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Human Rights Concerns Regarding Article 23 Legislation: Background and Key Issues

2020年04月28日

Background

After almost a century of colonial rule, the Sino-British Joint Declaration of 1984 between the United Kingdom (UK) and The People’s Republic of China (PRC) paved the way for the return of Hong Kong to the PRC in 1997. It established a Hong Kong Special Administrative Region (SAR) to be administered “directly under the authority” of the Central People's Government of the People's Republic of China. It also states that Hong Kong shall enjoy a “high degree of autonomy,” and that its social and economic systems and lifestyle shall remain unchanged for 50 years. While the term “one country, two systems” is not explicitly mentioned in the instrument, it underpins the Joint Declaration.[1] Despite efforts in 2017 by the PRC to dismiss the Joint Declaration as a historical document, it remains a legally-binding treaty registered with the UN. The UK government, as a co-signatory, has an obligation to monitor and ensure the treaty’s effective implementation to protect the rule of law and fundamental rights and freedoms in Hong Kong, along with the rest of the international community.[2]

The Basic Law of the Hong Kong SAR, enacted in 1990, enshrines the provisions of the Joint Declaration and serves as the constitution of Hong Kong.[3] Article 23 of the Basic Law—currently one of the most controversial articles in the law—provides:

The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.[4]

While the PRC has signed but not yet ratified the International Covenant on Civil and Political Rights (ICCPR), Hong Kong has enacted the Hong Kong Bill of Rights Ordinance (1991), which incorporates the provisions of the ICCPR as applied to Hong Kong.[5] Any proposed Article 23 bill must therefore comply with applicable international standards, including the principles of legality, necessity, and proportionality that govern the permissibility of any reasonable restrictions on rights and the Hong Kong SAR’s international obligations. The provisions of any security law must also adhere to international standards and norms on national security law, including the Johannesburg Principles on National Security, Freedom of Expression and Access to Information.[6]

Introduction of Article 23 Bill, 2003

In September 2002, the Hong Kong SAR government released a consultation document (“the blue paper”) outlining its proposal to implement Article 23 of the Basic Law. The proposal focused on revisions to existing laws—the Crimes Ordinance,[7] the Official Secrets Ordinance,[8] and the Societies Ordinance[9]— included the creation of new offenses of subversion and secession; extended state secrets to include all communications between the Hong Kong SAR government and the central PRC government; and added provisions that allow the central government to play a security role in Hong Kong.[10] In addition to public criticism of the lack of transparency and adequacy of government consultation, substantive concerns regarding the consultation document and the subsequent drafts of the Bill included the impact on Hong Kong’s rule of law and on the legitimate exercise of rights protected by Hong Kong and international law.[11]

Examples of specific concerns and suggestions regarding the proposed bill that were raised at the time include the following:[12]

  • Definitions and terms
    • Vague and broad definitions and terms in the proposed revisions regarding subversion, for example, the actus reas element of “intimidating the Central People’s Government (CPG)” failed to satisfy the requirements of clarity and precision in the criminal law, or the uncertain meaning of phrases such as the “basic system of the People’s Republic of China.”
    • “Political and social criticisms of the government”—whether constructive or not—should not be criminalized under any definition of “proscribed act.”
    • The definition of “national security” should expressly exclude protection of the government from embarrassment or exposure of wrongdoing or concealment of information about the proper functioning of public institutions.
  • Distinction should be made between political advocacy and private solicitations of criminal activities because political advocacy should not be treated as national security crimes.
  • The burden of proof with regard to the offenses of sedition and handling seditious publications should not be shifted from the prosecution to the defendant.
  • Criminal liability should not apply to “extraterritorial subversion and secession” without appropriate limitations, such as actual impact or effect on Hong Kong itself.
  • Hong Kong’s generally transparent and open system must be maintained when it comes to disclosure of information, including information in defense of a public interest, such as when the public interest in knowing outweighs the harm or likely harm of disclosure of the information.

Legal experts and the Hong Kong Bar Association also argued that the proposal put forward by the government went much further than what is required by Article 23 and was arguably unconstitutional, and that there was no need to create new offenses or additional laws.[13] Prominent constitutional scholar and barrister Professor Johannes Chan argued at the time (and again more recently): “In our view, existing legislation already provides mechanisms for proscribing groups on the ground of national security (see both the Societies Ordinance (Cap. 151) and also the United Nations (Anti-Terrorism Measures) Ordinance (Cap. 575)). Indeed, these laws go beyond what is necessary to comply with Article 23. Even the Government’s Consultation Document acknowledged that Hong Kong law already complies with Article 23 in this respect.”[14]

On July 1, 2003, half a million people in Hong Kong took to the streets in a mass protest against the proposed National Security (Legislative provisions) bill. On September 5, 2003, the Bill was withdrawn indefinitely.[15]

Current climate and renewed calls for national security legislation

Current climate

As veteran Hong Kong journalist Steve Vines has pointed out, what has changed since the failed attempt in 2003 is that “the atmosphere of political confrontation has deepened; tolerance of the opposition has diminished and its legitimacy has been increasingly questioned as both civil society organizations and the media have found themselves in the firing line.”[16]

The arrests on April 18, 2020 of 15 pro-democracy figures, including former and current Legislative Council members, prominent barristers, veteran democracy activists, and youth leaders alike marked a sharp intensification in government intolerance of political dissent, sending shockwaves through Hong Kong and beyond. All 15 individuals were arrested on suspicion of organizing or participating in “unauthorized assemblies” from August to October 2019 in protests against the controversial extradition Bill proposed by Chief Executive Carrie Lam and her government.[17]

In addition, the COVID-19 health pandemic is being invoked by the authorities as justification for renewed calls for national security Article 23 law. However, international experts and United Nations human rights bodies have highlighted the importance of respect for human rights across the spectrum, including economic, social, and cultural rights, and civil and political rights, as fundamental to the success of the public health response and recovery from the pandemic.[18] “A state of emergency, or any other security measures, should be guided by human rights principles and should not, in any circumstances, be an excuse to quash dissent.”[19]

Concerns regarding the potential impact of another draconian draft Article 23 legislation on Hong Kong’s rule of law are also fueled by ongoing rights deterioration in mainland China and the central government’s increasingly aggressive intervention in Hong Kong affairs. Examples include the following:

  • Efforts by Beijing to introduce “patriotic education” in Hong Kong schools;
  • A “Decision” issued on August 31, 2014 by the Standing Committee of the National People's Congress reversing its earlier pledge that the election of the Hong Kong Chief Executive in 2017 “may be implemented by the method of universal suffrage,” which triggered the Umbrella Movement of 2014; [20]
  • Violent attacks on and intimidation of protest organizers and candidates for the November 2019 district council elections and their supporters in Fall 2019;[21]o-democracy
  • Attempts to weaken local elections, including through pressure to disqualify elected Legislative Council members who support universal suffrage;[22] and
  • Chilling of Hong Kong press freedoms, highlighted by a ten-year criminal sentence announced on February 25, 2020 against a Hong Kong bookseller and Swedish citizen who was abducted while abroad and transported to the mainland.[23]

The anti-extradition protest movement in Hong Kong in 2019-2020 that resulted in the withdrawal of the proposed extradition bill—and also expanded to include demands for accountability and democratic reforms—powerfully demonstrated the lack of trust on the part of millions of Hong Kong people in a mainland legal system lacking in independence and procedural protections.[24] Even in the face of the COVID-19 pandemic, protests in Hong Kong continue, including against the government’s mishandling of response measures. Shared demands in the decentralized social movement have unified demonstrators from diverse backgrounds: they are students, educators, parents, airline personnel, civil servants, social workers, union organizers, and pro-democracy legislators. By the end of February 2020, there were at least 973 protests involving 14,507,591 protesters.[25]

Despite reported incidents of police intimidation, harassment, violent arrests, and abusive treatment of journalists, protesters and bystanders, and detained suspects,[26] the Hong Kong administration, echoing Beijing’s uncompromising stance, has firmly defended the Hong Kong police force’s use of force as “appropriate,” including its use of tear gas at unprecedented levels resulting in documented health risks and impacts on 88% of Hong Kong people.[27] The Hong Kong police also mounted a massive military-style tear gas assault and siege on several university campuses, trapping students, university staff, and journalists. The serious humanitarian crisis sparked widespread local and international attention and expressions of concern.[28]

The Hong Kong authorities’ demonstrated indifference to the demands of the protests and defense of the excessive use of force with impunity by the Hong Kong police force[29] have further exacerbated conflicts among the society, the Hong Kong Police Force, and the Administration. The Hong Kong police, dressed in tactical gear, with rubber bullets, guns, tear gas, pepper spray, and batons, wield the coercive power of the state, with the clear backing of the central government. In carrying out their duty to maintain public safety, the police should be held to a standard of professional conduct in accordance with international law and be accountable to the public.[30]

Despite ongoing demands by the Hong Kong people for an independent commission of inquiry, international support, and expressions of concern regarding the excessive use of force by the Hong Kong police,[31] including statements by the High Commissioner for Human Rights[32] and joint statements by UN special rapporteurs,[33] the Hong Kong Chief Executive continues to reject calls for an independent commission of inquiry. Police brutality and impunity, almost certainly backed by Beijing, against a largely peaceful protest movement must be effectively and transparently addressed in order to ensure the protection of the legitimate exercise of rights in Hong Kong.

Renewed calls for national security legislation

Pressure has been clearly mounting on the Hong Kong SAR government to once again make an attempt to introduce an Article 23 law. The overwhelming election of Pan-Democratic candidates in the district council elections in November 2019,[34] along with the sustained mobilization of diverse sectors during the protest movement, has also deepened the central government’s fears of a Hong Kong that cannot be completely controlled by Beijing. Pro-Beijing voices point to the necessity and urgency of implementing a national security legislation, citing the “Occupy Central” protests, the Mong Kok riots, and “illegal” demonstrations that “expose Hong Kong to risks such as calls for independence, or acts that undermine China's sovereignty, security and development.”[35]

The central government and Hong Kong authorities are also highlighting incidents of bombings, attempted bombings, and confiscation of bomb-making materials,[36] and invoking the specter of “homegrown terrorism” to justify recent police actions and arrests as well as counter-terror exercises.[37] Senior Superintendent Ernest Chu Man-lung from the Inter-departmental Counter-terrorism Unit (ICTU) stated that “[i]t is important to prevent terrorism. If we only respond when things happen, then it is too late,” adding that officers would also track any terror-related activities online. Hong Kong’s Secretary for Security John Lee Ka-chiu further warned that while the government would continue to create an environment for the Article 23 legislation, it would not turn a blind eye to “homegrown terrorism.”

As yet, despite threats to do so, the police have not effected any arrest under the Cap. 575 United Nations (Anti-Terrorism Measures) Ordinance,[38] although there are some cases in relation to the Securities and Futures Commission under the Anti-Money Laundering and Counter-Terrorist Financing Ordinance (Cap. 615). Commissioner of Police Chris Tang Ping-keung said that the force had been working with the Department of Justice to consider invoking counter-terrorism legislation to prosecute bomb suspects.[39]In mid-April 2020, Beijing’s emissary to Hong Kong as well as Hong Kong’s Chief Executive provided a preamble to renewed calls for enactment of Article 23 national security legislation.

In a video message to the people of Hong Kong on April 15, 2020, “National Security Education Day,” Director of the central government’s Liaison Office in Hong Kong, Luo Huining, in an attempt to promote a security crisis narrative, warned that Hong Kong has always been deficient in its national security system and mechanisms. Referencing the social unrest and protests in 2019, Luo called that deficit a “fatal hidden danger.”[40] The same day, in her own video message to the Hong Kong people, Chief Executive Carrie Lam, citing the “extremist actions approaching terrorism” brought on by the anti-extradition protests and the threat of the COVID19 pandemic, urged Hong Kong’s people to understand the importance of and think about how to further safeguard national security.[41]

Arrest of District Councilor on sedition

On March 26, 2020, the Hong Kong police arrested the chairperson of the Central and Western District Council, Cheng Lai-king on charges of “seditious intention” under sections 9 and 10 of the Crimes Ordinance allegedly based on a Facebook post she made on March 24, 2020.[42] Section 11 of the Crimes Ordinance requires the written consent of the Secretary for Justice for prosecution,[43] but it is unclear whether the arrest was effected after consulting the Department of Justice. Since the Facebook post was published on March 24 and the arrest was carried out in the early morning of March 26, the timing of the arrest raises questions whether legal advice of the Department of Justice was sought.

The controversial arrest of Cheng has drawn wide criticism and renewed attention to the Sedition Ordinance. The UN Human Rights Committee has pointed to the overbroad definition of incitement and treason in the Sedition Ordinance and recommended its revision.[44] Hong Kong Human Rights Monitor, a civil society group, also criticized the sedition law for being outdated, overly broad, and in violation of the ICCPR and the Hong Kong Bill of Rights. Civic Party lawmaker Dennis Kwok criticized the colonial-era sedition law as “outdated,” “draconian,” and in contravention of freedom of expression and human rights. He accused the government of using the colonial law to silence political discontent and called it an act of “political revenge.”[45] In a statement, the Democratic Party, of which Cheng is a member, accused the police of arresting her without justified reason and, in so doing, abusing the sedition law. The use of the colonial-era law to incriminate Cheng was aimed at creating a chilling effect, said the Civic Party, which stressed that the police move would not silence the opposition and pledged to continue monitoring the police force.[46]

“Arresting a pro-democracy politician for seeking police accountability is political persecution, not legitimate policing,” said Sophie Richardson, China director at Human Rights Watch. “Hong Kong authorities should immediately drop the case against councilor Cheng Lai-king.”[47]

Cheng Lai-king was released upon posting $10,000 bail, and under the six-month requirement of the Crimes Ordinance, her case should be prosecuted within six months.

Conclusion

The debates and opposition to provisions of the 2003 proposed national security (Legislative provisions) bill highlighted the tensions inherent in implementing the “one country, two systems” framework in the context of an authoritarian one-party system and a partially democratic, more open Hong Kong. Unfortunately, many of the past concerns raised by the Hong Kong people regarding the 2003 proposed Article 23 legislation remain valid and more trenchant today.

As stated by a group of legal experts and scholars in 2003:

“The implementation of Article 23 of the Basic Law is one of the most important constitutional developments in Hong Kong since 1997. It constitutes a major test of the ‘one country, two systems’ model and the issues at stake are fundamental and controversial. The proposals should, therefore, be carefully scrutinized. The final legislation should ensure that civil liberties and the rule of law continue to thrive in the SAR and should avoid any unnecessary extension of mainland controls over words, activities and legitimate organizations in the Hong Kong SAR.”[48] (Emphasis added.)

This caution is even more apt today in light of tightened political control on the mainland and the central government’s blatant aggressive expansion of its reach in Hong Kong, with implications for Hong Kong’s independent courts, media, and civil society space.

Recommendations

  • Any permissible derogations from rights associated with emergency or security measures, must be limited and proportional to achieving a legitimate objective, and must comply with the requirement of immediate notice to the United Nations Secretary General.

Any proposed Article 23 national security bill should:

  • Comply with international standards on security legislation and protection of rights. The context for invocation of emergency measures, whether it is widespread social protest or the Covid-19 health crisis, cannot justify impermissible restrictions on rights and freedom in violation of the ICCPR and international standards and norms, including the Johannesburg Principles.
  • Reflect and incorporate wide and inclusive consultation with experts and diverse sectors of Hong Kong society. If a consultation document is issued, adequate time should be provided for discussion and input. However, the actual text of any proposed bill and subsequent revised final draft should be made publicly available with adequate time for public review and input.
  • With respect to the Sedition Ordinance and potential prosecutions under the Ordinance, the Hong Kong government should provide clarification and assurances that rights protected under the Basic Law, Hong Kong’s Bill of Rights, and international law, including the ICCPR, are protected under Hong Kong’s legal system, both formally as well as in practice.[49]

Clearly, Hong Kong today is in a much more vulnerable environment for the introduction of a very tough version of anti-subversion legislation than in 2003. These developments heighten the critical importance of the compliance by any Article 23 security bill with international standards and the Hong Kong SAR government’s international obligations to protect Hong Kong’s rule of law and fundamental rights and freedoms.[50] The pending review of the Hong Kong SAR’s implementation of its international obligations under ICCPR is an important opportunity for Hong Kong civil society and all stakeholders to press for accountability and compliance with international standards.

 

[1] Louisa Brooke-Holland, “Hong Kong: the Joint Declaration,” July 5, 2019, House of Commons Library, https://commonslibrary.parliament.uk/research-briefings/cbp-8616/.

[2] Upon the 20th Anniversary of the handover in 2017, China’s Foreign Ministry made the alarming unilateral statement that the Sino-British Joint Declaration was now just a historical document that no longer had any practical significance. “China says Sino-British Joint Declaration on Hong Kong no longer has meaning,” Reuters, June 30, 2017, www.reuters.com/article/us-hongkong-anniversary-china/china-says-sino-british-joint-declaration-on-hong-kong-no-longer-has-meaning-idUSKBN19L1J1.

[3] The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, adopted at the Third Session of the Seventh National People’s Congress, April 4, 1990, https://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf.

[4] Article 23, The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, adopted at the Third Session of the Seventh National People’s Congress, April 4, 1990, https://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf.

[5] An Ordinance to Provide for the Incorporation Into the Law of Hong Kong of Provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong; and for Ancillary and Connected Matters, https://www.elegislation.gov.hk/hk/cap383.

[6] The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Article 19, November 1996, https://www.article19.org/wp-content/uploads/2018/02/joburg-principles.pdf.

[7] Crimes Ordinance of Hong Kong, November 19, 1971, https://www.elegislation.gov.hk/hk/cap200.

[8] An Ordinance to Control the Unauthorized Obtaining or Disclosure of Official Information (Official Secrets Ordinance), https://www.elegislation.gov.hk/hk/cap521.

[9] An Ordinance to Provide for the Registration of Societies, for the Prohibition of the Operation of Certain Societies and for Matters Related Thereto (Societies Ordinance), https://www.elegislation.gov.hk/hk/cap151.

[10] See Proposals to Implement Article 23 of the Basic Law, https://www.basiclaw23.gov.hk/english/.

[11] See, for example, Hong Kong Bar Association, “Hong Kong Bar Association’s Views on the National Security (Legislative Provisions) Bill 2003,” April 11, 2003, https://www.hkba.org/sites/default/files/20030411_eng.pdf; The University of Hong Kong Faculty of Law Centre for Comparative and Public Law, “Group Submission to the Legislative Council and the Security Bureau of the Hong Kong SAR on the National Security (Legislative Provisions) Bill,” May 2003, https://www.legco.gov.hk/yr02-03/english/bc/bc55/papers/bc55-s162-e.pdf; Human Rights in China, “Article 23 and the Attack on Human Rights,” 2003, https://www.hrichina.org/sites/default/files/PDFs/CRF.2.2003/Article23.pdf.

[12] The Hong Kong Bar Association pointed out that the proposed Bill had “fundamental flaws.” See “Hong Kong Bar Association’s Views on the National Security (Legislative Provisions) Bill 2003,” http://www.law.hku.hk/ccpl/wp-content/uploads/2018/03/updated/14062003b-hkba.pdf.pdf. See also The University of Hong Kong Faculty of Law Centre for Comparative and Public Law, “Group Submission to the Legislative Council and the Security Bureau of the Hong Kong SAR on the National Security (Legislative Provisions) Bill,” May 2003, https://www.legco.gov.hk/yr02-03/english/bc/bc55/papers/bc55-s162-e.pdf.

[13] Hong Kong Bar Association, “Hong Kong Bar Association’s Views on the National Security (Legislative Provisions) Bill 2003,” April 11, 2003, https://www.hkba.org/sites/default/files/20030411_eng.pdf.

[14] Deryk Yue, “How Article 23 of the Basic Law has already been enacted,” Medium, February 19, 2019, https://medium.com/@derykyue/how-article-23-of-the-basic-law-has-already-been-enacted-af011111c567; The University of Hong Kong Faculty of Law Centre for Comparative and Public Law, “Group Submission to the Legislative Council and the Security Bureau of the Hong Kong SAR on the National Security (Legislative Provisions) Bill,” May 2003, https://www.legco.gov.hk/yr02-03/english/bc/bc55/papers/bc55-s162-e.pdf.

[15] Elson Tong, “Reviving Article 23 (Part I): The rise and fall of Hong Kong’s 2003 national security bill,” Hong Kong Free Press, February 17, 2018, https://hongkongfp.com/2018/02/17/reviving-article-23-part-i-rise-fall-hong-kongs-2003-national-security-bill/.

[16] Steve Vines, “Article 23: Is Hong Kong’s anti-subversion legislation upon us under Carrie Lam?,” The Foreign Correspondents’ Club, Hong Kong, https://www.fcchk.org/correspondent/article-23-is-hong-kongs-anti-subversion-legislation-upon-us-under-carrie-lam/.

[17] Human Rights in China, “Escalating Attacks on Hong Kong's Rule of Law and Freedoms,” April 21, 2020, https://www.hrichina.org/en/press-work/statement/escalating-attacks-hong-kongs-rule-law-and-freedoms.

[18] UN Office of the High Commissioner for Human Rights, “ CV19 Guidance,” April 27, 2020, https://www.ohchr.org/Documents/Events/COVID-19_Guidance.pdf.

[19] Chairpersons, ten UN Treaty Bodies, “UN Human Rights Treaty Bodies call for human rights approach in fighting COVID-19,” March 24, 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25742&LangID=E. The UN Human Rights Committee also issued a statement reminding states parties to the ICCPR that any derogations from the rights protected must be in compliance with their treaty obligations and with standards on derogations. See UN Human Rights Committee, “Statement on derogations from the Covenant in connection with the COVID-19 pandemic,” April 24, 2020, by clicking “Committee adopts statement on derogations from the Covenant in connection with the COVID-19 pandemic, 24 April 2020” on this webpage: https://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx.

[20] The UN Human Rights Committee has also consistently raised its concerns during its periodic reviews of the Hong Kong SAR government’s implementation of its obligations under the ICCPR and of the lack of meaningful progress in ensuring genuine universal suffrage and the right to participate in public affairs and to stand and run for election.

[21] Men wielding hammers and bats attacked protest leader Jimmy Sham and two district council candidates, Jocelyn Chau, 23, and Jannelle Leung, 25. Notwithstanding this intimidation and physical violence, voter turnout, at 71%, was the highest in Hong Kong since it first held district council elections in 1999. The pan-democratic candidates took almost all of the 18 districts, including wins for candidates who had actively participated in the protest movement. K.K. Rebecca Lai and Jin Wu, “Hong Kong Election Results Mapped,” The New York Times, November 24, 2019, https://www.nytimes.com/interactive/2019/11/24/world/asia/hong-kong-election-results.html.

[22] Kong Tsung-Gan, “Disqualified: How the gov’t compromised Hong Kong’s only free and fair election,” Hong Kong Free Press, January 31, 2018, https://hongkongfp.com/2018/01/31/disqualified-hong-kong-govt-compromised-citys-free-fair-elections/.

[23] Ben Westcott, Steven Jiang, Eric Cheung, “Hong Kong bookseller Gui Minhai sentenced to ten years in Chinese jail,” CNN, February 25, 2020, https://www.cnn.com/2020/02/25/asia/gui-minhai-china-hong-kong-sentence-intl-hnk/index.html.

[24] Human Rights in China, “2019-2020 Hong Kong Protests Timeline,” https://www.hrichina.org/en/hong-kong-program-work.

[25] See a timeline of selected key protests and events in the Hong Kong protest movement from February 2018 to February 2020 compiled by writer, educator, and activist Kong Tsung-gan, Medium, March 11, 2020, https://medium.com/@KongTsungGan/a-timeline-of-the-hong-kong-protests-1d13422ce006. See also two excellent books by Kong Tsung-gan, Umbrella: A Political Tale from Hong Kong (Pema Press: September 12, 2017) and As long as there is resistance there is hope: Essays on the Hong Kong freedom struggle on the post-Umbrella Movement era, 2014–2018 (Pema Press: March 18, 2019).

[26] Medical professionals staged a protest in late October 2019 to express concerns regarding injuries they were treating, including head injuries, lacerations, and broken bones, as well as violations of patient privacy. Victor Ting, Sum Lok-kei, Zoe Low, “Thousands of Hong Kong medical workers and supporters hold peaceful anti-police rally, as city marks second straight Saturday without widespread violence,” South China Morning Post, October 26, 2019, https://www.scmp.com/news/hong-kong/politics/article/3034718/more-1000-hong-kong-medical-workers-and-supporters-hold.

[27] In past reviews of the Hong Kong SAR’s progress in implementing the ICCPR, the UN Human Rights Committee recommended that the government provide training to the police with regard to the principle of proportionality when using force, taking due account of the United Nations Principles on the Use of Force and Firearms by Law Enforcement Officials. It also stated that the government should take necessary measures to establish a fully independent mechanism mandated to conduct independent, proper, and effective investigation into complaints about the inappropriate use of force or other abuse of power by the police and empowered to formulate binding decisions in respect of investigations conducted and findings regarding such complaints. See UN Human Rights Committee, “Concluding observations on the third periodic report of Hong Kong, China, adopted by the Committee at its 107th session (11 – 28 March 2013),” April 29, 2013, http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsr2bAznTIrtkyo4FUNHETCQ0Y7P%2Fow040gd8LZ9d1NQukCEhx4dNtgXsWJSk7fStTBMEzKOWsqHv9SlKqzjoKxAY0VEuYSz7bBCEBkn48xMZfM8%2BrBXHTfUbyYz%2Btx3U9w%3D%3D.

[28] Mimi Leung, Yojana Sharma, “Police storming of campuses condemned internationally,” University World News, November 12, 2019, https://www.universityworldnews.com/post.php?story=20191112165359859.

[29] For example, there is still no official investigation of the attacks on Yuen Long residents by hundreds of triad-related gangs in white shirts wielding metal batons, while the police did nothing to intervene. Pro-Beijing legislator, Junius Ho, was video-taped shaking hands with a couple of the men in white shirts that same evening. The traffic police officer who ran motorcycle into protest crowd was only suspended briefly from frontline work. Kris Cheng, “Hong Kong police suspend motorcycle officer who drove into protesters,” Hong Kong Free Press, November 11, 2019, https://www.hongkongfp.com/2019/11/11/hong-kong-police-suspend-motorcycle-officer-drove-protesters/;【11.11三罷衝突】警鐵騎三度撞向葵芳堵路人群 被撞者:失意識15分鐘 謝振中:涉事警停前線工作 (18:15) (【11.11 Three strikes】Motorcycle police officer drove three times into protesters at Kwai Fong. One victim was unconscious for 15 minutes. Xie Zhenzhong: The police officer involved was suspended from frontline work), Ming Pao, November 11, 2019, https://news.mingpao.com/ins/港聞/article/20191111/s00001/1573437253252/【11-11三罷衝突】警鐵騎三度撞向葵芳堵路人群-被撞者-失意識15分鐘-謝振中-涉事警停前線工.

[30] Sharon Hom, “Hong Kong’s protests: The political bill for impunity must be paid sooner or later,” Hong Kong Free Press, August 7, 2019, https://hongkongfp.com/2019/08/07/hong-kongs-protests-political-bill-impunity-must-paid-sooner-later/.

[31] Congressional-Executive Commission on China, “Hearing: Hong Kong’s Summer of Discontent and U.S. Policy Responses,” September 17, 2019, https://www.cecc.gov/events/hearings/hong-kongs-summer-of-discontent-and-us-policy-responses.

[32] “Statement by the Office of the UN High Commissioner for Human Rights (OHCHR) Regarding Disproportionate Use of Force by Police in Hong Kong,” August 6, 2019, https://www.unog.ch/unog/website/news_media.nsf/(httpBriefingsLatest_en)/7E21003165D441AEC12584510049265D?OpenDocument; “Statement by the Office of the UN High Commissioner for Human Rights (OHCHR) on Violence in Hong Kong,” August 13, 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24888&LangID=E; “China/Hong Kong: UN experts urge China to respect protesters’ rights,” September 12, 2019, https://www.hrichina.org/en/press-work/hric-bulletin/chinahong-kong-un-experts-urge-china-respect-protesters-rights; “PRC Response to UN Special Rapporteurs on Hong Kong Police Violence,” September 24, 2019, https://www.hrichina.org/sites/default/files/prc_sept._24_reply_to_sr_communication_on_hong_kong.pdf.

[33] Mandates of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; the Special Rapporteur on the situation of human rights defenders; and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, AL CHN 12/2019 28, June 2019, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24674.

[34] James Griffiths, Eric Cheung, Maisy Mok, “Landslide victory for Hong Kong pro-democracy parties in de facto protest referendum,” CNN, November 24, 2019, https://www.cnn.com/2019/11/24/asia/hong-kong-district-council-elections-intl/index.html; see also District Council 2019 Election Results, https://www.elections.gov.hk/dc2019/eng/results.html.

[35] Chow Pak-chin, “Enactment of national security law in the SAR has been long overdue,” China Daily, November 26, 2018, http://www.chinadaily.com.cn/hkedition/2018-11/26/content_37312013.htm.

[36] Clifford Lo, “Hong Kong student carrying two petrol bombs arrested outside police station,” South China Morning Post, April 14, 2020, https://www.scmp.com/news/hong-kong/law-and-crime/article/3079812/hong-kong-student-carrying-two-petrol-bombs-arrested; Clifford Lo, “Three teens arrested after early-morning firebombing at Hong Kong police station, the 17th such attack since January,” South China Morning Post, April 1, 2020, https://www.scmp.com/news/hong-kong/law-and-crime/article/3077907/three-teens-arrested-after-early-morning-firebomb; Brian Wong, “Hong Kong protests: Remand in jail for student, 17, who was caught with hammer, petrol bomb in his backpack,” South China Morning Post, March 31, 2020, https://www.scmp.com/news/hong-kong/law-and-crime/article/3077786/hong-kong-protests-remand-jail-student-17-who-was; Clifford Lo, “Black-clad men hurl petrol bombs at Hong Kong police station,” South China Morning Post, March 30, 2020, https://www.scmp.com/news/hong-kong/law-and-crime/article/3077536/black-clad-men-hurl-petrol-bombs-hong-kong-police; Clifford Lo, “Petrol bomb attack at Hong Kong police married quarters,” South China Morning Post, March 23, 2020, https://www.scmp.com/news/hong-kong/law-and-crime/article/3076411/petrol-bomb-attack-hong-kong-police-married-quarters.

[37] A journalist described an exercise that took place in March 2020: “The Inter-departmental Counter Terrorism Unit (ICTU), composed of officers from six disciplined services and headed by the Security Bureau, conducted an exercise code-named ‘Catchmount’ at Lok Ma Chau Spur Line Control Point at noon on Friday to boost its readiness amid what it called an ‘emergent threat of local terrorism.’ About 250 officers from different departments participated in the drill. Police had earlier warned about the specter of home-grown terrorism, with the force confiscating at least five guns and cracking 15 significant bomb cases in the city since anti-government protests began.” Christy Leung, “After foiled bomb plots, Hong Kong anti-terror squad runs drill at mainland border,” South China Morning Post, March 20, 2020, https://www.scmp.com/print/news/hong-kong/law-and-crime/article/3076092/after-foiled-bomb-plots-hong-kong-anti-terror-squad.

[38] See the joint communication, as a comment on legislation, regulations, or policies, sent by six UN Special Rapporteurs—Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; the Special Rapporteur on the situation of human rights defenders; and the Special Rapporteur on minority issues—to the ambassador of the PRC mission to the United Nations in Geneva on April 23, 2020, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25196. The communication expresses concerns regarding the compatibility of the Anti-Terrorism Law and the Sedition Law with the Hong Kong SAR government's international human rights obligations, in particular, its ICCPR international obligations.

[39] Natalie Wong, “Coronavirus pandemic and protests highlight need for national security legislation in Hong Kong, says Beijing’s top official in city,” South China Morning Post, April 15, 2020, https://www.scmp.com/news/hong-kong/politics/article/3080009/coronavirus-pandemic-and-protests-highlight-need-national.

[40] Luo Huining’s National Security Education Day video message, April 15, 2020, https://www.facebook.com/watch/?v=687024005384236; transcript of Luo Huining’s National Security Education Day video message, April 15, 2020, http://www.takungpao.com/news/232109/2020/0416/437780.html.

[41] Carrie Lam’s National Security Education Day video message, April 15, 2020, https://www.facebook.com/watch/?v=222392952376503; transcript of Carrie Lam’s National Security Education Day video message, April 15, 2020, https://www.info.gov.hk/gia/general/202004/15/P2020041500195.htm.

[42] “Hong Kong politician arrested for 'sedition' over Facebook post,” Straits Times, March 26, 2020, https://www.straitstimes.com/asia/east-asia/hong-kong-politician-arrested-for-sedition-over-facebook-post; for a summary of the context of the case, see “Hong Kong: Dubious Arrest of Pro-Democracy Politician,” Human Rights Watch, March 27, 2020, https://www.hrw.org/news/2020/03/27/hong-kong-dubious-arrest-pro-democracy-politician#.

[43] Crimes Ordinance of Hong Kong, Section 11: “Legal proceedings (1) No prosecution for an offence under section 10 shall be begun except within 6 months after the offence is committed. (2) No prosecution for an offence under section 10 shall be instituted without the written consent of the Secretary for Justice (Amended L.N. 362 of 1997),” https://www.elegislation.gov.hk/hk/cap200.

[44] UN Human Rights Committee, “Concluding observations on the third periodic report of Hong Kong, China, adopted by the Committee at its 107th session (11 – 28 March 2013),” April 29, 2013, http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsr2bAznTIrtkyo4FUNHETCQ0Y7P%2Fow040gd8LZ9d1NQukCEhx4dNtgXsWJSk7fStTBMEzKOWsqHv9SlKqzjoKxAY0VEuYSz7bBCEBkn48xMZfM8%2BrBXHTfUbyYz%2Btx3U9w%3D%3D.

[45] “Hong Kong politician arrested for 'sedition' over Facebook post,” Strait Times, March 26, 2020, https://www.straitstimes.com/asia/east-asia/hong-kong-politician-arrested-for-sedition-over-facebook-post.

[46] “Pan-dems lash out at police over arrest of DC chief,” Ejinsight, March 27, 2020, https://www.ejinsight.com/eji/article/id/2416586/20200327-pan-dems-lash-out-at-police-over-arrest%20of%20DC%20chief.

[47] Human Rights Watch, “Hong Kong: Dubious Arrest of Pro-Democracy Politician,” March 27, 2020, https://www.hrw.org/news/2020/03/27/hong-kong-dubious-arrest-pro-democracy-politician#.

[48] The University of Hong Kong Faculty of Law Centre for Comparative and Public Law, “Group Submission to the Legislative Council and the Security Bureau of the Hong Kong SAR on the National Security (Legislative Provisions) Bill,” May 2003, https://www.legco.gov.hk/yr02-03/english/bc/bc55/papers/bc55-s162-e.pdf.

[49] The UN Human Rights Committee remained concerned at the broad wording of the definition of the offences of treason and sedition currently in the Hong Kong SAR’s Crimes Ordinance and recommended that the government amend its legislation regarding the offences of treason and sedition to bring it into full conformity with the ICCPR and ensure that the foreseen new legislation under Article 23 of the Basic Law is fully consistent with the provisions of the ICCPR. UN Human Rights Committee, “Concluding observations on the third periodic report of Hong Kong, China, adopted by the Committee at its 107th session (11 – 28 March 2013),” April 29, 2013, http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsr2bAznTIrtkyo4FUNHETCQ0Y7P%2Fow040gd8LZ9d1NQukCEhx4dNtgXsWJSk7fStTBMEzKOWsqHv9SlKqzjoKxAY0VEuYSz7bBCEBkn48xMZfM8%2BrBXHTfUbyYz%2Btx3U9w%3D%3D.

[50] The Progressive Lawyers Group’s “Hong Kong Rule of Law Report 2018” points to the “resort to criminal proceedings to criminalize the pro-democracy movement to an unprecedented extent in Hong Kong has given rise to serious concerns of political persecution through prosecution.” The PLG report also concludes there are no signs of genuine universal suffrage in accordance with international standards. https://drive.google.com/file/d/1N6xXIR99zp_lG1dxWltlMyA80B_VUgFP/view. See also Holmes Chan, “Decline and fall? Progressive Lawyers Group plans new barometer to measure Hong Kong’s rule of law,” Hong Kong Free Press, March 24, 2019, https://hongkongfp.com/2019/03/24/decline-fall-progressive-lawyers-group-plans-new-barometer-measure-hong-kongs-rule-law/.

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