Nine Months after the Hand-over
A Submission to the Foreign Affairs Committee,
INTRODUCTION AND SUMMARY
It is now 9 months since the transfer of sovereignty over Hong Kong from the United Kingdom (UK) to the People's Republic of China (PRC). Before the transfer the idea that China's promise of "One Country, Two Systems" would be kept was widely regarded as naive both within Hong Kong and overseas. Both the recent history of the People's Republic, and statements about Hong Kong by senior Chinese leaders, suggested that basic freedoms would quickly be suppressed.
In the period since the hand-over relief that it was not followed by immediate repression has given way to growing concern that Hong Kong's freedoms will be gradually eroded because of a lack of respect by the Government for the rule of law, and an undemocratic system of Government.
Much of this concern has centred around the arrangements for the forthcoming Legislative Council elections, which are based on an electoral law deliberately designed to frustrate the popular will and ensure that the Council is dominated by small, unrepresentative cliques.
The present report by Hong Kong Human Rights Monitor sets out in considerable detail the background to the main controversies which have arisen relating to the implementation of "One Country, Two Systems", both before and after the transfer of sovereignty. It is designed to ensure that the reader is fully briefed about each of the issues, several of which are complex.
A theme which runs through the report is the way in which Britain's colonial legacy has left Hong Kong with weak democratic institutions and a deficient legal framework, which requires very little alteration to remove the limited protection which it provides for freedom. A related theme is the way in which the Joint Declaration was broken by China in several key respects before the transfer of sovereignty, with Britain's acquiescence.
Hong Kong today has, for those who knew it before 1 July last year, a deceptive air of normality. This masks the fact that, whatever the deficiencies pre-1 July, there was a democratic Parliament at Westminster which was liable to pay attention if the situation in Hong Kong became unacceptable. No such backstop safeguard exists now. Hong Kong's whole way of life exists by courtesy of a leadership in Beijing which is accountable to no-one. The new Hong Kong leadership has shown that while it aims to preserve most of Hong Kong's way of life, where Beijing's wishes conflict with this, those wishes will come first, even where this involves breaking the law.
This is cogently demonstrated in the recent law introduced by Mr. Tung Chee-hwa's Government to retrospectively exempt mainland Chinese bodies in Hong Kong from at least 500 Hong Kong statutes, including the one on privacy. This is clearly inconsistent with Article 22 of the Basic Law which provides, "All offices set up in the Hong Kong Special Administrative Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region." Despite Tung Chee-hwa's frequent assurances that he is committed to the rule of law, his Government has pressed the bill through the Provisional Legislative Council (PLC) during its last days of operation.
In this situation international interest in Hong Kong is critical. We believe that if it had not been for the continuing interest shown by the outside world the situation in Hong Kong would already be much worse than it already is. We hope therefore that the European Parliament will rigorously scrutinise recent developments here and add its voice to those calling for strict maintenance of the rule of law and genuine progress towards democracy as promised in the Joint Declaration and Basic Law.
1. The terms governing the historic hand-over are prescribed in the Sino-British Joint Declaration of 1984, an international treaty signed by the British and Chinese governments and registered with the United Nations. The Joint Declaration describes the rights and protections which the people of Hong Kong shall enjoy, and outlines the general political and economic systems of the future Hong Kong Special Administrative Region (¡§HKSAR¡¨). The terms of the Joint Declaration are substantially enacted as part of Chinese national law by the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China. However the Basic Law does not fully follow the Joint Declaration and is arguably in breach of it in certain key areas.
THE PROVISIONAL LEGISLATURE
2. Although Hong Kong has a three-tier system of representative Government, Hong Kong people do not have the right to elect their government. The Chief Executive is ultimately in charge of the administration of the territory. He is advised on policy matters by a body known as the Executive Council which is wholly appointed by him. The three tiers of representative government consist of the Legislative Council which enacts laws, debates policy issues, controls public expenditure and scrutinises the Administration, the Urban and Regional Councils which act as municipal councils with the responsibility of providing public health, cultural and recreational services, and the District Boards which represent their various districts and advise on the implementation of policies.
3. The Urban and Regional Councils are both statutory bodies with financial autonomy. Members of the Urban Council are directly-elected with 32 elected from geographical constituencies and 9 representatives from urban District Boards. The Regional Council comprises 39 members in all with 27 elected from geographical constituencies, 1 representative from each of the 9 New Territories District Boards, and the chairperson and vice-chairperson of the Heung Yee Kuk who sit as ex officio members.
4. All 18 of the District Boards are statutory bodies and they provide a forum for public consultation and participation at the district level. There are 346 elected members from constituencies and 27 Rural Committee Chairpersons from the New Territories who act as ex officio members.
5. Since the transfer of sovereignty neither the Legislative Council, nor the Urban and Regional Council and District Boards have existed. All were abolished from 1 July.
6. The Urban and Regional Council and District Boards have been replaced by "Provisional" bodies of the same name. Existing members of the previous elected Councils and boards have been permitted to continue as members of the Provisional bodies, but in addition other, usually pro-Beijing, nominees have been appointed so as to deprive the pro-democracy groups of majorities.
7. The legitimate Legislative Council which was elected into office in September 1995 and disbanded by the PRC on 30 June 1997 was made up of 60 members. Twenty members were directly elected from geographical constituencies, thirty from functional constituencies and ten were returned by an election committee. This was replaced by a provisional legislature, a body wholly appointed by a Selection Committee, a group of 400 Hong Kong people selected by the China-appointed Preparatory Committee. Today, the provisional legislature has its last day of operation, if nothing extra-ordinary happens. In July this year it will be replaced by a new legislature to be elected on 24 May.
8. The establishment of the provisional legislature was both unconstitutional and illegal. The Joint Declaration and the Basic Law require an elected legislature, composed of 60 members of which 20 are elected from geographical constituencies, 30 from functional constituencies and 10 by an election committee. The legislature is to serve for a term of two years in the first instance, and if the pre-handover Legislative Council fits all these requirements, it may become the first Legislature of the HKSAR. The provisional legislature fits none of the criteria. In a highly controversial judgment in July 1997 the Hong Kong Court of Appeal declared that the Provisional Legislative Council was legal, but was not the legislative council of Hong Kong but a special preparatory body relating to the hand-over. The jurisprudential basis of this judgment is highly questionable.
9. The principle argument put forward by the Chinese Government in establishing the provisional legislature was that the pre-handover Legislative Council did not comply with the Basic Law. The history behind this argument goes back to 1992 when the Governor of Hong Kong, Mr. Chris Patten proposed certain electoral reforms to further the democratization process in Hong Kong. The Hong Kong Government at the time, publicly stated that its policy on the electoral reforms was precisely to ensure that the 1995 Legislative Council would comply with the 1990 Decision and thus be eligible to ride the ¡¥through-train¡¦ described in the Basic Law.
10. The Chinese authorities however, were offended that Mr. Patten insisted on the electoral reforms despite their opposition, and issued a statement saying that since Britain had deliberately tried to wreck the ¡¥through-train¡¦ arrangement, the ¡¥through-train¡¦ was effectively de-railed. Without the ¡¥through train¡¦, a new legislature would have to be created for the SAR under new electoral legislation. As China deemed the present legislature tainted by Mr. Patten¡¦s electoral reforms, the body was not competent to pass election laws for the future SAR. Thus, a provisional legislature had to be formed to pass those new electoral laws for the formation of the first ¡§real¡¨ Legislative Council of the HKSAR.
11. China further claimed that if it did not establish the provisional legislature, there would be a ¡§legislative vacuum¡¨ on 1 July 1997 when it disbands the current Legislative Council. Hence, by the doctrine of necessity, it is obliged to fill that vacuum with this appointed legislature. There was no foundation to this argument for the following reasons:-
12. China did not need to disband the pre-handover Legislative Council as it fully complied with the Basic Law (the ¡§1990 Decision¡¨);
13. Even if it did disband the Legislative Council, a legislative vacuum need not have occurred: Every summer recess, Hong Kong functions without an active legislative body. Furthermore, the Basic Law allows for a period of three months between the dissolution of one legislature and the convening of another, in the event of an election (Article 68). An election for a new Legislative Council in accordance with the constitutional arrangements could have been held.
14. The establishment of the provisional legislature was a most serious blow to the integrity of the Joint Declaration. Both the British and the Chinese Governments share responsibility for the fair and valid implementation of the Joint Declaration, yet both managed to breach its terms without sanction: the British Government by ignoring the illegality and allowing it to occur in straight violation of the Joint Declaration; the Chinese Government by establishing a body clearly in breach of the said treaty.
15. As predicted, the provisional legislature has managed in the last nine months to dismantle any gains that had previously been made towards full democratisation of Hong Kong. This has included a number of roll-backs on legislation passed by the pre-handover Legislative Council which protected and promoted Hong Kong people¡¦s civil liberties, the passing of new legislation that has infringed upon guarantees under the Hong Kong Bill of Rights and the Basic Law, and most insidious, its rubber-stamping of electoral reforms designed to limit the democratic camp¡¦s access to the legislature and to disenfranchise a large sector of the population.
16. On 28 September 1997, after a nine-day consultation period, the provisional legislature passed an amendment to the Legislative Council Ordinance introducing the election procedure for the May 1998 elections. An Electoral Affairs Commission was established to promulgate election rules and procedures and to oversee the electoral process.
17. The new election process differs markedly from that of the 1995 elections. Whilst three types of constituencies remain i.e. geographical, functional and the election committee, a system of proportional representation has replaced the first-past-the-post, single-member constituency system.
18. For the May 1998 elections, the 20 members elected directly from geographical constituencies will be chosen from multi-member constituencies by proportional representation. Candidates will run on party lists, although independent candidates are permitted to form "single-candidate" lists. The 20 single-member constituencies used in the 1995 elections has been rearranged into five large constituencies. Each district will elect three to five members.
19. A "largest remainder" system of proportional representation has been adopted under which the total number of votes cast is divided by the total number of seats in a constituency. This yields a quota, and each party list gains a seat for each quota of votes it wins. The remaining seats are then awarded to the list with the largest number of remaining votes. In small electoral districts, this system may lead to a less popular party receiving as many seats as the most popular party. The National Democratic Institute (NDI) report cites this example for reference:
20. If there are three lists in a four-member constituency with a total of 100,000 valid votes cast, the quota to gain one seat would be 25,000 votes or 25 percent of the total (100,000 votes divided by four seats). Assume the following election results:
21. List A 58,000 votes (58 percent)
22. List B 34,000 votes (34 percent)
23. List C 8,000 votes (8 percent)
24. In the initial allocation, List A would win two seats, one for each quota of 25,000 votes (25 percent), and have 8,000 remaining votes (58,000 minus 50,000); List B would earn one seat for its quota of 25,000 votes and have 9,000 remaining votes (34,000 minus 25,000). The remaining seat would go to List B, because it would have more votes remaining (9,000) than either List A or List C (8,000 each). In other words, in this example, the party that won 58 percent of the vote and the party that won 34 percent would each gain two of the four available seats.
25. Critics have argued that although a proportional representation system is generally seen as more democratic, in the context of Hong Kong, it is intended to reduce the seats of the democratic camp in the Legislative Council despite their popularity. There are already particular difficulties involved in deciding on party lists. The NDI quotes the example of the Democratic Party which, in making their lists, would have to make the difficult choice in listing more senior members of the party above newer members and thus reducing the latter¡¦s chances of being re-elected. Parties within the democratic camp are also having to be careful not to split the votes between them.
26. Functional constituencies only allow people within a certain professional group or a particular sector of employment to vote for their own representative on the Legislative Council. In effect, it allows privileged persons from professional and business groups two votes during LegCo elections: one geographical constituency vote and one functional constituency vote. Under the previous electoral system, approximately 1 million of Hong Kong¡¦s 3.9 million electors had no entitlement to register under any functional constituency. Furthermore, there were substantial differences in the size of the different functional constituencies. Thus, in one constituency, 150 members may vote their representative, whilst in another, 10,000 may vote for only one representative. This disparity was criticised by the UN Human Rights Committee as an affront to the principle of universal and equal suffrage as espoused by Article 25(b) of the ICCPR which provides that every citizen shall have the right and the opportunity without unreasonable restrictions to vote and be elected at genuine periodic elections which shall be by universal and equal suffrage. The UN Human Rights Committee in its November 1995 Report on Hong Kong found that ¡§undue weight¡¨ was still being given to the ¡§views of the business community¡¨ and voters were discriminated against ¡§on the basis of property and functions¡¨.
27. Under the electoral reforms passed by the provisional legislature, the situation is worse. Three of the nine new functional constituencies created under the Patten reforms for the 1995 elections have been eliminated. The remaining six have been narrowed and there has been an extension of the system of corporate voting previously largely abolished by the Patten reforms. Polls suggest little public support for the return to corporate voting or for the idea of indirect elections by functional groups.
28. In the 1991 elections where corporate voting was last permitted, Mr. Lee Shau Kee, the chairman of Henderson Land Company Limited and other companies controlled 21 votes in the Real Estate constituency : one personal vote and 20 votes through his other companies where he has a controlling interest. The total number of registered votes in that constituency was only 373 and with his 21 votes, he controlled over 5% of all the votes.
29. This example serves to demonstrate the extent to which corporate membership can distort and pervert election results. Additionally, there exists the danger that blocs of votes may be ¡§traded¡¨ as part of political or business deals. Where companies are controlled by nominees, it is even more difficult to trace where the real impetus for support is coming from.
The Election Committee
30. In the 1995 elections, the Election Committee comprising 283 directly elected members of the district boards chose 10 members for the Legislative Council through a list system using a single, transferable voting system.
31. For the 1998 elections, a new 800-member Election Committee will choose the 10 remaining members of the Legislative Council. The Committee will be composed of only Hong Kong permanent residents. The members of the Committee are to be chosen in a complicated manner. In basic terms, three blocks of 200 will be from (a) an industrial, commercial and financial sector; (b) the professional sector; and (c) the labour, social services and religious sector. The final 200 will be made up of Hong Kong political leaders. This includes Hong Kong delegates to the National People's Congress, Hong Kong members of the National Committee of the Chinese People's Political Consultative Conference, members of the PLC, and representatives of the district, rural and municipal boards. Most of the members of the Election Committee will be chosen not by individual voters but by enfranchised organisations. Arrangements for the election of the Election Committee, to be held on 2 April, border on the ridiculous. For some of the "subsectors" (constituencies) there are only 2 polling stations for the whole of Hong Kong although the election is being held on a working day.
32. One of the problems of voter registration in Hong Kong is the fact that many Hong Kong residents live a somewhat transient existence between Hong Kong and another country. The electoral framework does not provide for absentee or postal ballots.
The Electoral Affairs Commission
33. An Electoral Affairs Commission (EAC) has been established to serve as the coordinating body for the electoral administration. It replaces the Boundaries and Election Commission established for the 1995 elections. Its mandate allows it to specify regulations for voter registration, constituency delineation, party registration and nomination, campaigning (including financial matters) and the voting procedure.
Seats Open to Permanent Residents with Foreign Passports
34. The Basic Law provides that up to 20 percent of the seats in the LegCo, or 12 of the 60, can be held by permanent residents of Hong Kong "who are not of Chinese nationality or who have the right of abode in foreign countries." For the 1998 elections, these 12 seats will be designated to 12 functional constituency seats only and not any of the directly elected seats. This would seem to violate the Basic Law which does not place any limitations on foreign passport-holders standing for geographical constituency seats.
PROTECTION OF HUMAN RIGHTS
35. The problem we face with regard to the protection of human rights by the Joint Declaration and the Basic Law is two fold: Firstly, certain provisions in the Basic Law potentially violate human rights standards as established by the international covenants and Hong Kong¡¦s Bill of Rights Ordinance (BORO). These provisions, which we discuss below infringe particularly the freedom of expression, the freedom of the person and the independence of the judiciary. Secondly, though human rights are guaranteed in both the Joint Declaration and the Basic Law, such guarantees may be breached. In recent times, we have heard many threats which, if put into action, would violate human rights standards, the Joint Declaration and the Basic Law. One threat which became a reality is the establishment of the provisional legislature as discussed above. Other threats concern interference with our Bill of Rights, curbs being placed on freedom of expression and on the press and disregard for provisions of the international covenants..
ARTICLES OF THE BASIC LAW WHICH MAY VIOLATE HUMAN RIGHTS STANDARDS
36. Article 23 of the Basic Law requires the HKSAR to enact laws on sedition, subversion, secession and the theft of state secrets. The Monitor is concerned that the enactment of these laws will violate rights guaranteed under the ICCPR, especially rights relating to freedom of expression (Article 19). We have stated repeatedly that we believe Article 23 in its present form is a breach of the Joint Declaration.
37. The offence of subversion in particular, is unknown to the common law. As such, its implementation in the HKSAR could amount to a breach of Article 8 of the Basic Law which states that the laws previously in force in Hong Kong, inter alia, the common law shall be maintained unless it contravenes the Basic Law. If the HKSAR is to enact the offence of subversion, it will have to draft an entirely new law using principles alien to the present legal system. These principles may involve violations to certain rights and freedoms guaranteed under the ICCPR.
38. We are concerned that the HKSAR Government will seek to implement PRC laws on subversion since the crime is unknown to common law. We greatly oppose such a move as the offence of subversion in the PRC is far too wide. A Hong Kong based newspaper, the Ming Pao, reported in December 1995 the Hong Kong Legal Department¡¦s analysis of the crime of subversion in the PRC. The crime involves an intent to overthrow the government. The act may involve an act or conspiracy, in open or in secret, violent or peaceful, whether or not the act caused actual harm. Of course, if the Chinese Authorities seek to directly implement their law on subversion in the HKSAR, it will constitute a breach of Article 18 of the Basic Law which does not allow national laws of the PRC to be applied to the HKSAR save those listed in Annex III (Article 23 is not included in Annex III).
39. The Basic Law should be amended to remove this offence from Article 23. Its implementation in Hong Kong will involve violations of rights guaranteed under the ICCPR, particularly to freedom of expression.
40. The approach taken by the colonial government with regards to sedition and the theft of state secrets was to localise the current laws i.e. sections 9 and 10 of the Crimes Ordinance and the Official Secrets Act. The then government introduced a bill which amended the Crimes Ordinance to introduce the new offences of secession and subversion as well as tightening the offence of treason. The legitimate Legislative Council passed amendments to the government bill that deleted the provisions pertaining to secession and subversion and those relating to treasonable offences. It also passed member¡¦s amendments which narrowed the definition of sedition. The bill, though properly enacted, has never been declared a date to take effect. Moreover, the Chief Executive, Mr. Tung Chee-hwa has been reported as saying that Article 23 legislation will be re-visited by the first legislative council of the SAR thus it can be expected that a new amendment bill will be introduced post-May 1998 elections.
41. Sedition has a notorious history of being used to prosecute political dissidents. It was developed in order to criminalise speech which had the effect of bringing the government into contempt and has been criticised as being incompatible with representative government.
42. The term ¡§state secrets¡¨ is unfamiliar to the common law. If laws on the theft of state secrets are to be enacted, the drafters must take immense care in defining ¡§state secrets¡¨ and what the offence of stealing them entails. In particular, the offence should only materialise where there has been harm to national security as a result of the theft. Most importantly, a defence must be available to the accused if he or she did not know that the document was a state secret. This should be further supplemented by a public interest defence and the defence of prior publication. Unfortunately, in the last session before the handover, the Legislative Council passed a government bill which localised the UK Official Secrets Act. The Government argued that the Official Secrets Ordinance covers the Article 23 requirement that laws be passed to prevent the theft of state secrets. The Ordinance does not provide a public interest defence or that of prior publication. Furthermore, it is open for the HKSAR government to enact further legislation on the theft of state secrets since it is not entirely clear that the Official Secrets Ordinance provides for it.
43. We are also concerned about Article 18 of the Basic Law which allows the Standing Committee of the National Peoples Congress to issue an order applying the relevant national laws to the region in the event that it decides that the HKSAR is in a state of emergency.
44. The provision apparently fails to define what national laws may be applied and, in the event, the Chinese Authorities may apply laws which either allow for discrimination or which contravene Articles 6, 7, 8, 11, 15, 16, or 18 of the ICCPR. This would clearly violate Article 4 of the ICCPR and section 5 of the Bill of Rights which provides strict provisions on measures to be taken during emergencies.
Article 19 and Article 158
45. The Monitor questions the competence, the independence and the impartiality of the judiciary when dealing with constitutional issues with political implications.
45a. One concern centres around the Court of Final Appeal, which replaced the Privy Council as Hong Kong¡¦s highest court on 30 June 1997.
46. On 9 June 1995, the British and Chinese Governments reached an agreement on the establishment of the Court of Final Appeal. This agreement proved controversial as it ignored promises made in the Joint Declaration and the Basic Law. Specifically, Article 82 of the Basic Law allows for the Court of Final Appeal to invite judges from other common law jurisdictions to sit on its bench when necessary. The June 9th agreement, on the other hand, limited the number of foreign judges on the bench to 1 out of 5, instead of allowing the Court of Final Appeal the flexibility to decide. This provision was enacted along with other controversial sections in the Court of Final Appeal Ordinance of July 1995.
47. Restrictions have been placed on the jurisdiction of the Court of Final Appeal by sections of the Court of Final Appeal Ordinance and articles of the Basic Law. The first concern is section 4(2) which gives effect to Article 19 of the Basic Law. This denies the Courts of the HKSAR jurisdiction over ¡§acts of state¡¨.
48. The English translation of the Basic Law illustrates ¡§acts of state¡¨ as matters ¡§such as defence and foreign affairs¡¨. The Chinese version defines it as ¡§such as defence and foreign affairs, etcetera.¡¨ (emphasis added)
49. The courts of the HKSAR have to obtain a certificate from the Chief Executive on questions of fact concerning ¡§acts of state¡¨. Before issuing the certificate, the Chief Executive must obtain a certifying document from the Central Peoples¡¦ Government. The certificate is binding on the courts.
50. The Monitor fears that the common law interpretation of what constitutes an ¡§act of state¡¨ will not be followed. Under the common law, ¡§acts of state¡¨ refer only to matters like the declaration of war, the appointment of ministers or the signing of a treaty. It cannot be interpreted as to allow a State to act against its own citizens.
51. The Court of Final Appeal Ordinance as it stands, and Article 19 of the Basic Law, ensure that any challenge to an issue which the Chinese Government deems an ¡§act of state¡¨ will be beyond the jurisdiction of the Hong Kong courts including the highest court of the territory. HKSAR courts are not able to interpret what is meant by ¡§acts of state¡¨ because it concerns defence and foreign affairs which is not within the autonomy of the HKSAR. Such an arbitrary provision clearly does damage to the rule of law. It denies a citizen of the HKSAR the right to a fair hearing guaranteed by Article 14 of the ICCPR.
52. Article 158 of the Basic Law removes from the Hong Kong courts the right to interpret the Basic Law where the interpretation concerns either affairs which are the responsibility of the Central Peoples Government or, the relationship between the Central Authorities and the HKSAR. Only the Standing Committee of the National People¡¦s Congress may interpret such matters and their decision will be binding on the trial court. Their decision is unappealable.
53. Article 158 violates the right to a fair hearing guaranteed under Article 14 of the ICCPR. Parties to those cases involving matters excluded by Article 158 from the jurisdiction of the HKSAR courts are denied the right to make submissions to any tribunal and there is no right of appeal against the decision returned by the Standing Committee.
54. Further, the ambit of what can be excluded from the jurisdiction of the courts is very wide and open to arbitrary application. Almost anything can fall within the scope of matters concerning the relationship between the Central Authorities and the HKSAR, particularly issues which are politically sensitive.
55. There have already been signs of the Hong Kong judiciary faltering in its role as the guardian of liberty and the rule of law. In the recent case of HKSAR v. Ma Wai-kwan, David (29 July 1997), which inter alia, challenged the establishment of the provisional legislature as unconstitutional and illegal, the Court of Appeal found that it could not question decisions made by the National Peoples¡¦ Congress (NPC) or any bodies established by the NPC. The reason for this decision was that under the colonial system Hong Kong courts could not question decisions of the British parliament or the government, and the Basic Law imposes similar restrictions on the HKSAR courts under Article 19 vis a vis the new sovereign. The Monitor considered this to be a serious misreading of the Basic Law. Hong Kong is not a colony of the People's Republic of China (PRC); it is a part of China. Its relationship with the Central Authorities and other parts of China is set out in great detail in the Basic Law. Article 158 gives a right and imposes an obligation on the HKSAR government to interpret the Basic Law. If the need to interpret the Basic Law arises in the context of an NPC decision or of any other mainland body, a liberal interpretation of the Basic Law may give the HKSAR courts the right to review that decision.
56. We urge the Committee to find that:-
57. - limiting the number of foreign judges who can sit on the bench of the Court of Final Appeal violates Article 82 of the Basic Law and poses a challenge to the independence of the highest court of the HKSAR;
58. - Section 4(2) of the Court of Final Appeal Ordinance and Article 19 of the Basic Law effectively deny the HKSAR courts jurisdiction over cases deemed to involve ¡§acts of state¡¨. The term ¡§acts of state¡¨ is ill-defined in the Basic Law and is open to abuse by arbitrary application. This could lead to violations of the right to a fair hearing guaranteed by Article 14 of the ICCPR;
59. - Article 158 of the Basic Law, by removing from the HKSAR courts, the right to interpret the Basic Law on issues concerning the affairs which are the responsibility of the Central Peoples¡¦ Government or the relationship between the Central Authorities and the HKSAR, denies HKSAR citizens the right to a fair hearing. This is because decisions on the interpretation of the Basic Law on these matters can only be made by the Standing Committee of the National People¡¦s Congress, whose decisions are binding on the courts of the HKSAR and are unappealable.
60. - a serious review of the Ma Wai-kwan decision should be made on the grounds that the findings in that case severely threaten the autonomy promised to Hong Kong by the Joint Declaration and the Basic Law.
61. Article 24 of the Basic Law lists all those people who are, or have the right to be permanent residents of the HKSAR. One group of persons who are being unjustifiably denied permanent residency and the right of abode, are current Hong Kong permanent residents who have obtained foreign passports.
62. Under present immigration laws, Hong Kong residents who have obtained foreign passports abroad but who have returned to live in Hong Kong since (¡§overseas returnees¡¨) can keep their permanent residency status and right of abode in Hong Kong despite their foreign nationality.
63. However on 10 August 1996, the Preparatory Committee passed a resolution on the interpretation of Article 24. It decided that all Hong Kong permanent residents returning to the HKSAR after 1 July 1997 who hold foreign passports (apart from British National (Overseas) and British Overseas Citizenship documents) shall lose their permanent residency status on declaration of their foreign nationality. Their status is then reduced to that of an ordinary resident, and to regain permanent residency, they have to fulfil another seven years of continuous residency in Hong Kong. Should they leave the HKSAR for a specified period of time after acquiring permanent residency, they may lose their permanent residency status altogether.
64. Loss of permanent residency status entails:
65. - losing the right not to be deported, removed and the right not to have conditions of stay imposed upon you;
66. - losing the right to vote and to stand for elections in the HKSAR; and
67. - being barred from entering the civil service on local terms.
68. It is unjustified to deny persons who are born and who have lived most of their lives in Hong Kong the right to permanent residency and the right of abode in the HKSAR.
69. In its interpretation of the term ¡§ordinary resident¡¨ the Preparatory Committee excluded certain groups of people who have been ordinarily resident in Hong Kong for seven years from being eligible to apply for permanent residency status. Those people who are excluded are predominantly Mainland Chinese dissidents and Mainland Chinese mothers who have children born in Hong Kong to Hong Kong-based fathers. Under current immigration laws, these persons are allowed to remain in Hong Kong by the Director of Immigration in exercising his power of discretion on compassionate grounds. After seven years of ordinary residence they are entitled to apply for permanent residency.
70. Under Article 24, all children of Hong Kong permanent residents have the right of abode in Hong Kong. In a recent amendment to the Immigration Ordinance however, this right was curbed by the requirement that such children must obtain a one-way permit in order to enter Hong Kong. This permit scheme is notorious for corrupt practices and it often results in children waiting years in a queue before consideration.
71. This policy is also discriminatory in that children are the only category of persons entitled to the right of abode in Hong Kong that have to face this administrative barrier. There is no legitimate justification for this policy -- Hong Kong¡¦s immigration services are capable of handling the influx. Some argue that this influx of children will unduly burden the school system as well as social services. The Monitor feels that such excuses cannot be used to deny children one of their most basic rights i.e. to the protection and enjoyment of family life.
72. In a recent decision however, the High Court accepted the HKSAR government¡¦s argument that Article 22 of the Basic Law empowers the authorities of the Central People¡¦s Government to determine which people from China could enter the HKSAR for settlement and that this included those children accorded the right of abode under Article 24. Having accepted this, the court refused to hear any other arguments concerning the discrimination against these children and the violation of their rights as it should have done given that such rights are guaranteed in the Basic Law. This decision also highlights the inconsistencies between various provisions in the Basic Law and the vulnerability of Hong Kong people that judicial institutions may not necessarily interpret such inconsistencies in ways protective of their human rights.
VIOLATIONS OF HUMAN RIGHTS guaranteed by the joint declaration and the basic law
73. The International Covenant on Civil and Political Rights (¡§ICCPR¡¨), on ratification by the United Kingdom in 1976, was extended to Hong Kong. Article XIII of the Joint Declaration states,
74. ¡§The Hong Kong SAR Government shall protect the rights and freedoms of inhabitants and other persons in the Hong Kong SAR according to law. The Hong Kong SAR Government shall maintain the rights and freedoms as provided for by the laws previously in force in Hong Kong including freedom of the person, of speech, of the press, of assembly, of association, to form and join trade unions, of correspondence, of travel, of movement, of strike, of demonstration, of choice, of occupation, of academic research, of belief, inviolability of the home, the freedom to marry and the right to raise a family freely.
75. Every person shall have the right to confidential legal advice, access to the courts, representation in the courts by lawyers of his choice, and to obtain judicial remedies. Every person shall have the right to challenge the actions of the executive in the courts.
76. Religious organisations and believers may maintain their relations with religious organisations and believers elsewhere, and schools, hospitals and welfare institutions run by religious organisations may be continued. The relationship between religious organisations in the Hong Kong Special Administrative Region and those in other parts of the People¡¦s Republic of China shall be based on the principles of non-subordination, non-interference and mutual respect.
77. The provisions of the ICCPR and the ICESCR as applied to Hong Kong shall remain in force.¡¨
78. These treaty provisions are reflected in Article 8, article 39 and Chapter III of the Basic Law. Article 39 of the Basic Law in fact guarantees the application of the ICCPR, the ICESCR and the international labour conventions to the HKSAR and specifies that they should be implemented through the laws of the HKSAR.
79. The Hong Kong Bill of Rights Ordinance 1991 (¡§Bill of Rights¡¨) was enacted to incorporate the provisions of the ICCPR into the laws of Hong Kong. It was introduced in the wake of the Tiananmen Square massacre in order to restore confidence in Hong Kong that civil liberties and human rights would be adequately protected in the territory.
80. The Bill of Rights Ordinance consists of three parts. Part I is introductory and deals with matters such as the effect of the Ordinance, its scope of operation, the interpretation of the Bill, permissible derogations from rights guaranteed, the jurisdiction of the courts to consider Bill of Rights issues and their remedial powers. Part II sets out all the fundamental rights guaranteed to Hong Kong people. The articles, save for a few minor amendments, mirror those of the ICCPR. Part III consists of a number of limitations and savings. These include those reservations to the ICCPR entered by the UK in respect of Hong Kong.
Problems with the Bill of Rights Ordinance
81. Key operative sections of the Bill of Rights Ordinance have been declared by the Standing Committee of the National People's Congress on 23 February 1997 to be inconsistent with th Basic Law and thereby not to be adopted as laws of the HKSAR. This resolution has no legal basis as the BORO is a local replica of the ICCPR which has been guaranteed to be remain in force in the HKSAR by Article 39 of the Basic Law. This attack on the BORO by the Standing Committee has been continued by Tung Chee-hwa's Government.
82. The Bill of Rights Ordinance allows challenges to be taken to court and thus goes beyond the scope of the ICCPR. There are however, limitations to its use. Section 7 of the Bill of Rights Ordinance 1991 states,
82a. ¡§This Ordinance binds only -
83. (i) the Government and all public authorities; and
84. (ii) any person acting on behalf of the Government or a public authority¡¨.
85. This limitation on the applicability of the Bill of Rights was further entrenched by a Court of Appeal decision in the case of Tam Hing-yee v. Wu Tai-wai which held that the Bill of Rights Ordinance did not apply in intercitizen-disputes. This bar contravenes Article 2 of the ICCPR which binds States parties to,
86. - respect and to ensure rights guaranteed in the Covenant;
87. - take the necessary steps to adopt such measures as may be necessary to give effect to the rights recognized in the Covenant; and
88. - to ensure that any person whose rights are violated shall have an effective remedy.
89. By upholding this bar to the applicability of the Bill of Rights, the Government is effectively denying individuals the right to the full protection of their rights guaranteed by the Covenant. The UN Human Rights Committee was critical of this court decision for its failure to give full effect to Hong Kong's obligations under the Covenant.
90. In June 1997, Legislative Councillor Lau Chin-shek introduced a private member¡¦s bill which broadened the provisions of the BORO so that it applied to ¡§relations between private persons¡¨. Although the legitimate Legislative Council passed the bill, the provisional legislature put a freeze on the bill in July. This freeze lasted till January 1998. On 24 February 1998, the provisional legislature voted in favour of a government bill which repealed Lau Chin-shek¡¦s amendments.
91. The SAR Government insisted that this was not ¡§watering down any of the prevailing protection under the BORO" and justified its move on the grounds that the amendments made by Lau Chin-shek¡¦s bill to the BORO were capable of three different interpretations and would thus create uncertainty and confusion as well as swamp the courts with litigation. This is misleading and disingenuous. The Monitor considers the Government's move an attack on the Bill of Rights in breach of Article 39 of the Basic Law and the Government's international obligation under the ICCPR.
92. The Monitor is disappointed that the SAR Government has chosen to continue to erode the protections provided by the BORO and the ICCPR in Hong Kong, to adhere to the hostile attitude towards private members' bills, to reverse legislation moved by the legitimate Legislative Council and its readiness to give effect to share the business community's demand to limit protection against human rights violations between private individuals.
93. Another problem, perhaps a more fundamental one, is the ability of our judges to interpret the Bill of Rights. Many Hong Kong judges when called upon to interpret the Bill of Rights seem reluctant to challenge the status quo and take a open-minded approach to its provisions. This has resulted in narrowly construed judgments which fail to offer any useful interpretation of the application of the Bill of Rights. Often the provisions of the Bill of Rights are interpreted in such a way as to not afford protection of rights.
94. While the Bill is certainly a protective measure, an aggrieved individual may only resort to it where there is a matter being litigated. Further, section 6 of the Bill requires that (a) the remedy sought is one that the court has the power to grant or make in the proceedings concerned, and (b) it must be a remedy that the court considers appropriate and just in the circumstances. To date, the Hong Kong courts have not developed any doctrine whereby the violation of one¡¦s human rights guaranteed by the Bill could serve as an independent ground for an award of remedies which the court has the power to grant. This means that Bill of Rights cases are never brought on the sole ground that there has been a violation of one¡¦s human rights. The argument on the human rights point only forms part of the whole case.
Freedom of Assembly and Association
95. On 1 July 1997, the Standing Committee of the National People¡¦s Congress exercised its power of repeal under Article 160 of the Basic Law to amend two ordinances which it found to be in contravention with the Basic Law. These were the Public Order Ordinance and the Societies Ordinance which had only recently been amended by the colonial government and by various private member¡¦s bills in order to ensure adherence with the Bill of Rights and the ICCPR. The consultation document issued by the Chief Executive Designate¡¦s office prior to the handover on the proposed amendments met with much criticism but by and large these were ignores. The amendments were passed by the provisional legislature before the handover (thereby breaching the then constitution, the Letters Patent) and came into effect on 1 July 1997. The following sections set out in detail the previous law, and the changes which have been made.
The Public Order Ordinance
96. The Public Order Ordinance is the most important document in Hong Kong in respect of the exercise of the right of assembly. Its 1967 version, which attempted to consolidate laws originally scattered in various statutes, was introduced during the most serious riots in Hong Kong¡¦s history and as such it was of a somewhat repressive nature. Major amendments were made in 1970, 1980 and 1995 under British rule. Though not without serious problems, the 1995 Ordinance which was enacted to bring its provisions into accordance with the Bill of Rights, represented a step forward.
97. The 1995 Ordinance as it stood only required that the Commissioner of Police be notified in the event of a public meeting or public procession being held. This replaced the previous licensing system. Notification was not required for a meeting of not more than 50 persons, meetings in a private premises where the attendance did not exceed 500 persons, or meetings in registered schools organized by the latter or its accredited society. It was also not required for a procession of not more than 30 persons, or a procession which was not on a public highway or in a public park. The Commissioner of Police could prohibit a notified public meeting or a public procession where he reasonably considered such prohibition to be necessary in the interests of public safety or public order. After a private member¡¦s bill amendments in 1996, the power of the Commissioner to control and direct music and speech broadcast at public gatherings was subject to more stringent limitations. It could only be invoked if the Commissioner reasonably considered it to be necessary to prevent an imminent threat to public safety or public order.
98. The amendments effected on 1 July 1997 rolled back any liberalising provisions made in the 1995 version of the Ordinance. The licensing system was reinstated under the euphemism of a ¡§notice of no objection¡¨. In particular, the Commissioner of Police was given the power to prohibit a notified public meeting or object to a notified procession on the grounds of ¡§national security¡¨ and ¡§for the protection of the rights and freedoms of others¡¨.
99. We take issue with this because national security as a ground of restriction is unnecessary in Hong Kong given that all demonstrations here have been peaceful in the last decade. It is also dangerous, especially when not qualified by the element of force. When questioned on the over-wide discretion given to the police, the then Chief Executive Designate explained that guidelines would be published to guide the exercise of discretion by the police and only restrictions demonstrably necessary in a free and democratic society would be imposed. These guidelines were released in mid-July. They specify, in dealing with notifications relating to public gatherings, that the ground of ¡§national security¡¨ would only be invoked by the Commissioner or an officer not below the rank of Senior Assistant Commissioner, and would be invoked only ¡§if he reasonably considers it necessary to do so in order to safeguard the territorial integrity and the independence of the People¡¦s Republic of China¡¨. In coming to his decision, the Commissioner would take into consideration, among other things, whether or not the declared purpose of the notified public meeting or procession is to advocate separation from the People¡¦s Republic of China including advocacy of the independence of Taiwan or Tibet. As the guidelines have not been so far put to test by an actual case of a ban on national security grounds, it is still unclear whether they will be used to prohibit or restrict all peaceful public gatherings with separatist overtones.
100. Likewise, in dealing with public gathering in progress, when deciding whether to take appropriate action on the grounds of ¡§national security¡¨ to regulate a public meeting or procession in progress, the police officer in charge may consider, among other things, whether or not any act is likely to cause or lead to an imminent breach of the peace; and whether or not any person at the public meeting or procession is advocating separation from the People¡¦s Republic of China including advocacy of the independence of Taiwan or Tibet.
101. The guidelines do not incorporate the modern jurisprudence of ¡§national security¡¨ as enumerated in the Siracusa Principles or the Johannesburg Principles (see paragraph 161 below), or indeed the United Nations Human Rights Committee interpretation of national security. What is clear is that the police are now required by the guidelines to make political decisions when deciding to prohibit a demonstration or public meeting.
102. Subject to the above criticism, the Commissioner¡¦s power to prohibit has been limited to a certain extent, in that he was not and is not allowed to prohibit a public gathering if he considers that the interests of society could be met by the imposition of conditions on the procession or meeting. Also, in issuing a notice of prohibition, the Commissioner has to state the ground or grounds on which the prohibition is considered to be necessary and the reasons for his opinion as to those grounds. This safeguard of due process might not be very effective though since the grounds for prohibition are so wide and inclusive of national security.
103. Moreover, the Basic Law provides that the courts of the HKSAR ¡§have no jurisdiction over acts of state such as defence and foreign affairs whenever such questions arise in the adjudication of cases¡¨ and the HKSAR courts ¡§shall obtain a certificate from the Chief Executive on questions of fact concerning acts of state whenever such questions arise in the adjudication of cases¡¨. Thus, the court¡¦s judicial control by way of judicial review will be minimal if not absent, unless an extremely vigilant HKSAR court is ready to defend its jurisdiction and the freedom of the Hong Kong people when the ground of national security is raised by the authorities.
104. The fundamental objections to such a system of control are the wide grounds for restrictions and the broad and imprecise grounds in the drafting of the Ordinance.
Police Interference with Freedom of Assembly
105. After the rollback of the laws relating to freedoms of association and of assembly by the SAR Government in the small hours of 1 July 1997, police interference with freedom of assembly has become more apparent.
106. Before the handover, the police has already a practice of setting up demonstration areas, usually a small piece of land surrounded by iron barricades guarded by police to restrict demonstrators to a particular spot. It was not unusual for policemen guarding the demonstration areas to block from view banners displaced by demonstrators on the iron barricade or on the floor. Occasionally the police do even not allow the demonstrators to hang their banners and posters on the barricade, saying that they are police property.
107. At and after the handover, for all demonstrations targeted at Chinese leaders, demonstration areas were invariably restricted to locations quite far away from the demonstration targets, thereby creating conflict and distrust of the police among demonstrators.
108. The Secretary for Security and a senior police officer responsible for investigating a case involving arrested demonstrators both cited a provision in the Public Order Ordinance on "designated public places" as the source of power. This is a clear mistake of law as such places have to be gazetted and are intended for reducing police control not for confining demonstrators. The sites police have set up near Xinhua, the Foreign Office Building, and the Wanchai Convention Centre have never been on the list of designated areas. Such misconception of the law indicates the lack of appreciation by the authorities on the limits of their power. This is particularly alarming as the police have chosen to tighten control on public processions and meetings.
109. On the eve and day of the handover, the police were largely professional, restrained, and reasonable. At the handover, police in uniform were stationed near important spots out of eyesight. Our observation indicated that police video teams, which in the past had frequently videotaped all demonstrators at peaceful demonstrations, had disappeared. The police were unusually "shy" and therefore much less intimidating compared to most of the occasions before the handover when senior Chinese leaders or officials were demonstration targets.
110. However, since the handover, Tung's stress on responsibilities at the expense of rights, social control instead of personal freedoms, his stress on "rule by law" rather than "rule of law", and the inadequate and weakening check and balance mechanism have all paved the way for diminishing police self-restrain. The tightening of laws governing public gatherings by amending the Public Order Ordinance has created a more restrictive atmosphere. In this climate, the problem of police interference with demonstrations has been worsening and reached its climax during the World Bank Conference in Hong Kong.
111. Since the addition of the ground of "national security" as a ground to ban public gatherings, a new set of guidelines were needed to implement the controversial newly amended Public Order Ordinance. Following the issuance of the vaguely drafted and internally inconsistent guidelines relating to "national security", the police began to monitor the political demands of the demonstrators and wanted to be informed of the slogans of the demonstrators intended to chant. The nature of the work of the police force has thus been substantially changed as the police are no longer just monitoring behaviour but policing people's political opinions. In processing an advance notification required by the law, a peaceful demonstration with separatist overtone might be prohibited under such new guidelines if the guidelines are to be taken literally without reference to international human rights standards.
112. An important feature of post-handover police control of demonstrations is the police's planned intimidation, by prominent deployment of force, of demonstrators led by organizers selectively targeted by the police. Another serious problem is the police's imposition of unreasonable restrictions on the spot instead of their inclusion as conditions in the "letter of no objection" making it impossible for demonstrators to challenge those restrictions before the Board of Appeal which specifically set up for reviewing refusal or restrictions. Another highly objectionable feature is the readiness to use force on such demonstrators. All these raise questions as to whether the police are law enforcers or uniformed law breakers themselves, and whether the police have begun a transformation into a mechanism of oppression.
113. An exceptionally large number of policemen were deployed during the World Bank Conference, far outnumbering demonstrators. Cordons of human-chains formed by policemen would engulf demonstrators to escort and restrict them in their procession. The demonstrators would be video-taped all the way. Moreover, the usual practice of conducting secret surveillance to avoid alarming a police target has been replaced by deliberate high profile watching of such demonstrators, accompanying them to the toilet and to restaurants, often even after the dispersal of a demonstration. Harassment and infringement of privacy has been adopted by the police as an integral part of their strategy.
114. A journalist covering the World Bank Conference in Hong Kong in late October complained to the Monitor, "I noticed a big crowd of police officers. In their midst, barely visible, was a small number of protesters, carrying a banner. They were surrounded by at least five cordons of policemen holding hands, and surrounded by many more policemen shooing the press away. It was extremely difficult, not to say impossible, for journalists to even attempt at doing our job. The demonstrators were so surrounded by the police that we could not hear their declarations, and we could not even approach them to get hold of their press statement. Again, the manner in which the police were sending us away from the demonstration was a totally unnecessary use of authority, the demonstrators, and the journalists, were peaceful and orderly, and the real commotion was being created by the massive police presence."
115. Another new police tactic is stopping a procession very far away from its destination. By withholding the right of the procession to proceed, the police try to extract a promise from the demonstrators to enter the demonstration areas specifically set up for the demonstrators. Demonstrators would then be stopped from heading for places other members of public have access to. Demonstrators were therefore kept further away than other members of the public from their demonstration targets simply because they were demonstrators. Those demonstrators who value their rights inevitably challenge the police's right to hold them hostage to extract promises, so tension mounts and distrust of the police becomes aggravated. The situation becomes quite beyond the control of the organizers if rights-conscious demonstrators react angrily, so that the very tactic designed to extract compliance becomes a source of disobedience and conflict. To a great extent, the risk of disorder comes from the police tactics. The police-cum-protesters march, the big crowd of police surrounding the demonstrators, and the police blocking off roads to prevent demonstrators from approaching cause far more disruption than would be caused by a less over-policed gathering.
116. Those who have suffered most under this post-handover intimidation and harassment strategy are those demonstrators specifically targeted. The police have a tradition of discriminating against demonstrations according to the nature of the organizers' political status (ordinary activists compared to those prominent political figures), their political opinion, and their demonstration targets. But with the apparent loss of police self-restraint, the situation has deteriorated rapidly. Certain individuals who are frequent participants in demonstrations are marked by the police for special attention.
117. An example is a group of demonstrators targeted by the police during the World Bank Conference. This case has been investigated by the Monitor. Evidence, including unpublished television camera footage taken at the scene, indicates brutal and unlawful police behaviour. The group criticized the Bank as worsening poverty by imposing fiscal policy requirements at the expense of the interest of poor. As a few demonstrators were individuals targeted by the police, the demonstrators were under intimidating police escort in their march to the Conference venue. The procession to the Conference Centre where the Bank was meeting was stopped hundreds of metres away from the Centre, at a spot where the demonstrators could not even see the Centre building. The demonstrators turned back. With all other ways blocked, using an escalator they went up a pedestrian flyover. After some of the demonstrators had already gone up the flyover, the policemen formed cordons of human barricades to stop the demonstrators in the other direction and confined them on a narrow space on the flyover. Those demonstrators who originally chose to stay at the back of the procession and who had walked in a leisurely manner up to the flyover ahead of the police, were separated from their fellow demonstrators and stranded at one end of the flyover leading to the Immigration Tower. Five of them were arrested even though they held no banners nor placards, chanted no slogans, and did nothing but just waited and watched the police stopping their fellow demonstrators who had just come up. The arrest was for refusing to leave an area which was open to the public, and which other members of the public not identified as demonstrators were entering and leaving freely. It was therefore unlawful. Those arrested were handcuffed, including two slightly built girls accused of assaulting police officers. Even the former Deputy of Public Prosecutions Peter Nguyen has commented -- on his last day in post -- that it was "a bit inappropriate" to handcuff those women demonstrators. The unused television footage shows five policemen holding a small woman horizontally at waist height and then dropping her on the pavement.
118. The following is an observation by the journalist mentioned above on the police control measures. "Understandably, police security around the Convention and Exhibition Centre during the World Bank Group / IMF meetings has been very tight. However, it has probably been too tight, and has at times turned into outright harassment, not just of the protesters, but of the journalists trying to cover the protests, too.
119. "The Police had arranged a very narrow space for the protesters, squashed between the Wan Chai Fire Station and the border of the pavement, allegedly because "traffic could not be disrupted by the protest". The press was allocated an even narrower space, fenced off and called "press area", which only allowed reporters, cameramen and photographers to see the profile of the demonstrators, without managing to see what their banners called for, or even managing to have a front view of the tiny, fence-caged group of protesters.
120. "The space was so insufficient, that in order to have an approximate view of the protest we had to queue up, take a quick look, and make way for the other reporters behind. In front of the demonstration, some photographers had started to protest against not being allowed to take front-view pictures, and eventually the police allowed people to go in front: first, on a "five at a time" basis, and then eventually gave in, allowing for another fenced-off "press area" in front. The protester's banners where still half visible, because a row of policemen was standing in front of them, and I could not read what a banner standing on the ground said."
121. Another police measure to make the lives of the demonstrators difficult is the arbitrary condition imposed on processions prohibiting the use of an amplification device on a vehicle while in motion. The condition is arbitrary because candidates could do use such devices in the 1995 Legislative Council elections.
122. Press covering demonstrations are sometimes hindered by the police from performing their duties properly. For instance, during the World Bank Conference, the requirement of arbitrary registration and sticker labels were imposed despite the obvious press accreditations hanging around the journalists' necks.
The Societies Ordinance
123. The Societies Ordinance governs how societies may get lawful status in Hong Kong. It was first enacted in 1949 to control both triad societies and, perhaps more importantly, political groups at the time of the Communist takeover in China. The enactment was a significant departure from the practice in the United Kingdom where people could associate freely (and still can) without the need to register with nor to notify the authorities. It sought to restrain the activities of pro-Communist forces, pro-Nationalist forces and other possible opposition in Hong Kong within the same scheme as that for the triads.
124. Up until 1992, the Societies Ordinance, provided for a draconian scheme of control and supervision inconsistent with international human rights standards. It was amended substantially that year in order to bring it into line with the provisions of the Bill of Rights.
125. The pre-1992 Ordinance required all local societies, except those registered under other statutes like the Trade Unions Ordinance or other exempted societies, to apply for registration or exemption with the "Registrar of Societies" after its establishment. Societies established solely for religious, charitable, social or recreational purposes or as a rural committee (i.e. a villagers association in the New Territories) might be exempted from registration, but had to specifically apply for such an exemption. Lists of registered societies and exempted societies were kept in two separate registers for public inspection. No society could undertake any activities until it had been registered or exempted.
126. The Registrar was the Commissioner of Police, or in certain cases the Secretary for Security. The Registrar was empowered to refuse or cancel a registration or exemption on various grounds including:
127. Office-bearers of a society whose registration or exemption had been cancelled were not allowed to become office-bearers of other societies unless approved by the Registrar. Appeal against such decisions could be made to "the Governor in Council" (the Governor in consultation with his Executive Council). The Governor in Council might also dissolve a registered or exempted society if he was satisfied that the society was being used for purposes "incompatible with peace, welfare or good order in Hong Kong."
128. Registered societies were subject to more stringent controls and interference than exempted societies. The Registrar had power to enter their offices and meeting places at any time including their meeting time, and might even prohibit the use of any place for their meeting or place of business.
129. All societies, registered or exempt, were subject to many outrageous powers of the authorities to supervise, interfere and even ultimately control them in many respects. Prior approval by the Registrar was required for amendments to the constitution of a society. The Registrar could also order its constitution to be amended as he so prescribed. He had the power to require information on constitutions and rules, its list of office-bearers and members and their particulars, number and venues of its meetings held, and any other information about a society which he might specify. The Registrar could order a society to desist from activities which appeared to him inconsistent with its objects. These powers of control were supported by offences with stiff penalties created to ensure compliance.
130. If the Registrar believed that a society was being used for purposes prejudicial to peace, welfare, or good order in Hong Kong he might, with or without force, enter and search a place suspected to be its place of meeting or business and search persons there or escaping from there.
131. All triad societies or societies which used triad rituals, were outlawed as unlawful societies but so also were local societies which were not a registered or exempted society and had not applied for registration or exemption within fourteen days after their establishment.
132. Persons who were members of or assisted an unlawful society, or attended its meeting, or knowingly allowed its meeting on their premises committed criminal offences.
133. Any police inspector or officer of higher rank, could, with or without force, with or without assistance, enter and search any place including the home of any person, seize suspected documents and other things connected to an unlawful society, and arrest all persons there if he had reasons to believe that a meeting of the society was being held there or its documents and other artifacts were there. The property of an unlawful society could be forfeited.
134. Furthermore the Registrar had the power to summon any person whom he believed to be able to give him information on an unlawful society. The person summoned was required by the Ordinance to produce all documents he possessed and answer truthfully on oath all questions put to him.
135. A foreign society was deemed to establish as a local society and required to register under the Ordinance if it operated in Hong Kong.
136. The registration system effectively amounted to a requirement that the consent of the authorities be gained in order to operate. The grounds for refusing registration, exemption or dissolution were vague and wide leaving too much unguided discretion to the authorities. They were totally inconsistent with international human rights standards as laid down in the International Covenant on Civil and Political Rights.
137. The colonial government was in a dilemma attempting to bring the Societies Ordinance into line with the Bill of Rights Ordinance while trying to leave as much power as possible to itself. The uneasy compromise resulted in a 1992 Ordinance with restrictive provisions and severe penalties, which were at odds with international human rights standards, but which was still the most liberal version in Hong Kong's history.
138. The registration system was replaced in the 1992 legislation with a notification system. The Registrar was renamed "Societies Officer" who was again the Commissioner of Police. Within a month after the establishment or deemed establishment of a local society, it was required to inform the Societies Officer in writing of its name, objects, addresses of its principal place of business and premises it occupied, and names of office-bearers of the society. The Societies Officer would then list the name and addresses of the society in a list of all societies open to inspection free of charge at his office. Similar notification was also required in setting up a branch. Every office-bearer of a group committed an offence if it failed to notify the Societies Officer, although the group or its branch would not automatically become an unlawful society unless a prohibition order was made.
139. In processing a notification the Societies Officer could require a society to change its name within a specified time if its name was identical or similar to another group or was misleading. The society so aggrieved might appeal to the Secretary for Security.
140. The 1992 legislation provided that, if the Societies Officer "reasonably believes" that a society "may be prejudicial to the security of Hong Kong, or to public safety or public order", he was required to notify the Secretary for Security and might "recommend the making of an order prohibiting the operation or continued operation of the society". The Secretary for Security might then gazette a prohibition order after, unless impractical, affording the society an opportunity to be heard or to make written representations. The society or its members could appeal against the prohibition to the Governor in Council. All societies under a prohibition order in force, were unlawful societies. Being members or office-bearers of an unlawful society, inciting others to become so, assisting it financially or by other means, attending its meeting, or knowingly allowing a meeting of it or its members, were criminal offences.
141. The 1992 Ordinance no longer empowered the Governor to dissolve a society. The power to prohibit any society from having connection with any political group outside Hong Kong was also abolished, which caused criticism by China.
142. On the recommendation of the Societies Officer, an office-bearer of an unlawful society, whether convicted or not, and a person convicted as a member of an unlawful society, might be prohibited by an order of the Secretary for Security from becoming office-bearer of any other society for a period of five years unless with the consent of the Societies Officer. A person aggrieved could appeal to the Governor in Council. Contravening such prohibition was again an offence.
143. The Societies Officer's powers of entry, search and seizure under the 1992 Ordinance provide that where he reasonably believes that it is necessary to do so in connection with the performance of his functions under this Ordinance, he may at all reasonable times enter into any place or premises which he has reason to believe is, or is kept by, any society or by any of its members as a place of meeting or place of business. The "necessity" required by the Ordinance is all from his point of view and is not the objective necessity required by international standards. The "reasonableness" so required, perhaps except the one with respect to time, was only reasonable to the Commissioner of Police himself. There was no safeguard to guide the exercise of the Officer's "discretion". The power does not require any warrant from a magistrate except when the place is also used for dwelling purposes. The language of the provision is so vague that it can be used to harass legitimate societies and their members.
144. The Societies Officer's power to require information was restricted to such information as he might reasonably require for the performance of his functions under the Ordinance. A new legal obligation was imposed on a society to notify the Societies Officers of any change in its name, objects, office-bearers or principal place of business within a month of the change. Every one of its office-bearer committed an offence if a society failed to do so.
145. Although the Ordinance represented a great step forward in the realisation of the freedom to associate, its provisions were still not up to the standards set in the ICCPR. Some of the problems of the 1992 Ordinance are considered below together with the 1997 amendments by the incoming administration, which has retained most of the 1992 provisions but expanded many of their weaknesses.
146. The 1997 amendments came against an unfortunate background as part of a package of China's effort to emasculate the Hong Kong Bill of Rights. Like the Public Order Ordinance, the Chinese authorities used Article 160 of the Basic Law to justify amendments to the Societies Ordinance on the grounds that it was inconsistent with the Basic Law. It is hard to see the logic in this link.
147. Also Article 23 of the Basic Law requires the enactment of legislation in the HKSAR "to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies". Chinese officials have repeatedly said that Hong Kong should not be used as a base of subversion against China. Sympathizers of Beijing have also criticized the fact that a local society was no longer prohibited from having connections with foreign political groups. The message was clear -- China wanted to narrow down the freedom of association in Hong Kong in breach of the promises made to protect freedoms and rights.
148. Against this background, CH Tung, then Chief Executive Designate, published in April 1997 a consultation document setting out his proposals to amend the Societies Ordinance. He proposed to reintroduce a system of registration, and to add "public health or morals", "protection of rights and freedoms of others", and to replace "security of Hong Kong" in the 1992 legislation with "national security", as grounds for prohibiting societies. Moreover, political societies in Hong Kong having "connections" with "foreign political bodies" or with "aliens" would be prohibited. Political societies were widely defined to include all those whose members included members of the Legislative Council and whose activities included assisting those members with their functions in political activities relating to government institutions and comment on public affairs as their main objectives." "Connections" were also so vaguely and broadly defined as to cover cases where any group:
149. Foreign political organizations would include any foreign or Taiwan government, its political subdivision and its instrumentality, foreign political parties, and international political organizations.
150. Such definitions would have stopped most legitimate contacts by local societies working on issues of public interest with international or foreign bodies and even foreigners. A group promoting human rights standards as elaborated by UN treaty bodies in public policy could be prohibited. The Hong Kong branch of Amnesty International would need to sever ties with its parent organization. A local socialist political party would find it dangerous even to draft a joint position paper on labour rights with a foreign counterpart. An Australian lawyer, an "alien", practising in Hong Kong paying his subscription to his professional body, the Law Society, would result in it being banned.
151. These proposals were so extreme and ill-thought out that there was strong public outcry both in Hong Kong and in the international community.
152. Contrary to what most people had expected, the Chief Executive Designate responded to the public pressure with quite substantial concessions particularly in relation to the definitions of local and foreign political organizations and that of "connections".
153. Under the amendments effected on 1 July 1997, "political body" means a political party or an organization purporting to be one, or an organization whose principal function is to promote or prepare a candidate for an election. "Foreign political organization" is limited to foreign political party or government and its political subdivision or agent. The reference to "aliens" has been removed. "Connections" are also narrowed down to all direct or indirect financial support or sponsorship from, affiliation to, participation in decision making by, or having policy determined by foreign political groups.
154. These concessions may have removed most of the immediate threats but there are serious dangers in the 1997 amendments enacted, controversially, by the Provisional Legislative Council.
155. One of the new grounds of prohibition introduced by the 1997 amendments is that of being "a political body" having "connection with a foreign political organization or a political organization of Taiwan." Thus, societies with foreign links may be discouraged from fielding candidates in elections or trying to have elected representatives of their own to promote their causes neglected by main-stream political parties. This restriction also gives the police an excuse to inquire into the expenditure, income, and sources of income, not only of political parties, but of all societies allowing unnecessary intrusion.
156. The previous offence introduced by the colonial government of failure in providing information which the Societies Officer "may reasonably require for the performance of his functions under [the] Ordinance" was expressly extended to cover such financial and related information. It may well be that the police are limited by the fact that it is unreasonable to request information on finance from a group which is not involved in elections. Nevertheless, unless a society is familiar with the law and with legal assistance it is difficult to resist a request for such information.
157. As the restriction covers not only election contributions, it has serious effect on political parties, especially in a place without full democracy. A political party may be deterred from many legitimate activities, for example, endorsing a declaration drafted by foreign parties sharing similar platforms, or engaging in joint projects for comparative studies to improve social services with foreign parties funded by a better-off partner. Moreover, as the police are empowered to monitor the activities and financing of political parties, an authoritarian government could starve an opposition party by contacting donors to "verify" donation information. All societies should have the rights to achieve its object by political and non-political means free from unnecessary restrictions. This new restriction finds no basis in the ICCPR.
158. Another serious problem arises from the grounds for prohibiting societies in the revived registration system. The 1997 amendments provide that if the Societies Officer "reasonably believes" that the prohibition of a society "is necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others", he may make a recommendation to the Secretary for Security who may then prohibit it.
159. Under international law legitimate restrictions of rights are limited to those necessary to meet sufficiently important social exigencies to justify their imposition. It is the authorities' duty to prove that there are such social needs and legitimate aims and that they are sufficiently grave. Restrictions must have rational connections to those needs and aims, and must be proportional to them, and cause minimal impairment to the rights. Such restrictions can only be prescribed or imposed by law, which must be clear and unambiguous enough that people know how they are affected and are able to predict the consequences of their own decisions and acts. Falling short of any of such requirements, a restriction is unlawful. Simple incorporation of the ICCPR grounds into domestic laws will exaggerate the permissible scope of restriction and is a misuse of the Covenant.
160. The use of the term "national security" is particularly objectionable because the concept has frequently been used in China to criminalise the peaceful exercise of the rights of expression and to persecute those with legitimate demands like democracy and human rights. Its inclusion raises fears of extension of such Mainland Chinese practices to Hong Kong especially in the light of Article 23 of the Basic Law.
161. The consensus of international jurists as enumerated in the Siracusa Principles is that national security "cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order". It may only be invoked "to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force". Its inclusion in the Societies Ordinance and the Public Order Ordinance is therefore unwarranted as it is difficult to suggest that a society or a demonstration in Hong Kong will threaten the existence of China. If there is any local and isolated threat to law and order it can be dealt with under the heads of public order and public safety.
162. The Johannesburg Principles, which are concerned more with freedom of expression, also stress the importance of the requirement of force in imposing restrictions on the ground of national security. They state that freedom of expression may be punished as a threat to national security only if a government can demonstrate that the expression is intended to incite violence, that such violence is likely to be incited, and that there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.
163. However, the ground of "national security" was introduced without any qualification with regard to the requirement of violence or force despite local and international criticism. A concession was made in respect of the definition of "national security" in that it was defined as "safeguarding of the territorial integrity and the independence of the People's Republic of China" while linking its meaning to that in the ICCPR. Logically, it is difficult to understand how the HKSAR's intention to exclude the requirement of force could be reconciled with the ICCPR's meaning of "national security" as outlined in the definition. It is to be hoped that the court would be prepared to impute the requirement of force in the light of the wording of the definition in the 1997 amendments which link the concept to the ICCPR. However the Hong Kong judiciary's narrow interpretation of constitutional protection of rights reduces the prospect of such judicial protection.
164. Yet another serious consequence of including the national security ground is that it again fundamentally changes the role of the police force. The police are now required to judge whether a society is a threat to the territorial integrity and the independence of the People's Republic of China rather than regulating on grounds of public order and public safety with which they are familiar. As far as the Monitor knows, "the security of Hong Kong" ground in the 1992 legislation has been ignored in practice. It remains to be seen whether this will be the case under Chinese rule. Clearly, this is very unsatisfactory because it means societies are at the mercy of the authorities instead of having genuine legal protection.
165. The Societies Officer has the power to require information reasonably required for the performance of his functions under the Societies Ordinance. Once his functions include such political monitoring, it may be "reasonable" for the police to require extensive information from societies critical of China or groups having "politically controversial" members. Societies, especially opposition political parties, will be under serious threat if the authorities decide to be "proactive".
166. According to a news report, a spokesperson of an association of police officers has voiced his reluctance to take up the responsibility of deciding whether to prohibit a public gatherings on the ground of national security as a front line officer, saying such issues should only be decided by senior management.
167. Both the 1992 and 1997 legislation suffer from other defects. They punish equally breaches of the law by criminal triad societies and lawful societies whose officers commit offences through oversights. They probably do not meet the international law requirement that any limitations on rights are required to be proportional to the problem they are designed to meet -- the principle of proportionality -- in relation to penalties for non-triad offences. Every office-bearer of a society commits an offence punishable by a fine of HK$10,000 on summary conviction for simply being disorganized, i.e. if the society fails to notify the Societies Officer of a change in its name, objects, office-bearers, or principal places of business within a certain time. The fact that the offence of attending the meeting of an unlawful society (not being a triad society) can be committed without any knowledge that the society is unlawful (as opposed to the express requirement of knowledge in the crime of allowing the meeting of an unlawful society on premises) seems outrageous. An office-bearer of a society which is prohibited while he is in office might be prohibited from becoming office-bearer to another society for five years by the police even if he has never been convicted, which is contrary to the principle of presumed innocence.
168. Article 27 of the Basic Law guarantees Hong Kong people the right and freedom to form and join trade unions and to strike. Article 18 of the Bill of Rights Ordinance 1991 also guarantees the right to freedom of association which includes the right to form and join trade unions for the protection of the worker¡¦s interests. In general, the HKSAR government is not adverse to the formation of trade unions and similar activities but enforcement of workers¡¦ rights can be questionable. It is not uncommon for employment contracts to stipulate that walking off the job is a breach of contract that could lead to summary dismissal. The possibility for challenging such action has recently been dampened by the HKSAR¡¦s repeal of a pre-handover amendment to the Bill of Rights Ordinance which had allowed the application of rights provisions between private individuals.
169. In the last session of the legitimate Legislative Council prior to the handover, three private member¡¦s bills introduced by Legislators Lee Cheuk-yan and Lau Chin-shek were passed to counter reservations made by the colonial government to ILO Convention No. 87. The bills, inter alia, made it a statutory requirement for :
170. 0ne of these laws, the Trade Unions (Amendment) (no.2) Ordinance was amended by the HKSAR government to make it a requirement for unions to notify the Registrar of Trade Unions within a month of joining a foreign labour organisation. The Chief Executive would have to grant permission before unions became members of any foreign organisation apart from those concerning workers, employers and relevant professional organisations. The Chief Executive also would have to approve any contribution or donation of funds to or from foreign trade unions and the use of trade union funds for political purposes was prohibited.
171. The HKSAR Government claimed that the Bill relating to collective-bargaining would require employers to consult their employees on ¡§sensitive commercial decisions¡¨ which would ¡§adversely affect Hong Kong¡¦s economic competitiveness and attractiveness to overseas investments to the detriment of the employment opportunities of the entire workforce¡¨. Of the anti-union discrimination clauses, the Government held that it was inappropriate for the Labour Tribunal to involve itself in staffing matters taken by private companies and any reinstatement would ¡§sour employer-employee relations¡¨. At the Government's request, both these laws were repealed by the appointed provisional legislature.
Freedom of Expression
172. Hong Kong people have for the most part enjoyed their right to free expression. However, this freedom has come increasingly under threat especially in the run-up to the handover and beyond. The Chinese authorities have flexed their muscles in various incidents in the last few years and this has resulted in shock-waves across the territories.
Arrest and Detention of Xi Yang
173. The arrest and detention of Hong Kong based reporter, Xi Yang, sent a clear message to the Hong Kong press. Xi Yang, a journalist for the Hong Kong newspaper, Ming Pao, was sentenced to 12 years imprisonment in March 1994 by a Chinese court for allegedly ¡§stealing financial secrets¡¨ in violation of the State Security Law. His ¡§crime¡¨ was that he has gathered information for an article on central bank economic strategies and interest rates for loans. Xi Yang¡¦s journalistic activities were carried out in the normal way, but his misfortune was that the Chinese Government were unhappy about the evidence that he had gathered. Xi Yang was released in January 1997. It is widely believed that the detention of Xi Yang was politically motivated to threaten Hong Kong journalists.
174. In March 1996, Raymond Wong, the Vice-Chairperson of the News Executive Association, informed the Information Policy Panel of the Legislative Council that at least 10 reporters from a Hong Kong television station had been detained for periods as long as 6 hours by the Chinese Authorities.
Statements made by Chinese Officials on Press Freedom
175. In May 1996, the Director of Hong Kong and Macau Affairs, Lu Ping, commented that although press freedom was fully protected in the Basic Law, Hong Kong journalists would not be permitted to write about Hong Kong or Taiwanese independence, nor should they advocate ¡§two Chinas¡¨. In another press conference, he went on to say that ¡§If someone advocates, it is not a matter of press freedom; it is an action¡¨.
176. In July 1997, China¡¦s Information Minister suggested that after the transfer of sovereignty, local journalists should look to the press in China for ¡§guidance¡¨ on what is proper to report.
177. The Deputy Director of Xinhua (the de facto Chinese embassy of Hong Kong) made a statement that, with regards to the peaceful June 4th demonstrations in commemoration of Tiananmen,
"it is up to the laws passed by the post-1997 Government to determine if these events continue. But I can tell you one thing: This is certainly not a patriotic activity. It also disturbs public order¡¨.
178. In an interview with the Asian Wall Street Journal in 1997, the Chinese Vice-Premier Qian Qi-chen said that local activities to commemorate the June 4th crackdown would be prohibited on the grounds that such activities would ¡§directly interfere with the mainland¡¨. With regards to press freedom, the Vice Premier warned that the press, ¡§could put forward criticisms, but not rumours and lies¡¨ and that they ¡§cannot put forward personal attacks on Chinese leaders¡¨.
179. Most recently, there have been threats to the editorial independence of Radio Television Hong Kong (RTHK). Under a framework agreement between RTHK and the colonial government this independence was guaranteed to RTHK despite its governmental role. Originally there was a plan to let RTHK become an independent corporation like the BBC but in 1994 the Government reversed its position after China strongly opposed the plan in the Sino-British Joint Liaison Group (JLG).
180. In March 1998, a member of the provisional legislature, Mr. Wong Siu-yee attacked RTHK¡¦s independence. He criticised RTHK for not toeing the government line and for allowing its journalists to criticise China and Mr Tung Chee-hwa ¡§from dawn to dusk¡¨. This was followed by another attack by Mr Xu Simin, a Hong Kong delegate to the Chinese Peoples¡¦ Political Consultative Congress (CPPCC) who criticised the HKSAR government for spending public money to enable RTHK to attack the PRC and Tung. Mr. Tung¡¦s reply to these statements, that also intimated that RTHK was and should be treated like a government department, was ¡§slowly, slowly¡¨. Local outcry to this response prompted the Acting Chief Executive, Ms Anson Chan (Chief Secretary for Administration), to state publicly that criticism of the Hong Kong government should take place in Hong Kong, not Beijing in order to avoid the impression of inviting intervention from Beijing on domestic affairs.
181. Mr. Tung¡¦s reaction and his subsequent silence has been particularly disturbing in the light of recent reassurances by the Secretary for Broadcasting, Culture and Sport on 27 November 1997 that RTHK¡¦s editorial independence would not be reviewed. However the local press has since reported that in a meeting between Mr. Tung and the Information Secretary for Technology and Broadcasting (a newly created post to handle broadcasting matters) Designate there were discussions on how to ¡§cure¡¨ RTHK. These reports have not been responded to by either Mr. Tung or the Policy Secretary.
182. More recently, Mr. Tung has also made statements warning that Hong Kong is no place for anti-Beijing activities.
183. Section 33 of the Telecommunications Ordinance allows the Governor or any other public officer authorised by him to order that any message or class of messages being transmitted be intercepted, detained or disclosed to the Governor or public officer if the "public interest" so requires.
184. Article 17(1) of the ICCPR states,
¡§No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation.¡¨
185. Section 33 clearly breaches Article 17(1) as well as Article 14 of the Bill of Rights in that it allows for the arbitrary interference with an individual¡¦s privacy. The ¡§public interest¡¨ is undefined in the Ordinance. In practice, the police and other institutions in Hong Kong very freely resort to interception methods such as wire-tapping. There is little, if any, regard for the individual¡¦s right to privacy.
186. In the last days before the handover, a private member¡¦s bill was introduced and passed by the legitimate Legislative Council which contained legislation on the interception of communications. After substantially watered down by various amendments, the bill left section 33 of the Telecommunications Ordinance intact but only disallowed any other interception of communications unless such other interceptions were carried out under the authority of a warrant issued by a High Court judge. In making his or her decision, the High Court judge was to consider strict criteria derived from the principle that interceptions must only be carried out as a last resort measure. Further, absolute care was to be taken to safeguard any information gathered from the interception. Although the statute received the signature of the outgoing governor, the bill provided that the date for its provisions to take effect was to be appointed by the Secretary for Security. To date, no such appointment has taken place and it looks likely that this statute will remain shelved indefinitely.
187. In December 1996 the Data Protection (Privacy) Ordinance was brought into force. This is modelled on the UK Data Protection Act, but extends to all data, not just data held on computer. Shortly after it came into force the well-known pro-democracy politician Emily Lau made a data request to China's unofficial de facto embassy in Hong Kong, the New China News Agency ("Xinhua"). By law Xinhua was required to reply within 40 days stating whether or not it held any data on her. Xinhua replied after 10 months that it did not hold any data. Apart from being incredible, the response was 8 months later than allowed by law. The Privacy Commissioner, the official responsible for enforcement of the data protection laws, referred the case to the Department of Justice for consideration of prosecution. The Department announced that it would not prosecute, and when questioned about the case Mr C.H. Tung described the 8 months delay as a "technical breach" of the law. This is one of the most serious examples so far of the erosion of the rule of law.
Exemption of Mainland bodies from HKSAR laws
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