As expected, the UK All-Party Parliamentary Group recently published a report on Hong Kong (“the Report”) in relation to the impact of the National Security Law for Hong Kong (NSL) on local media and concluded that “The current situation in Hong Kong is a glaring violation of the Joint Declaration that was meant to preserve human rights guarantees cherished by the UK Government.”
Those who have read the Sino-British Joint Declaration (“the Declaration”) and know what is happening on the ground in Hong Kong will no doubt have serious difficulties understanding how anyone could conclude this. Perhaps politicians are indeed a different breed and they have a license to utter political rhetoric without regard to the facts, but even so, the accusation that China somehow was in breach of the Declaration demands some examination.
First, let’s be clear on one thing. The Declaration contains only eight clauses. It is not difficult to read. Clause 1 says that China declares it shall resume the exercise of sovereignty over Hong Kong with effect from July 1, 1997. Clause 2 says the UK government “declares that it will restore Hong Kong to the People’s Republic of China regarding Hong Kong with effect from 1 July 1997”. Under Clause 3, China declares its basic policy regarding Hong Kong (“the Policy”), the first paragraph of which makes abundantly clear that upholding national unity and territorial integrity as well as taking into account the history of Hong Kong “and its realities” is the No 1 priority of the Policy.
Without peradventure, one can only conclude from these provisions that it was the joint understanding of both the Chinese and UK governments that China shall exercise sovereignty over Hong Kong, period. If someone had stopped China and the UK in their tracks at time of the Declaration and asked, “But can China apply its national law on national security where necessary to Hong Kong in order to safeguard its sovereignty?” the answer would have been a resounding “Yes of course!” That was the whole point of the Declaration, and in particular, Clause 1 thereof. That was no doubt the joint understanding of the Declaration. One would have thought that were China’s sovereignty over Hong Kong in danger or under threat, China had a right to safeguard its sovereignty, and the UK government had, at the very least, a moral if not legal responsibility to voice its concerns that the basic premise of the Declaration was at risk. But did that happen in 2019 when a small faction of Hong Kong political activists openly called for independence and on the US government to “free” Hong Kong from Chinese rule? No. The UK government never voiced any concern, nor did anything to help safeguard the preservation of Chinese sovereignty over Hong Kong. Instead, by questioning any action to quell such sentiments as some kind of restriction to “freedoms”, the UK government gave tacit comfort if not support to those challenging Chinese sovereignty. Nor did the UK government openly criticize any attempt to seek independence as contrary to and constituting a breach of the Declaration. Is that not a clear and serious breach of the spirit if not the actual premise of the Declaration?
It is equally important to note that there is no provision in the body of the Declaration setting out what agreement, if any, there was between the two governments regarding either what democratic reform, if any, there might be, or what freedoms are to be enjoyed by the people of Hong Kong. What there is, is a detailed annex under which China sets out the Policy, which guarantees the basic freedoms and rights of people of Hong Kong “as provided for by the laws previously in force in Hong Kong”. That means the much-criticized offense of sedition previously enacted by the UK government in Hong Kong prior to 1997 was expressly preserved. The annex also states clearly the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights shall continue to apply to Hong Kong. China later promulgated the Basic Law by which Hong Kong’s democratic reform road map was set out, and freedoms of Hong Kong people were guaranteed by reference to the ICCPR.
By ridiculing the NSL, enacted in the aftermath of the 2019 riots, which signified an open challenge to Chinese sovereignty over Hong Kong, the UK government and its legislature is conspicuously challenging the integrity of the Declaration and reneging from the joint understanding of the same, if not actually committing a breach thereof
It is singularly instructive to understand that the freedoms promised in the Basic Law are not absolute freedoms but freedoms circumscribed by the ICCPR. As anyone with some basic knowledge of the ICCPR will tell you, the internationally recognized freedoms under the ICCPR are all subject to restrictions by law as required by national security. This is universal. Freedoms and national security never overlap. If any act is contrary to national security, it cannot be described as “freedom”. There is simply no freedom to overthrow a government nor to harm national security. The UK government should know this. It just enacted the most draconian National Security and Investment Act in 2021 and is in the process of enacting an even more draconian National Security Act. Any government that proposes to confine anyone up to five years without trial in the name of national security has no right to tell other countries they are not respecting human rights.
And is the NSL really as unacceptable by international standards as the Report tried to portray it? There are only four crimes under the NSL. All the elements of each crime are clearly spelled out. Criminal intention is required in all four crimes. There are specific provisions applying the ICCPR and the tenets of Rule of Law. There are no provisions about confinement without trial, nor the deprivation of use of all financial services and all electronic devices including cellphones. The same cannot be said of the proposed UK National Security Act, currently being considered by the UK Parliament, which plainly contravenes the ICCPR.
The Report cites many “examples” of closure of media, and in particular, the prosecution of Jimmy Lai Chee-ying. More accurately, the Report cites the end result on its face of many incidents without divulging the specific circumstances underpinning these incidents. The fact is, while a few individuals were investigated on suspicion of violating the NSL, no media have been prosecuted or shut down under the NSL. In truth, the winding down of Apple Daily was ordered based on contravention of similar corporate laws as in the UK and not the NSL and is currently being investigated for dubious financial manipulations of the management on its self-declared bankruptcy.
By ridiculing the NSL, enacted in the aftermath of the 2019 riots, which signified an open challenge to Chinese sovereignty over Hong Kong, the UK government and its legislature is conspicuously challenging the integrity of the Declaration and reneging from the joint understanding of the same, if not actually committing a breach thereof. At the very least, it is an unashamed assault of common sense and logic and blatant disregard of the sovereign rights of China and the well-being of the people of Hong Kong. As such, the Report should be condemned by the international community.
The author is a member of the Executive Council and a senior counsel.
The views do not necessarily reflect those of China Daily.
