The Hong Kong Human Rights Monitor welcomes the Concluding Observations adopted by the United Nations Human rights Committee responsible for the monitoring the implementation of the International Covenant on Civil and Political Rights. We call on the Government to publish the Concluding Observations and make them freely available like the policy speech of the Chief Executive.
We urge the HKSAR Government to address the concerns of the Committee and to accept its recommendations and take immediate measures to implement them. We call on the Central People's Government to facilitate their implementation by lending appropriate support, for example, in facilitating the necessary amendments of the Basic Law to provide for universal and equal suffrage and in removing from the Standing Committee the power to interpret the Basic Law.
The Committee has addressed most of the issues raised before them. Human Rights Monitor is particularly pleased to see that the Committee has expressed serious concerns about the SAR Government's attack on the rule of law and democracy -- both of which are institutions are crucial to the protection of human rights in Hong Kong.
The rule of law
The Committee has emphasized that it is "seriously concerned at the implications for the independence of the judiciary of the request by the Chief Executive of HKSAR for a reinterpretation of ... the Basic Law by the Standing Committee" of the NPC "following upon the decision of the Court of Final Appeal" in the right of abode cases. In spite of the Government's assurance that it will only seek such interpretation in "highly exceptional circumstances", the Committee "remains concerned that a request by the executive branch of government for an interpretation ... could be used in circumstances that undermine the rights to a fair trial under Article 14."
We were disappointed that instead of reconsidering the implications the interpretation has for the rule of law in Hong Kong, the Government has resorted, in its statement in response, to defend its position.
So far, the Government has refused to accord the principle of the independence of the judiciary the importance it demands in a proper separation of powers perspective as explained by members of the Committee in the hearings. If Article 158 is not amended so as to give the final power of interpretation to the Hong Kong Court of Final Appeal and that the Chinese and Hong Kong authorities consider it appropriate that the Standing Committee has the final say on what the law is, in particular at any time before, during and after the adjudication of the case, then there is a risk to the right to a fair trial being undermined
Whether the interpretation by NPCSC is really "entirely legal and constitutional" is still an issue to be decided.. If the courts in Hong Kong have no choice but to accept an interpretation of law imposed on them by a non-judicial body, it means that there are fundamental defects in our constitutional and legal framework in which violations of human rights can be sanctioned by the constitutional order. The Committee's observations in this respect are an indication that there is a real need to amend the Basic Law.
The Government's justification of its position based on "majority support in the Legislative Council" and opinion polls was fundamentally flaw. It highlights the failure of the government to understand that majority support is no defense to violations of human rights. It also ignores the fact that the Legislative Council is not representative body as it is not elected by universal and equal suffrage. There is also the fact that there is a real likelihood that public opinion was based on suspect figures..
The Committee has repeated its concern that the electoral system for the Legislative Council does not comply with the requirements of the Covenant. It has also expressed concern at the pending further diminishing of Hong Kong people's right to participate in public life in the conduct of public affairs due to the abolition of the municipal councils.
In response to this recommendation, we call on the Government to convene a constitutional convention to decide on the next step ahead to secure real democracy urgently.
Human Rights Monitor welcomes the recommendations by the Committee in other areas and is looking forward to discuss with the Government in detail their implementation in the near future.
1999 (c) Hong Kong Human Rights Monitor
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