The recent harsh criticism of the National Security Law for Hong Kong (NSL) and the city’s improved electoral system by the United Nations Human Rights Committee (the Committee) has sent the city into a whirlwind of grievance and frustration. Those signatory parties which care nothing for human rights can quite brazenly ignore the criticisms of the Committee. But Hong Kong cares first and foremost about its hard-won human rights records. It always takes its international human rights obligations and commitments seriously, including those set out in the International Covenant on Civil and Political Rights (ICCPR).  

A report released by the Committee, which included “concluding observations” on the latest situation in the city, expressed “grave concern” about an “overly broad” interpretation and “arbitrary application” of the NSL, noting that over 200 people have been arrested since the promulgation of the NSL in June 2020.

Other criticisms include: the “chilling” effect on civil society organizations and trade unions, the “extensive” investigative powers of the national security police, the designation of national security judges by the chief executive, the imposition of “stringent” conditions on the granting of bail and the transfer of very serious cases to the mainland. Finally, the Committee recommends, with little of its former tactical deftness but rather with a rough heavy-handedness, that the NSL and the sedition ordinance be repealed.

Concerning the improved electoral system introduced in 2021, the Committee claimed that the new system fails to comply with the ICCPR and gives “little or no chance for candidates of opposition parties to stand for election”. The Committee called for reform to increase the number of directly elected seats in the Electoral Committee, a powerful body that selects the city’s chief executive and members of the Legislative Council.

Though Hong Kong’s Constitutional and Mainland Affairs Bureau has tried its best to respond to those unfair and unsubstantiated allegations made by the Committee, we get the impression that the persuasive work was drowned in pessimism because of its failure to convince the Committee to reconsider our strong defense. To enhance our persuasive work, we suggest that Hong Kong’s patriotic NGOs with legal expertise should play a more active role in submitting fact-based alternative reports to the Committee to enable its 18 members to have a balanced and holistic view of our need to enact the NSL. We should also invite members of the Committee to visit Hong Kong and engage in a constructive dialog with the representatives of the silent majority in the city who have embraced the NSL and the improved electoral system.

According to Geoffrey Robertson, the Committee lacks any independent fact-finding capacity. It has access to fact-finding reports by the Human Rights Commission, but these are limited and inadequate (Geoffrey Robertson, Crimes Against Humanity (London: Penguin Group, 2006), p.62). Reports submitted by NGOs can help shed some of these fact-finding burdens. NGOs can also comment on state reports, and attend all of the Committee’s sessions as observers.

But every coin has two sides. As former judge of the International Court of Justice Thomas Buergenthal has correctly pointed out, the Committee has over time made ever greater use of NGO material (Thomas Buergenthal, “The United Nations Human Rights Committee”, in Max Planck, Yearbook of United Nations Law 5, 2001, p.352). The Committee must ensure that the information provided by the respective NGOs is accurate. But it is a tedious and time-consuming process. Besides, concerns have surfaced about the attempts of some anti-China NGOs to influence the decisions of the Committee.

As a countervailing force against these anti-China NGOs, Hong Kong’s patriotic NGOs organized by legal practitioners should play a more active role in submitting alternative reports to the Committee to enable its members to have a comprehensive understanding of the unique situation in Hong Kong. 

First, they should convince the Committee to view the enactment of the NSL in the proper context with due regard to the violent “black-clad riots” preceding the enactment of the NSL. Second, they should stress that Articles 4 and 5 of the NSL are centrally important to the implementation of the NSL in the city. Third, they should convince the Committee that most of the implementation rules are formulated with reference to existing legislation of Hong Kong. Fourth, they should convince the Committee that the offences under the NSL are clearly defined and are similar to the national security laws of other jurisdictions. They are not brief statements of principles. 

Finally, they should convince the Committee that the NSL is supported by the silent majority in the city because these people give priority to social stability and national security and they recognize the need to curtail some personal freedom. The margin of appreciation should be operated so as to take account of background factors and our unique social and cultural conditions when applying ICCPR rights.

With regard to the improved electoral system, these patriotic NGOs should tell the Committee that many Hong Kong residents were fed up with the disruption caused by anti-China Legislative Council members prior to the introduction of the electoral overhaul. They were afraid that their socioeconomic rights, which are classified by Karel Vasek as second-generation human rights, were threatened by the veto power of the anti-China LegCo members in relation to funding for livelihood expenditure. The margin of appreciation should be operated to take account of the concerns of the silent majority and the unique socioeconomic conditions in the city when applying the ICCPR.

Seeing is believing. If the members of the Committee can take a research trip to Hong Kong and talk to the representatives of the silent majority, they will see the facts which may not have been discovered. These facts can strengthen the contention that many Hong Kong people support the NSL and the improved electoral system. The NSL was enacted to restore the enjoyment of rights and freedoms which many people in the city had been unable to enjoy during the “black-clad riots”. The improved electoral system ensures that Hong Kong people can continue to enjoy a high level of socioeconomic rights delivered by good governance. The ultimate aim of attaining universal suffrage provided for in Articles 45 and 68 of the Basic Law has not been revised.

Junius Ho Kwan-yiu is a Legislative Council member and a solicitor.

Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and the Macao Basic Law Research Center, and co-founder of the Together We Can and Hong Kong Coalition.

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