TOP TEN HUMAN RIGHTS ISSUES IN 1998
- The regress in democracy
- Racial discrimination ignored
- Immunity of Mainland bodies and people close to the Chinese authorities from Hong Kong laws
- Erosion of Hong Kong's jurisdiction and lack of protection of Hong Kong people on the Mainland
- Freedoms of assembly and expression under jeopardy
- Independence of the Ombudsman at risk
- Absence of independent monitoring of disciplinary forces
- Cutting of public assistance
- ILO finds roll-back of labour laws contrary to International Labour Conventions
- Press freedom not at ease
Some Implications of the Top 10 Human Rights Issues in 1998
The Regress in Democracy
Racial Discrimination Ignored
- The year 1998 witnessed the regress in democracy in Hong Kong.
- The LegCo election in May was an unfair election which has been efficiently and fairly administered.
- The design of the electoral system is to ensure that popular will will be out-proportioned by that of the businesses and professionals. The reduction in the size of the electorate, the re-introduction of corporate voting and the requirement to select
exactly 10 candidates in the Election Committee Election are means to manipulate the so-called "election". Multiple registrations of companies belonging to the same commercial organization shows that corporate voting is even more corrupt than previously t
- In fall 1995 the United Nations Human Rights Committee criticized the Hong Kong electoral system, especially the functional constituency elections, as contravening many articles of the International Covenant on Civil and Political Rights (ICCPR). In p
articular, the Committee has pointed out that the system has given undue weight to the views of the business community. Democracy has since regressed rather than progressed over the years. Yet some business tycoons like Li Ka Shing have been complaining t
hat the political environment has changed and was not conducive to their business.
- The Government attacked the limited democracy in Hong Kong by scrapping the elected municipal councils and by re-introducing appointed members to the District Boards.
- The SAR Government has a bad record of appointing District Board members from mostly pro-Beijing elements to dilute the influence of pro-democracy members returned by elections as evident from the fact that there were many newly appointed members who
are from the pro-Beijing Progressive Alliance and the DAB but none from the democratic lobby. Some of those appointees had been defeated in District Board elections. The restoration of the appointment system is therefore probably designed to prevent the p
ro-democracy system from getting a majority. Distorting the representation of the elected members is a way of defeating the will expressed by the electorate in the elections and is a breach to their right to participate in public life through their electe
d representative, a right guaranteed under Article 25 of the International Covenant on Civil and Political Rights and therefore contrary to the Basic Law which entrenches the minimum standards of the ICCPR.
- The re-introduction of the appointment system represents a step of regression instead of progress as promised by the Chief Executive and the Central Government. The Government's argument that it is not a step backward but a step forward based on the a
rgument that the Temporary Districts Boards are all appointed, does not indicate that Mr. Tung Chee-hwa and the Government are respecting their promise, but that they have attacked democracy at the district level twice and that they are enemies of democra
Immunity of Mainland bodies and people close to the Chinese authorities from Hong
- Several bars in Hong Kong have a discriminatory pricing policy which charge people different prices depending on their ethnic origin. The Home Affairs Bureau has failed to stop this act of discrimination by persuasion and those who were discriminated
against could do nothing afterwards because there is simply no law to prohibit racial discrimination. Subsequently, instead of addressing the root of their failure that there was no law to prohibit such acts, the then Acting Secretary for Home Affairs (no
w the Deputy Secretary) Peter Lo has chosen to justify the bars' act as "commercial decisions" to justify their failure. Human rights NGOs were astonished by the failure to identify and condemn such blatant acts of racial discrimination by such a senior o
fficial responsible for human rights in the Government.
- His comment, that a responsible government should not just take care of the interest of a small minority, is itself blatantly discriminatory. Should the interests of the minorities be considered unimportant and their rights be neglected because they d
o not belong to the majority community?
- The International Convention on the Elimination of All Forms of Discrimination (CERD) was extended to Hong Kong, with certain reservations, by the United Kingdom on 7 March 1969 and entered into force on 6 April 1969. 30 years after the extension of t
he CERD to Hong Kong, there is still no law protecting people against racial discrimination in the territory. Hong Kong is obliged under various human rights treaties to legislate against racial discrimination. In fact, the United Nations Human Rights Com
mittee, the most authoritative body on the interpretation of the covenant and responsible for overseeing the implementation of the Covenant by State Parties, recommended in their 1995 Concluding Observations on Hong Kong that "comprehensive anti-discrimin
ation legislation aiming at eliminating all remaining discrimination prohibited under the Covenant be adopted." Several other treaty bodies have also urge the government to legislate. However, the Government continues to resist the call.
Erosion of Hong Kong's jurisdiction and lack of protection of Hong Kong people on the Mainland
- In a controversial decision, the Secretary for Justice Elsie Leung decided not to prosecute Sing Tao Holdings Chairman Sally Aw Sian over an alleged fraud. Apart from being the chairman of the holding company, Sally Aw is also a member of the Chinese
People's Political Consultative Conference and a family friend of Chief Executive Tung Chee-hwa. There is a strong suspicion about whether justice applies to some and not others. Unless a strong justification is available, the decisions would be a serious
affront to the rule of law. The Secretary for Justice did promise the public that such an explanation would be given. It remains to be seen whether there are good grounds behind this decision.
- The decision by the Department of Justice of not to prosecute Xinhua News Agency for its failure before the Handover to respond within a 40-days limit in breach of the Privacy Ordinance sparked off another controversy. The Chief Executive said that th
e offense was merely "technical". The decision has called into question whether Xinhua is above the law in the Government's actual administration of justice.
- The Adaptation of Laws Ordinance has the effect of exempting Mainland bodies from laws of Hong Kong in breach of Article 22 of the Basic Law which requires that all branches of Mainland bodies should abide by the laws of Hong Kong. The enactment of th
e Ordinance is a threat to the rule of law in Hong Kong.
- Another suspicious decision by the Government was that it has deferred on a decision on whether the Privacy Ordinance should bind the Central Authorities by stating that it needed more time to study the Ordinance.
Freedoms of Assembly and Expression under jeopardy
- The Government has also failed to protect Hong Kong residents from being tried in unfair trials on the Mainland in the Big Spender's case.
- The erosion of Hong Kong's jurisdiction on Hong Kong criminal cases and the Government's failure to check the Chinese authorities from applying national laws to Hong Kong in breach of the Basic Law has been a serious issue for the year. Article 18 of
the Basic Law prevents the application of national criminal laws to Hong Kong and Article 19 ensures that Hong Kong courts have jurisdiction over all Hong Kong cases. Article 22 requires all Chinese authorities not to interfere in the affairs over which H
ong Kong has jurisdiction.
- In the Big Spender's and the Telford Garden cases, instead of defending our own jurisdiction, the Hong Kong Government has been overzealous in justifying the Mainland's encroachment of our jurisdiction even at the expense of twisting the interpretatio
n of the law.
- In justifying the Chinese authorities' jurisdiction in the Telford Garden Case, the Hong Kong Government has twisted the interpretation of the Criminal Law of the PRC which provides that "This law shall be applicable to any citizen of the People's Rep
ublic of China who commits a crime prescribed in this Law outside the territory and territorial waters and space of the People's Repunlic of China ..." In the Telford Garden's case, it argued that since the prime suspect is a Chinese citizen and Hong Kong
is outside the territory of China and so the Criminal Law of the PRC is applicable to the suspect for his acts done in Hong Kong. The Government has deliberately ignored the provisions of the Basic Law which excludes the applicability of national laws to
Hong Kong and prohibits Chinese authorities from usurping the jurisdiction of the Hong Kong judiciary in Hong Kong cases. It has also ignored the fact that Hong Kong is in the territory of China and governed by its own criminal law under the Basic Law.
- The Government's argument has opened the way for the Chinese authorities to apply national laws to Hong Kong people (who are Chinese citizens out the territory outside China according to the Hong Kong Government) and try them in Mainland courts for ac
ts they have lawfully done in Hong Kong according to Hong Kong laws but regarded as an offense according to the Chinese Criminal Law or even other national laws.
- Not only has the Government called for a relaxation of our laws preventing the extradition of suspects to other jurisdictions without the guarantee of no actual death sentence, it has also failed to take into serious account the lack of a fair trial,
due process, competent and independent judiciary on the Mainland in mutual assistance.
Independence of the Ombudsman at Risk
- The Independent Police Complaints Council disagreed with the Police's finding that there was nothing wrong with the broadcasting of Beethoven Fifth to drown a demonstration to protect the dignity of the Internationally Protected Persons (IPPs). A croo
ked legal opinion the police has sought from the Department of Justice was relied upon as justification. New police guidelines on demonstrations have subsequently been released which still set out that the police have the power and duty to protect the dig
nity of IPPs. The worry lies not only on the wrong opinion relied upon by the police but also the fact that the Department of Justice has transformed itself from one of the guardians of the rule of law to a body twisting the law to justify violation of ri
ghts by the police. There are also problems with police tactics involving in the protection of such IPPs.
- Handling of demonstrations by the police leaves much to be desired especially when Chinese leaders or IPPs are in town. Designated Demonstration Areas were located far away from the demonstration targets to ensure that demonstrators could hardly be se
en or heard by the demonstration targets. Conflicts ensued. While Human Rights Monitor leaves the issue of who was right and who was wrong to be determined by the courts at this moment, we are of the opinion that the police had failed to pay due regard to
the rights of the demonstrators on several occasions.
- Two activists were convicted of defacing the SAR and Chinese flags in a landmark case. The two ordinances on National and Regional Flags introduced by the new Government are inconsistent with international human rights jurisprudence. They are themselv
es legislative encroachment on the freedom of expression guaranteed by the International Covenant on Civil and Political Rights (ICCPR) and the Basic Law. Peaceful expression of opinion through any media of ones' choice is a lawful basic right and laws at
tempting to prohibit flag burning or desecration have inevitably been declared as violating the freedom of expression and therefore unconstitutional in the United States and even in India.
Absence of Independent Monitoring of Disciplinary Forces
- The Ombudsman Mr. Andrew So's term of office will not be continued. However there are no clear reasons as to why his contract will not be continued. There were reports that the Government disliked his decision to investigate the airport chaos and his
approach of scrutinizing government policy which may lead to unfair administration.
- Our worry is that the Government's involvement in the appointment and renewal of tenure of the office will compromise the independence of the office especially in the light of the fact that the Ombudsman is responsible for scrutinizing government admi
- The non-renewal of his contract will also put pressure on his successor, Ms. Alice Tai, to "behave". Her connections within the Government may be factors affecting her independence. The culture within the civil service she has been exposed to for twen
ty years may make her less critical and more complacent to bureaucratic practices in the Government. It is hoped that she would resist possible compromises of all kinds and make full use of her office to promote good administration and take pride in devel
oping the emphasis of human rights of the Ombudsman's Office's culture.
Cutting of Public Assistance
- The absence of an independent mechanism to handle complaints against police officers continues to be a problem. The absence of independence can be highlighted by the embarrassing situation where Dick Lee was heading the branch of police which was resp
onsible for handling a complaint against him and had to have special arrangement for not involving him overseeing the investigation. A case where four police officers were charged and convicted for assaults occasioning actual bodily harm rather than tortu
re has yet to be explained to the public.
- On July 27th, some prisoners of Ma Po Ping Prison alleged that they were brutally beaten up by prison staff. On 6th August, Ms. Lau and Mr. Chan paid a surprise visit to Ma Po Ping prison and interviewed 100 prisoners including onlookers who may serve
as independent witnesses. This is the first known surprise visit by solely unofficial Justices of Peace without the involvement of any official JPs. An independent inquiry had been called for to investigate the allegations.
- Contrary to common sense and natural justice, the Government described their internal inquiry as independent. It has provided conflicting conclusions as to whether excessive force had been used by the front-line officers. While maintaining that the fo
rce used was necessary, it also said they have to consider disciplinary actions against the prison staff called into question.
- The JP system should be reformed and an independent inspectorate should be established to ensure proper external monitoring of the penal system.
ILO finds roll-back of labour laws contrary to International Labour Conventions
- The Government has proposed to cut the public assistance to some of the recipients by about 10 to 20%. Our worry is the Government just tries to reduce the assistance for cutting's sake even though the Social Welfare Department had indicated that it h
ad taken into account the basic needs and the consumption pattern of households in a survey. The department has not been able to demonstrate that the proposed reduced basic rate in the consultation document is actually based on the recipients' basic needs
. In particular, the current rate for adults is insufficient, and any arbitrary cutting of assistance may deprive the recipients of the minimum subsistence or making it impossible for them to lead a decent basic life.
- It is also risky to emphasize too much on capping the assistance by the incomes of the lowest income persons because they may themselves lead extremely deprived lives needing public assistance. By lowering the assistance level to match such low income
s it may actually drive both needy groups of people to lead extremely deprived lives. The incomes of such low income families would be further lowered by such a matching measure. Single parents have been one of the targets of the cut-backs. However the cu
tback would unnecessarily increase the burden on single parents.
- Plans to require 20,000 jobless people to work on "voluntary" projects needs careful examination. Such a measure may arguably contravene international standards on forced labour.
Press Freedom Not at Ease
- The International Labour Organization (ILO) has delivered their judgment on the Government's amendment of the laws to reintroduce restrictions on the trade unions' autonomy on the use of funds, hiring of union officials, joining international organiza
tions, and the Government's repeal of the law which provided for a statutory mechanism for collective bargaining. The ILO concluded that such government actions are contrary to International Labour Conventions.
- This judgment implies that such measures are also inconsistent with the Basic Law which provides that no restriction of rights in a way which is inconsistent with international human rights covenants and International Labour Conventions. The Governmen
t, however, has refused to acknowledge that it has breached the Conventions casts doubt as to whether it is sincere in implementing international human rights treaties.
Download Top Ten Human Rights Issues in
- The threat to press freedom in Hong Kong was not simply political but also physical this year. Such attacks were not only limited to those from the outside but also from within the profession.
- The Vice-Chairman of the National People's Political Consultative Congress Mr. Xu Simin has upgraded his campaign to bring Radio Television Hong Kong under Government control as a government mouthpiece, by both raising it to the Chief Executive in pri
vate and publicly especially in the NPPCC group meeting. Strong resistance was triggered and RTHK's editorial independence will for a while remain intact but may not be beyond doubt in the future because, according to Mr. Xu, the response of Chief Executi
ve to Xu's remark was "slowly, slowly". Though he has been pressed repeatedly for an explanation to such a remark, he has not yet given an answer.
- The trend of ownership change of the local media to pro-Beijing or state-related capital continues to be a threat to the freedom of the press in Hong Kong. The increasingly active involvement of the new investor in ATV's management particularly needs
- Commentator Albert Cheng had been seriously wounded in an attack outside the Commercial Radio and there are good grounds to believe that the attack was related to his opinion expressed on public affairs and the attack was an attack on press freedom.
- Some reporters of the Oriental Daily News newspaper stalked a judge who had decided a court case against the newspaper. Former chief editor of the Oriental Daily News was convicted for contempt of court.
- The sensational coverage of Chan Kin Hong's case and acts inconsistent with professionalism by some reports have weakened the public's faith on the press. They have weakened the role of the press as an important public institution to protect public in