Putting Byrnes and Hong Kong in a time machine: human rights in 2021 under the shadow of Beijing’s National Security Law

ABSTRACT

During his academic journey in Hong Kong, Professor Andrew Byrnes wrote extensively on various human rights issues in Hong Kong, including the role of the Bill of Rights Ordinance (BORO) in protecting and promoting human rights. When Byrnes left the University of Hong Kong in 2001, a national security law was contemplated, but perhaps not the type of National Security Law (NSL) that Beijing gifted to Hong Kong on 30 June 2020. Drawing on Byrnes’ human rights writings about Hong Kong, this article critically examines the impact of the NSL on human rights in Hong Kong protected under the Basic Law and the BORO. It also discusses the role of Hong Kong courts in minimising the adverse impact of the NSL on human rights. I argue that courts should rely on the basic structure doctrine to declare unconstitutional the relevant parts of the NSL. However, as Hong Kong courts may not be willing to opt for such an option, they should at least treat the NSL as a law of ‘suspect constitutionality’ and interpret its vague and wide provisions narrowly to strike a balance between national security considerations and the protection of human rights.

KEYWORDS:

• Basic Law
• Bill of Rights Ordinance
• Hong Kong
• Human rights
• national security law
• one country
• two systems

Acknowledgements

I would like to thank Mr TSE Long Hei Ronnie for his research assistance and acknowledge the grant (No. 9220095) provided by a private foundation to City University of Hong Kong for research about the relevance of the basic structure doctrine to the Basic Law. I would also like to thank the two anonymous reviewers and Jill Cottrell Ghai for their useful comments and suggestions.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Surya Deva

Surya Deva is a Professor at the Macquarie Law School of Macquarie University, and an Adjunct Professor at the School of Law of City University of Hong Kong.