Saturday, April 2, 2016

HKU Law Faculty Members Comment on the Hong Kong National Party Controversy

Tony Cheung
South China Morning Post
1 April 2016
Hong Kong National Party, the new kid on the radical block, is igniting debate on whether an extreme party that rejects the Basic Law and wants to turn Hong Kong into an independent republic can exist legally.
      While it is not the first group to advocate independence, it is at the extreme end of the localism movement as it has not only refused to recognise the Basic Law, the city’s mini-constitution, it has pledged to use “whatever means available” for Hong Kong to break away from the mainland.
     Can such a party exist in Hong Kong, a special administrative region of China, and can a Hong Kong citizen advocate independence without facing legal repercussions are among the questions that have sparked divided views.
     While some argued advocating independence without taking any action was part of freedom of speech, last night Beijing’s liaison office chief Zhang Xiaoming disagreed with such a stance. In an interview with Phoenix TV, he said the founding of the new party “went beyond the realm of the freedom of expression ... and must not be tolerated”...
      University of Hong Kong principal law lecturer Eric Cheung Tat-ming warned that the ordinance must not be interpreted without taking into account various other legislation, including the Basic Law and the Hong Kong Bill of Rights, that protect freedoms. “Those provisions in the Crimes Ordinance were outdated ... and their legality and constitutionality were in question,” Cheung told the Post.
      Former HKU law dean Johannes Chan Man-mun also said it was impossible to prosecute someone for advocating independence without action.
      Without further elaborating, HKU law professor Albert Chen Hung-yee said the provision about sedition “might not be applicable to the current situation”, but lawyer Maggie Chan Man-ki disagreed and said: “It is irresponsible to rule out the possibility of any legal liability ... because even the Bill of Rights says the exercise of [civic liberties] should not affect national security.”
       Former security minister Regina Ip Lau Suk-yee warned that while words did not constitute a crime, the party could be prosecuted when it organised activities to achieve its goals.
      While the Societies Ordinance is another law that could deal with acts that threaten national security, it is unlikely that the new party has applied to be registered as one, as most political groups are registered as companies.
      The party’s spokesman had said they had been advised by a third party that they might not be able to register under the Companies Registry. The registry told the Post it would not comment on individual cases.
      HKU law professor Simon Young told the Post that the party’s company registration depended on “whether ... seeking the independence of Hong Kong [peacefully] can be said to be not a lawful purpose”.
      He also said that under the Societies Ordinance, “it is hard to see how prohibiting the group would be necessary for national security ... [if] the party only seeks to discuss the possibility of independence and to achieve” it by peaceful means... Click here to read the full article.
"Independence stone dead in water"
The Standard
1 April 2016
A former Occupy Central activist has launched Hong Kong National Party to push for independence.
     However, that's akin to throwing a pebble in the water - after creating a few ripples, the stone sinks. Independence can never be a serious issue for people here.
     Obviously, some radicals are doing everything they can to anger Beijing ahead of the Legislative Council election in September, knowing that the communists are extraordinarily sensitive about the term "independence."
     However, Beijing's reaction has been surprisingly restrained. Instead, Xinhua News Agency spared just about 200 characters to denounce the move as harmful to national sovereignty and security...
      University of Hong Kong law professor Johannes Chan Man-mun said the SAR enjoys freedom of speech, and nobody should be prosecuted simply for speaking their minds - unless one crosses the line to commit illegal acts, including the use of force... Click here to read full article.
Hermina Wong
Hong Kong Free Press
31 March 2016
Talk of independence for Hong Kong could bring forward legislation to enact Article 23, the security law targeting subversion and sedition which was abandoned in the face of mass opposition in 2003, University of Hong Kong law Professor Eric Cheung Tat-ming said on Thursday. He added that he was worried that such discussions could touch a nerve in the central government.
     Regarding the newly-established, pro-independence Hong Kong National Party, Cheung said that their stance may not conform to the Constitution of China and the Basic Law, but the suggestion that it severely endangers the country is an exaggeration, according to a report by RTHK. Cheung said: “It’s the same as you suggesting that ‘defeat the Communist Party’ is against the Constitution of China, but this does not mean that people who voiced this kind of opinion have broken the law. The Basic Law and Bill of Rights protect freedom of speech.”... Click here to read the full article.
RTHK Podcasts
31 March 2016
Law Professor Simon Young from the University of Hong Kong says simply discussing independence for Hong Kong would not violate the Basic Law. He says the police have powers to deal with people who undermine national security, public order or public safety. But he tells Jim Gould that if the independence-leaning Hong Kong National Party pursues its objectives through lawful means, it is quite questionable whether those powers could be used against it.  Click here to listen.

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