China's NPC National Security Law for HK is unconstitutional
Updated: Jun 25, 2020
WTPOHK urges the world's leading democracies, especially the G7 who supported Hong Kong protesters in August 2019, to collectively push back hard against the Chinese Communist Party (CCP). This supports everyone worldwide, including the people of China and COVID-19, to eradicate from Earth the rule BY law used by the authoritarian CCP.
We urge the UK with the support of the G7 and others to finally take the CCP to the International Criminal Court of Justice for its breaches of the 1984 Sino-British Joint Declaration on the Question of Hong Kong. This is about the broader question of the rule OF law versus the rule BY law which needs to be settled for global prosperity and stability. There is the question of what will happen in HK from now until July 2047 under the Joint Declaration; and also what will happen after the end of the Joint Declaration - all of which affects the prosperity and stability of HK and China.
We urge the UK and other leading democracies to offer humanitarian aid to the people of HK including political asylum, international observers, etc.
HK people are law abiding - CCP is not! Today CCP is HK's problem, as we can see from COVID-19, and tomorrow CCP will be everyone's problem! Read or listen to CCP's commentary and you will note they mention "China’s ascent to its rightful place on the global stage".
For decades Hong Kong (HK) has been flooded with CCP's corruption, ineptitude and instability - which has negatively affected the prosperity of HK. In Hong Kong absolute power absolutely corrupts! No HK Chief Executive has completed a second term.
CCPvirus is the world's worst ever authoritarian state!
The current HK government, lead by the Chief Executive Carrie Lam, does NOT represent the will of HK people and is therefore illegitimate. UN Universal Declaration of Human Rights Article 21.3 (bold format added) "The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures."
In HK November 2019 District Council elections the pro-democratic camp won control of 17 of 18 districts. This is the only universal and equal suffrage election currently held in the SAR; the Legislative Council and Chief Executive elections are NOT run according to UN Treaties.
In the upcoming Legislative Council (LegCo) elections in September 2020 the pro-democratic camp are likely to win the majority - this is why CCP and HK government are spooked and running scared. They are trying desperately to illegally enact in HK a draconian National Security law (also called Article 23). This view is also supported by the last British Governor of HK Chris Patten (see below).
Human Rights Watch says CCP's strategy is to undermine global human rights!
CCP's National Security Law for HK is unconstitutional
Joint Declaration (bold format added):
"The Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China have reviewed with satisfaction the friendly relations existing between the two Governments and peoples in recent years and agreed that a proper negotiated settlement of the question of Hong Kong, which is left over from the past, is conducive to the maintenance of the prosperity and stability of Hong Kong and to the further stengthening and development of the relations between the two countries on a new basis. To this end, they have, after talks between the delegations of the two Governments, agreed to declare as follows:
1. The Government of the People's Republic of China declares that to recover the Hong Kong area (including Hong Kong Island, Kowloon and the New Territories, hereinafter referred to as Hong Kong) is the common aspiration of the entire Chinese people, and that it has decided to resume the exercise of sovereignty over Hong Kong with effect from 1 July 1997.
2. The Government of the United Kingdom declares that it will restore Hong Kong to the People's Republic of China with effect from 1 July 1997.
3. The Government of the People's Republic of China declares that the basic policies of the People's Republic of China regarding Hong Kong are as follows:
(1) Upholding national unity and territorial integrity and taking account of the history of Hong Kong and its realities, the People's Republic of China has decided to establish, in
acordance with the provisions of Article 31 of the Constitution of the People's Republic of China, a Hong Kong Special Administrative Region upon resuming the exercise of sovereignty over Hong Kong.
(2) The Hong Kong Special Administrative Region will be directly under the authority of the Central People's Government of the People's Republic of China. The Hong Kong Special
Administrative Region will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People's Government.
(3) The Hong Kong Special Administrative Region will be vested with executive, legislative and independent judicial power, including that of final adjudication. The laws currently in force in Hong Kong will remain basically unchanged.
(4) The Government of the Hong Kong Special Administrative Region will be composed of local inhabitants. The chief executive will be appointed by the Central People's Government
on the basis of the results of elections or consultations to be held locally. Principal officials will be nominated by the chief executive of the Hong Kong Special Administrative Region
for appointment by the Central People's Government.
Chinese and foreign nationals previously working in the public and police services in the government departments of Hong Kong may remain in employment. British and other foreign nationals may also be employed to serve as advisers or hold certain public posts in government departments of the Hong Kong Special Administrative Region.
(5) The current social and economic systems in Hong Kong will remain unchanged, and so will the life-style. Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by law in the Hong Kong Special Administrative Region. Private property, ownership of enterprises, legitimate right of inheritance and foreign investment will be protected by law.
(6) The Hong Kong Special Adminstrative Region will retain the status of a free port and a separate customs territory.
(7) The Hong Kong Special Administrative Region will retain the status of an international financial centre, and its markets for foreign exchange, gold, securities and futures will
continue. There will be free flow of capital. The Hong Kong dollar will continue to circulate and remain freely convertible.
(8) The Hong Kong Special Administrative Region will have independent finances. The Central People's Government will not levy taxes on the Hong Kong Special Administrative
(9) The Hong Kong Special Administrative Region may establish mutually beneficial economic relations with the United Kingdom and other countries, whose economic interests
in Hong Kong will be given due regard.
(10) Using the name of "Hong Kong, China", the Hong Kong Special Administrative Region may on its own maintain and develop economic and cultural relations and conclude relevant
agreements with states, regions and relevant international organisations.
The Government of the Hong Kong Special Administrative Region may on its own issue travel documents for entry into and exit from Hong Kong.
(11) The maintenance of public order in the Hong Kong Special Administrative Region will be the responsibility of the Government of the Hong Kong Special Administrative Region.
(12) The above-stated basic policies of the People's Republic of China regarding Hong Kong and the elaboration of them in Annex I to this Joint Declaration will be stipulated, in a Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, by the National People's Congress of the People's Republic of China, and they will remain unchanged for 50 years.
ELABORATION BY THE GOVERNMENT OF THE PEOPLE'S
REPUBLIC OF CHINA OF ITS BASIC POLICIES
REGARDING HONG KONG
The Government of the People's Republic of China elaborates the basic policies of the People's Republic of China regarding Hong Kong as set out in paragraph 3 of the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland
and the Government of the People's Republic of China on the Question of Hong Kong as follows:
II. After the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong (i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, save for any that contravene the Basic Law and subject to any amendment by the Hong Kong Special Administrative Region legislature.
The legislative power of the Hong Kong Special Administrative Region shall be vested in the legislature of the Hong Kong Special Administrative Region. The legislature may on its own authority enact laws in accordance with the provisions of the Basic Law and legal procedures, and report them to the Standing Committee of the National People's Congress for the record. Laws enacted by the legislature which are in accordance with the Basic Law and legal procedures shall be regarded as valid.
The laws of the Hong Kong Special Administrative Region shall be the Basic Law, and the laws previously in force in Hong Kong and laws enacted by the Hong Kong Special Administrative Region legislature as above."
Lay opinion 1:
The Joint Declaration is HK's Constitution. The Basic Law is NOT HK's Constitution.
The first paragraph of the Joint Declaration reads "...proper negotiated settlement of the question of Hong Kong, which is left over from the past, is conducive to the maintenance of the prosperity and stability of Hong Kong and to the further stengthening and development of the relations between the two countries on a new basis..."
Because of it's repeated breaches of the Joint Declaration CCP has not lived up to it's obligation within HK's Constitution "..to the maintenance of the prosperity and stability of Hong Kong...".
To restore prosperity and stability to Hong Kong now and beyond 2047, there is a need for an immediate political solution.
We call for a referendum which is acted upon as a political solution for China’s anticipatory breach of the 1984 Sino - British Joint Declaration on the Question of Hong Kong.
Lay opinion 2:
The Joint Declaration is HK's Constitution. This Joint Declaration is the founding agreement and therefore contains the entire agreement between the two parties - it 'constitutes' the agreement between the two parties - it is the Constitution.
There is no mention in the Joint Declaration that the Basic Law is HK's Constitution.
Article 3(12) says "The above-stated basic policies of the People's Republic of China regarding Hong Kong and the elaboration of them in Annex I to this Joint Declaration will be stipulated, in a Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, by the National People's Congress of the People's Republic of China, and they will remain unchanged for 50 years."
The Basic Law is a document written by the Chinese side and must therefore be within the boundaries of the Joint Declaration, HK's Constitution. Because it is written by only one party the Basic Law can not include anything which is outside the boundaries of the Joint Declaration, HK's Constitution.
"..Basic Law...and they will remain unchanged for 50 years" means exactly that.
There is no provision allowing for NPC or anyone to change anything for 50 years. So what are these "interpretations" by the Chinese of their own document the Basic Law?
In Annex I article II there is no mention that China has any ability to enact laws in HK
"..The legislative power of the Hong Kong Special Administrative Region shall be vested in the legislature of the Hong Kong Special Administrative Region. The legislature may on its own authority enact laws in accordance with the provisions of the Basic Law and legal procedures, and report them to the Standing Committee of the National People's Congress for the record. Laws enacted by the legislature which are in accordance with the Basic Law and legal procedures shall be regarded as valid."
Lay opinion 3:
Joint Declaration Article 3(3) "The Hong Kong Special Administrative Region will be vested with executive, legislative and independent judicial power, including that of final adjudication."
Definition "vested" fully and unconditionally guaranteed as a legal right, benefit, or privilege.
Because currently final adjudication is by the National Peoples Congress (NPC) which is under CCP control, and NOT in a Hong Kong Court under the Common Law, this is another example of a breach of the Joint Declaration.
A significant change in lifestyle occurred in HK on 1 July 1997 when instead of having the Privy Court in London, a judicial institution using the rule OF Law, it was replaced by the CCP controlled NPC that governs using the rule BY law.
CCP's insistence of HK enacting it's National Security legislation, which it has no right to demand, is just another alarming example of the ill-intent and corruption of CCP.
Pepe & Jeremiah B.
NPCSC has no power to add security law into annex
RTHK 25 May 2020
The Hong Kong Bar Association (HKBA) on Monday flagged up what it said are a number of worrying problems regarding the plan to impose a national security law on Hong Kong, including that it believes Beijing has no power under the Basic Law to insert the legislation into Annex III as intended.
The HKBA says there is no clarity on how mainland security agencies set up in the SAR will operate under Hong Kong law, and there are fears the judiciary will be instructed to act in a particular way to "prevent, stop and punish acts endangering national security".
The association notes that Article 18 of the Basic Law says laws included in Annex III shall be confined to those relating to defence and foreign affairs or matters outside the limits of the autonomy of the SAR, while Article 23 states that Hong Kong shall enact its own laws covering treason, secession, sedition, subversion and in relation to foreign interference.
With Articles 66 and 73 making it clear that Legco is responsible for enacting such laws, "it would therefore appear that the NPCSC has no power to add the HK National Security Law under Annex III of the Basic Law via the mechanism provided under Article 18," the HKBA said.
A statement on the association's website says there is no assurance that the national security law will comply with provisions of the International Covenant on Civil and Political Rights, which is entrenched in the Basic Law, and no guarantee that the public will be consulted on the law before it is promulgated.
"This is unprecedented. The public must be allowed the opportunity to properly consider and debate about proposed laws which affect their personal rights and obligations," the HKBA says.
Its statement then sounds the alarm over the plan to allow mainland security organs to set up agencies in Hong Kong.
"It is entirely unclear how the proposed agencies set up in the HKSAR will operate under the laws of the HKSAR, whether they will be bound by the laws of the HKSAR, whether they have power of enforcement, and whether such powers as exercised will be limited by the laws currently in force in the HKSAR."
Finally, the association expresses concern over the mention in Beijing's "Draft Decision" on the upcoming law that Hong Kong's administrative, legislative and judicial organs must effectively prevent, stop and punish acts endangering national security.
"The reference to 'judicial organs' gives rise to perceptions that the judiciary of the HKSAR is being or will be instructed to act in a particular way. Independence of the judiciary is the cornerstone of the success of the HKSAR and should not be undermined in any way."
The statement says news of the imminent enactment of the national security law has caused "deep unease" in the city as well as abroad, and the HKBA calls on the SAR government to address the constitutional and legal concerns raised as a matter of urgency.
Security law must be imposed without delay: Wang Yi
RTHK 24 May 2020
A controversial security law for Hong Kong proposed by Beijing during its national legislative session should be imposed "without the slightest delay", foreign minister Wang Yi said on Sunday.
The proposal is expected to ban treason, subversion and sedition, and comes after Hong Kong was shaken by months of massive and sometimes violent anti-government protests.
Wang told a press conference that the law was "imperative" after protests in the semi-autonomous hub last year "seriously endangered China's national security".
The draft measure would authorise Chinese lawmakers to directly enact controversial security legislation long called for under Hong Kong's mini-constitution but which authorities in the city have been unable to push through due to local public opposition.
"It is imperative that the Hong Kong national security legal system and enforcement mechanism must be established without the slightest delay," Wang said.
He told reporters covering the week-long legislative session that "violent and terrorist activities are continuing to escalate, (and) foreign forces have deeply and illegally interfered in Hong Kong affairs."
Wang also said the new legislation would target a narrow category of acts and would have no impact on the city's freedoms or rights, or interests of foreign firms.
He said instead of being more worried, people should be more confident of stability of Hong Kong.
Hong Kong's unpopular leader Carrie Lam said in a statement on Friday that the new proposal was necessary to protect national security and punish "violent political elements".
Police fired tear gas in Hong Kong on Sunday after hundreds of pro-democracy campaigners defied warnings not to gather for their first rally since China introduced the legislative proposal. (AFP, Reuters)
The G7 must stand up for Hong Kong’s freedom
Britain should lead the way as the territory protests over the national security law
Financial Times 24 May 2020.
Opinion: Chris Patten, Britain's last HK Governor
China’s assault on Hong Kong’s freedom and its outrageous breach of its treaty obligations to this great city are matters of global concern. More than 200 politicians and senior policymakers from 23 countries from every side of politics have already signed a statement denouncing Beijing’s action. The UK must ensure that China’s efforts to impose a new national security law on the territory are on the agenda for the G7 meeting next month.
After the handover of Hong Kong by Britain to China in 1997, the territory by and large survived with its freedoms intact on the basis of “one country two systems” until Xi Jinping took over in 2013. Since then, Mr Xi has basically reversed policies pursued by his predecessors. He has reasserted Communist party control and cracked down on civil society and on any dissident activity. He has locked up Uighurs in Xinjiang and has now turned the screw on Hong Kong.
Mr Xi has instructed government and party officials to attack every sign of liberal democracy and its values, clearly a reason why he has targeted Hong Kong. His reign has been characterised by mendacity and a blustering disregard for international law and agreements. He has reneged on promises to the former US president Barack Obama over the militarisation of the South China Sea. Countries that question his communist regime — as Australia has done over coronavirus — are threatened with economic punishment despite international trade rules.
Now Hong Kong has felt the full weight of his bruising methods. While the rest of the world is preoccupied with fighting Covid-19, he has in effect ripped up the Joint Declaration, a treaty lodged at the UN to guarantee Hong Kong’s way of life till 2047.
Last year, millions of Hong Kongers protested against an extradition bill that would have destroyed the firewall between the rule of law in Hong Kong and what passes for the law in China. Partly because of heavy-handed policing and government by tear gas and pepper spray, there was inexcusable violence by a small minority on the edges of these huge demonstrations. Even so, the majority of Hong Kong citizens showed where their sympathies lay by voting overwhelmingly for those who had supported the demonstrations in last November’s District Council elections.
Terrified that elections for a new Legislative Council in September may produce a democratic majority, Beijing has decided to introduce by fiat (bypassing Hong Kong’s own parliament) national security legislation that includes laws on sedition and subversion. It will give China’s Ministry of State Security the right to operate there. With its well-earned reputation for coercion and torture, it will not be there to sell dim sum.
Britain must take the lead in standing up for Hong Kong and for honouring the treaty obligations. We have a political and moral obligation to do so. We owe it to the people of Hong Kong whose only crime is that they want to live with the freedoms they were promised.
If China destroys the rule of law in Hong Kong it will ruin the city’s chances of continuing to be a great international financial hub that mediates about two-thirds of the direct investment in and out of China. Many great companies that have prospered in Hong Kong are important to Britain’s wellbeing. With China itself, the UK has had a large trade deficit for years.
Britain needs to have a relationship with China to deal with global problems, including Covid-19. We can trust the people of China, like the brave doctors who tried to blow the whistle on the cover-up in the pandemic’s early stages. But we cannot trust Mr Xi’s regime.
The UK and its friends, starting with the G7, must take a firm stand against a regime that is an enemy of open societies everywhere. If we fail to do this, where will we be in five or 10 years’ time, politically humiliated and morally compromised? Nothing gained but honour lost.
Benedict Rogers' Interview on LBC:
5 Things the UK Should Do for Hong Kong
Hong Kong Watch 24 May 2020
Benedict Rogers, Chairman and Co-founder of Hong Kong Watch, gave an interview on LBC today updating on the situation in Hong Kong as Hong Kong Police Force fired teargas and water cannons at protestors today rallying against the proposed implementation of national security law by the Chinese authority.
On the national security law, Ben said that this signifies the death of One-Country, Two-Systems and it will decimate Hong Kong’s freedoms and its way of life.
Ben continued to say that there are 5 things that the UK should do for Hong Kong:
1) As a co-signatory of the Sino-British Joint Declaration, the UK should seek legal redress at the International Criminal Court of Justice for the breach of the Joint Declaration by China;
2) The UK should impose Magnitsky-style targeted sanctions on Chinese and Hong Kong officials responsible for violating freedoms and human rights in Hong Kong;
3) The UK should help Hongkongers in great need of sanctuary, especially those who hold British National (Overseas) passports;
4) The UK should look at this as a potential humanitarian crisis if protestors continue to be repressed by the police with brutality. The UK should send monitors on the ground to record and report any violation of humanitarian principles;
5) Most significantly, it’s time for the UK to lead the establishment of an international contact group to coordinate international policy amongst like-minded allies to speak out for Hong Kong with one voice.
A national security law is coming to Hong Kong. Here's how it has been used to crush dissent in China
CNN 23 May 2020, Nectar Gan
(CNN) Beijing's plan to introduce a hugely controversial national security law in Hong Kong has sparked widespread fears over its potential impact on the city's much cherished freedoms.
Residents of the semi-autonomous city only need to look across the border at mainland China to get a glimpse of how "national security" -- broadly and vaguely defined -- can be used as a convenient pretext for the political prosecution of dissidents, activists, human rights lawyers and journalists.
Nobel Peace Prize laureate Liu Xiaobo, for example, was sentenced to 11 years in prison for "inciting subversion of state power." Prior to his arrest, Liu helped draft a manifesto calling for democracy and political reform in China. Liu died of multiple organ failure in 2017 after being diagnosed with liver cancer, making him the first Nobel Peace Prize winner to die in state custody since Carl von Ossietzky, who was imprisoned by Nazi Germany.
China enacted its first National Security Law in 1993, which focused on issues relating to espionage activities. That law was replaced by the Counterespionage Law in 2014 with updated rules that more closely targeted foreign spies -- as well as Chinese individuals and organizations who collaborate with them.
In 2015, China passed a sweeping new National Security Law covering a much wider array of areas, including, but not limited to defense, politics, the economy, the environment, technology, cyberspace, outer space, culture, ideology and religion.
The new law is part of a broader push by Chinese President Xi Jinping to strengthen national security. A year after he came to office, Xi set up a powerful National Security Commission -- which he heads himself -- to lead the effort and increase coordination among the various wings of the country's security bureaucracy.
But long before the new National Security Law went into effect, the Chinese government had been throwing dissidents, activists, human rights lawyers and journalists in jail for national security crimes -- a trend that has only intensified under Xi's crushing crackdown on activism and dissent.
Jailed on national security grounds
In 2014, Uyghur economist Ilham Tohti was sentenced to life imprisonment for "separatism." Before he was imprisoned, Tohti was known for his research on Uyghur-Han relations and has been a vocal critic of the government's ethnic policies in Xinjiang, a resource-rich region long inhabited by the Uyghur minority.
In 2015, veteran journalist Gao Yu was handed a seven-year jail sentence for "illegally providing state secrets to foreign entities." She was accused of disclosing an internal party document in 2013 to an overseas Chinese-language news organization.
Known as "Document No.9," it revealed the Chinese Communist Party's ideological battle plan to counter advocates of constitutional democracy, banning public discussions on topics ranging from press freedom, civil rights to judicial independence.
In November 2015, Gao's term was reduced to five years, and was allowed to serve her sentence outside prison on medical grounds. She also served more than five years in jail in the 1990s on similar charges.
More recently, China sentenced Wang Yi, a prominent pastor of one of China's largest house churches, to nine years in jail at the end of December. He was convicted of "inciting subversion of state power."
National security crimes of subversion and inciting subversion were also used by the Chinese government to imprison human rights lawyers and activists detained in July 2015 -- a nationwide roundup later became known as the infamous "709 crackdown."
In the summer of 2016, Lawyer Zhou Shifeng was sentenced to seven years in prison for "subverting state power," and democracy advocate Hu Shigen was jailed for seven and a half years for the same crime.
In 2017, lawyer Jiang Tianyong was sentenced to two years in jail for "inciting subversion of state power," and human rights activist Wu Gan was handed a jail term of eight years for "subverting state power."
In 2019, prominent rights lawyer Wang Quanzhang was sentenced to four and a half years in jail for "subverting state power," after having languished in detention for more than three and half years.
Non-mainland Chinese citizens have also been imprisoned for national security crimes. Taiwanese pro-democracy activist Lee Ming-che, for example, was sentenced in 2017 to five years in prison for "subverting state power."
China has also arrested two Canadian citizens for what it says are suspected crimes relating to state secrets, shortly after Canada arrested an executive from Chinese tech giant Huawei on behalf of the US. Former diplomat Michael Kovrig was accused of "gathering state secrets and intelligence for foreign (forces)," and businessman Michael Spavor was accused of "stealing and illegally providing state secrets for foreign (forces)." Both have been in detention in China since December 2018.
References: Twitter 23 May 2020 Luke de Pulford 裴倫德@lukedepulford
BREAKING: 198 legislators from 23 countries condemn Beijing's actions in Hong Kong; vow to #StandWithHongKong
Taiwan offers help to Hong Kong activists as China tightens grip Aljazeera 25 May 2020
The Silent and the Silenced - How dissent in Hong Kong is hushed. (Blog)
3 June 2020, Rayfield Review, "Hong Kong Leader Meets with Top Beijing Officials to Discuss Security Law"
5 June, 2020, intellasia, "Beijing has heard opinion of HK people and 'remains very firm' on national security law for city...
8 June 2020, RTHK, "Fears again raised that new law may be retroactive"
24 June 2020, RTHK, CY hits out at politicians who went to US and Taiwan, CY Leung, who's now a vice chairman of Beijing's top advisory body, the CPPCC, said some lawmakers – and what he called "small politicians" – went to the United States or Taiwan four times to ask for intervention. He didn't name the people involved. He said this was a clear invitation into Hong Kong affairs and such intervention must be stopped and penalised.