The first casualties of the handover
-- deteriorating legal and institutional safeguards of human rights
The inception of the Hong Kong SAR has been marked by the substantial undermining of check and balance institutions in Hong Kong and a rapid erosion of the legal protection of rights and freedoms.
The Provisional Legislative Council
Contrary to the promise in the Joint Declaration and the provisions in the Basic Law that the legislature of the Hong Kong SAR is to be elected, the Provisional Legislative Council was selected by a body appointed by the Central Government.
The non-elected and unaccountable body performs practically all the usual functions of a legislature: enacting laws, controlling the public purse, and monitoring government policies and operations. However, it does not conform with the composition of the First Legislative Council as specified in the Basic Law which makes detailed provisions for the first Legislative Council of the Hong Kong Special Administrative Region. That is to be constituted one third by direct elections with the remainder of the seats filled by indirect elections from so-called functional constituencies and an electoral college.
To reassure Hong Kong people and the international community, the Chinese authorities have repeatedly stated that the basic policies towards Hong Kong, as promised in the Sino-British Joint Declaration, have been incorporated in the Basic Law, which explicitly prohibited any amendments to those basic policies. A special procedure is specified in the Basic Law for permissible amendment. China has also stressed that the One country, two systems arrangement is guaranteed by Article 31 of the Chinese Constitution.
However, in setting up the Provisional Legislative Council, the Chinese authorities have neither respected the basic policy that The legislature of the Hong Kong Special Administrative Region shall be constituted by election nor followed the amendment procedure. The Provisional Legislative Council has absolutely no legal basis.
The Hong Kong judiciary
The Hong Kong judiciary abdicated its responsibility, in the case of HKSAR v David Ma Wai Kwan (29 July 1997) as guardian of liberty and the law, and gave way to political expediency in accepting the Hong Kong SAR Government s implausible arguments to justify the legality of the Provisional Legislative Council.
National People s Congress (NPC) and bodies set up by it are above the Law
In the Ma case, the Hong Kong Court of Appeal stated that it would not question laws and decisions made by the National People s Congress (NPC) or bodies set up by the NPC. It held that once the court was satisfied that a law or decision was made by such bodies, a Hong Kong court would give effect to it, claiming that it simply had no jurisdiction to question the legality of such laws and decisions. It then held that the Provisional Legislative Council was legal. Its exceptional reasoning and conclusion are contrary to those of most of legal authorities, including the legal professional bodies, and leave no remedy for any breaches of the Chinese Constitution or the Basic Law by the authorities.
A judiciary handicapped by endorsement?
The Basic Law requires the appointment of the Chief Justice and the judges of Hong Kong's new Court of Final Appeal to be endorsed by the first Legislative Council of the Hong Kong Special Administrative Region. The Chief Executive is now planning to substitute an endorsement by the Provisional Legislative Council. Even the Court of Appeal in Ma did not rule that the Provisional Legislative Council was the same thing as the First Legislative Council of the Hong Kong SAR. If it is not, its endorsement of the judges cannot be an adequate substitute. It then becomes unclear whether the judges in question have been validly appointed. Whatever the ultimate outcome of this controversy it is likely to create confusion and diminish the authority of the courts.
The unchecked HKSAR executive
The rule of law is seriously endangered by the exercise of legislative power by a body without legal basis and by a judiciary with little commitment to defend liberties and laws against the central authorities. The weakening of the judiciary and the improper constituted legislature have also left the executive subject to few checks, leaving it to restrain itself if it chooses to do so.
Chinese political leaders have the final say, not the court
The threat of the central authorities in Hong Kong s human rights protection and autonomy also comes from giving the final power of interpretation of the Basic Law to the Standing Committee of the NPC. The Hong Kong judiciary no longer has the monopoly over the final interpretation of all the laws as before the handover. Now, at the final adjudication of a case, they are required to refer those provisions in the Basic Law relating to issues not within the SAR s autonomy to the Standing Committee for interpretation. Hence it is the Chinese political leaders rather than Hong Kong judges who have the final say on what the laws are under those provisions. Such constitutional arrangements have severely undermined the guarantees of the power of final adjudication and independence of the judiciary.
The Standing Committee of the NPC -- a standing threat
The Basic Law also gives the Standing Committee the power to reject laws enacted by the SAR regarding the relationship between the central authorities and the SAR, etc. Their way of interpretation is therefore a standing threat to the laws of Hong Kong in these areas.
Emasculation of the Bill of Rights by the Standing Committee of NPC
The Standing Committee of NPC has demonstrated its lack of respect for legal principles, and how political considerations are its predominant concern, by the manner in which it has exercised its power not to adopt laws which are inconsistent to the Basic Law. The Basic Law guarantees that all previous laws in force under the British rule at the handover shall be adopted as laws of the HKSAR exception those which are inconsistent with the Basic Law. The Standing Committee has declared the operative sections of the Bill of Rights and certain provisions in other civil rights legislation to be inconsistent with the Basic Law, without any proper reasons. The Basic Law provides that the International Covenant on Civil and Political Rights shall remain in force and the human rights Covenants shall be implemented by law of Hong Kong. Those non-adopted laws are just laws envisaged by the Basic Law to implement the Covenants and are therefore consistent with it. The Standing Committee s non-adoption decision is simply groundless and unlawful.
Perpetuating discrimination by further emasculation of the Bill of Rights
Besides failing to lobby the Standing Committee to reverse its wrongful emasculation of the Bill of Rights, one of the first bills proposed by the Hong Kong SAR Government was to freeze an amendment to widen the scope of the Bill of Rights.
Section 7 of the Bill of Rights Ordinance states that the Bill of Rights Ordinance (which contains the Bill of Rights ) only binds "the Government and all public authorities, and any person acting on behalf of the Government or a public authority." This was the result of the business sector's intense effort to keep the private sector away from the scope of the Bill of Rights.
In the pre-handover case of Tam Hing Yee v Wu Tai-Wai, the Hong Kong Court of Appeal held that the meaning of Section 7 was that private individuals were not bound by the Bill of Rights and the court's power of judicial review of legislation under Section 3 of the Bill of Rights did not cover laws governing inter-citizen relationships even if they were administered by public authorities and were inconsistent with the Bill of Rights.
Legislation like equal opportunities legislation was therefore necessary to safeguard rights between private persons. Ignoring repeated criticisms from the United Nations and others, the Government has repeatedly refused to enact equal opportunities laws outlawing discrimination on grounds other than sex, disabilities and family status. Discrimination on grounds of colour or race remains legal and a regular occurrence in the private sector in Hong Kong.
An attempt was made to reverse the decision in Tam Hing Yee by the Hong Kong Bill of Rights (Amendment) Ordinance which took effect on 30 June 1997. However, the Hong Kong SAR Government has suspended the amending Ordinance and plans to restore the previous legal position, which leaves the private sector free to discriminate on grounds of race as much as it likes.
The attempt to freeze the amending Ordinance might be in breach of Article 39 of the Basic Law and therefore null and void. Article 39 states that restrictions of rights are valid only if they are consistent with the International Covenant of Civil and Political Rights. However, the Government was ready to restrict it and the Provisional Legislative Council was willing to endorse it. Recent precedents suggest the courts will not be willing to stop them.
Article 23 of the Basic Law provides that the Legislative Council of the Hong Kong Special Administrative Region will pass laws against treason, secession, sedition, subversion and theft of state secrets. It also requires the SAR legislature to pass laws to prohibit local political groups from establishing ties with foreign political bodies.
The Article was finalised after the Tien An Men Square massacre, when the atmosphere had changed drastically for the worse from the earlier period of preparation of the Basic Law. It is designed to stop Hong Kong becoming a base for opposition to the Communist regime in Beijing. Secession and subversion are not offences known to the common law. However they are well-known in China. Subversion in reality covers opposition to the Communist regime. It includes what in Hong Kong or in democratic countries is regarded as legitimate political opposition. Secession as an offence would appear to criminalise legitimate expressions of support for independence movements. Such a law in Britain or Canada would outlaw the Scottish National Party and the Parti Quebecois. It seems this is exactly what China wants to do. The Chinese Foreign Minister, Qian Qi Chen, said last year that after the transfer of sovereignty Hong Kong people would not be allowed to advocate independence for Tibet or Taiwan. If Mr. Qian s statement is put into effect this will be a gross and intolerable breach of the right to free speech which is set out in the Basic Law and in Hong Kong s Bill of Rights.
Growing fear and self-censorship
Mr. Tung Chee Wah has echoed Mr. Qian's view and said that the recent laws passed by the outgoing Legislative Council on treason, sedition and theft of state secrets are not sufficient to meet the requirements of Article 23 and that legislation will be passed on secession and subversion. He has also made it clear that peaceful demonstrations or formation of societies with separatist overtone would not be tolerated. The Chinese leaders' speech and Tung's comments have created an atmosphere very hostile to freedom of expression. A recent example is the fear among local film distributors which has deterred the distribution of two films relating to Tibet and a film critical of China's legal system. Another is the selective removal of Taiwanese flags from public land while other flags were allowed to display, although none of displays had prior government approval. Some pager companies have refused to pass on information on arrangements of demonstrations targeted at the Chief Executive. These are only new extensions of pre-existing self-censorship in the press and electronic media.
Obsession with retrospective criminal liabilities
Mr. Tung had appeared desperate to preventing anything happening in Hong Kong which could give offence to the Chinese leadership. He proposed to convene the provisional legislature in the early hours of the morning of 1 July to pass laws to ban certain demonstrations due to start at midnight. This would have been retrospective criminal legislation, which is outlawed in every civilised society and outlawed in Hong Kong by the Bill of Rights (Article 12) and by Article 39 of the Basic Law, which states that the International Covenant on Civil and Political Rights will continue to apply in Hong Kong (Article 15 of the ICCPR and Article 12 of the Hong Kong Bill of Rights are in identical terms).
Although the retrospective laws were passed, local and international pressure has stopped him from enforcing the laws retrospectively in relation to demonstrations at the handover, indicating that persistent public pressure can sometimes work.
However, Mr Tung's obsession with retrospective criminal sanctions was again demonstrated in the SAR Government's effort to restrict the exercise of the rights of abode of children born in Mainland China to Hong Kong parents. (see below)
Freezing labour rights laws
The International Labour Organization conventions have been extended to Hong Kong with important reservations tailor-made to allow for breaches found in our labour laws. Elected Members of the former Legislative Council dissolved to give way to the Provisional Legislative Council, who were also liberal trade unionists, have led the reform of the law to implement the ILO conventions in full. They succeeded in reforming the laws to remove those unreasonable restrictions on labour's freedom of association and provide for a reasonable statutory collective bargaining framework.
The prohibition on the formation of unions and federations of unions across industries have been removed. The prohibition has demonstrated its unfairness in denying all four largest federations of trade unions from registering as trade unions and depriving them of the legal protection necessary for the proper operation of a trade union.
The previous law also prohibited all trade unions from affiliating to or merging with other organizations established outside Hong Kong without the consent of the Governor. Such consent, if given, might be withdrawn at his discretion. The government's reason for such requirement was "to prevent local trade unions from being unduly influenced or directed by political organizations outside Hong Kong".
There were other restrictions on qualifications of union members and officers, and on the use of union funds, which were also inconsistent with the ICCPR requirement that legal restrictions should be imposed only if they were necessary and on recognised grounds.
All these restrictions were removed or liberalized by the unionist legal reform on the eve of the handover, bringing labour laws in Hong Kong more into line with the unreserved version of the ILO conventions.
However, about two weeks after the handover, the Provisional Legislative Council passed an HKSAR government bill to suspend the unionists' law "to enable a detailed examination" of the impact of the amendments. The newly acquired labour rights were once again lost. The Government has said it is likely to remove them permanently.
Legislating for unfair elections
Article 68 of the Basic Law provides that the ultimate aim is the election of all the members of the Legislative Council by universal suffrage. It states that the method for forming the Legislative Council shall be specified in accordance with the principle of gradual and orderly progress. We strongly believe that Hong Kong society is sufficiently mature, orderly and responsible to proceed to fully democratic elections in 1998 , and that the Basic Law should be amended to permit this, rather than postponing fully direct elections until sometime after 2007 as envisaged in Annex 2 to the Basic Law. Opinion surveys have repeatedly shown that this is what most Hong Kong people want.
However, the Government did not even comply with the existing provisions of the Basic Law in enacting the 1998 election methods in its recent Legislative Council Ordinance, passed on 28 September. Compliance with the Basic Law necessitates, at the very least, the maintenance, in the seats with limited franchises, of franchises as wide as they were in the previous election and preferably some progress in widening those franchises. Any narrowing of the franchises would not be progress but regress, and so would be in breach of Article 68.
The most objectionable characteristics of the Ordinance are the maintenance of functional constituencies and the re-introduction of corporate votes. Functional constituency elections are elections with seats reserved to the business and professional sectors whereby corporate members of business chambers elect corporate representatives, bank representatives elect bankers, lawyers elect lawyers, and union bosses elect union bosses, etc. These privileged voters have a second vote in addition to their vote in geographical elections. This system has been severely criticized by the UN Human Rights Committee as in breach of Article 25 of the ICCPR. Such constituencies will return half of the seats of the First Legislative Council.
Making the elections more unequal than before by narrowing the franchise and/by introducing corporate voting is a breach of the rights under Article 25 of the ICCPR which provides for universal and equal suffrage. Re-introducing the abolished corporate vote system does not even meet the inadequate standards of the Basic Law, which was itself designed to slow down the pace of democratization and require "gradual and orderly progress" towards universal suffrage. It is a breach of Article 39 of the Basic Law, which provides that the ICCPR as applied to Hong Kong shall remain in force. The franchise for the functional constituencies seats is narrowed by these 2 measures from more than two million to about two hundred thousands, a reduction of 90 percent.
Those who argue that because Hong Kong is a "business city" business should be given precedence forget that social harmony requires that all sections of the community feel that they have a voice. A properly representative Legislative Council is a critical safety valve for public pressure.
The extent of the unfairness of the pre-1995 electoral arrangements is not widely known. It is possible that the Government itself is unaware of some of the research which has been done on this subject
In the last election in Hong Kong in which corporate voting was permitted, in 1991, Mr Lee Shau Kee, the chairman of Henderson Land Company Limited and other companies, controlled 21 votes in the Real Estate constituency. He had a personal vote, and then another 20 votes through companies in which he had a controlling interest. In most of these companies his controlling interest was 100% and in none of them was it less than 72% . The total number of registered votes in the constituency was only 373. Mr Lee with his 21 votes therefore controlled over 5% of all the votes in that constituency.
Mr Lee Shau Kee was not however the man with most votes. Another Hong Kong tycoon, Mr Lee Ka Shing, had majority control of 25 companies in various functional constituencies, as well again as his own personal vote, giving him control of 26 votes in a legislative council election.
These examples, although dramatic, almost certainly under-estimate the extent to which corporate membership distorts and perverts the operation of elections in constituencies where it exists. If companies are controlled by nominees it can be very difficult to know who the real owners are.
Where someone controls a bloc of votes in a small constituency the risk must exist that that bloc of votes will be "sold" as part of a political or business deal. Where the existence of the bloc of votes is hidden because of use of nominees it may be difficult or impossible to detect that the election is in fact being manipulated by a small number of individuals. The functional constituencies are " rotten boroughs".
Corporate voting was used in Italy under the Fascist dictator Mussolini but was abolished with the return of democracy there. The Government states that its objective is that the first Legislative Council election should be open, fair and honest. The proposed return to corporate voting is a giant step backwards towards a voting system that is secret, unfair and dishonest.
Executive Council Members and the voting system
There are recent reports that Executive Council Members who have expressed a clear intention to run for elections in 1998 did not excuse themselves in the discussion of the consultation draft proposed by the Independent Boundary Commission which is charged with the duty to demarcate constituencies for those elections. Some Members have criticised the Commission for not consulting them first before the publication of the draft. Beijing owned newspaper Wen Wei Pao called for "improvements" to the draft by ensuring that "patriots", a term reserved for pro-Beijing people in Hong Kong by Chinese authorities, would get elected. So far the HKSAR Government has not given way to this pressure, but it is clear that influential Government figures, not content with enacting an unfair election law, wish to further gerrymander the demarcation of constituency boundaries.
Denial of constitutional rights "by law"
Under Article 24 of the Basic Law, all children of Hong Kong permanent residents have the right of abode in Hong Kong. This right is unpopular with some sections of the community because it gives the right of entry to many Mainland children of Hong Kong fathers against whom there is prejudice. The Government has amended the Immigration Ordinance to establish an administrative barrier to block the exercise of constitutional rights by these children. This amendment denies any recognition of the right of abode to them, even after they have proved their eligibility, unless they obtain a one-way permit (OWP) for entering Hong Kong. Such an abrogation of these children s rights is particularly serious because it sets a precedent, at the beginning of the HKSAR, of denying by administrative measures the constitutional rights of the Hong Kong people guaranteed in the Basic Law. By doing so, it makes a mockery of the rights set out in the Basic Law, and undermines the promise of the rule of law and guaranteed rights for the sake of administrative convenience and in order to pander to prejudice.
The permit scheme which the Government has set up subjects children to the corrupt OWP system administered by the Mainland authorities. The measures do not simply result in a brief wait, but in years of delay. Administrative necessity cannot justify these measures.
The policy further violates the law and resident's rights by discriminating against a particular sub-category of people. Article 24 of the Basic Law lists six categories of people who are permanent residents and have the right of abode. For five of those six categories, the Government has not imposed requirements of joining the OWP queue to enter Hong Kong. Only a subgroup of one category of residents, provided for in Article 24(2)(3) is prevented from exercising their legally protected right. Such an approach thus discriminates against this class of people, flouting the principles of basic justice and equality which should underlie the government and thus violating Article 25 of the Basic Law s protection of equality before the law. It reinforces biases against immigrants rather than delivering a proper policy. These children deserve the same treatment as any other Hong Kong resident.
What makes the Government s policy most disturbing is that it has embarked upon a discriminatory path of disrespect for law and rights without any legitimate justification of necessity. It is clear that the processing time capability of the Hong Kong Immigration Department greatly exceeds the current quota of 66 (45 specific and 21 non-specific) and that of 90 proposed by the Government. We recognize that an influx of children potentially could undermine efforts to reduce the student-teacher ratio and lengthen the school day from a half day to a whole day. However, there are many alternatives to the restrictive policy proposed by the government which could prevent or minimize such an impact. The government does not need to deny some residents their right to live in Hong Kong simply to improve the education of others.
Hong Kong is a wealthy community with Government reserves of 330 billion dollars. It can afford to provide services for an additional 66,000 children and thus absorb them all at once. Even if all of these children were starting primary school (an unlikely scenario) and no classes were added, educating them without creating additional classes would increase the class size by approximately 5, from 34 to 39 children. It is unacceptable to withhold Hong Kong educational access based on the mere possibility of augmenting the education of others.
Unfortunately, the High Court of Hong Kong has failed again to protect the rights of the people and accepted the Government's twisted interpretation of Article 22 of the Basic Law. Article 22 empowers the Chinese authorities to decide which Mainlanders who are not Hong Kong permanent residents have the rights to come to Hong Kong. But the court has extended it to cover even Hong Kong permanent residents subjecting these children to the OWP originally designed for Mainlanders who have no right of abode in Hong Kong. Having decided that the measures adopted in the amendment were allowed in Article 22, the court refused to accept other arguments in favour of the children including the criticism of discrimination.
This is yet another example of the court's lack of willingness to check government encroachment of rights by a general and purposive approach of interpretation of the constitution (Basic Law) in favour of the protection of rights of individuals against the intrusive authorities. The court's readiness to accept a Government interpretation of Article 22 never even contemplated by the Government itself at the time of handover is particularly disturbing.
Police Interference with freedom of assembly
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.
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.
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.
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.
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.
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.
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 since 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.
An important feature of post-handover police control of demonstration was the police's planned intimidation, by prominent deployment of force, of demonstrators led by organizers selectively targeted at by the police. Another highly objectionable feature is the readiness to use force on such demonstrators. All these raise the question of whether the police are law enforcers or uniformed law breakers themselves. Another question is whether the police has begun its transformation into a machinery of brutal oppression.
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 such 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.
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 was 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."
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 valued their rights would inevitably challenge the police's legitimacy of holding their rights a hostage to extract their promises and tension mounted and distrust of the police aggravated. The situation would become quite beyond the control of the organizers if some rights-conscious demonstrators were there. The very tactic designed to extract compliance become the source of dis-obedience and conflict. To a great extend, the cause of possible disorder comes from the police tactics. The police-cum-protestors march, the big crowd of police surrounding the demonstrators, and the police blocking off of roads to prevent demonstrators from approaching are often the real cause of traffic jam.
Those who suffered most under this post-handover intimidation and harassment strategy was 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 holding public office bearers), their political opinion, and their demonstration targets. But with the apparent loss of police self-restraint, the situation has deteriorated rapidly.
An example is the group of demonstrators targeted at by the police during the World Bank Conference. The case has been investigated by the Monitor. Evidence, including unpublished footage taken at the scene indicated 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 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 met 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. They were brutally arrested even though they held no banner nor placard, chanted no slogans -- nothing but just waited there and watched the police stopping their fellow demonstrators who had just come up. Five of these peaceful demonstrators were unlawfully arrested and some were handcuffed, including two small 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 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 WBG/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.
"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.
"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."
Another police measure to make the lives of the demonstrators difficult is the arbitrary condition imposed on processions prohibiting the use of amplification device on a vehicle while in motion. The condition is arbitrary because candidates could do so in the 1995 Legislative Council elections.
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.
This account of the period after the handover has outlined a series of attacks on the rule of law by both the central and SAR authorities. The defective constitutional arrangements for Hong Kong and the attitudes towards legality shown by key members of the SAR Government have damaged the legal protection of human rights and institutions vital to Hong Kong's autonomy. We urge the authorities to recognize the importance of rule of law and reverse this trend.Download the paper