Three Basic Freedoms Update
Freedom of Assembly, Freedom of Association, & Freedom of Speech since 1 July 1997The worst scenario has not been realized - there was no mass arrest or banning of groups in the first seven months after the Handover. In spite of the more restrictive laws governing NGOs, most NGOs, save for certain exceptions, enjoy a similar degree of freedom after the Handover, to what they had before. The restrictive laws have not been enforced strictly. Unfortunately, this de facto free society is based more on the mercy of the SAR Government than on a solid foundation of constitutional institutions or the rule of law.
As highlighted in our report, "Three Basic Freedoms" the defective constitutional arrangements, especially the lack of an elected legislature, have left the SAR Government largely unchecked. The Provisional LegCo has endorsed the SAR Government's proposal to reverse or amend several labour laws enacted immediately before the Handover thereby restricting the freedom of association of trade unions.
Pro-Taiwan groups have made an informal deal with the SAR Government. Members of these groups are allowed to fly Nationalist Flags in their homes but they must refrain from flying the flags in public. Their celebration gatherings of the Double-Ten Day are no longer to be described as "National Day celebration" but "Memorial of the Nationalist Revolution". In exchange, the SAR Government has not enacted anything immediately to prohibit their gatherings and the Nationalist flag.
Nationalist flags were flown without permission in certain public thoroughfares by some less restrained pro-Taiwanese people. The police removed the banners within hours. Different officials of the SAR Government have cited different legal provisions as the legal basis for this act. However, it was clear that the selective removal of only Taiwanese banners in the streets was politically motivated rather than a genuine enforcement of the relevant legal provisions.
Although no demonstrations have been prohibited, the police have revived the pre-Bill of Rights practice of enquiring about the slogans to be chanted and the names of speakers going to address a public gathering - they are now policing the minds of demonstrators.
More oppressive policing of demonstrations and prosecution is readily used against political dissidents. There have been reports that the police have classified groups like the April Fifth Action as a violent organisation. Demonstrations where April Fifth members or close associates participated are particularly targeted and are conducted under severe police control.
Arrests and charges arising from demonstrations have become more common. Five demonstrators against the World Bank and nine against the Chairman of the National People's Congress have been arrested and charged. Two participants in the Hong Kong Alliance's New Year March were also arrested recently for intentionally and publicly defacing the National and the SAR Flags in that march. Four others were convicted on 16 February for demonstrating in the LegCo Chamber and disrupting the Provisional LegCo's meeting. A demonstrator against the "selection process of the Provisional LegCo" before the Handover is appealing against his conviction for assaulting police officers in duty.
This heavy-handed police approach, replacing the comparatively restrained approach shown by the police to dissidents on the eve of the Handover, is a predictable consequence of the lack of proper political checks since the dissolution of the elected Legco and the commencement of the Provisional LegCo.
There has been curtailment of labour rights. Provisions were introduced immediately before the Handover by the former LegCo to liberalize the laws in respect of freedom of association. These amendments were the first to be suspended after the Handover. Although some of the liberalization measures may finally survive the Provisional LegCo, many improvements have been reversed or narrowed down. Consequently, trade unions are now required to get the approval of the Chief Executive before affiliating to a foreign organisation. Certain uses of trade union funding are prohibited. The statutory rights of a trade union to a collective bargaining procedure are removed. The detailed protection against anti-union discrimination is also repealed.
The promise in the Basic Law that local NGOs are free to participate in international organisations has been breached by the Central Government's blocking Human Rights Monitor and Human Rights in China from accreditation to participate in the World Bank's annual conference held in Hong Kong.
Groups having charitable status appear to be facing more stringent scrutiny of their activities by the Inland Revenue Department. The Department adopts a very narrow interpretation of the ambit of charitable activities in exercising their control and demands a lot of detailed information from these charitable groups. Whether or not this is a deliberate attempt to restrict NGOs to service-oriented activities or to encourage them to desist from advocacy work, it has drained a significant portion of the energy of the groups involved.
Freedom of expression continues to be a victim of the changing political landscape. A recent poll has confirmed that nearly half of the Hong Kong public considered there was a serious problem of self-censorship in the local media and two-thirds were of the opinion that the media were reluctant to criticize China.
There were reports that two journalists affiliated to Hong Kong media have been arrested in mainland China. Both have been released.
The Hong Kong Journalists Association has conducted a poll among members and found that most of the local journalists considered the SAR Government is less open than the previous administration. The Association has also accused the Government of trying to undermine its effort to test the Government's openness by a more ready disclosure of documents requested while adhering to an actual practice of denying disclosure of other government materials.
The film distribution industry has also been criticized for refraining from distributing three films on Tibet and one which was critical of the Chinese legal system. The industry denied the charge. A distributor finally contracted to distribute "The Red Corner" but only after consulting the Chinese Cultural Ministry. Pager companies have also refused to pass on messages about a demonstration against the Government. The Government have issued a circular to pager operators reminding them not to breach the law prohibiting them from intercepting messages at will. No complaints of political message censorship were received afterwards.
Hence, we can say that although there is no major setback in the three basic freedoms, there is a trend of continuing erosion of rights. With the inadequacies in our constitution and laws, uncertainty over the future of the three basic freedoms remains. With future legislation to be proposed by the SAR Government the freedoms are still under threat. Every effort, locally and internationally, should be made to rectify the defects.