More than 800 days have passed since the resumption of the exercise of sovereignty over Hong Kong by the People's Republic of China on 1 July 1997. On that day, Hong Kong became a special administrative region of the PRC with its system of government provided under the Basic Law of the HKSAR (the Basic Law). In our opinion, these 800 days were characterised by a gradual deterioration in the rule of law, respect for the independence of the judiciary, and respect for the fundamental rights and freedoms of Hong Kong residents. The executive branch of the HKSAR government had, by virtue of the institutional bias in the Basic Law and by various manoeuvres, consolidated power unto itself. Democratic accountability will be significantly curtailed. Redress for violations of rights through courts are being imperilled by incidents of disrespect and even defiance and contempt of the courts, the judges and their decisions. Incidents of apparent selective enforcement of the law gave rise to concerns that the executive authorities favoured the rich and the influential, and trampled upon those who wished exercised their constitutional rights to protest and complain against governmental inadequacies and wrongs.
We, the NGOs in Hong Kong, see dark clouds of authoritarianism and abuse of human rights in the days ahead. We urge the Human Rights Committee (the Committee) to show its concern over the current deteriorating situation in Hong Kong so that the international community may take notice and together help avert this downward spiral in the human rights condition of Hong Kong. It is time to warn against the risk of the "rule of man" displacing the "rule of law".
THE RULE OF LAW, JUDICIAL INDEPENDENCE, AND FINAL ADJUDICATION
Given the absence in Hong Kong of a democratically elected legislature by universal suffrage and of effective check and balances in the present legislature against abuse of power by the executive government, the courts of the HKSAR play a pivotal role in the mechanism for the protection of fundamental rights and freedoms in Hong Kong.
The most disturbing incident in the last 800 odd days in our view was the undermining of the authority of the courts of the HKSAR by the executive branch of government. The Court of Final Appeal (the CFA), the highest court in Hong Kong, delivered on 29 January 1999 judgments on the status of different categories of claimants of permanent resident status by virtue of them being the children of HKSAR permanent residents. The arguments put forward in support of the interpretation favoured by the HKSAR Government were rejected by the CFA. Instead of respecting the judgments and implement them by lifting restrictions against the exercise of the right of abode by those whose right of abode was affirmed by the judgments, the HKSAR Government ignored them. Acknowledging that it had a view "different" from that of the CFA, the HKSAR Government "reported" to the State Council of the Central People's Government of "difficulties" in implementing the provisions of the Basic Law interpreted by the CFA in the judgments and thereby asked the State Council to propose a resolution before the Standing Committee of the National People's Congress (NPCSC) for the issuance of an interpretation of those same provisions. Such a route towards the "re-interpretation" of provisions was not provided for in the Basic Law. The NPCSC issued the interpretation desired by the HKSAR Government on 26 June 1999. The effect of the interpretation by the NPCSC is to nullify the judgments of the CFA. Our final court of appeal is not final after all; it is at best "semi-final", subject to the HKSAR Government's political decision.
In choosing the route of seeking an interpretation from the NPCSC, the HKSAR Government apparently brushed aside the views of the Hong Kong Bar Association and human rights NGOs that favoured the adoption of a course of action leading to the amendment of the Basic Law by the National People's Congress (NPC) to re-define prospectively the conditions of eligibility of claimants (without affecting any accrued right). Rather, the HKSAR Government fanned prejudicial public opinion by portraying an unrealistic nightmare scenario of "Mainland immigrants swamping Hong Kong" and creating "an unbearable burden" on the community. The public was encouraged to perceive that children of HKSAR permanent residents are from the low-income, low-education, and little or non-skilled strata of the community, will pull up the unemployment rate and the crime rate, and will compete with locals in education, employment, and social security. The Department of Justice also took no action (including prosecutions for contempt of court) in curbing the disparaging attacks by members of the Committee for the Basic Law, Hong Kong deputies of the NPC and other holders of offices of the Central Authorities on the CFA and its Chief Justice against the judgments of the CFA.
No enforceable rule can now stop the HKSAR Government to take the political and populist route in seeking an interpretation from the NPCSC in the absence of a court case, in anticipation of a court case, during a court case, and subsequent to the final adjudication of a court case (as it had done on this occasion). The only self-restraint the HKSAR Government has imposed against the taking of such a route is political expediency. The possibility of a NPCSC interpretation nullify an unfavourable judgment will create political pressure upon the judiciary in future cases. A final appeal by the HKSAR Government against a ruling of the Court of Appeal finding a flag desecration offence to be in contravention of Art 19 of the ICCPR will be heard by the CFA this month. And the HKSAR Government has not disavowed the possibility of seeking an interpretation from the NPCSC on this matter of freedom of expression.
The Immigration Department of the HKSAR Government showed little respect of the rights of persons liable to removal to seek remedies from the courts. Recently, two such persons who had informed the Immigration Department of pending legal proceedings against their removal orders were removed nonetheless. Seventeen minutes after they were so removed, a judge of the Court of First Instance granted an injunction restraining the Director of Immigration from removing them pending the determination of their cases. Counsel for the Director of Immigration later said in court that the Immigration Department had a policy not to wait for the outcome of pending legal proceedings before executing removal orders. We increasingly detect that our civil servants place administrative convenience over respect of the rule of law and fundamental rights to the extent of breaching the mutual trust and good faith underlying the proper functioning of a legal system.
The failure of the HKSAR Government to assert jurisdiction and to seek the rendition of suspected criminals (including Mr Cheung Tsz Keung and Mr Li Yuhui) from Mainland China in respect of offences they were alleged to have committed in Hong Kong gave rise to other fears. These were fears that the Mainland criminal justice system, which lacks the procedural safeguards in Hong Kong but has much heavier penalties, is being used to deal with the undesirable elements in Hong Kong. Mr Cheung (a HKSAR permanent resident) was accused of kidnapping on separate occasions two wealthy businessmen in Hong Kong. Mr Li was accused of murdering five women in Hong Kong. Both Mr Cheung and Mr Li were tried for, convicted of those offences in the Mainland. Both of them were subsequently executed in the Mainland.
RIGHT OF ABODE OF PERMANENT RESIDENTS OF THE HKSAR (ARTS 2, 12, 23, 24, 26, ICCPR)
In the context of Hong Kong, the right of abode is the right to enter one's own country referred to in Article 12(4) of the ICCPR. However, those children of HKSAR permanent residents born in the Mainland and therefore have right of abode under Article 24(2), category (3) of the Basic Law require Mainland approval before they can enter Hong Kong to exercise their right of abode and be united with their parents. This is blatant discrimination as those born in Macau, Taiwan and other countries do not require such approval.
To those families split between Hong Kong and the Mainland, the HKSAR Government advises that whilst they do not have the choice of having family reunion in Hong Kong, they have the choice of having family reunion in the Mainland. In the eyes of the civil servants of the HKSAR Government, split families are not the natural and fundamental group units of society that deserve protection under Art 23 of the ICCPR.
POLITICAL RIGHTS (ART 25, ICCPR)
The Basic Law is flawed in its provisions on the political system in Hong Kong. It provides only for an opportunity for the HKSAR to consider in 2007 whether the method for the selection of the Chief Executive, the method for the formation of the Legislative Council, and the procedure of the Legislative Council for voting on bills and motions should be amended and that there is no guarantee that universal suffrage will be adopted at such time as the method for the selection of the Chief Executive and/or the method for the formation of the Legislative Council.
The Basic Law still maintains the system of functional constituencies in the electoral system for the Legislative Council of the HKSAR. Such a system provides for corporate voting (which was abolished in the 1995 elections) and, as found by the Committee on the Elimination of Discrimination Against Women in February 1999, contains structural obstacles to women's equal political participation. Only in 2007 may the HKSAR be given the opportunity to abolish the system of functional constituencies. The composition of the election committee is also a cause of serious concern since the membership of the election committee replicates the pattern of functional constituencies. Together they dilute the voting power of the ordinary Hong Kong permanent resident. The Committee should maintain its previous concluding observations on this topic.
Paragraphs 14, 15, 18 and 19 of the Country Profile and paragraphs 472 and 473 of the Report are now out of date. The HKSAR Government has now introduced draft legislation to abolish the municipal councils and repatriate the functions of the municipal councils back to the policy bureaux of the Government Secretariat. What has been decided by the elected representatives of the public are to be decided by unelected civil servants. Legislation is now in place to establish, in place of District Boards, "District Councils" which will be composed, in part, of appointed members. The appointed members will have equal voting power with members returned by geographic constituency elections. Power is being centralised; Democracy is being rolled back.
We also urge the Committee to recommend to both the Central People's Government and the HKSAR Government that considerations should be given to bring forward to as early as 2000 the adoption of universal suffrage as the method of the election of the Chief Executive and the method of the formation of the Legislative Council.
EQUALITY BEFORE THE LAW (ART 26, ICCPR)
By virtue of amendments to the Interpretation and General Clauses Ordinance (Cap 1), sub-ordinate state organs operating in Hong Kong, such as the People's Liberation Army Hong Kong Garrison, the Office of the Commissioner of the Foreign Ministry, and the Xinhua News Agency, are not subject to the laws of the HKSAR. This is incompatible with Art 22 of the Basic Law, violates the principle of equality before the law and fails to accord to the ordinary citizen the equal protection of the law they deserve in dealings with these state organs.
The Secretary for Justice declared in a statement to the Legislative Council that in making the decision not to prosecute the chairman of a newspaper group, Ms Sally Aw, for fraud, she took into consideration matters of "public interest" including the alleged possibility that the newspapers owned by Ms Aw might collapse if she were to be prosecuted. This was in departure from the prosecution guidelines and gave rise to concern that the decision was an indication of favouritism of those with close ties to the Central People's Government or those with substantial business interest in Hong Kong. Such concerns about equality of all before the law become more substantial when one takes into account the failure by the same Secretary for Justice to prosecute police officers found to have seriously assaulted a suspect of the criminal offence of torture, and Xinhua News Agency for breach of a law protecting personal data privacy.
The HKSAR Government has not enacted legislation to outlaw discrimination on the grounds of race, age and sexual orientation.
FREEDOM OF EXPRESSION, FREEDOM OF ASSOCIATION, AND RIGHT OF PEACEFUL ASSEMBLY (ARTS 19, 21, 22, ICCPR)
Political dissent against the PRC or challenges to the political orthodoxy of the PRC in Hong Kong are restricted in Hong Kong. Laws that criminalise acts of desecration of national flag (which are expressive acts per se) were applied to prosecute demonstrators who displayed defaced national flags during a procession held to commemorate the June 4th Incident. Chinese dissidents and a former official of the authorities in Taiwan were not permitted enter Hong Kong to attend academic meetings on the political development of China. Radio Television Hong Kong (RTHK), the public broadcaster, was criticised by local holders of offices of the Central Authorities for giving air time to Mr Cheng An Kuo, the representative of the Taiwanese authorities in Hong Kong, to explain the "two states theory" proposed by President Lee Teng Hui but the HKSAR Government did not come out to defend the editorial independence of RTHK or the freedom of expression of Mr Cheng. Instead, the Government Spokesman, Stephen Lam, said the statement of Mr Cheng "violated the 'One China' Principle and was inappropriate". Such a response was understood by the news media in Hong Kong as a threat to freedom of expression and freedom of the press.
Other restrictions on political dissent are evident in the Public Order Ordinance (Cap 245) and the Societies Ordinance (Cap 151) that provide for the ground of "national security" as a ground of objection to the holding of a public meeting or public procession, or the establishment or continued functioning of a society; and that prohibits "political bodies" from establishing ties with, or receiving funds from "foreign political organizations". Police tactics and the conditions imposed in respect of demonstrations and public processions are another cause for concern. Demonstrators were confined to "demonstration areas" a long way from the venue of the objects of the demonstrations, and subject to continuous police surveillance prior to, during, and after the demonstrations. On some occasions, their loudhailers were seized.
The Committee on Freedom of Association of the Governing Body of the International Labour Organization has concluded, in respect of a complaint by a trade union in Hong Kong, that the restrictions introduced under ss 5, 8, and 9 of the Employment and Labour Relations (Miscellaneous Amendments) Ordinance 1997 should be repealed for being contrary to principles of the freedom of association of trade unionists. These provisions sought to re-introduce stringent restrictions on the application of funds of a registered trade union, the use of trade union funds for political purposes, and the affiliation of a registered trade union with organisations established in a foreign country.
COMPLAINTS AGAINST POLICE (ART 2, ICCPR)
We urge the Committee to maintain its concern that the investigation in respect of complaints against police remains in the charge of the police force. We urge the Committee to express its regret that the proposals of the Independent Police Complaints Council have been left unimplemented and to recommend the speedy enactment of those proposals, and its dismay over the relatively light disciplinary punishment (such as entry into record and advice) imposed upon police officers who had been found by the Complaints Against Police Office to have assaulted suspects or members of the public.
LITTLE OR NO PROGRESS ON RECOMMENDATIONS UNDER CONCLUDING OBSERVATIONS ON PREVIOUS REPORTS
We note that the HKSAR Government had made little or no progress in implementing the recommendations of the Committee on the following issues: emergency legislation, protection against violation of human rights by non-government actors, interception of communications, and the provision of an independent mechanism investigating complaints against the police.
SHORT PERIODICITY REQUESTED
In view of the matters set out above and the possibility of the HKSAR Government seeking an interpretation from the NPCSC over or without reference to the courts of the HKSAR in upcoming occasions (such as the flag desecration case and other upcoming cases on the right of abode), we urge the Committee to consider fixing the periodicity of the reporting obligation to a relatively short period of time, such as 12 to 18 months, or to call for a supplementary report in 6 to 12 months' time.
"Today's human rights violations are the causes of tomorrow's conflicts." So said Mrs Mary Robinson, the UN High Commissioner for Human Rights. A firm admonition of the HKSAR Government at this juncture of the implementation of "One Country, Two Systems" will enhance not only the prospect of us achieving the peaceful and "high degree of autonomy" promised under the Sino-British Joint Declaration in next 48 years but also the true application of the ICCPR not just in Hong Kong but also in the Mainland.
Issued by the Hong Kong Human Rights Monitor on behalf of itself, Hong Kong Journalists Association, JUSTICE (Hong Kong Section of International Commission of Jurists) and the International Federation of Human Rights (FIDH).
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