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Hong Kong Arrests of 55: Time to Test Article 4 of National Security Law

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January 8, 2021

1. Hong Kong authorities conflate internationally protected rights with “subversion”

In the early morning of Wednesday, January 6, in a move intended to decimate political opposition and extinguish political activism and participation, Hong Kong authorities deployed some 1,000 police officers to arrest 53 individuals in connection with unofficial election primaries held in July 2020. Among the arrested are prominent former lawmakers including Eddie Chu, Alvin Yeung, and Kwok Ka-ki; current district councilors including Lester Shum (who is also a student leader in the 2014 Umbrella Movement); Benny Tai, legal academic and one of the key organizers of the Occupy Central movement; as well as John Clancey, an American lawyer who is a permanent resident of Hong Kong. All 53 were arrested on suspicion of “subversion of state power” under Article 22 of the National Security Law, for organizing, planning, implementing, or participating in the unofficial primaries.

“The international community needs to not only condemn the mass arrests, but also demand compliance with the relevant international standards and norms incorporated in the National Security Law, the Basic Law, and China and Hong Kong’s international obligations,” said Sharon Hom, Executive Director of Human Rights in China.

A day later, on January 7, police arrested an additional two individuals for their participation in the unofficial primaries: activist Joshua Wong, who is serving a 13-and-a-half-month prison sentence for organizing and inciting a June 2020 “unauthorized assembly,” and Tam Tak-chi, who has been in custody since September 2020 on suspicion of sedition. As of January 8, 52 of those arrested on January 6 have been released on bail. (See a complete list of those arrested at the end of this bulletin.)

Like the mass crackdown on over 300 rights lawyers and activists in mainland China in 2015, carried out in a terror campaign to intimidate and demolish the rights defense community, the latest police action in Hong Kong is another fundamental attack on the rule of law and on rights protected by domestic and international law.  In one fell swoop, the Hong Kong authorities more than doubled the number of individuals arrested under the National Security Law since July 2020, with threats of more arrests to come as their investigations continue.

“The international community needs to not only condemn the mass arrests, but also demand compliance with the relevant international standards and norms incorporated in the National Security Law, the Basic Law, and China and Hong Kong’s international obligations,” said Sharon Hom, Executive Director of Human Rights in China.

One vivid example of the Hong Kong authorities’ conflation of internationally protected rights with the crime of “subversion” can be seen in the police press conference on January 6. Steve Li, a senior superintendent of the Department for Safeguarding National Security of the Hong Kong Police Force (DSNS), displayed a flow chart that mapped the goal of the primaries and the relevant steps taken to hold them, including “public opinion research,” “crowdfunding,” and publicity in social media—unsurprising strategic elements in a political campaign—and portrayed them as steps to paralyze the government. The planners approached their mission with “determination and resources,” Li said. In addition, authorities pointed to the “35-plus” plan of the pro-democratic camp to attain a majority in the 70-seat legislature as tantamount to a plot to overthrow the Hong Kong SAR government.


Courtesy: Hong Kong Free Press

The unofficial primaries, held over two days, July 11 and 12, in street corners across the city, drew more than 610,000 voters who chose democratic candidates for the Legislative Council election that was then scheduled for September 2020. In late July, Chief Executive Carrie Lam announced the postponement of the election for a year, citing COVID-19 public health concerns.

“Rather than dismissing Article 4 as a fig leaf, we must push for the implementation of one of the few rights protection tools available—we must use it by testing it,” said Sharon Hom.

“The politicized incrimination of the peaceful exercise of fundamental rights in order to snuff out political opposition—and the clear threats of more to come—has brought us to a critical juncture. We must go beyond condemnation and strategically invoke the rights protections in Article 4 of the National Security Law,” said Hom.

“Rather than dismissing Article 4 as a fig leaf, we must push for the implementation of one of the few rights protection tools available—we must use it by testing it.”

 

2. Take Article 4—and the rights it protects—seriously

In response to widespread concerns after the passage of the National Security Law, Chief Executive Carrie Lam and other Hong Kong SAR officials pointed to the incorporation of Article 4 as reassurance that rights would be protected. (She also tried to reassure the Hong Kong people that the National Security Law would only affect a small number of people. Clearly, she fundamentally misunderstands the nature of rights protections: Rights protections apply irrespective of how many or how few people are affected.)

Article 4 states:

In safeguarding national security, the Hong Kong Special Administrative Region shall respect and guarantee human rights, the rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.[1]

The two fundamental rights impacted by the mass arrests are “the right to participate” and “the right of peaceful assembly”—both provided in the International Covenant on Civil and Political Rights (ICCPR), thus also protected under the National Security Law.

The right to participate

Article 25 of the ICCPR states:

Every citizen shall have the right and the opportunity . . . without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives . . . .

This right is emphasized by the spokesperson of the UN Human Rights Office on January 7, in a statement condemning the mass arrests:

These latest arrests indicate that—as had been feared—the offence of subversion under the National Security Law is indeed being used to detain individuals for exercising legitimate rights to participate in political and public life. . . . We stress that exercise of the right to take part in the conduct of public affairs, directly and through freely chosen representatives, is a fundamental right protected by the International Covenant on Civil and Political Rights (ICCPR), which is incorporated into Hong Kong’s Basic Law. [Emphasis added.]

The right of peaceful assembly

Article 21 of the ICCPR states:

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

The UN Human Rights Committee—the UN treaty body tasked with monitoring the implementation of the ICCPR by states—and other independent UN human rights experts have elaborated on this right. In a legal guidance issued in 2020, “General Comment No. 37—Article 21: right of peaceful assembly,” the Human Rights Committee clearly defines the conditions under which the right of peaceful assembly may be restricted under national security grounds:

The “interests of national security” may serve as a ground for restrictions if such restrictions are necessary to preserve the State’s capacity to protect the existence of the nation, its territorial integrity or political independence against a credible threat or use of force.[2] . . . Moreover, where the very reason that national security has deteriorated is the suppression of human rights, this cannot be used to justify further restrictions, including on the right of peaceful assembly. [Emphasis added.]
(Para. 42, Human Rights Committee General Comment No. 37 (2020))

The Hong Kong authorities must demonstrate that, in implementing the National Security Law, they have complied with specific international standards for protecting the right of peaceful assembly. Two key issues are:

  • How have the primaries—and their aim to achieve a majority in the Legislative Council in order to influence policymaking—endangered or impaired “the State’s capacity to protect the existence of the nation, its territorial integrity or political independence against a credible threat or use of force” that the primaries must be prohibited and criminalized as “subversion of state power”? Where is the credible threat of force or the use of force?
  • How are peacefully organized election primary exercises “threats to the state’s ability to protect the existence of the nation”?

In the same legal guidance, the Human Rights Committee also enumerates “heightened-level” of protection that should be accorded to peaceful assemblies with a political message, including message of political opposition—the very thing that Superintendent Steve Li mistook for a criminal intent:

Given that peaceful assemblies often have expressive functions, and political speech enjoys particular protection as a form of expression, it follows that assemblies with a political message should enjoy a heightened level of accommodation and protection. [Emphasis added.]
(Para. 25, Human Rights Committee General Comment No. 37 (2020))

The rules applicable to freedom of expression should be followed when dealing with any expressive elements of assemblies. Restrictions on peaceful assemblies must thus not be used, explicitly or implicitly, to stifle expression of political opposition to a government, challenges to authority, including calls for democratic changes of government, the constitution, the political system, or the pursuit of self-determination. They should not be used to prohibit insults to the honour and reputation of officials or State organs. [emphasis added]
(Para. 49, Human Rights Committee General Comment No. 37 (2020))

The Hong Kong authorities must demonstrate:

  • What specific “heightened-level of accommodation and protection” have been provided for the primaries, which were clearly an “expression of political opposition” to the Hong Kong SAR government?

 

3. Time for asserting—not relinquishing—rights

“This is the moment to hold the authorities’ feet to the fire, a test, and an opportunity to give Article 4 real teeth to provide rights protections guaranteed in the international obligations of the mainland Chinese and Hong Kong SAR governments,” said Sharon Hom

As the UN, governments, and civil society groups so powerfully speak out to condemn the mass arrests, this is also the moment for all of us to demand that Hong Kong SAR and mainland Chinese authorities abide by the rights provisions in the National Security Law and provide the protections enshrined in the law.

HRIC urges the international community to support Hong Kong people’s assertion of lawfully protected rights by taking the following actions:

  • Continue to speak out to condemn the assault on rights and rule of law, and demand and monitor that the Chinese authorities ensure the safety and procedural and substantive rights of those detained, arrested, and/or prosecuted.
  • Issue consistent public messages of solidarity and support backed by concrete actions.
  • Invoke international human rights standards and cite and build upon concerns and recommendations of international human rights experts, in particular, the recommendation to review and reform the National Security Law and ensure the Law and its implementation are in compliance with international standards and obligations.

“This is the moment to hold the authorities’ feet to the fire, a test, and an opportunity to give Article 4 real teeth to provide rights protections guaranteed in the international obligations of the mainland Chinese and Hong Kong SAR governments,” said Hom.

 

[1] The official translation has been modified by HRIC for greater accuracy. See Annex A of “Too Soon to Concede the Future: The Implementation of The National Security Law for Hong Kong--An HRIC White Paper,” Human Rights in China, October 16, 2020, https://www.hrichina.org/sites/default/files/hric_white_paper_on_nsl_ann....

[2] Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights (E/CN.4/1985/4, annex), para. 29.

 

List of the 55 Arrested Individuals

Arrested for organizing/planning the unofficial primaries

  1. Andrew CHIU Ka-yin, district councillor—vice chairman of the Eastern District Council for Tai Koo Shing West; Power for Democracy convener; experienced accredited mediator and arbitrator. Wiki
  2. Ben CHUNG Kam-lun, district councillor—chairman of the Sai Kung District Council for Yan Ying; convener of Neo Democrats. Wiki
  3. John CLANCEY, Power for Democracy treasurer; American human rights lawyer; founding member of the Executive Committee of the China Human Rights Lawyers Concern Group. Asian Human Rights Commission
  4. Gordon NG Ching-hang, activist advocating for the primaries; architect of "35-plus" strategy
  5. AU Nok-hin, former Democratic Party lawmaker; primaries coordinator; former convener of the Civil Human Rights Front; currently a PhD student at the University of Tokyo. Wiki
  6. Benny TAI Yiu-ting, former University of Hong Kong law professor; one of the advocates for the 2014 Occupy Central civil disobedience movement. Wiki

Arrested for participating in the unofficial primaries as a candidate or supporter

  1. Jeffrey ANDREWS, primary election run-off candidate; advocate and registered social worker for ethnic minorities and refugees; Indian by decent. Bio
  2. Raymond CHAN Chi-chuen, former People Power lawmaker; former chief executive officer of Hong Kong Reporter. Wiki
  3. CHENG Tat-hung, district councillor—member of the Eastern District Council for Tanner; formerly affiliated with the Civic Party. Wiki
  4. Sam CHEUNG Ho-sum, district councillor—member of the Tuen Mun District Council for San Hui; social activist, literary critic, and songwriter; member of the Tuen Mun Community Network. Wiki
  5. Eddie CHU Hoi-dick, former lawmaker; member of Local Action and founder of the Land Justice League, which are involved in conservation and environmental movements. Wiki
  6. Owen CHOW Ka-shing, primary election run-off candidate; localist activist. Wiki
  7. Andy CHUI Chi-kin, district councillor—member of the Eastern District Council for Yue Wan; trader by occupation; participated in the 79-day Umbrella Movement sit-ins in 2014. Wiki
  8. Gary FAN Kwok-wai, district councillor—member of the Sai Kung District Council for Wan Hang; former leader of the reformist faction in the Democratic Party; convener of Neo Democrats. Wiki
  9. Frankie FUNG Tat-chun, primary election run-off candidate; activist. Profile
  10. Gwyneth HO Kwai-lam, primary election run-off candidate; former reporter of the news outlet Stand News; rose to prominence for her frontline reporting in the 2019–20 Hong Kong protests. Wiki
  11. Kalvin HO Kai-ming, district councillor—member of the Sham Shui Po District Council for Nam Cheong East; vice chairman of the Hong Kong Association for Democracy and People's Livelihood (ADPL). Wiki
  12. KWOK Ka-ki, former Civic Party lawmaker; urology physician. Wiki
  13. Roy KWONG Chun-yu, former Democratic Party lawmaker; district councillor—member of the Yuen Long District Council for Pek Long; novelist. Wiki
  14. LAM Cheuk-ting, former Democratic Party lawmaker; former investigator of the Independent Commission Against Corruption; chief executive of the Democratic Party. Wiki
  15. Mike LAM King-nam, primary election run-off candidate; owner of retail chain AbouThai; former Customs officer dismissed in 2015. SCMP
  16. LAU Hoi-man, primary election run-off candidate; functional constituency – health services.
  17. Lawrence LAU Wai-chung, district councillor—member of the Sham Shui Po District Council for Yau Yat Tsuen; barrister at Gilt Chambers specializing in criminal and constitutional law. HKBA
  18. Nathan LAU, primary election run-off candidate; social activist; former chairman of the Student Union of Shue Yan University; former chairman of the Hong Kong Federation of Students (HKFS) Activist Relief Fund.
  19. Ventus LAU Wing-hong, primary election run-off candidate; convener of the Shatin Community Network; founding convener of the Community Network Union, an alliance of localist community groups in different districts. Wiki
  20. LEE Chi-yung, primary election run-off candidate; disability rights advocate; spokesman of the Association of Parents of the Severely Mentally Handicapped.
  21. LEE Yue-shun, district councillor—member of the Eastern District Council for Kam Ping member of the Civic Party; registered social worker. Bio
  22. Fergus LEUNG Fong-wai, district councillor—member of the Central and Western District Council, representing Kwun Lung; won his seat as an independent localist in the 2019 District Council elections. Wiki
  23. LEUNG Kwok-hung, former League of Social Democrats lawmaker; social activist. Wiki
  24. Joseph LI Kwok-long, former pro-democracy lawmaker; former member of the Legislative Council representing the health services functional constituency; nurse; professor and dean at the School of Nursing and Health Studies at the Open University of Hong Kong. Wiki
  25. LI Ka-tat, district councillor—member of the Kwun Tong District Council for Hip Hong; social activist. Wiki
  26. Hendrick LUI Chi-hang, primary election run-off candidate; social worker; activist; member of North District Blueprint. SCMP
  27. Claudia MO Man-ching, former Civic Party lawmaker; journalist; politician. Wiki
  28. Carol NG Man-yee, primary election run-off candidate; chairwoman of British Airways Hong Kong International Cabin Crew Association. SCMP
  29. NG Kin-wai, district councillor—member of the Yuen Long District Council for Kingswood North; convener of the Tin Shui Wai Connection; social activist. Wiki
  30. Ricky OR Yiu-lam, district councilor—member of the Sai Kung District Council for Kwong Ming; chairman of the Concern Group for Tseung Kwan O People's Livelihood; former member of the Democratic Party. Wiki
  31. Michael PANG Cheuk-kei, district councillor—member of the Southern District Council for Stanley and Shek O; independent democrat; entrepreneur. Bio
  32. Jimmy SHAM Tsz-kit, district councillor—member of the Sha Tin District Council for Lek Yuen; political and LGBT rights activist; former convener of the pro-democracy organization Civil Human Rights Front; secretary for LGBT rights organization Rainbow of Hong Kong. Wiki
  33. Lester SHUM, district councillor—member of the Tsuen Wan District Council for Hoi Bun; one of the student leaders of the 2014 Umbrella Movement; former deputy secretary-general of the Hong Kong Federation of Students. Wiki
  34. SZE Tak-loy, district councillor—member of the Wong Tai Sin District Council for Tung Mei; chairman of the Hong Kong Association for Democracy and People's Livelihood. Wiki
  35. Tam Tak-chi, vice-chairman of localist group People Power; former Hong Kong radio presenter and actor; social activist. Wiki
  36. Jeremy TAM Man-ho, former Civic Party lawmaker; former airline pilot; former Vice-Chairman of the Hong Kong Civic Party's Kowloon East Branch. Wiki
  37. Roy TAM Hoi-pong, district councillor—member of Neo Democrats; founder and president of Green Sense; passionate about environmentalism and localism. Harbour Times
  38. James TO Kun-sun, former Democratic Party lawmaker; lawyer. Bio
  39. Andrew WAN Siu-kin, district councillor—member of the Kwai Tsing District Council for Shek Yam; former vice-chairman of the Democratic Party. Wiki
  40. Helena WONG Pik-wan, former Democratic Party lawmaker; academic staff member at Hong Kong Polytechnic University. Wiki
  41. Henry WONG Pak-yu, district councillor—member of the Yuen Long District Council for Tin Heng; spokesman of local community group Tin Shui Wai New Force; member of the Information Technology subsector in the Election Committee. Wiki
  42. Joshua WONG Chi-fung, former secretary-general of the now disbanded  pro-democracy party Demosistō; founder of Scholarism. Wiki
  43. Prince WONG Ji-yuet, primary election run-off candidate; former spokesperson of Scholarism; was involved in the 2014 Umbrella Movement and the 2019 anti-extradition bill protests. Wiki
  44. WU Chi-wai, former chairman of the Democratic Party; former member of the Legislative Council of Hong Kong for Kowloon East. Wiki
  45. Alvin YEUNG Ngok-kiu, former leader of the Civic Party; former member of the Legislative Council of Hong Kong for New Territories East; barrister. Wiki
  46. Clarisse YEUNG Suet-ying, district councilor—chairwoman of the Wan Chai District Council, representing Tai Hang; chairwoman and founder of the now disbanded Kickstart Wan Chai. Wiki
  47. Winnie YU Wai-ming, primary election run-off candidate; nurse; activist; founder and chairwoman of the Hospital Authority Employees Alliance (HAEA), a labor union representing Hospital Authority staff. Wiki
  48. Ricky YUEN Wai-kit, primary election run-off candidate for the Health Services functional constituency; head of the School of Nursing, Union Hospital.
  49. Tiffany YUEN Ka-wai, district councilor—member of the Southern District Council for Tin Wan; vice chairperson of Demosistō before resigning from the party in 2018. Wiki
  • A scene from the unofficial primaries held in July 2020, which the authorities characterize as “subversion of state power” under the National Security Law. (Photo: Studio Incendo)
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