New article:《港版國安法》:香港法治的破洞、人權的缺口 (The National Security Law for Hong Kong: Infringements of Hong Kong’s Rule of Law and Human Rights)

For the past four months, I’ve written a series of Chinese-language essays about the National Security Law (NSL) for Hong Kong, all of which are out on the blog of Taiwan Academia Sinica’s Law Institute (link here).

These five short essays are now put together and adapted into an article that’s just published in the Taiwan Human Rights Journal. Here it is:《港版國安法》:香港法治的破洞、人權的缺口 (The National Security Law for HongKong: Infringements of Hong Kong’s Rule of Law and Human Rights). I’m also pasting the abstract below. My hope is that the article can reach more readers in the Chinese speaking world, especially those in Taiwan and Hong Kong.

《港版國安法》:香港法治的破洞、 人權的缺口

陳玉潔

中央研究院法律學研究所助研究員

紐約大學亞美法研究所合作學者

摘要

《中華人民共和國香港特別行政區維護國家安全法》(《港版國安法》)為香港法治人權帶來前所未有的衝擊和挑戰。本文透過《港版國安法》的四個主要面向―機制、程序、罪名和效力範圍―呈現這部法律的樣貌,聚焦在《國安法》如何侵蝕人身、言論、新聞、出版、集會、遊行、示威、結社自由等基本人權保障以及香港法治中的法律明確性、司法獨立、公共問責等原則。

展望未來,本文主張香港受到《國安法》影響的社群―包括民間團體、媒體、政界、學界、商界等―應主動進行「影響評估」,公開探討該法對民間倡議、新聞報導、政治運動、學術研究、金融經貿帶來的挑戰,由社群共同、自發地研議因應措施,而非先行自我審查,或被動地等待問題發生。除了運用香港本身豐富的人權法治資源外,香港和國際社會也應善用《國安法》本身對於人權保障的相關規定,持續深化香港人權法治文化底蘊,減少《國安法》的傷害。透過這種社群自發的取徑,可以精確地發現問題、針對該社群需要擬定對策,亦可使自由理念向下扎根,強化香港社會的韌性。

關鍵字:

《中華人民共和國香港特別行政區維護國家安全法》、人權、法治、社群自發。

The National Security Law for Hong Kong: Infringements of Hong Kong’s Rule of Law and Human Rights

Yu-Jie Chen

Assistant Research Professor, Institutum Iurisprudentiae, Academia Sinica

Affiliated Scholar, U.S.-Asia Law Institute, NYU School of Law

Abstract:

The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (National Security Law or NSL) has had an unprecedented impact and brought challenges to the rule of law and human rights in Hong Kong. This article discusses four major aspects of the National Security Law—its mechanisms, procedures, targeted offenses and reach—and focuses on how the NSL erodes fundamental freedoms including personal liberty and freedoms of speech, press, publication, assembly, procession, demonstration and association as well as the principles of legal certainty, judicial independence, and public accountability in Hong Kong’s rule of law.

Looking to the future, this article suggests that the communities affected by the NSL, including civil society groups, the media, political circles, academia and businesses, should take the initiative to conduct impact assessments, openly discussing the Law’s impact on civil society advocacy, news reporting, political movements, academic research and business operations. The impacted communities should come together to proactively formulate measures in response to the Law, rather than self-censor prematurely or wait passively for problems to occur. In addition to using Hong Kong’s rich resources in human rights and rule of law, Hong Kong and international civil society should take advantage of the relevant provisions in the NSL on the protection of human rights, thereby continuing to deepen the cultural heritage of Hong Kong’s human rights and rule of law and minimizing the harm caused by the NSL. Through this proactive, community-driven approach, problems caused by the NSL in various communities can be identified accurately and responses can be tailored to solve them. In addition, the spirit of freedom can further take root to strengthen the resilience of Hong Kong society.

Keywords:

National Security Law for Hong Kong, rule of law, human rights protection, proactive community-driven approach

Additionally, if you’re looking for English-language resources and articles, I’ll recommend, among others, Jerry Cohen’s blog; Donald Clarke’s various writings such as this one and this; Carole Petersen’s congressional testimony and her Hong Kong Law Review article “The Disappearing Firewall: International Consequences of Beijing’s Decision to Impose a National Security Law and Operate National Security Institutions in Hong Kong”; Tom Kellogg’s various writings such as this and this; Michael Davis’s newly-published book, Making Hong Kong China: The Rollback of Human Rights and the Rule of Law; Human Rights in China’s report, Too Soon to Concede the Future: The Implementation of The National Security Law for Hong Kong—An HRIC White Paper; and the US Congressional Research Service’s China’s National Security Law for Hong Kong: Issues for Congress.

Also, this issue of the Taiwan Human Rights Journal has two other worthwhile articles (also in Chinese-language) on Hong Kong (link here again):

  • 在迷霧裡尋找燈塔 ―「雨傘運動」以來香港的民主發展 / 潘嘉偉(法國里昂大學跨文本與跨文化研究所博士候選人)Looking for the Lighthouse in the Dense Fog——The Democratic Struggle in Hong Kong since the Umbrella Movement / Patrick Kar-wai Poon(PhD Candidate, Institute for Transtextual and Transcultural Studies (IETT), Université de Lyon, France)
  • 是不能說,還是不知從何說起?―談台灣援助香港的庇護工作與法制化的挫敗 / 江旻諺(經濟民主連合研究員)The Failure of the Legalization of Taiwan’s Asylum Mechanism for Hong Kong Protestors / Min-Yen Chiang(Research Fellow, Economic Democracy Union)

Finally, during and since writing the article, every day there are new, negative developments under the NSL and whatnot (and I’m sure they will keep coming). It’s hard not to feel disheartened as a human rights scholar myself and I’m sure it’s the same for others in different capacities working on human rights. But it’s useful to bear in mind that the struggle for freedom is always a long process (just look at Taiwan’s efforts to democratize). At this moment, I think it’s particularly important to preserve all the sources of Hong Kong’s resilience, which I discuss a bit in my article and is discussed at length in the outstanding book “China’s National Security: Endangering Hong Kong’s Rule of Law?” edited by Cora Chan and Fiona de Londras. Although the book was published before the NSL, the discussion in the book is still highly relevant today.

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