HONG KONG HUMAN RIGHTS MONITOR

 

 

 

 

 

 

 

The Second Periodic Report on the Hong Kong Special Administrative Region of the People’s Republic of China in light of the International Covenant on Civil and Political Rights

 

Submission by Hong Kong Human Rights Monitor

 

 

March 2006

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4/F Kam Tak Building, 20 Mercer Street, Sheung Wan, Hong Kong

Phone: (852) 2811-4488     Fax: (852) 2802-6012

Email: contact@hkhrm.org.hk     Home page: http://hkhrm.org.hk

 

 

Chairperson: Cyd Ho  Deputy Chairs: Chong Yiu Kwong, John Clancey

Secretary: Betty Cheng  Treasurer: Raymond Tsui

Founding members: Paul Harris; John Kamm; Phillip Ross; Ho Hei Wah; Johannes Chan; Andrew Byrnes; Charles Mok; Christine Loh

Table of Contents

 

Executive Summary                                                                 para 1- 7

 

Chap. 1: Self Determination and the Right to Participate in Public Life (Art 1 & 25)

 

1.     Self-Determination                                                        para 1-3

2.     SCBOC Interpretation                                                   para 4-9

3.     Post-Handover Legislative Council                                 para 10-20

4.     CE Election                                                                    para 21-37

5.     2004 Elections                                                               para 38-46

6.     District Councils                                                            para 47-49 

7.     Political Rights of Women                                              para 50-55

8.     Threats and Vandalism Against Democratic Legislators para 77-79

9.     Human Rights Education                                              para 84-87

 

Chap. 2: Ensuring Rights to All Individuals & Enforceable Remedies without Distinction; Equal Rights of Men & Women (Arts 2 & 3)

 

1.     Establishing A Human Rights Commission & Independence of Other Bodies                                                               para 88-98

2.     Lack of Transparency in Appointment of EOC Chairperson

para 99-108

3.     Violence Against Women (Domestic and Sexual) para 109-118

 

Chap. 3: Emergency and Limitation on Derogation: Right to Life; No Torture and Slavery (Arts. 4,6,7,8)

 

1.     Human Trafficking                                               para 119-129

2.     Forced Labour                                                      para 130-136

3.     Emergency Regulations Ordinance 1922             para 137-143

 

Chap. 4: Liberty and Security of the Person; Detention and Rights of Detainees; Prohibition of Torture and Inhuman Treatment (Arts 7,9,10)

 

1.     Police Complaints System                                    para 140-151

2.     Monitoring of Prisons                                           para 152-159

3.     Monitoring of the Immigration Department                   para 160-164

 

Chap 5: Liberty of Movement; Choice of Home & Alien’s Right to Appeal against Expulsion

 

1.     Immigration Law & Immigration Appeal               para165-167

2.     Status of Refugees/Asylum Seekers                    para 168-193

3.     Domestic Workers: Choice of Home                     para 194-196

 

Chap. 6: Children and Family; Equality before Courts; Right to Fair and Public Hearings; Legal Aid; Due Process; Equality before the Law; Privacy (Arts 14, 17, 23, 24 and 26)

 

1.     Narrowing of Right of Abode                                 para 197-212

2.     Legal Aid and the Duty Lawyer Scheme              para 213-222

3.     Invasion of Telecommunications Privacy               para 223-225

 

Chap 7: Freedoms of Expression, Opinion, Thought, Conscience and Religion (Arts 18, 19, 20, 21 and 22)

 

1.     Politically Motivated Censorship                          para 226-229

2.     Patriotism Campaign and Media Self-censorship para 229-260

3.     Immigration Barrier to Political and Academic Discussions   

                                                                  para 261-267

4.     Immigration Barrier to Religious Freedom           para 268-272

5.     Pressure, Threats and Attacks over Falun Gong Related Newspaper

                                                                           para 273-278

6.     Detention of HK-based Professionals by Mainland Security Agents for Political Reasons                                                para 279-286

7.     National Security Bill                                           para 287-289

 

Chap. 8: Right of Peaceful Assembly; Freedoms of Association & Trade Union (Arts 21 and 22)

 

1.     Police Commissioner’s Overbroad Discretion in Public Order Ordinance   para 290-299

2.     Police Tactics/Freedom of Demonstration            para 300-317

3.     Rolling Back of Societies Ordinance                    para 318-329

4.     Restricting Foreign Connections                          para 330-334

5.     Right to Form Trade Unions                                 para 335-337

8.     Right to Protection Against Anti-union Discrimination

                                                                           para 338-345

 

Chap 9: Rights of Minorities and Equal Opportunities (Art 2, 3 and 27)

 

1.     Failure to Combat Racial Discrimination            para 346-356

2.     Foreign Domestic Workers                                  para 357-362

3.     Transgendered Persons                                       para 363-370

4.     Discrimination Against Sexual Orientation         para 371-378

 

Appendix 1                                                                              para 379-385

Executive Summary

 

1.         Hong Kong Human Rights Monitor (The Monitor) notes with regret the lack of observance by the Hong Kong Government of its obligations under the ICCPR and its attitude towards the UN Human Rights Committee. In early March, Secretary for Home Affairs Patrick Ho was quoted as saying “We will not make hasty decisions for short-term applause...The Committee's views are well-intentioned. But they are so far away and may not have a deep understanding of our situation."[1]  

 

2.         The Monitor is concerned about the rule of law and the independence of the judiciary over the 3 interpretations of the Basic Law by the Standing Committee of the National People’s Congress (SCNPC) post-handover.

 

3.         The Monitor is disappointed that in spite of requests by the Human Rights Committee and the people of Hong Kong (The July 1st march of 2003), there have not been significant constitutional changes to address the inequities of the functional constituency system, the appointment system existent in the District Council elections as well as the latest Chief Executive election which will be addressed in this report.

 

4.         Although the government has just drafted an Interception of Communications and Surveillance Bill, the Monitor is concerned  over the use of ambiguous terms in language (protecting “public security”). Judges who are responsible for approving covert surveillance applications, will be required to undergo integrity checks, the Monitor expresses skepticism over these “integrity checks”.

 

5.         The Monitor is concerned over the impending threat over the freedom of the press, with increasing self-censorship as well as the threatened editorial independence of the territory’s only public broadcaster, Radio Television Hong Kong (RTHK)

 

6.         In spite of repeated requests from the Human Rights Committee to legislate against racial discrimination, the Hong Kong government is still delaying and procrastinating on the issue of legislating and the Monitor calls on the Committee to press the government to show a whole-government commitment to enact the law and to implement the treaty bodies’ recommendations with respect to such laws.

 

7.         The Monitor refutes the Hong Kong government’s assertion that a National Human Rights Institution is not necessary under the existing legal framework and various specialist institutions. In fact, the powers conferred on the Ombudsman, the Equal Opportunities Commission (EOC) and the Privacy Commission are very limited. The Monitor calls on the Committee to not only recommend the setting up of an independent Human Rights Commission while at the same time ensuring that independent bodies such as the EOC remain independent. (See report for full details)

 

8.         The Monitor calls on the Committee to call for a comprehensive review of the Public Order Ordinance in the light of recent judgments in Hong Kong and the standards laid down in the ICCPR.

 

9.         Supplementary information to be submitted in a year’s time should be requested from the HKSAR on the progress in the amendments of the electoral laws and democratic development, the measures of the Government related to the review of Public Broadcast Service, and the enactment of the Race Discrimination Bill with emphasis on the government to commitment to outlaw all forms of racial discrimination.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Preface

 

Since the first report submitted by the Hong Kong government in 1999, there has not been much progress in constitutional development or in the advancement of civil and political rights in Hong Kong.

 

In this report, THE MONITOR examines the violations of the ICCPR covenants by the Hong Kong Government and would suggest recommendations for the Human Rights Committee to consider.

 

 

Chap. 1: Self Determination and the Right to Participate in Public Life (Art 1 & 25)

 

Self-Determination

 

1.     The principle of self determination is firmly established in international law[2]. Article 1 of the ICCPR provides that “all peoples have the right of self-determination…right to freely determine their political status and freely pursue their economic, social and cultural development”. The right of determination here also encompasses the right to have the constitution of a country or territory determined by the people themselves. Not only did the people of Hong Kong not have any say over the drafting of the constitution, they also have limited power over the aspects of self determination as they relate to constitutional development.

 

2.     A separate vote count is provided for in Annex II of the Basic Law, with private member’s bills or amendments to government bills having to be passed by majorities in each of those divisions of the Legislative Councils, the first consisting of functional constituency legislators and those returned by the Election Committee and finally those who are elected by universal and equal suffrage. The 2004 interpretation of the Basic Law together with the decision by the Standing Committee of the National People’s Congress ruled out universal suffrage for the election of the Chief Executive in 2007 and for electing all members of the Legislative Council in 2008. The interpretation is totally contrary to the wills of the Hong Kong people for full democracy expressed in massive demonstrations and opinion polls.

 

3.     In addition, Article 23 of the Basic Law requires the HKSAR to “enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central Government…” which has been a subject of much controversy (this will be dealt with in the latter part of this report).

 

 

SCNPC Interpretation

 

 

4.     In the Human Rights Committee’s Concluding Observations in 1999, the Committee expressed concern over “the implications for the independence of the judiciary of the request by the Chief Executive of HKSAR for a reinterpretation of article 24 (2)(3) of the Basic Law by the Standing Committee of the National People's Congress (under article 158 of the Basic Law) following upon the decision of the Court of Final Appeal (CFA) in the Ng Ka Ling and Chan Kam Nga cases, which placed a particular interpretation on article 24 (2)(3). The Committee has noted the statement of the HKSAR that it would not seek another such interpretation except in highly exceptional circumstances. Nevertheless, the Committee remains concerned that a request by the executive branch of government for an interpretation under article 158 (1) of the Basic Law could be used in circumstances that undermine the right to a fair trial under article 14.”[3]

 

5.     Since the handover, the Standing Committee of the National People’s Congress exercised its power of interpretation of the Basic Law 3 times. Article 158 of the Basic Law stipulates that “the power of interpretation shall be vested in the Standing Committee of the National People’s Congress, effectively giving a green light to the NPC to challenge the Court of Final Appeals’ rulings.

 

6.     On 6 April 2004, the Standing Committee of the National People’s Congress gave its interpretation on Articles 45 and 68 of the Basic Law of the HKSAR. This proved to be an effective step to put the constitutional development in Hong Kong on hold. According to the interpretation and the subsequent decision issued on 26th April 2004, the elections of the third Chief Executive in 2007 and the fourth Legislative Council in 2008 will not be through universal suffrage.