What the UK parliamentary group’s report on Hong Kong media freedom ignored

While the group has accused China of being in breach of the Joint Declaration, it is the UK’s failure to stand up for China’s sovereignty over Hong Kong that is the real issue
Not only is the UK discussing its own national security law, the provisions of Hong Kong’s national security law are acceptable by international standards

Ronny Tong

Published: 11:00pm, 30 Apr 2023

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The UK All-Party Parliamentary Group recently published a report on the impact of the national security law on Hong Kong’s media and concluded that: “The current situation in Hong Kong is a glaring violation of the Joint Declaration that was meant to preserve human rights guarantees cherished by the UK Government.”

Those who have read the Sino-British Joint Declaration and know what is happening on the ground in Hong Kong will no doubt have serious difficulties understanding how anyone could come to that conclusion. Perhaps politicians feel they have a licence to say what they please without regard to the facts. Even so, the accusation that China is in breach of the declaration demands examination.

First, the declaration only contains eight clauses. In the first, China declares it will resume the exercise of sovereignty over Hong Kong with effect from July 1, 1997. In the second, the UK government declares it “will restore Hong Kong to the People’s Republic of China” with effect from July 1, 1997.

Under clause three, China declares its basic policies regarding Hong Kong. The first paragraph under this clause makes it abundantly clear that upholding national unity and territorial integrity, taking into account the history of Hong Kong “and its realities”, is the top priority.

One can only conclude from these provisions that it was the joint understanding of both the Chinese and UK governments that China would exercise sovereignty over Hong Kong. If that sovereignty is in danger or under threat, China has a right to safeguard it – and one would have thought that the UK government has a moral if not legal responsibility to voice its concern that the basic premise of the declaration is at risk.

But did that happen in 2019 when a small faction of Hong Kong political activists openly called for independence or for the US government to sanction Hong Kong? No. The UK government did not openly criticise any attempt to seek independence as a breach of the Joint Declaration. Is that not a clear and serious breach of the spirit, if not the premise, of the declaration?

The UK government has never voiced concern or done anything to help safeguard the preservation of Chinese sovereignty over Hong Kong. Instead, it gave tacit comfort, if not support, to those challenging Chinese sovereignty.

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It is equally important to note that there is no provision in the body of the declaration setting out an agreement between the two governments regarding either what democratic reform, if any, there might be, or what freedoms are to be enjoyed by the people of Hong Kong.

What there is, is a detailed annex under which China sets out the policy which guarantees the basic freedoms of the people of Hong Kong “as provided for by the laws previously in force in Hong Kong” and the continued application of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

China then promulgated the Basic Law, and laid out in an annex the method for the selection of the chief executive and for the formation of the Legislative Council. The Basic Law states that the provisions of the ICCPR and the ICESCR will remain in force in Hong Kong.

The freedoms promised in the Basic Law are not absolute but are circumscribed by the ICCPR. The internationally recognised freedoms under the ICCPR are subject to restrictions by law as required by national security.

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The UK government should know this. It enacted a draconian National Security and Investment Act in 2021 and is in the process of enacting an even more draconian National Security Act. Any government which allows the secretary of state, with the permission of a court, to restrict the movement of a person from a particular residence or locality without trial, up to a limit of five years, in the name of national security has no right to tell other countries they are not respecting human rights.

And is the Hong Kong national security law really as unacceptable by international standards as UK parliamentary group report tried to portray? There are only four crimes under the law in question. All the elements of each crime are clearly spelled out. There are specific provisions referring to the ICCPR and the principle of the rule of law. There are no provisions about confinement without trial, or the deprivation of use of financial services or of electronic devices, including hand phones.

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The UK parliamentary group report cites many “examples” of the closure of media and, in particular, the prosecution of Apple Daily founder Jimmy Lai Chee-ying. More accurately, it cites the end result of many incidents without divulging the specific circumstances underpinning them.

While a few individuals were investigated on suspicion of violating the Hong Kong national security law, no media organisation has been prosecuted or shut down under that law. The winding up of Apple Daily, for example, was ordered based on a contravention of corporate laws similar to those in the UK.

By criticising the Hong Kong national security law enacted in the aftermath of the 2019 riots, which signified an open challenge to Chinese sovereignty over Hong Kong, the UK government and its legislature are conspicuously challenging the integrity of the declaration, if not actually committing a breach of the same.

At the very least, it is an unabashed assault on common sense and logic, and a blatant disregard of the sovereign rights of China and the well-being of the people of Hong Kong. As such, the report should be condemned by the international community.

Ronny Tong, KC, SC, JP, is a former chairman of the Hong Kong Bar Association, a member of the Executive Council and convenor of the Path of Democracy