Hong Kong Human Rights Monitor

Justice is Dead

The United Ants is an NGO keen on fighting for universal and equal suffrage. The following article is its submission to the UN Human Rights Committee.

The UN Human Rights Committee, in its Concluding Observations 1995, said, "the concept of functional constituencies, which gives undue weight to the views of the business community, discriminates among voters on the basis of property and functions. This clearly constitutes a violation of articles 2, paragraph 1, 25(b) and 26...

The Committee recommends that immediate steps be taken to ensure that the electoral system be put in conformity with articles 21, 22 and 25 of the Covenant."

In Lee Miu Ling and Law Piu vs AG (1995) the Court of Appeal dismissed the appeal by saying that since Article VII(3) of the Letters Patent, Hong Kong's constitution handed down by the Queen, expressly requires functional constituency, "it is not some illegitimate infringement" of the Bill of Rights Ordinance (Hong Kong equivalent of the ICCPR). The Court also said that "sensible and fair minded" people would not condemn functional constituency elections as "irrational or disproportionate".

The dismissal was supported by all three justices, namely Litton VP, Bokhary & Godfrey JJA, in Court. An application for special leave to appeal was rejected by the Privy Council in June 1996.

In short, justice is dead.

Despite the solid criticisms of the Committee, the Government has not rectified the situation but again shamelessly argued in its Report to UN that functional constituency elections "provide a representative voice for the territory's economic and professional sectors, reflecting their importance in the community".

With the majority of seats being occupied by functional constituency members, the legislature as a whole can never gather enough votes to support a bill which calls for all seats to be elected by universal and equal suffrage. For these functional members who owe their seats to narrow sectional interests, supporting such a bill would amount to committing political suicide. This is why the provision in the Basic Law to allow the legislature to take part in the decision whether the entire legislature should be elected by universal and equal suffrage after 2007 is a complete farce. It could and would never happen.

The judgments of the courts in Hong Kong demonstrate that some senior members of the Hong Kong judiciary lack the proper training and conceptual power to handle human rights cases. This certainly does not bode well for human rights developments in the territory.

The provision for functional constituencies in Article VII(3) of the Letters Patent reveals clearly that the UK Government has no intention whatsoever to implement universal and equal suffrage in Hong Kong. Not only had it not taken any positive steps, as required under the Covenant, to implement such rights therein, it actually made considerable effort to undermine them.

The future does not bode well for Hong Kong's human rights developments either. Despite the provisions in the Basic Law for the first legislature to be "elected" by direct popular election, functional constituencies and a electoral college, the Chinese Government has instead decided to set up a so-called "provisional legislature" with all 60 seats "elected" by 400 hand picked cronies of its liking. These cronies, called the "Selection Committee", would also "elect" the Chief Executive of the Special Administrative Region. With a long history of human rights abuses since its establishment in 1949 and the complete lack of checks and balances in its system of government, the Communist Chinese Government is unlikely to give much breathing space to liberty in Hong Kong after the changeover.

Given the foregoing, the United Ants urge the Committee to do all it can to draw the international community's attention to this very grim situation in Hong Kong -- a city of 6 million hitherto free souls. The Ants recommend the Committee to consider to:

(a) Condemn, in the strongest language, the UK Government for depriving Hong Kong people of their rights under article 25 (as well as articles 2, 3 and 26). It must be emphasized that the UK Government, having signed the ICCPR, deliberately established barriers to block its implementation by inserting disabling provisions (Article VII(3)) in the Letters Patent. This no doubt amounts to a disgraceful act of deception to the international community on the part of the UK Government.

(b) Highlight the fact that some senior members of the judiciary in Hong Kong are ill-equipped to deal with human rights cases and recommend that proper training be provided to members of the judiciary. Meanwhile, overseas jurists well versed with the subject should be brought in to fill the vacuum.

(c) Discourage the establishment of the provisional legislature which, if and when formed, would represent a total violation of article 25. The same applies to the "election" of the SAR Chief Executive. It must again be stressed that the Chinese Government, being a party to the Joint Declaration which itself incorporates the two Covenants, has the obligation to report to the Committee on the human rights situation in Hong Kong after 1997. In fact, China should be a party to the ICCPR and its Optional Protocol to ensure that individuals who feel wronged could petition the UN directly.

The United Ants

1996/1997 (c) Hong Kong Human Rights Monitor