The opinions of HK lawyers on HK's 'rule of law'
Okay, WTPOHK are not lawyers, let's get that straight.
In an earlier blog we already gave a definition of 'the rule of law', and it seems while some people take the position that the law serves primarily to establish and preserve people's rights, others view the law as a tool or weapon to control and restrict people's behaviour. In my view we are looking at two sides of the same coin.
If I were a lawmaker I would make rules that are simple and clear, and easily understood by everyone. e.g. No pissing in the swimming pool. This practice the CCP has of inventing ELASTICATED laws that stretch to pull in whomsoever the authorities wish to catch out is nasty and entirely unfair to law-abiding citizens.
I mean, if the authorities in Beijing really wish, hand upon heart, to give Hong Kong (HK) democracy as the CCP signed up to do so in 1984, then they should follow through with that obligation. Right now, we are hearing and witnessing all kinds of threats and actions that signal further erosion of democracy in HK. Okay, so "democracy" as the CCP define it, and as we do may not be quite the same. We know that Xi Jingping is quite clear in his opposition to 'universal values', 'western democracy' and a range of freedoms that he views as threats to the party and its authortarian rule (see our blog here).
But what do HK lawyers say on this matter?
Has Hong Kong government abandoned rights enshrined in Basic Law? 5 lawyers ask
Apple Daily 8 January 2021 (format added)
Five legal practitioners on Thursday joined hands to argue against the arrest of 53 pro-democracy figures under national security laws, saying that the authorities had yet to give a satisfactory explanation.
The five, all council members of the Law Society of Hong Kong, issued a joint statement in their personal capacities to express “deep concern” and condemn any bid to suppress the peaceful exercise of human rights enshrined in Hong Kong’s mini-constitution, the Basic Law, even as the society itself remained silent over the incident.
Eric Cheung, Mark Daly, Kenneth Lam, Michelle Tsoi and Davyd Wong signed the statement “as legal practitioners who firmly believe in the Basic Law and the rule of law.”
“We call upon the government to explain whether it has abandoned any due regard to the Johannesburg Principles and the fundamental rights guaranteed under the Basic Law, including the freedom of expression and assembly,” the statement read.
The group was referring to a pledge by the Security Bureau in March 2003 that acknowledged the need for national security legislation to be consistent with the Johannesburg Principles.
Those principles provide that “a restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force.”
Relevant provisions could also be found in Hong Kong’s national security law, where Article 22 expressly required the use of “force or threat of force or other unlawful means” as an essential element in the offense of subversion, the five lawyers said.
They questioned why Article 22 was invoked to make the arrests when the organization and conduct of a 2020 primary contest that formed the basis of the police operation did not involve any violence or other unlawful acts.
That primary was meant to select pro-democracy candidates for a now-delayed legislative election.
The group of lawyers strongly opposed and condemned any attempts to suppress the peaceful exercise of the fundamental human rights.
“The right to participate in public affairs, irrespective of one’s political opinion, is enshrined under Article 25 of the International Covenant of Civil and Political Rights and also protected under Article 21 of the Bill of Rights Ordinance (Cap.383),” they said.
As lawyers, the group also showed concern over the police’s search of a law firm during the crackdown. The action could violate the fundamental right of residents to legal advice as set out in Article 35 of the Basic Law, they said in the statement.
“We urgently urge the authorities to exercise restraint, to ensure effective protection to legal professional privilege, and to fully uphold the right to political participation for all Hong Kong residents.”
On Wednesday, the police arrested American John Clancey, a human rights lawyer working in Hong Kong, and conducted a search at his law firm as part of the operation that also apprehended scores of ex-lawmakers and activists from the pro-democracy bloc.
The Law Society is Hong Kong’s professional body of solicitors. Including the president and vice presidents, it has 20 people on the [Legislative] Council.
Click here for Chinese version.
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"One law to find them, one law to bring them in, one law to rule them all"
(apologies to J.R.R. Tolkien)
Correct me if I am wrong, but isn't the constitutional basis of 'One country, two systems' as it was once put forward by the CCP itself, that HK is meant to have its OWN system of governance, its own legal system - at least until 2047? Xi Jingping today ignores the words and wishes of his predecessor Deng Xiaopeng.
Now the CCP are breaking the law all over the place, reinventing what laws mean in other places, without even consulting the people of the HK about what they want for their city, and not even bothering to heed sensible well-considered legal advice!
The CCP even passed a law that they supposedly deem applies in every other country of the world - No pissing on the CCP!
The ongoing CCP strategy does not portray them in a good light on the world stage. They don't respect or practice 'the law' in the way that everyone else in the world does! Xi Jinping is an autocratic leader that is harming China and the world.
The unconstitutional National Security Law and the way it is being implemented is anarchic. It is unquestionably creating instability in our legal system and in wider HK society, yet CCP and puppets like CE Carrie Lam continue to claim it has bought 'calm' to the SAR.
They must be taking the piss!
The Law of the People’s Republic of China (“PRC”) on Safeguarding National Security in the Hong Kong Special Administrative Region (“HKSAR”): Statement of the Hong Kong Bar Association
Legislation Summary: Hong Kong National Security Law (NPC Observer)
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We invite you to learn about events in Hong Kong in our blogs:
And the opinions of others on legal matters :
RTHK 11 January 2021 'Law Society head questions HK's grasp of rule of law'
RTHK 11 January 2021 'Beijing had every right to introduce security law'
RTHK 11 January 2021 'Justice chief obliged to stop attacks on judges'
RTHK 11 January 2021 'New Chief Justice slams unfounded attacks on judges'
RTHK 11 January 2021 'CE vows to safeguard HK's judicial independence'
RTHK 11 January 2021 'New Chief Justice rules out sentencing review panel'
RTHK 11 January 2021 'Andrew Cheung sworn in as chief justice'
Govt must explain puzzling arrests: Michael Tien (RTHK, 7 January 2021)
Democratic Party's Andrew Wan "....said he believed the main objectives of police's mass arrest under NSL were to confiscate their mobile and computer devices, as well as to create a climate of fear in Hong Kong. (NOW Media, Eric Cheung, Twitter, 8 January 2021)
'World must speak out over brutal destruction of HK' : Chris Patten (RTHK, 6 January 2021)
Statement of Hong Kong Bar Association on national security legislation lacks legal basis: legal experts (Xinhua, 28 May 2020)
BHRC condemns mass arrests in Hong Kong as chilling threat to democracy and human rights: Bar Human Rights Committe of England and Wales (BHRC, 8 January 2021)