The cases of the 47 individuals accused of “conspiracy to commit subversion”—known as the Hong Kong 47, or NSL 47, in reference to the National Security Law under which they are charged—have languished in Hong Kong’s court system for more than a year, while most of the detainees have been denied bail. HRIC has created a dedicated webpage—“The Hong Kong 47”—to provide updated information on their cases and their stories and words to highlight their prosecution for efforts to expand meaningful participation in the Hong Kong legislature and urge the international community to monitor their cases.
Hong Kong 47: What You Need to Know
What’s at Stake: Hong Kong’s Rule of Law on Trial
Many governments have laws against “subversion of the state power”—i.e., overthrowing the government with violence. In accordance with international standards, the prosecution of national security crimes must comply with the principle of legality, necessity, and proportionality. However, the National Security Law’s vague, and yet comprehensive, provisions criminalizing the exercise of protected rights, as well as its draconian implementation, raise serious rule-of-law concerns under both international law and China’s international obligations.
The International Covenant on Civil and Political Rights (ICCPR), a key international human rights treaty—ratified by the UK colonial government in 1976 and in accordance with Hong Kong’s constitution, Basic Law (Article 39)—applies to Hong Kong. Moreover, the National Security Law itself, in Article 4, explicitly provides for the protection of rights under the ICCPR. (In addition, the UN Special Rapporteur on the promotion of human rights and fundamental freedoms while countering terrorism (SRCT) recently concluded that the ICCPR also applies to any NSL cases that are transferred to mainland China.)
The NSL states:
In safeguarding national security, the Hong Kong Special Administrative Region shall respect and guarantee human rights. The rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.
National Security Law, Article 4
The specific fundamental rights at stake in the cases of the Hong Kong 47 include: the right to participate, the right of peaceful assembly, and the right to trial within a reasonable time—rights that are protected under the ICCPR and by Article 4 of the NSL.
The right to participate
Every citizen shall have the right and the opportunity . . . without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
ICCPR, Article 25
The right of peaceful assembly
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
ICCPR, Article 21
(For further discussion of the rights to participate and of peaceful assembly, see HRIC, “Hong Kong Arrests of 55: Time to Test Article 4 of National Security Law,” January 8, 2021.)
The right to a trial within a reasonable time
3. Anyone arrested or detained on a criminal charge . . . shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody. . . .
ICCPR, Article 9 (3)
The denial of bail in the majority of the cases under the NSL reveals that the law—on its face and as applied—turns the presumption of bail under international standards, and in the common law applicable to Hong Kong, into a presumption against bail.
The court has not set a date for the trial of the 47. There is speculation that their trials will not even take place until 2023—at the earliest. The prolonged detention of 34 of the 47 individuals without a trial to determine the facts of their cases is in practice punishment and deprivation of liberty without a determination of guilt. This blatantly undermines the right to a trial within a reasonable time and the presumption of innocence.
In addition, in February to late March 2022, the Hong Kong authorities, citing a COVID-19 surge, suspended outside visits to prisons and detention facilities, furthering the detainees’ isolation. A defendant at a March 4, 2022 hearing said: “There is no way to connect with the outside world.” In March 2022, it also came to light that 23 of the those detained have been kept in solitary confinement.
Notwithstanding the explicit guarantee of the fundamental rights protected under the ICCPR, the politicized application of the NSL and the lack of adequate due process safeguards are deepening the suppression of expression, dissent, and political opposition, and the undermining of the exercise of the rights to participate and of peaceful assembly.
A Battle in Beijing’s War of Authoritarian Control Over Hong Kong
In less than two years since the enactment of the National Security Law, the Hong Kong authorities, following directives from the Beijing government, have repeatedly flouted their international obligations to protect fundamental rights guaranteed under international and domestic law. Against sustained criticism from international human rights authorities and condemnation from governments, they have used the National Security Law to restrict free speech, strangle independent media, crush dissent, curb academic freedom, and hound civil society organizations out of existence—essentially gutting a once free and vibrant civil society. They have also intimidated the Hong Kong Bar Association and the Law Society of Hong Kong into silence, and remade the electoral system to bar any opposition. In fact, in the upcoming “election” for Hong Kong’s Chief Executive, only one candidate can run, a candidate backed by Beijing.
China is a key player in two of the world’s major crises today. Its actions—the blatant support for Russia, which is emboldening Putin’s brutal war of aggression against Ukraine, and the merciless zero-COVID policy at home, which is creating a humanitarian crisis in Shanghai—are having grave impacts on global security and public health.
In Beijing’s war of authoritarian control over Hong Kong, the prosecution of the Hong Kong 47 can be seen as a critical battle, one that will be fought in court. The eradication of democracy and rights in any part of the world is a warning to the international community of the accompanying spread of authoritarian regimes beyond their borders.
The international community must closely monitor the prosecution of the Hong Kong 47. The process and outcome of their trials will be a critical moment for the Hong Kong judiciary: it is a high stakes stress test of the rule of law in Hong Kong. Can the judiciary—with judges handpicked by the Chief Executive specifically to adjudicate national security cases (NSL, Article 44)—demonstrate that it will maintain its independence as a key pillar of the rule of law?
Hong Kong residents line up to cast their ballots in the unofficial primary in July 2020.
Photo: Studio Incendo