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Report to the United Nations Human Rights Committee and United Nations Committee on Economic, Social and Cultural Rights on Hong Kong Human Rights Situations after the Change of Sovereignty
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Table of Contents
Chapter 2 Right to Peaceful Assembly and Right to Freedom of Association
Chapter 3 Right to Political Participation
Chapter 6 Repeal of Human Rights Legislation
Chapter 1 Introduction
1. With the revert of sovereignty from British to Chinese government, there is a regression of democratic development and human rights protection in Hong Kong. Changes stemmed from governmental attitudes towards individual rights and democracy of the new government come up with enormous structural and legislative changes which threaten the human rights development in Hong Kong.
Chapter 2 Right to Peaceful Assembly and Right to Freedom of Association
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2. Hong Kong police has long been empowered to restrict people's rights to assembly and freedom of association. Despite severe opposition from the public, the Hong Kong Special Administrative Region Government (SAR Government) revised the Public Order Ordinance and Societies Ordinance to tighten control over public rallies and associations so as to prevent any act that threatens "national security".
Public Order (Amendment) Ordinance
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3. The amended Public Order Ordinance required a "Notice of No Objection" to be obtained from the police before a public procession exceeding 30 persons may be held. It empowered the police to prohibit the holding of a procession on national security grounds, leaving the executive tremendous discretionary power and control over public assemblies. Also, any public procession has to be notified to police 48 hours prior to the public procession. This is an unreasonable restriction and would stifle many spontaneous public demonstrations in response to urgent causes.
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Societies (Amendment) Ordinance
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4. The new law reintroduced societies registration. Any society and association will be regarded as "unlawful" if not approved by registration or exemption from registration. The Chief Executive in Council would be the appeal channel of such registration. Hence its independence and impartiality remained doubtful.
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Iron Police Control over Public Procession after July 1st 1997 -- Threatened the Right to Peaceful Demonstrations
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5. Broadcasting classical music at the protest venue, deploying hundreds of police and using excessive force to control public order have obstructed the exercise of the right to freedom of assembly. It is a clear intention of the SAR Government to control and suppress the collective expression of voices that is deviant from the government opinion.
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Chapter 3 Right to Political Participation
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6. The new SAR government took away the already limited voting power of the public. Rights to political participation of the Hong Kong people are being further deprived in the election of the SAR chief executive, the setting up of the provisional legislature, the composition of the first SAR legislature, as well as the election of National People's Congress (NPC) Delegation. All the political bases, including the Chief Executive's Executive Council, have been dominated by the pro-China, conservative politicians as well as people from the business and commercial sectors.
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Chapter 4 Right of Abode
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7. According to the Sino-British Joint Declaration and the Basic Law, there is new definition of persons who have right of abode in Hong Kong after July 1st 1997. However, the SAR Government has passed new legislation to deport 1,500 children, who have right of abode in Hong Kong and, most of whose both parents have resided in the territory back to China. As these children are discriminated for reasons of parentage and administrative convenience, it is clearly a contravention of ICCPR (art. 12.4). It also constitutes a violation of the Sino- British Joint Declaration (art. 158), the Basic Law (art. 24.3), the Hong Kong Bill of Rights Ordinance (art. 8.4), as well as ICESCR (art. 10) and CRC (arts. 9 & 10).
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8. The new legislation adds restrictions for these children who are born in China to obtain the so-called "Certificate of Entitlement" (COE) prior to entering Hong Kong. As the COE would be released with the mainland One- way Permit, it means under the new law, even persons with Hong Kong right of abode have to be subjected to the corruptive and unfair One-way Permit system to come to Hong Kong .
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9. This issue has been the subject of legal proceedings. The first ruling on October 9, 1997 is much critiqued as jeopardizing the rule of law and as a judgment to fit the amended immigration law.
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Chapter 5 Labours' Rights
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10. On 26 June 1997, the former Legco passed three labour laws, which protected for the right of collective bargaining, anti-discrimination on trade union activities and trade union organizing, namely the Employee Right to Representation, Consultation and Collective Bargaining Ordinance; Employment (Amendment) (No.4) Ordinance 1997; and Trade Unions (Amendment) (No.2) Ordinance 1997.
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11. Nevertheless, during the first week of its operation, the SAR Government moved to halt the implementation of these newly passed ordinance. Two of the three ordinances were replaced and the third was amended.
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12. Under the new laws, the right of trade unions to engage employers in collective bargaining and the right of seeking re-instatement on trade union discrimination case would be removed; the use of union funds for political purposes be banned, and the appointment of union officials be restricted.
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Chapter 6 Repeal of Human Rights Legislations
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13. The SAR Government halt the implementation and repealed the Hong Kong Bill of Rights (Amendment) Ordinance 1997 (BORO), which the bill was introduced by the then Legislative Councillor and passed by the Legco several days before the handover. It enabled the legislature to apply BORO to all legislation whether it affects legal relations between the Government, public authorities and private persons, or affects only relations between private persons. It is criticized that the SAR Government failed to comply with the obligation "to take necessary steps ... to give effect to the rights recognized in the present Covenant" [ICCPR art. 2(2)]. Also, such repeal of laws violated Article 5(2) of ICCPR as it derogated and restricted the rights already existed pursuant to law.
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Recommendations
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14. We strongly urged the Committee to request the Hong Kong Special Administrative Region Government to repeal the provisions in the Public Order (Amendment) Ordinance that are threatening people's right of peaceful assembly. Any restrictions placed on the exercise of this right have to be in accordance with ICCPR.
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15. We strongly urged the Committee to request the Hong Kong Special Administrative Region Government to abolish the compulsory societies registration. The exercise of the right to freedom of association and form societies should not be regarded as "unlawful" (if not seeking registration or exemption from registration) if the behaviour itself is not unlawful prescribed by law.
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16. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government to make the application to court should it has to restrict societies activities and processions. The Government should make sure such restrictions must be prescribed by law clearly and not exceed conditions set forth in ICCPR.
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17. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government to issue guidelines embodying a proper balance between upholding human rights and public security for police officers to follow.
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18. We strongly urge the Committee to express concern over the undemocratic nature of the Selection Committee, the Provisional Legislature and the 1998 election especially the undemocratic electoral methods of Functional Committee and Election Committee.
19. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government to reform the election system that the Chief Executive and all members of the Legislature should be elected by universal and equal suffrage.
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20. We strongly urge the Committee to ensure the protection of the rights of the children by demanding the Hong Kong Special Administrative Region Government to repeal the discriminative parts of Immigration (No. 3) Ordinance which contravene the International Covenant Civil and Political Rights, the International Covenant on Social, Economic and Cultural Rights, the Convention on the Rights of the Child, the Sino-British Joint Declaration, the Basic Law, as well as the Hong Kong Bill of Rights Ordinance.
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21. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government not to deport the 1,500 Hong Kong permanent residents, mostly children who are, and issue permanent identity cards which state their right of abode.
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22. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government to repeal the provisions in the Immigration Ordinance that deprive the right of abode of the Hong Kong permanent residents.
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23. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government and the Chinese Government to adopt effective administrative measures in order to enable the children who are permanent residents of Hong Kong to arrive Hong Kong in an orderly manner.
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24. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government and the Chinese Government to reform the One-way Permit system so that the mother of the children who have the right of abode in Hong Kong can join their families in Hong Kong in a speedy way, and the application for family reunification could be dealt with in a humane and expeditious manner.
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25. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government to enact comprehensive legislation on the labours' rights protection.
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26. We strongly urge the Committee to take note of the above situation and urge the Hong Kong Special Administrative Region Government to account for the repeal of human rights law when she submit human rights report to the Committee.