The National Security Law (NSL) of Hong Kong Special Administrative Region (HK SAR) has been subject to extensive international condemnation. However, the October 8 conviction of 4 minors (under the banner of a pro-independence group called “Returning Valiant”) for conspiracy to subvert the powers of the state serves as evidence of the alarming violation of basic rights. From an international human rights angle, this marks yet another curb on dissent and endangers the rights of minors as enshrined in international conventions and in the NSL itself. The law, passed by China in 2020, allows for increased power to prosecute protestors under offences deemed as a threat to national security. These crimes include secession, subversion, terrorism, and collusion. It is notable that the Act was not open for public opinion and was passed by bypassing the local legislature. Further, alarming instances like the arrest of 47 pro democracy activists in 2021 also document the excessive application of subversion charges on activists, lawyers, and journalists, indicating that the law affects all kinds of stakeholders.
The most blatant violation of the human rights of minors was the arduous, year-long imprisonment, as evidenced by a study which states that under juvenile courts, the average waiting time from plea to trial is 49 days. The judgement indicates that the minors concerned had confessed to the crime when, in reality, they were simply showing dissent, which corresponds to the finding that being remanded in custody can actually lead to a far greater chance of pleading guilty. Furthermore, prison interviewees in the past have stated that pre-trial detention can actually be worse than imprisonment, given that their hygiene conditions and food quality was far worse than in prison. Essentially, pre-trial detention has been proven to be detrimental to the liberty of thought and right to life of the individuals detained, threatening the unbiased judicial process as it presumes guilt.
VIOLATION OF THE DOMESTIC LAWS OF HONG KONG
The conviction not only violates the human rights of minors but also articles 27 and 28 of the Basic Law of HK SAR. The Basic Law provides for the freedom of speech and publication under article 27, and pursuant to article 28 such freedom is inviolable. It must be stressed that rights such as the freedom of speech and expression are prerequisites to a liberal and open society. Accordingly, minors in most institutions are provided a higher degree of protection and exemption from ordinary criminal proceedings following the rationale that they are not yet capable of understanding the impact and consequences of a crime. As per this logic, expecting minors to understand the true nature of the offence of conspiracy to subvert is unreasonable. Moreover, the judgement violates the NSL itself by virtue of violating the human rights of the minors that are protected under article 4 of the NSL which provides for the protection of human rights while safeguarding the national security of the country.
IN CONTRAVENTION TO INTERNATIONAL CONVENTIONS
In addition to violating the domestic laws, it also infringes upon international conventions like the Convention on the Rights of the Children (CRC), which, as per China’s notification, shall be applicable to HK SAR. Article 3(1) of the convention envisions that the best interests of the child should be the first priority, even when it comes to courts of law and administrative bodies, while article 16 hinders any interference with privacy, attack on reputation and honour, etc. It is pertinent that both of these have been violated here by the long pre-trial detention. Article 6, further, grants the right to life to the child, which includes basic health, which is being threatened here. Articles 12 and 13 provide for the right to form and express views and the freedom of expression, which is clearly violated given the curbing of any dissent. A cardinal part of the CRC is article 40, which lays down that the child's sense of dignity and worth should be promoted in the case of him being alleged, accused, or recognised as having committed an offence. This, in its wide ambit, restricts the perpetual incarceration that the minors have been subjected to.
The International Covenant on Civil and Political Rights (ICCPR), was affected in HK SAR by virtue of article 39 of the Basic Law. Article 9 prevents arbitrary arrest and limits the deprivation of liberty unless in accordance with law, and article 10 states that all persons deprived of liberty should be treated with respect for dignity. Here, the minors have been arrested and detained for protesting against the government. Further, article 19 holds a similar character to article 10 as it limits the freedom to hold opinions and expression in accordance with law. Such a conviction has proved that the application of the NSL does not coincide with these well-established international conventions.
ISSUES OF URGENT CONCERN AND THE WAY FORWARD
Hong Kong’s conviction of minors is not an isolated incident indicating the abuse of national security laws. In practice, Sri Lanka’s Anti-terrorism law has the same detrimental consequences as it has also booked 3 student activists under it. The recent crackdown on activists in Iran and bans on news agencies in Myanmar are similarly concerning.
While the NSL has been denounced since its inception, it proves to be detrimental to people’s freedom of speech and the overall right to life. When one’s freedom of speech and expression are impacted in a manner that creates an atmosphere of fear in society, the right to life of the citizens is directly hampered. This is further aggravated in the case of children who must be cared for and protected from administrative abuse of power. Understanding how different nations violate the human rights of people in the name of national security is the first step in resolving such problems, but the immediate concern is to collectively condemn the conviction of minors under the NSL in HK SAR and take action to ensure it is not normalised.
Megha Bhartiya is a second year law student from Rajiv Gandhi National University of Law, India. She’s an Associate Editor at RSRR, a flagship journal of RGNUL, and has publications to her name at Jurist, University of Pittsburgh, RFMLR, NLIU-CLT and more.
Ria Bansal is a second-year law student, pursuing BA/LLB (Hons.) at the Rajiv Gandhi National University of Law (RGNUL). She is an associate editor at the RGNUL Student Research Review, a premier centre for multi-faceted legal research at RGNUL.