To Hong Kong’s critics, some national security laws are more equal than others

Those who attack the national security law for Hong Kong seem oblivious to the legal landscape in their own countries
Julian Assange is fighting extradition to the US for violating its 1917 Espionage Act, while in the UK a strict national security regime also prevails

Grenville Cross

Published: 9:30am, 17 Nov 2023

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Since the national security law for Hong Kong was enacted in 2020, it has more than proved its worth. It has not only ensured the survival of the “one country, two systems” policy, but also restored the city’s equilibrium.

Its success was such that, in 2022, President Xi Jinping made it clear that one country, two systems, which the Sino-British Joint Declaration of 1984 envisaged lasting for 50 years, “must be adhered to over the long run”.

Although the national security law is heavy on human rights, Western countries often demonise it. Despite having tough national security regimes of their own, they reacted to the enactment of the law for Hong Kong.

The United States, for example, ended the city’s trading preferences and handicapped its exports, banning “Made in Hong Kong” labelling. The United Kingdom urged British judges to resign from Hong Kong’s Court of Final Appeal, pressured a British barrister into withdrawing from a prosecution, and suspended its fugitive surrender agreement with Hong Kong.

Although British Foreign Secretary James Cleverly claimed in September that the national security law “continues to undermine Hong Kong’s legal and judicial systems”, this is not how its operators see things.

Since the enactment of the law, the judiciary has skilfully interpreted its provisions in a way that respects common law traditions. Indeed, in 2021, the Court of Final Appeal noted that “it is evident that the legislative intention is for the [national security law] to operate in tandem with the laws of the [Hong Kong special administrative region], seeking ‘convergence, compatibility and complementarity’ with local laws”.

When the highest court’s latest overseas recruit, Patrick Keane, former chief justice of the Federal Court of Australia, was appointed a non-permanent judge earlier this year, he noted “how successful” the court has been in “upholding the rule of law”. The Court of Final Appeal, he said, had a long history as “a very successful institution that’s made an important contribution to the success of Hong Kong”. It is a pity that the US lawmakers who have sought to sanction some of its judges were not listening.

The Court of Final Appeal in Central, Hong Kong. Australian judge Patrick Keane, appointed to the Hong Kong Court of Final Appeal this year, said the court had a long history as “a very successful institution”. Photo: Yik Yeung -man

In 2021, moreover, when British jurists faced pressure to resign as non-permanent Court of Final Appeal judges, one of them, Lord Sumption, rightly explained that the national security law contains “guarantees of human rights”.

The law not only stipulates in Article 4 that “human rights shall be respected and protected in safeguarding national security”, but also that the provisions of the International Covenant on Civil and Political Rights (ICCPR) “shall be protected in accordance with the law”. The covenant is also applicable under Article 39 of the Basic Law.

Among those rights is the right to a fair trial. This includes access to legal counsel, the presumption of innocence, the testing of prosecution witnesses, the giving and calling of evidence, and conviction only when guilt is proved beyond reasonable doubt.

A most severe national security law you will have never heard of

Despite this, foreign critics of the national security law have complained about the limitations on jury trials in national security cases (as where jurors face intimidation), restrictions on overseas lawyers taking part in such cases (due to the risk of state secrets being leaked), and the law’s extraterritorial reach (designed to protect Hong Kong from foreign dangers).

Yet the critics have little to say about other national security regimes, however draconian.

In Singapore, for example, the Internal Security Act is far harsher. Not only has trial by jury been abolished altogether, but Singapore has never signed the ICCPR. Unlike Hong Kong, it retains the death penalty, and national security suspects can be detained by executive order without trial for up to two years, which can be extended.

People walk across a bridge near the Supreme Court in Singapore on November 9, 2021. Photo: AFP

In the US, a battery of laws have dealt with national security, including the Patriot Act (2001). In suspected terrorism cases, the act weakened privacy rights by allowing the government access to people’s telephone records without court authorisation. Although the act was reformed by the Freedom Act (2015), which was supposed to end bulk surveillance, the National Security Agency still collected large amounts of data.

In the UK, WikiLeaks founder Julian Assange, incarcerated since April 2019, is fighting extradition to the US for allegedly, while outside the US, contravening its Espionage Act (1917).

Assange’s WikiLeaks revealed how at Guantanamo Bay, the US military prison in Cuba for terror suspects, new prisoners were held in isolation to soften them up before what was euphemistically called “enhanced interrogation”. The New York Times says that since 2002, about 780 prisoners have been held at Guantanamo Bay, of whom 30 remain. Some have been held for years without due process, with little or no complaint from Britain and its partners.

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Family and supporters of Julian Assange rally for his release in Sydney

In the UK, a strict national security regime also prevails, including the National Security Act (2023). Its sweeping provisions create new espionage and sabotage offences, curb the pre-trial rights of suspects, and give the police intrusive search powers. Unlike the national security law for Hong Kong, it does not incorporate the ICCPR. It was denounced in Parliament for its “chilling effect” on investigative journalism, and the Campaign for Freedom of Information called it “oppressive and disproportionate”.

Since 2003, moreover, it has been possible for British judges to dispense with juries if there is a serious risk of jury tampering, yet the critics only complain when this happens in Hong Kong. Even though foreign lawyers are generally barred from British courts, the critics fret over Hong Kong restrictions on overseas lawyers in national security trials.

To be credible, Western powers need to end their double standards. The national security law has been wisely applied by an independent judiciary, and its prioritisation of human rights distinguishes it from less liberal national security regimes elsewhere.

Grenville Cross SC is a criminal justice analyst