Threat Grows for Hong Kong's Press, Judiciary

National security law presents dramatic erosion of freedoms

Newly revealed details of the national security law forced on Hong Kong by Beijing indicate that the territory, for most of the decades of the Cold War a free press listening post into China, will no longer enjoy the strong press freedom and judicial independence that have made the territory a free speech bastion.

On the morning of July 7, Hong Kong chief executive Carrie Lam Cheng Yuet-ngor (above) said in response to a letter from the Hong Kong Foreign Correspondents’ Club (FCC) that she will give guarantees on press freedom only if there is “a 100 percent guarantee” that the FCC and journalists will not commit any offenses under the national security law.

During an FCC lunchtime talk later that day, FCC President Jodi Schneider said, “So obviously, that doesn’t sound terribly reassuring about press freedom.”

Schneider, a senior international editor of Bloomberg, was presiding over the talk on press freedom under the law, which took effect in Hong Kong on June 30. She said Article 54 of the security law is of concern to foreign journalists. That article stipulates that the newly-hatched Committee for Safeguarding National Security in Hong Kong and the Office of the Commissioner of the Chinese Ministry of Foreign Affairs in Hong Kong shall, together with the local government, “take necessary measures to strengthen the management” of foreign news agencies.

Foreign journalists in Hong Kong risk breaking the security law if found guilty of inciting sedition, terrorism, secession or foreign collusion, or colluding with Hong Kong people on these offenses, said Antony Dapiran, a Hong Kong-based lawyer and one of the speakers at the FCC talk. “So providing a platform or reporting on someone who is themselves talking about secession or subversion may be understood as incitement to subvert or incitement to secede.”

If a foreign media organization speaking to someone in Hong Kong is seen to be colluding with that person to incite hatred of the Chinese government among Hong Kong people, the foreign media organization may be liable, Dapiran said. “So you need to be very vigilant on how you report information.”

If foreign reporters quote sources saying things deemed to threaten national security, these sources may be at risk, Dapiran warned.

The security law says freedom of expression will be upheld, but on July 1 numerous people were arrested in Hong Kong for political speech, Dapiran noted. “It’s really difficult to take at face value what the law says.”

The full details of the security law including Article 54 were revealed shortly before midnight on June 30, after the law came into force. This is a reversal of the practice in common law jurisdictions like Hong Kong, Singapore, UK and Australia, in which bills undergo extensive consultation and debate before being passed.

The Committee for Safeguarding National Security, established in Hong Kong on July 3, has powers including collecting intelligence and managing news agencies. It convened its first meeting on July 6 to implement measures of the law which grant extensive powers to police and other authorities.

Under these new measures, a Hong Kong police officer of at least the rank of assistant commissioner can authorize officers to enter premises without a warrant under “urgent” situations to search for evidence. Police can apply for a warrant to demand suspected violators of the security law to surrender their travel documents.

For investigations into national security offenses, the Hong Kong Secretary for Justice or police officers may apply to the court for an order to require people to answer questions or furnish information, said a Hong Kong government press release on the July 6 meeting.

“If you destroy the information that is also an offense. It is better to destroy your information as soon as possible,” Dapiran advised.

If the Commissioner of Police suspects an electronic message on an electronic platform is likely to endanger national security, he may, with the approval of the Hong Kong Secretary for Security, authorize a police officer to request the relevant message publisher(s) and service provider(s) to remove the message or restrict access to the message. If the publisher fails to cooperate immediately, police officers may apply to a magistrate for a warrant to seize the electronic device.

Several US technology companies including Google, Facebook and Twitter suspended processing requests for user data from Hong Kong authorities, after the security law came into force.

“We believe freedom of expression is a fundamental human right and support the right of people to express themselves without fear for their safety or other repercussions,” a Facebook spokeswoman said in a statement on July 6.

“For a long time, Hong Kong was a place where you can get a breath of fresh air and you can report freely,” said Keith Richburg, the director of the Journalism and Media Studies Center at the University of Hong Kong and a speaker at the FCC talk.

But the security law seems to be moving Hong Kong towards the lower levels of press freedom in other Asian countries and perhaps towards China, said Richburg, adding that all Southeast Asian countries except East Timor have press freedom rankings in the bottom half of all countries. Journalists in Hong Kong should figure out how to operate within the security law, he said. “You have to figure out ways to navigate around it.”

Recalling his past as a correspondent in Beijing with the Washington Post, Richburg said, “In China, there are certain ways to write things but let the readers read between the lines to know what you say.”  Despite the heavy censorship in mainland China, local media like Caixin and Southern Weekend and international media like the New York Times have done excellent reporting, Richburg added.

Judicial challenges

“Apart from individuals who are obviously facing the threat of this law in Hong Kong right now, I think the second least enviable position to be in Hong Kong is to be a judge. There are lots of indications of interference of judicial independence,” said Sharron Fast, another speaker.

The presumption of bail and the right to silence have been removed in exceptional cases under the security law, said Fast, a legal expert at the Journalism and Media Studies Center. “There are many fundamental rights in the trial process that are effectively removed from judicial scrutiny by this law.”

If a trial involves state secrets or public order, all or part of the trial shall be closed to the media and the public, but the judgment shall be delivered in an open court. No bail will be granted to a suspect or defendant unless the judge has sufficient grounds for believing that the suspect or defendant will not continue to commit acts endangering national security, as stipulated by the security law.

“It’s a very difficult time to be a judge in Hong Kong. I think you might find yourself compromised,” she added.

A judge makes an oath of judicial independence in Hong Kong. If the Hong Kong judge tries to uphold that oath, he or she may come into conflict with the Chinese government, Fast said.

In cases of ambiguity over the security law, Chinese law and Beijing’s interpretation trumps Hong Kong law.

“The new law has changed that landscape. It empowers China’s security agents to operate openly in the city, toppling the legal firewall that has existed between the mainland’s party-controlled courts and HK’s independent judiciary,” tweeted Joshua Wong Chi-fund, a Hong Kong pro-democracy activist leader, on July 6.