Joint NGO Submissions Regarding

the Report of the Hong Kong Special Administrative Region People's Republic of China

 

Introduction                                                                      Para  1 - 2

 

Interpretation of the Basic Law

   (Articles 1, 2, 25 and 26)                                             Para  3 - 6

 

Chief Executive and Functional Constituency Elections

    (Articles 1, 2, 25 and 26)                                            Para  7 - 11

 

Radio Television Hong Kong (RTHK) and Freedom of Expression

    (Article 19)                                                                  Para 12 - 17

 

Interception of Communications and Surveillance Bill

    (Article 17)                                                                  Para 18 - 22

 

Race Discrimination Bill

    (Articles 2 and 26)                                                      Para 23 - 27

 

Human Rights Commission and Statutory Watchdogs

    (Article 2)                                                                    Para 28 - 35

 

Public Order Ordinance

    (Article 21)                                                                  Para 36 - 37

 

Policing of Demonstrations and the Appeal Board

    (Articles 14 and 21)                                                    Para 38 - 45

 

Complaints Against the Police

    (Articles 2, 9 and 26)                                                  Para 46 - 51

 

Equal Protection of the Law and Migrants

    (Articles 2, 9, 14 and 26)                                            Para 52 - 57

 

Split Families

    (Article 23)                                                                  Para 58 - 59

 

Asylum Seekers in Hong Kong

    (Articles 7, 9, 13 and 14)                                            Para 60 - 61

 

Assistance to Hong Kong Residents in Mainland China

    (Articles 6, 8, 9, 11, 12, 14, 15, 17, 23, 24 and 26) Para 62 - 63

 

Human Rights Education

    (Preamble and Article 2)                                             Para 64 – 67

Joint NGO Submissions

to the United Nations Committee on

International Covenant on Civil & Political Rights

Regarding

the Report of the Hong Kong Special Administrative Region

of the People's Republic of China

 

 

March 2006

 

Introduction

1.                     This joint NGO submission highlights issues we consider to be the most important with regard to the protection of civil and political rights in the Hong Kong Special Administrative Region of the People's Republic of China (HKSAR).

 

2.                     We urge the Committee to request information to be submitted by 31 March 2007 on the development of the following key issues:

(a)   reforms of electoral laws and constitutional development;

(b)  interpretation of the Basic law;

(c)   enactment of the Interception of Communications and Surveillance Bill;

(d)  government measures related to the review of public service broadcasting; and

(e)   the progress regarding the enactment of the Race Discrimination Bill.

 

Interpretation of the Basic Law

(Articles 1, 2, 25 and 26)

3.                     The Standing Committee of the National People's Congress (NPCSC) has three times formally interpreted the Basic Law between 1999 and 2005. The three occasions demonstrate that an NPCSC interpretation may be sought and rendered in the absence of a court case, in the middle of a court case, or subsequent to the final adjudication of a court case, and with or without a request from the Chief Executive of the HKSAR.

 

4.                     The Committee should express serious concerns over the NPCSC interpretations which have now become a flexible instrument enabling the Central Authorities of the People's Republic of China to impose its will upon the legal order of the HKSAR and to deny the enjoyment of rights guaranteed in the ICCPR (e.g. the SCNPC interpretations in 2004 prevent the realisation of universal and equal suffrage in the 2007 Chief Executive and 2008 Legislative Council elections). All these interpretations were made notwithstanding the language of the provisions of the Basic Law, and the interpretation of those provisions by the courts of the HKSAR using canons of construction based upon the language of the law. The integrity of the legal system of the HKSAR and the protection of covenant rights by enacting laws is subject to an uncertain and dominant source of law to which the residents of the HKSAR have little chance to participate in shaping its content, and at the same time, international obligations for protection of rights are being ignored.

 

5.                     The Committee should express serious concern over the use of interpretation in 2004, which together with a subsequent decision of the SCNPC, denied universal and equal suffrage for the 2007 and 2008 elections. The Committee should also express grave concerns over the fact that the rights guaranteed under the ICCPR and the Basic Law, the independence and effectiveness of the role of the protection of rights by the law, may be seriously undermined by SCNPC interpretations.

 

6.                     The Committee should urge the SCNPC and the HKSAR government not resort to interpretation, and at the same time, the PRC government should ensure that Hong Kong's autonomy and protection of Covenant rights should not affected. The promise that interpretation will only be resorted to in exceptional circumstances is simply insufficient.

 

Chief Executive and Functional Constituency Elections

(Articles 1, 2, 25 and 26)

7.                     The electoral system for the Chief Executive consists of two tiers. In the first tier, "subsectors", akin to Functional Constituencies, elect 800 Members to an Election Committee. At the second tier, the Election Committee then elects the Chief Executive.

 

8.                     Similar to functional constituencies, subsectors are reserved mainly for the business sector and professionals. From there a number of Members are elected on to the Election Committee.[1] Like functional constituencies, the subsector election gives undue weight to the views of the business community and discriminates among voters on the basis of property and functions, as expressly criticised by your Committee.[2] The high nomination requirement has been so designed to, and so far has been very successful in, barring any person who Beijing does not approve of, from even getting successfully nominated. Moreover, in the second tier of the election the small size of the Election Committee together with the need to publicise all nominators have undermined the secrecy of ballots because practically every Member has no means to keep his choice a secret.

 

9.                     It is of crucial importance that the Committee should also point out expressly in its Concluding Observations that, similar to Functional Constituencies in the Legislative Council elections, the Chief Executive election in Hong Kong is inconsistent with articles 2, 25 and 26 of the ICCPR.

 

10.                The Committee should express concerns over undemocratic features such as corporate voting and, in the election of the Chief Executive by the Election Committee, the de facto denial of secrecy of ballots in the small circle, high nomination requirement in the Chief Executive election.

 

11.                The Committee should express concern over the Chief Executive's lack of willingness to take up his unshirkable constitutional responsibility to introduce democratic reforms in the pending exercise of amendments of election laws in Hong Kong.[3] The Committee should urge the Chief Executive to remove at least some of the undemocratic features of the Chief Executive and functional constituency elections, to broaden franchise, to set a timetable to achieve universal and equal suffrage in the near future and to abolish appointed seats in the District Councils. All hindrance to universal and equal suffrage should be removed, including the categorical bar of prisoners to elections. The Committee should request further information on the progress on the amendments to electoral laws in Hong Kong by 30 March 2007 (before the date for the next full periodic report).

 

Radio Television Hong Kong (RTHK) and Freedom of Expression

(Article 19)

12.                The government continues to take action potentially threatening to the freedom of expression, including the review of public broadcasting services and the public broadcaster RTHK. For many years, RTHK, a government department run mostly by civil servants, served as the only public broadcaster in the HKSAR. RTHK enjoys editorial independence under an agreement with the Government. But it has been constantly under attack by the pro-Beijing and pro-government camps for not 'serving' the HKSAR government, and there have been calls by these same people to 'bring RTHK under control'. There is fear that government actions after the review might further tighten the freedom of speech in Hong Kong, thus eroding the role of RTHK as an independent public broadcaster that might eventually transform RTHK into a mouthpiece for the government.

 

13.                The editorial independence and freedom of expression of RTHK should be upheld. Its programmes provide the society with information and entertainment important to the promotion and protection of human rights. Its programmes also provide impartial and pluralistic perspectives to various political, economic and social issues. Such programmes put pressure on other operators or competitors in the media field. This helps to prevent the flourishing of the mass media in the media market in Hong Kong from deteriorating too much through self censorship. If it is allowed to be turned into a mouthpiece or if its role is marginalised, the socio-political landscape of Hong Kong will drastically deteriorate, and this will be detrimental to the protection and promotion of human rights in Hong Kong.

 

14.                The Committee should urge the HKSAR Government to uphold RTHK as a public broadcaster with editorial independence guaranteed. The HKSAR should set up an institutional framework, which de-links RTHK from the Government, preferably in the form of a public body with public funding, by way of legislation to safeguard the public broadcaster's editorial independence, from both government intervention and commercial interference. The legislation should also allow public access programmes on radio and television services which were promised by the government a decade ago but have never materialized.

 

15.                To ensure that the review and the subsequent actions taken by the HKSAR on RTHK and public broadcasting service is kept in line with the Covenant, especially under article 19 of the ICCPR, the Committee should request the submission of information on the progress in the review of public service broadcasting and the measures taken by the HKSAR related to the review by 31 March 2007.

 

16.                Self-censorship remains a problem, in particular for news which is regarded by the mainland government as too sensitive, such as issues related to Taiwan, Tibet, Falun Gong and dissident activities. The detention of Hong Kong journalist Ching Cheong in April 2005 also created a chilling effect on press freedom. The problem of the use of violence and intimidation against journalists and media organisations has become an important problem. The intimidation of outspoken radio talk show hosts alarmed the community, and three of them were forced to resign in 2004. 

 

17.                The UN Human Rights Committee should urge the HKSAR government to refrain from taking further actions which may threaten the freedom of expression. Instead it should promote Hong Kong as a city which treasures diversity of opinion by combating violence and intimidation against journalists and the media, promoting public access programmes and channels, introducing a freedom of information law, and refraining from the setting up of designated press areas and stopping the blocking of media access to police radio calls.

 

Interception of Communications and Surveillance Bill

(Article 17)

18.                Judges in three recent cases say that there is no legal basis for authorising covert surveillance and such acts are contrary to the privacy provisions in the Basic Law. The government has been given a grace period to enact a law to authorise and regulate interception of communications and covert surveillance on suspects by law enforcement bodies. We worry that if the government fails to enact the law in time, it will resort to another interpretation of the Basic law by the SCNPC.

 

19.                The legislation on covert surveillance may pose threats to the freedom of communication if not properly enacted. The mechanism proposed by the administration can be abused. While the public needs to be concerned about their privacy, journalists are also concerned that such investigative measures may reveal confidential journalistic sources.

 

20.                Since Hong Kong has a murky history of political surveillance in its colonial past and that the Police Force Ordinance provides no basis for police work on security other than those related to detection of crimes, it is of utmost importance to guard against political surveillance under the new legislation and therefore the definition of "public security" should be carefully and narrowly drafted and defined.

21.                While it is a good start for the proposals to require warrants by judges to authorise interception of communications and covert surveillance involving serious intrusion into privacy, it is important to limit the exceptions to such rules and those surveillance not yet covered by the warrant system. The proposal to leave less intrusive surveillance to be authorised not by judges but by senior officers have yet to justified cogently, and apparently such authorisation of less intrusive surveillance should be dealt with by judges, if not from the High Court, perhaps also from the District Court. The classification and definition of "less intrusive surveillance" has yet to be clarified.

 

22.                The Committee should express serious concerns over the government's attempt to conduct security checks (which may be abused as political screening) against a panel of judges to be specifically appointed by the Chief Executive for handling the application for the authorization of surveillance under the Interception of Communications and Surveillance Bill. The Committee should urge the Government not to allow political surveillance under the broad concept of "public security". The Committee should urge the HKSAR and Chinese authorities not to resort to the SCNPC for another interpretation on this issue.

 

Race Discrimination Bill

(Articles 2 and 26)

23.                The commitment of the HKSAR to legislate to outlaw racial discrimination was a result of the efforts of UN treaty bodies, members of the public and NGOs in Hong Kong. The Human Rights Committee, the Committee on the Elimination of Racial Discrimination and the Committee on Economic Social and Cultural Committee have all called for legislation to outlaw racial discrimination. The strong comment from the Economic Committee in 2001 that the government was in breach of the covenant over its failure to legislate, and its call for supplementary information on the progress of the legislation by in two years' time put tremendous pressure on the HKSAR to act.

 

24.                However, the Government's commitment is now seriously in doubt. The introduction of the Race Discrimination Bill has been repeatedly delayed, most recently for yet another year and more for allegedly "legal and technical" reasons. Our understanding is that the Bill has encountered serious difficulties within the Government. The Education Bureau, for instance, has openly expressed concerns over the bill on the education of ethnic minorities in a LegCo meeting. We are concerned that the bill has been unduly delayed in its introduction and, even if introduced, it can easily be killed off in its tracks by the Government which may adopt a laid back approach in its enactment in LegCo.[4] Without strong support and lobbying by the Government, the pro-business LegCo may not pass the Bill.

 

25.                It is also important to note that the Bill being drafted at this moment will not protect migrants from the Mainland or other parts of China and will not override the Immigration Ordinance.[5] It will not adopt the updated definition of indirect discrimination and it will not really combat all forms of racial discrimination. For example, it has a very narrow definition of transferred discrimination. Racial discrimination on the grounds of language, religion and immigration status have not been properly addressed. In the Bill, there is no positive obligation for the government to combat racial discrimination and there are no provisions on racial profiling and policy impact assessment.

 

26.                The Committee should urge the Government to expand its Bill to cover migrants from other parts of China and to cover racial discrimination on the grounds of language, religion and immigration status. The Government should also update the definition of indirect discrimination. The Committee should urge the Race Discrimination Bill to combat all forms of racial and related discrimination and to cater for special measures, positive obligations and policy impact assessment.

 

27.                The Committee should express concerns over the delay in the introduction of the Bill. Most importantly, the Committee should ask the HKSAR Government to demonstrate that the whole government, including its policy secretaries, bureaus, governmental departments and agencies are firmly supportive of the Bill and will do its utmost to enact as a proper and effective piece of legislation in combating all forms of racial discrimination. To ensure that, the Committee should request the HKSAR Government to supply supplementary information in a year's time on its progress in the enactment of the Bill, and to demonstrate support from the whole government of the enactment.

 

Human Rights Commission and Statutory Watchdogs

(Article 2)

28.                The Hong Kong government maintains that a National Human Rights Institution is not necessary, since the existing legal framework and the various specialist institutions offer adequate human rights protection.

 

29.                The Independent Police Complaints Council (IPCC) is not even a statutory body and has no power to investigate complaints against the police. The government's belated proposals for legislation for giving  the IPCC a statutory basis still does not confer any power of investigation on the Council. The Ombudsman's jurisdiction is severely limited by broad and vague exceptions in the Ombudsman Ordinance.

 

30.                The Privacy Commissioner's jurisdiction is confined to personal data protection and has no conciliation measures or a provision for legal advice or aid nor any power to bring legal proceedings.

 

31.                The Equal Opportunities Commission (EOC) has a limited role, even in equal opportunities, which has mainly been confined to the enforcement of three equal opportunities ordinances. It has been the subject of controversy in the past few years for reasons of (a) refusal to renew the contract of ex-chairperson Anna Wu (who had been widely praised by the local and international community for her leadership and her services in the EOC) and a number of controversial appointments of subsequent chairs and members; (b) for the removal of its top personnel Patrick Yu (who had a strong, active and liberal background in Human Rights) and the government and official involvement in handling the incident; (c) the low morale and problems of management and operation and in the EOC; and its lack of support from activist NGOs in Hong Kong for its failure to improve its transparency and public accountability, etc. The jurisdiction and power of these bodies, even when taken together, are far from what are envisaged by the Paris Principles and to meet the needs to protect and promote rights and to provide remedies under the ICCPR. The decisions on appointment of members and the head of these bodies have also been the subject of concern and such appointments failed to meet the independence, pluralistic composition and other requirements in the Paris Principles.