As the proverb says, “law cannot persuade when it cannot punish.” Around the first anniversary of the implementation of the National Security Law for Hong Kong, the arrests of several executives and lead editors of the now-defunct Apple Daily by the police’s national security unit on suspicion of conspiring to collude with foreign forces in breach of the National Security Law are a timely reminder to all perpetrators that the law is not a “toothless tiger”. More importantly, the enforcement action fired a warning shot to all recalcitrant parties that news coverage will never be legally condoned as a pretext to challenge national security.
Central to police arrests of the seven tabloid executives and editorial writers, the enforcement action concerns the publication of more than 30 offending articles allegedly calling for foreign sanctions against Hong Kong and the Chinese mainland in breach of Article 29(4) of the National Security Law, which outlaws any person requesting a foreign country, institution, organization or individual, or conspiring with the above, to impose sanctions or a blockade, or engage in other hostile activities against the Hong Kong Special Administrative Region or the People’s Republic of China. To facilitate the investigation, the police also froze HK$18 million ($2.3 million) worth of assets of companies affiliated with the newspaper and seized 38 journalists’ computers at the tabloid’s headquarters, empowered by Article 43 of the National Security Law and its Implementation Rules. There is no doubt that the police enforcement action has a solid and unquestionable legal basis.
In brushing off the unwarranted concern over whether Hong Kong’s freedom of speech, press and publication will be stifled by the police action and the subsequent demise of the tabloid, one must acknowledge that the respect and protection of human rights, including the aforesaid enjoyed under the Basic Law of the HKSAR and the provisions of the International Covenant on Civil and Political Rights, have been expressly preserved in Article 4 of the National Security Law. In fact, such freedoms are never absolute even in the West. According to Article 19(3) of the ICCPR, the exercise of the freedoms is subject to certain restrictions, which, among others, include the protection of national security or of public order. A similar legal equivalent is found in Article 10 of the Human Rights Act 1998 in the United Kingdom. It must be emphasized that the freedoms are qualified rights and go hand in hand with responsibilities to respect and protect national security and public order as prescribed by the laws in any societies.
Justice may be late, but never absent. As the rule of law has long been the cornerstone and core value of Hong Kong’s stability and prosperity, no man is above the law
Moreover, the principle of the rule of law is well manifested in Article 5 of the National Security Law. In terms of the defendants’ legal rights, common law principles such as the presumption of innocence, the right not to be tried twice for the same offense in criminal proceedings, as well as the defendants’ right to defend themselves in judicial proceedings have been expressly provided. Any defendants, including the arrested Apple Daily executives, are entitled to the above rights if they decide to put forth their case and prove their innocence at trial. For the spirit of the rule of law in Hong Kong, if the arrested individuals or their sympathizers contend that they have been wrongly charged, instead of coining unsubstantiated claims against the police, they should leave their cases to be adjudicated by the trial judges fairly and independently according to the laws.
In addition, the crackdown on the tabloid, which is alleged to fall foul of the National Security Law, never means to tame our feisty media by having a chilling effect on any professionals in the media industry. A line must be demarcated between most responsible journalists and media outlets producing and publishing fact-based reports, and those using news coverage as a pretext to engage in any unlawful conduct with the objective or intent to endanger national security. The despicable existence of the latter, even for just a day longer, would only have done a disservice to each and every professional media worker and wreaked havoc on our healthy media ecosystem under which the freedom of speech, press and publication can only be rightfully exercised. Such freedoms must never be confused with freedoms of spreading fake news and unfounded conspiracies, and endangering national security. To sum up, the police arrests demonstrate how law and order in Hong Kong is alive and kicking with the National Security Law in place.
Justice may be late, but never absent. As the rule of law has long been the cornerstone and core value of Hong Kong’s stability and prosperity, no man is above the law. The police arrests and the shutdown of the 26-year-old tabloid deliver a stark, Shakespearean warning to all those camouflaged as “media”, “press” or “journalists” but attempting to commit offenses under the National Security Law, which bans acts of session, subversion, terrorist activities, and collusion with external forces to endanger national security: “One will hoist with one’s own petard.”
For a “rotten apple”, the only way is to dispose of it right away. But for a “forbidden fruit” sowing seeds of lies, conspiracies, hatred and hostility in our city for more than a quarter-century, its deleteriously inciteful sequela may linger, not least with the heinous lone-wolf stabbing of a policeman in Causeway Bay on Thursday night. Will the full force of the law be enough to mend the omnipresent rifts and tensions that have been exacerbated in Hong Kong? My prayers go out to those who have been poisoned and traumatized by their wrongful bites all these years. The light of justice will prevail, however long the darkness of the night has been.
The author is a Hong Kong practicing solicitor and chairman of Y Legalites.
The views do not necessarily reflect those of China Daily.