The International Bar Association's Human Rights Institute (IBAHRI) has expressed profound concern about the Hong Kong Safeguarding National Security Law (SNS Law) that came into force on 23 March 2024 following an accelerated legislative process by the Hong Kong Legislative Council.
This legislation represents a further step in the reversal of democratic rights in Hong Kong since the imposition of the National Security Law by the Beijing Government in June 2020. The new law is also expected to place significant pressure on the independence of the legal profession, further compromising its capacity to fulfil its professional duties freely and impartially.
The accelerated procedure that led to the approval of the SNS Bill within two weeks of it being presented entailed minimal scrutiny from the legislature on a law that now strengthens existing offences and introduces new measures on treason, espionage, external interference, state secrets and sedition.
The SNS Law significantly enables further crackdowns on human rights in Hong Kong, going much further than the National Security Law, curtailing more of the rights and freedoms enjoyed in the city under the cover of safeguarding national security. Indeed, many of the criminalised behaviours named in the SNS Law are in opposition to fundamental human rights, such as freedom of expression, freedom of peaceful assembly and association, and the right to fair trial.
In addition, the broad and vague definitions of the alleged crimes in the SNS Law will enable arbitrary and politically motivated prosecutions of any form of dissent, increasing levels of self-censorship already negatively affecting Hong Kong's political and social landscape.
The claim of the 'extraterritorial reach' of the SNS Law is a further element of concern. It could be abused as a tool of intimidation that reaches beyond Hong Kong's borders. In summary, the whole legislation contradicts Hong Kong's international obligations, such as the International Covenant on Civil and Political Rights (ICCPR), which is integrated into Hong Kong's legal system through the guarantees of the Basic Law, and the Sino-British Joint Declaration.
IBAHRI Co-Chair and Immediate Past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc, commented: 'The Safeguarding National Security Law's sweeping provisions and broad definitions are the latest tools in the box of an ever-more authoritarian government. The IBAHRI urges Hong Kong and China's authorities to protect the exercise of fundamental human rights and freedoms in the Special Administrative Region and to strengthen Hong Kong's autonomy under the principle of "one country, two systems", in compliance with the Basic Laws and the international obligations to which they have willingly signed and are bound'.
Specific provisions in the SNS Law raise concerns with reference to the independence of the legal profession in Hong Kong. According to Clause 76 of the SNS Law, certain lawyers or law firms can be banned from representing clients suspected of having committed national security offences. On the grounds that such representation would endanger national security or hinder the police investigation and obstruct the course of justice, human rights could be further abused. The clear implication of this vaguely worded clause will likely have a chilling effect on the legal profession in Hong Kong: lawyers will be discouraged from representing clients in national security cases, fearing potential targeting or damage to their reputation.
Clause 77 of the SNS Law prevents detainees from consulting with any lawyers for a 48-hour period, when meeting with a lawyer is deemed to pose a threat to national security, the investigation, or the course of justice. Hong Kong's Secretary for Justice justified these provisions by claiming that 'the guiding thought is that some lawyers are not sincerely providing legal services, but instead they may take the opportunity to destroy evidence or notify [an accomplice]'. However, rules of conduct for lawyers automatically preclude such activities from taking place.
At the domestic level, the two provisions clearly contravene Article 35 of the Hong Kong Basic Law, which entitles Hong Kong residents to confidential legal advice, court access, lawyer selection for timely protection of their rights, as well as access to judicial remedies. At the international level, these provisions breach the 1990 United Nations Basic Principles on the Role of Lawyers, which set out the right to have access to a lawyer of one's choosing, to protect lawyers from harassment, intimidation, or arbitrary interference in the performance of their duties, and to uphold the confidentiality of attorney-client communication.
IBAHRI Co-Chair Mark Stephens CBE, stated: 'Lawyers are pivotal in upholding the Rule of Law, defending human rights, and providing access to justice for everyone, regardless of their background or status. Therefore, preserving the independence and integrity of the legal profession is paramount for justice and democracy. The Hong Kong Safeguarding National Security Law represents a blatant denial of these fundamental principles. It intensifies the authority of the executive branch and escalates repression to a higher degree, while obstructing any potential intervention by the foremost defenders of people's rights and freedoms - lawyers.'
