Opinion | Human rights protections underpin Safeguarding National Security Ordinance

By Grenville Cross

Although it was inevitable the West's anti-China forces would criticize Hong Kong's Safeguarding National Security Ordinance (the Ordinance), which was passed by the Legislative Council on March 19, its shameless myth-making exceeded expectations. Regardless of its content, they viewed it as just another stick with which to beat Hong Kong. The usual suspects all weighed in, with nobody bothering to understand the Ordinance's human rights protections.

Their responses were so obviously coordinated, with overlapping venom. There was, for example, a marked similarity in the pejorative comments of the UK and US governments.

Their primary allegation was that the Ordinance threatened human rights, which cannot hold water. It was unclear if they had studied the proposals but not understood them, or not bothered to study them at all. Whichever it was, they chose to misrepresent them.

After all, anybody who had considered the Ordinance in the overall context of Hong Kong's national security regime would have realized the extent to which human rights are entrenched. Claims to the contrary, of which examples abound, can only be interpreted as malicious.

The US state department spokesman, Matthew Miller, said the Ordinance risked "compounding the 2020 National Security Law that has curtailed the rights and freedoms of people in Hong Kong."

In the UK, the former Conservative Party leader, Sir Iain Duncan Smith, said the proposals "further criminalize the peaceful exercise of human rights in Hong Kong while undermining due process and fair trial rights."

In London, Lord (David) Alton, the patron of Hong Kong Watch, the anti-China hate machine, claimed the Ordinance would "exacerbate Beijing's oppression in Hong Kong, and further undermine basic rights and freedoms."

According to Amnesty International's China director, Sarah Brooks, the Ordinance showed "the government's eagerness to further dismantle human rights protection and turn its back on its international obligations."

In Washington DC, the Committee for Freedom in Hong Kong (which employs the national security fugitive, Frances Hui Wing-ting) said the Ordinance would "devastate human rights in the city."

In their eagerness to misrepresent and malign the bill, some observers plummeted to new depths.

On March 8, for example, The Guardian published the sensational headline "Treason could mean life sentence under new Hong Kong national security law" (March 8), hoping to shock its readers. What, however, it did not disclose was that life imprisonment is already the sentence for treason in Hong Kong under the British-era Crimes Ordinance (Sect.2), or that the UK's own treason offense is also punishable with life imprisonment.

Not to be outdone, The Times claimed that people could be prosecuted for sedition if they possessed copies of old newspapers (March 11). This was inflammatory scare mongering; a collector would never face prosecution without more. No prosecution for sedition could ever be initiated unless the item had a seditious intention, the collector knew this was so, and had no "reasonable excuse" for its possession. Just as nobody was ever prosecuted for possessing a historical newspaper under the existing British-era sedition law (Sect.10, Crimes Ordinance), so also is it fantastical to suggest this will now change.

Another Sinophobe to muscle in on the act was, inevitably, the serial fantasist, Benedict Rogers, who conjured up another of his nightmarish scenarios. On March 10, he told The Tablet that Roman Catholic priests could now face prosecution for not revealing the secrets of the confessional if they concerned treasonable activity. Although he called on Pope Francis to "speak out" against the proposals, His Holiness is as unlikely as everybody else to take seriously anything said by Rogers.

After all, the common law offense of "misprision of treason" (failing to disclose treason) has existed in Hong Kong since the 1840's, and no priest has ever been prosecuted under it. Indeed, under the Catholic church's Code of Canon Law it is "absolutely forbidden" for a priest to disclose what a penitent told him "in any manner or for any reason" (c.938). A priest who broke the "Seal of the Confessional" would face excommunication, the church's principal and severest penalty.

Although "misprision of treason" has existed for centuries in many common law jurisdictions, including the UK, there are no known instances of a priest being prosecuted under it for respecting the confessional seal.

There is, therefore, despite Rogers' alarmism, absolutely no reason to suppose this will suddenly change once the Ordinance is gazetted.

In any event, as a safeguard against any possible abuse, national security offenses can only be prosecuted with the written consent of the secretary for justice, who carefully vets each case. His consent will only be given if the evidence suffices and it is in the public interest. It is hard to imagine any scenario in which the public interest would ever be served by prosecuting a collector for having an old newspaper, or a priest for honoring the confessional seal.

Indeed, the Ordinance, although robust, is remarkable for the lengths to which it goes to protect human rights. It goes far further than is customary in other common law jurisdictions, including Australia, Canada, the UK and the US. Although this has been largely overlooked, the rights of criminal suspects are underpinned not only by the Ordinance itself, but also by the Basic Law and the National Security Law for Hong Kong (NSL).

In the draft bill's Division 3, entitled "Procedure in Legal Actions," Clause 96 provided ("to avoid doubt") that any case arising under the Safeguarding National Security Ordinance would be treated as a case mentioned in the NSL's Art.41, adding that "the procedure under Chapter IV of the National Security Law applies to such a case." The effect of Clause 96 is profound, and must be appreciated.

At a stroke, Clause 96 imported a variety of NSL fair trial guarantees into the Ordinance. The NSL states that, unless otherwise provided, the courts must handle national security cases "in accordance with the Laws of the Hong Kong Special Administrative Region" (Art.45, part of Chapter IV), and Clause 96 extended this to cases arising under the Ordinance.

One of the Hong Kong laws thereby extended is the Hong Kong Bill of Rights (which domesticated the International Covenant on Civil and Political Rights, that applies in Hong Kong under the Basic Law's Art.39). This will now apply to prosecutions under the Ordinance, which should please the legal profession and human rights advocates. After all, the Hong Kong Bill of Rights guarantees such things as the presumption of innocence, the right of defense, the right to counsel, the right to give, call and challenge evidence, and the right of a defendant not to be compelled to testify against himself or to confess (Art.11).

This, however, is by no means all. Although some of the NSL's articles apply only to its own offenses, others apply generally to national security laws housed elsewhere, whether in the Crimes Ordinance (sedition and treason), or in the Ordinance.

Therefore, when the NSL states "Human rights shall be respected and protected in safeguarding national security in the Hong Kong Special Administrative Region" (Art.4), and that the provisions of the ICCPR "shall be protected in accordance with the law" (ditto), these guarantees will automatically apply to the Ordinance.

It also means that the NSL's Art.5 will apply to the Ordinance. This states that "The principle of the rule of law shall be adhered to" in the conduct of cases endangering national security. It also states that the presumption of innocence, the right of defense, and the rule against double jeopardy are applicable in national security cases.

The picture that emerges, therefore, is of a law that is human rights heavy. Although there will be a high degree of overlapping between the fundamental guarantees contained in the Ordinance, the NSL and the Basic Law, this can only be for the good. It will reinforce the message that human rights are being prioritized in the Ordinance's operation by various means, and there is nothing for people to fret about unduly.

When considering cases under the Ordinance, prosecutors, as elsewhere in the common law world, will only authorize a prosecution if there is a reasonable prospect of conviction, and it is in the public interest. At trial, they will only be able to secure a conviction if they have proved the defendant's guilt beyond reasonable doubt before professional judges.

If convicted, a defendant can, as the Bill of Rights provides, appeal against his conviction and sentence before "a higher tribunal according to law" (Art.11).

In other words, all the fair trial guarantees that the criminal justice system has established over the decades will also be available to anybody prosecuted under the Ordinance, and this should be welcomed.

Although not strictly necessary, the Ordinance goes the extra mile to put people's minds at rest in other areas as well. Whereas the Basic Law already provides that the Department of Justice shall control prosecutions "free from any interference" (Art.63), the Ordinance confirms that exactly the same principle will apply to offenses endangering national security.

Again, although the Basic Law already stipulates that the courts shall exercise their "judicial power independently, free from any interference" (Art.85), those exact words are replicated in the Ordinance.

What this does, therefore, is to highlight to everybody that the judiciary will adjudicate cases brought under the Ordinance in precisely the same way as it does other criminal cases, and that prosecutors will exercise their judgment independently in deciding whether or not to prosecute a national security suspect.

Whereas the West's propagandists rejoice in maligning Hong Kong's national security arrangements, they are united in their refusal to present a balanced picture of its situation. Whereas human rights guarantees are invariably lacking in their own jurisdictions (the UK's National Security Act 2023 being a classic example), they are incorporated into the Ordinance, whether directly or indirectly. Therefore, as the Ordinance awaits its gazettal, everybody can safely ignore the hypocritical and ill-intentioned noises from afar, however raucous.

As in 2003 and 2020, when hostile forces also denounced Hong Kong's efforts to protect national security, the West's strategy has been to demonize the Ordinance to further its own political agenda. It must never be forgotten that many in the West encouraged the black violence in 2019 that sought to wreck the "one country, two systems" governing policy, and even tried to glorify it. When those responsible for the mayhem fled abroad, they welcomed them with open arms, regardless of their crimes.

With the Ordinance's enactment, espionage, insurrection, sabotage, sedition, external interference and other offenses endangering national security will be far harder to perpetrate, and foreign powers and their local proxies will be left with little room for maneuver. As they see their wings being clipped, it is little wonder they wanted the proposals withdrawn or watered down. The last thing they wanted to see was Hong Kong finally being in a position to protect itself and defend its motherland.

It is, moreover, a real bonus for the city's criminal justice system that the Ordinance, by various means, incorporates the human rights guarantees that are lacking in the national security regimes of other common law jurisdictions. This should help allay the concerns of people who may have been rattled by Western propaganda. Indeed, the Ordinance provides a model that Western countries should consider emulating if they are serious about protecting human rights.

The author is a senior counsel and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

The article was first published in China Daily.