In 2020, pro-democracy activists organized a primary elections. 47 organizers and participants were charged with conspiracy to commit subversion under the Hong Kong National Security Law (“NSL”) in 2021. Today, the Hong Kong court convicted 14 out of the 16 defendants who pleaded not guilty. The Hong Kong Centre for Human Rights expresses disappointment and regret, as this verdict shows that the court prioritizes national security over civil rights, including the right to participate in elections and public affairs.
We reiterate that the procedures of this trial as provided in the Hong Kong National Security Law diverge from the ordinary criminal procedures of the High Court. These include being presided over by designated judges appointed by the Chief Executive in accordance with NSL, and an order by the Secretary for Justice to deny trial by jury. The Hong Kong government claims these arrangements are in accordance with Hong Kong law. However, we find a significant discrepancy between these measures and international human rights standards, as well as the public’s expectations for fair trials and justice.
In fact, in April 2023, the United Nations Special Rapporteur on the independence of judges and lawyers expressed concerns to the Chinese and Hong Kong governments regarding the appointment of designated of judges and the power to remove jury trials under the NSL. They reminded the authorities of their obligation to uphold the right to a fair and public trial as stipulated in Article 10 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Civil and Political Rights (“ICCPR”).
This case has profound implications for the development of Hong Kong’s legal system and the individual rights. We are concerned that the interpretation of the NSL in the present reasons for verdict enables the authorities to broadly interpret the legal provisions in the NSL, as well as elements of crimes during enforcement, resulting in an all-encompassing law with severe penalties.
We are deeply concerned about the court’s construction of “unlawful means” under Article 22(3) of the NSL, which extends beyond criminally sanctioned acts without providing clear limits. According to this construction, carrying out lawful activities or acts that are not clearly in contravention of any law, with a specific intent, could constitute the offence of subversion under the NSL. This approach severely undermines the principle of legal certainty, allowing authorities discretion and increases the risk of misuse and arbitrary enforcement. Moreover, the difficulty to assess the lawfulness of an action, compounded with the disproportionate sentence, further fosters self-censorship and erodes the already severely impacted civic space and freedom in Hong Kong.
The court’s decision today confirms the concerns of UN human rights experts. Over the past four years, multiple UN human rights experts have sent at least ten letters to the Chinese and Hong Kong governments expressing concerns about issues related to the NSL, such as fair trials, freedom of expression and assembly, police powers in investigation, and inhuman treatment. In 2022, the UN Human Rights Committee and the Committee on the Rights of Persons with Disabilities recommended that the Hong Kong government urgently repeal the NSL. The Human Rights Committee noted that the NSL’s definition of “national security” is unclear, and the law lacks sufficient legal certainty regarding criminal conduct. Furthermore, the committee stated that the provisions allowing the government to appoint designated national security judges and deny jury trials undermine judicial independence and restrict access to justice and the right to fair trial.
The Hong Kong Centre for Human Rights urges the Hong Kong government to heed the recommendations of the UN Human Rights Committee to immediately repeal the NSL and ensure that any new national security legislation complies with the ICCPR. Pending its repeal, refrain from applying this law, and discontinue all cases against individuals charged for exercising their right to freedom of expression under this law or the sedition offence.
Press Release in Full Text: https://hkchr.org/wp-content/uploads/2024/05/HKCHR-PRESS20240530_EnChi.pdf