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Looking at Hong Kong’s National Security Law Under the Lens of the ECHR

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Natalie Wong

Section Editor for Human Rights




Last year, hundreds of thousands of people in Hong Kong took to the streets in opposition to the controversial extradition bill, which would have made possible for Beijing authorities to extradite of possible suspects so long as they provide prima facie evidence to the Hong Kong courts.[1] In response to an uprising of localism and increasing support for an independent Hong Kong, the Standing Committee of the National People’s Congress (NPCSC) adopted unanimously the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (HKNSL),[2] in the name of safeguarding national security and territorial integrity. The four offences criminalized by the legislation are ‘secession’, ‘subversion’, involving in ‘terrorist activities’ and colluding ‘with a foreign country or with external elements to endanger national security’.[3] In effect, the legislation presents a direct clash with the freedom of expression protected under the Hong Kong Bill of Rights Ordinance.[4]


This article seeks to look at the issue from a different angle, analyzing the curtailment of the freedom of expression with reference to the jurisprudence of the European Convention on Human Rights (ECHR). Evaluating the legislation from a comparative perspective would be interesting not only because the ECHR is one of the most established regional human rights regimes in the world, but also because Hong Kong is not a party to any supra-national human rights body, which could adjudicate on possible human rights infringements.

Jurisprudence of the ECHR

The freedom of expression is provided for under Article 10 of the ECHR. However, the right to freedom of expression, as guaranteed under the ECHR, is not absolute. Article 10(2) lists out the restrictions to which the right to freedom of expression is subject. The more relevant restrictions in the current scenario are: ‘interests of national security, territorial integrity or public safety’ and the ‘prevention of disorder or crime’.


A. Falling within the Scope of Article 10 and Interference

This requirement determines whether the act in question falls within the scope of Article 10. Under the jurisprudence of the ECHR, Article 10 generally covers artistic expression,[5] as well as political speech.[6] It is important to note that the Article applies not only to speech that are ‘favourably received or regarded as inoffensive’, it also encompasses speech that ‘offend, shock or disturb’.[7] Therefore, any form of protests in Hong Kong is likely to be considered as being covered by the Article.


Moreover, the typical scenario involves a specific interference with the right by public authorities. Examples could include the arrests and subsequent imprisonment of pro-democracy activists under the new legislation.[8] Three tests, then, need to be satisfied for the interference to be justified and for the Court to conclude that there is no breach of the Article. Each element will be examined below.


B. Prescribed by law

The first element asks whether or not the interference is ‘prescribed by law’.[9] This, as noted in Refah Partisi v Turkey, ‘refers to the quality of the law in question’.[10] This requires the law in question to be ‘adequately accessible’.[11] The HKNSL is, indeed, a valid legal basis which is accessible to the public, at least after its promulgation. In addition, the clarity of the law should also be taken into account. Amnesty International has described the law as ‘dangerously vague and broad’ when virtually anything could be seen as posing a threat to national security under the law.[12] This calls into question whether the legislation is ‘formulated with sufficient precision to enable [individuals] … to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail’.[13] However, it has been noted by the European Court of Human Rights (ECtHR) that it is ‘primarily for the national authorities to interpret and apply domestic law’.[14] For present purposes, this article will proceed on the assumption that this requirement is satisfied.

C. Legitimate aims

Next, the second element asks whether there is a legitimate aim behind the interference. This concerns the restrictions listed in Article 10(2). As mentioned earlier, the rationale behind the HKNSL is precisely the safeguard of national security. It follows that the government is most likely to invoke the protection of national security and territorial integrity to justify their prosecutions made under the law. Moreover, considering the scale of the anti-government protests that broke out in 2019, the reason of ‘prevention of disorder or crime’ also appears to be a relevant ground. Thus, this element would be readily satisfied under the jurisprudence of the ECHR.


D. Necessary in a democratic society

The test here is established in Handyside, defining necessity to mean a ‘pressing social need’.[15] More importantly, the restriction imposed ‘must be proportionate to the legitimate aim pursued’,[16] which indicates that the action taken was the least intrusive measure and went no further than was necessary to satisfy the legitimate aim identified above. To be more specific, it is stated in the case of Hatton that ‘states are required to minimize, as far as possible, the interference with [these] rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way’.[17] The ECtHR is usually quite cautious in deciding element and would give deference to the national decision-makers. As stated in the same case, ‘it is for the national authorities to make the initial assessment of the reality of the pressing social need’.[18]


However, one should bear in mind a distinction between and a hierarchy of the forms of expression. Clearly, most of the cases relating to the HKNSL are all political speeches. The court has repeatedly affirmed that political speech deserves special protection because those are the demands of ‘pluralism, tolerance and broadmindedness without which there is no “democratic society”’.[19] More alarmingly, the Hong Kong Police Force has intensified its crackdown against local media groups. Though its decision to only recognise journalists registered with the government[20] is not made under the HKNSL, more restrictions targeted at the press could well be established under the legislation in the near future. The ECtHR has explicitly mentioned that the principle of freedom of expression is ‘of particular importance as far as the press is concerned’.[21] Whilst the actual judicial decision would depend more on the nature and severity of the particular interference, the court, in taking into consideration the ‘vital public-watchdog role of the press’, the impact on its ability ‘to provide accurate and reliable information’ to the public, and the ‘potentially chilling effect’,[22] is more than likely to conclude that the interference is proportionate and that a violation of Article 10 is found.


Conclusion

The article has attempted to analyze the conflict between the HKNSL and the freedom of expression from the angle of the ECHR, which provides an established, specific and supra-national legal framework for the examination of the issue. The above analysis not only illustrates how free speech is increasingly coming under threat after the passing of the HKNSL, but it also serves to shine light on the importance of having an independent judiciary that takes up the role as the guardian of human rights.




 

Sources [1] ‘HKFP Voices: Hong Kong’s extradition law plan is a threat to human rights, say over 70 NGOs in open letter’ Hong Kong Free Press (7 June 2019) <https://hongkongfp.com/2019/06/07/hkfp-voices-hong-kongs-extradition-law-plan-threat-human-rights-say-70-ngos-open-letter/> accessed 1 December 2020 [2] The Government of the Hong Kong Special Administrative Region, ‘LCQ6: Laws listed in Annex III to Basic Law’ (15 July 2020) <https://www.info.gov.hk/gia/general/202007/15/P2020071500542.htm> accessed 1 December 2020 [3] ‘In full: Official English translation of the Hong Kong national security law’ Hong Kong Free Press (1 July 2020) <https://hongkongfp.com/2020/07/01/in-full-english-translation-of-the-hong-kong-national-security-law/> accessed 1 December 2020 [4] Hong Kong Bill of Rights Ordinance (Cap. 383), art 16 [5] Otto-Preminger Institut v Austria (1994) EHRR 34 [6] Gündüz v Turkey (2005) 41 EHRR 5 [7] Handyside v United Kingdom (1976) 1 EHRR 737 [8] Jack Lau, ‘Hong Kong national security law: 26 arrests so far, resignation of a foreign judge, and suspension of a middle school pupil mark third month’ South China Morning Post (30 September 2020) <https://www.scmp.com/news/hong-kong/politics/article/3103600/hong-kong-national-security-law-26-arrests-so-far> accessed 1 December 2020 [9] ECHR, art 10(2) [10] (2003) 37 EHRR 1 [57] [11] Sunday Times v United Kingdom (1979) 2 EHRR 245 [49] [12] Anthony Kwan, ‘Hong Kong’s national security law: 10 things you need to know’ (Amnesty International, 17 July 2020) <https://www.amnesty.org/en/latest/news/2020/07/hong-kong-national-security-law-10-things-you-need-to-know/> accessed 1 December 2020 [13] Sunday Times (n 11) [49] [14] Otto-Preminger Institut (n 5) [45] [15] Handyside (n 7) [48] [16] ibid [49] [17] Hatton v United Kingdom (2003) 37 EHRR 28 [86] [18] ibid [48] [19] ibid [49] [20] Kelly Ho, ‘Hong Kong press groups criticise police decision to only recognise journalists registered with gov’t’ Hong Kong Free Press (22 September 2020) <https://hongkongfp.com/2020/09/22/hong-kong-press-groups-criticise-police-decision-to-only-recognise-journalists-registered-with-govt/> accessed 1 December 2020 [21] The Observer and the Guardian v United Kingdom (1991) 14 EHRR 153 [59] [22] Goodwin v United Kingdom (1996) 22 EHRR 123 [39]




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