Political Rights (ICCPR) – an instrument which has legal force in Hong Kong by virtue of the Basic Law and the Joint Declaration.
Nor can Yuen or his colleagues seriously argue that the mere suggestion that Hong Kong should be independent engages the national security exception. In interpreting the ICCPR (and by extension the Bill of Rights), the Siracusa Principles – the product of a 1984 conference involving professors, practitioners, and other human rights experts – lay down clear limits on how far such exceptions can go. In relation to national security exceptions, the Siracusa Principles declare:
29. National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.
30. National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order.
31. National security cannot be used as a pretext for imposing vague or arbitrary limitations and may only be invoked when there exists adequate safeguards and effective remedies against abuse.
32. The systematic violation of human rights undermines true national security and may jeopardize international peace and security. A state responsible for such violation shall not invoke national security as a justification for measures aimed at suppressing opposition to such violation or at perpetrating repressive practices against its population.
Whether the Hong Kong National Party – whose members have mooted punch-ups and releasing tear gas in Legco – falls foul of these exceptions is up for debate. But to assert – as Yuen et al. have done – that the mere suggestion that Hong Kong should be independent triggers the national security exception is a rhetorical bait-and-switch. More importantly, however, the overreaction from officials in Hong Kong and Beijing reflects not just a legal error, but a political one.
The Streisand Effect
The Streisand Effect – named for the American singer – refers to how an attempt to suppress information can draw even more attention to that information, thwarting the would-be censor. The spittle-fest over the HKNP represents merely the latest example of a whole series of ham-fisted attempts by Beijing to suppress politically inconvenient speech – attempts that, as we have seen, encompass the kidnapping of pot-boiler authors from Hong Kong soil.
One might sensibly dismiss the notion of independence for Hong Kong as difficult – if not impossible – or have grave misgivings over the HKNP’s political judgment. But, far from defending “One Country, Two Systems”, the invective from Beijing and its local apparatchiks could not have been more effective at highlighting the underlying fears that have led some to consider secession at all.
Alvin Y.H. Cheung is a non-practicing barrister and member of the Progressive Lawyers Group. He is also an affiliated researcher at the US-Asia Law Institute at NYU.
