The Hong Kong Bar Association has called for increased clarity and narrower definitions in Hong Kong’s own national security legislation to avoid a “chilling effect” on lawful conduct.
Chair of the barristers’ regulatory body Victor Dawes said at a press conference on Thursday that it was of “vital importance” that a “proper and careful” balance be struck between national security, human rights, and the rule of law.
“The imperatives of protecting national security and 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,” Dawes said.
A four-week consultation period for the public to respond to the proposed legislation closed on Wednesday, with the Security Bureau saying on Thursday that it had received over 13,000 submissions, almost 99 per cent of which expressed support for the law.
In a 129-page document sent to the government on Wednesday, the Hong Kong Bar Association said it recognised the government may draft the proposed legislation in a way that would allow it to respond with “sufficient flexibility.”
But it added that there was 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.”
Detainee rights
On the government’s proposal to extend pre-trial detention in security cases, Dawes said the Bar Association understood that more time may be needed for investigation. However, he also cited a UK law that allows the police to apply for an extension of detention only when they have reasonable suspicion that the suspect was involved in foreign threats.
The detainee must be notified of the reasons for the extension and must be given the opportunity to make representations, Dawes added.
According to the consultation document for the national security legislation, the government will seek to introduce at least eight measures to be imposed on suspects, including extending pre-trial detention, requiring suspects to reside at a specified residence, and barring a detained suspect from consulting specific lawyers.
Dawes also said that under UK law, a detainee has the right to consult a lawyer within 48 hours of their arrest and that the police can prohibit or postpone their meeting with a nominated lawyer only if there were reasonable grounds to believe that such a meeting would have a harmful effect.
The arrested person must also be notified of any police decision to deny a meeting with a lawyer, which must be recorded in writing.
The barristers’ body hoped the government would consider safeguarding detainees’ rights, Dawes said, adding that a balanced co-existence of “law enforcement powers” and “protection of rights” would better maintain confidence in the rule of law in Hong Kong.
Scope and clarity
On offenses relating to insurrection, incitement to mutiny and disaffection, and acts with seditious intention, the association recommended that the government consider a “good faith defence,” which exists in Australian law, “so that there could be a mechanism to address any unintended effect of the offence.”
It also recommended narrowing the scope of seditious intentions by including the requirement of “an intention to incite violence, disorder, or counselling others to disobey the law.”
The Bar also said in its position paper that it would be appropriate to consider whether a person had “knowingly” committed the offence of “collaborating with an external force” to “render persons not culpable… if their acts were done without any knowledge of the involvement of an ‘external force’.”
Like foreign firms and business chambers, the Hong Kong Bar Association recommended improving definitions of state secrets, and introducing specific offences pertaining to the protection of state secrets.
Article 23 of the Basic Law stipulates that the government shall enact laws on its own to prohibit acts of treason, secession, sedition and subversion against Beijing. Its legislation failed in 2003 following mass protests and it remained taboo until after the onset of the separate, Beijing-imposed security law in 2020.
Pro-democracy advocates fear it could have a negative effect on civil liberties but the authorities say there is a constitutional duty to ratify it.
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