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Last year on June 4, Hong Kong’s Victoria Park was filled with people commemorating the 1989 Tiananmen Square massacre.
This year, it was harrowingly empty.
It is not for a lack of attention. Rather, it is because the Hong Kong National Security Law has silenced civil society. Hong Kong lives in a climate of fear brought upon by the law, with Beijing police given wide-ranging powers to crack down on dissent – even peaceful ones.
Vigils are barred under threat of five years’ imprisonment.
Alarming as it may be to us here in Thailand, what is even more alarming is that the security law that the Hong Kong government has put in place is being reproduced around the region, including here in Thailand.
A primary concern about the Hong Kong National Security Law is, firstly, the broad scope of the term “national security.” The term, in the provisions, can mean virtually anything depending on who is interpreting it. This becomes a problem since it contravenes the commonly-accepted principle of legality, which in international law states that a person can only be punished if he commits an act clearly defined as contrary to the law.
In this regard, the law must then clearly define the offence and the punishment. Therefore, the ambiguous wording of the National Security Law, which does not define clearly “national security,” makes it a particularly handy tool to target political dissidents, which is what it has been brazenly used for over the past year. It does not help that court cases involving “national security” can be carried out in secret without a jury under this law.
The latest example of its use is the police raid of the pro-democracy Apple Daily tabloid’s office and arresting its executives, charging them with collusion with a foreign power. The shrinking space for freedom of expression looms over Hong Kong civil society, as the media is left to guess which content will get them arrested and which will not. Therefore, many simply shy away from any criticism out of fear.
The echoes of this appear in Thailand’s Official Information Act amendment, which states, inter alia, that the state does not need to disclose information that will potentially harm the monarchy, military, or national security. Moreover, court cases on this topic will be heard behind closed doors as well.
It is with no surprise that this amendment is facing severe backlash from Thai civil society. Thailand must do well to ensure that the scope of national security is clearly defined and does not infringe on the public’s right to know. Otherwise, how can our institutions answer to the people if the people are unable to know what it is doing?
Another example in Thailand is Section 116 of the Thai Criminal Code, or the Sedition Act. It criminalises expressions by words, writings, or other means, which affect the national security of Thailand, while exempting those who are expressing an honest opinion in good faith. However, it is broadly written so that the expression that causes a disturbance (per section 4(2)) can mean virtually anything.
While the law aims to protect national security, acts that simply affect public order could be charged under this law– say, for example, blocking a royal motorcade in Bunkueanun ‘Francis’ Paothong’s case. Indeed, as accounted for by iLaw, many of the cases by which someone is charged under this act are political and anti-government in nature. This goes to show that “national security” is increasingly being used as an excuse to stifle freedom of political thought, reminiscent of that under the Hong Kong National Security Law. Indeed, the term is becoming increasingly synonymous with the security of the ruling party.
Checks and Balances
Checks and balances refer to the power of the branches of government – executive, legislative, and judiciary – to limit each other’s powers in a system of separation of powers. A key principle of democracy, it is seldom well applied in Hong Kong or Thailand. The Hong Kong National Security Law establishes the Committee for Safeguarding National Security, which is held accountable only to the Central People’s Government (Article 12 of the law).
Furthermore, Article 16 establishes a national security division within the Hong Kong Police without any checks by the judiciary nor the public. This concern is further compounded by the recently-passed Improving Electoral System Bill, which reduced the number of publicly elected seats to just 22%, with national security bodies screening candidates. In effect, it lacks oversight by any body other than the Chinese Communist Party.
Sounds familiar? In Thailand’s case, the National Council for Peace and Order (NCPO) established following the 2014 coup, is defunct; however, its dead hand lives on in Section 272 of the 2017 Thai Constitution, which ensures the orders made by the NCPO. Its shadow also lives on through the junta-appointed senators which make up 190 of the 250 seats, and the rest of the senators who also have to also be approved by the NCPO. The senate is given wide-ranging powers to influence all three branches of government: in the executive branch, senators play a role in electing a prime minister; in the legislative branch, they have the power to amend the constitution; in the judicial branch, they have the power to approve of judges.
Who, then, can check the Senate?
This is not a mere theoretical debate. From their role in electing Prayut to stay on as Prime Minister to – more recently – voting against any constitutional amendments submitted by opposition powers, they have used these powers to affect how the country is run and they will do so again.
The Hong Kong National Security Law may have passed overnight, but its contents took years to slowly come into fruition. And – as seen in the past year – the grip of the law will tighten further and further. Therefore, we must protest against legal content that threatens democracy. Pushing for public consultation of laws and reform of the constitution is now more important than ever. Otherwise, the right to legitimate and peaceful means of expression will be gradually eroded as more and more people are arrested in the name of national security. We must learn from Hong Kong, and the chilling message its National Security Law produced: any one of us could be next.