'Accelerated legislative process'
Hong Kong’s autonomy under the principle of "one country, two systems" must also be strengthened, IBAHRI said, in compliance with basic laws and the international obligations to which China has willingly signed and is bound.
The Safeguarding National Security law (SNS) – also known as Article 23 – came into force on 23 March, following an accelerated legislative process by the Hong Kong Legislative Council.
This legislation represents a further step in the reversal of democratic rights in Hong Kong since the imposition of the National Security Law by the Beijing Government in June 2020.
Compromised legal profession
The new law is also expected to place significant pressure on the independence of the legal profession, further compromising its capacity to fulfil its professional duties freely and impartially.
The accelerated procedure that led to the approval of the SNS Bill within two weeks of it being presented entailed minimal scrutiny by the legislature on a law that now strengthens existing offences and introduces new measures on:
- Treason,
- Espionage,
- External interference,
- State secrets, and
- Sedition.
Crackdowns
The SNS law significantly enables further crackdowns on human rights in Hong Kong, going much further than the National Security Law, curtailing more of the rights and freedoms enjoyed in the city under the cover of safeguarding national security, IBAHRI states.
The institute adds that many of the criminalised behaviours named in the SNS law are in opposition to fundamental human rights, such as:
- Freedom of expression,
- Freedom of peaceful assembly,
- Freedom of association, and
- Right to a fair trial.
Politically-motivated persecutions
In addition, the "broad and vague" definitions of the alleged crimes contained in the SNS law will enable arbitrary and politically motivated prosecutions of any form of dissent, increasing levels of self-censorship already negatively affecting Hong Kong’s political and social landscape, IBAHRI continues.
The claim of the “extra-territorial reach” of the SNS law is a further element of concern, it adds.
“It could be abused as a tool of intimidation that reaches beyond Hong Kong's borders. In summary, the whole legislation contradicts Hong Kong’s international obligations, such as the International Covenant on Civil and Political Rights (ICCPR), which is integrated into Hong Kong’s legal system through the guarantees of the Basic Law, and the Sino-British Joint Declaration,” IBAHRI states.
Specific provisions in the SNS law also raise concerns with reference to the independence of the legal profession in Hong Kong, IBAHRI said in its statement.
Banned from representing clients
According to Clause 76 of the SNS law, certain lawyers or law firms can be banned from representing clients suspected of having committed national security offences.
On the grounds that such representation would endanger national security or hinder the police investigation and obstruct the course of justice, human rights could be further abused, IBAHRI states.
“The clear implication of this vaguely worded clause will likely have a chilling effect on the legal profession in Hong Kong: lawyers will be discouraged from representing clients in national-security cases, fearing potential targeting or damage to their reputation.
“Clause 77 of the SNS law prevents detainees from consulting with any lawyers for a 48-hour period when meeting with a lawyer is deemed to pose a threat to national security, the investigation, or the course of justice.
“Hong Kong’s Secretary for Justice justified these provisions by claiming that ‘the guiding thought is that some lawyers are not sincerely providing legal services, but instead they may take the opportunity to destroy evidence or notify [an accomplice]’. However, rules of conduct for lawyers automatically preclude such activities from taking place,” the IBAHRI statement continues.
Right to legal advice
At the domestic level, IBAHRI points out that the two provisions contravene Article 35 of the Hong Kong Basic Law, which entitles Hong Kong residents to:
- Access to judicial remedies,
- Confidential legal advice,
- Court access, and
- Lawyer selection for timely protection of their rights.
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'Blatant denial'
IBAHRI co-chair Mark Stephens CBE (small picture) stated: “Lawyers are pivotal in upholding the rule of law, defending human rights, and providing access to justice for everyone, regardless of their background or status.
“Therefore, preserving the independence and integrity of the legal profession is paramount for justice and democracy. The Hong Kong Safeguarding National Security Law represents a blatant denial of these fundamental principles.
“It intensifies the authority of the executive branch and escalates repression to a higher degree, while obstructing any potential intervention by the foremost defenders of people’s rights and freedoms – lawyers.
“At the international level, these provisions breach the 1990 United Nations’ Basic Principles on the Role of Lawyers, which set out the right to have access to a lawyer of one’s choosing, to protect lawyers from harassment, intimidation, or arbitrary interference in the performance of their duties, and to uphold the confidentiality of attorney-client communication."