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1. With the revert of sovereignty from British to China government, Hong Kong becomes a Special Administrative Region (SAR) of the People's Republic of China as prescribed by the 1985 Sino-British Joint Declaration and the Basic Law, the SAR's constitution, promulgated by the Chinese National People's Congress in 1990. Executive powers were vested in a chief executive selected by a 400-person selection committee chosen by a Chinese-appointed preparatory committee. Evidences have shown the past strong respect for rule of law is superseded by the new administration's compromising attitude. Though the judiciary is an independent body adhering to the Basic Law and to English common law, recent legal challenges for the two court rulings -- on the legitimacy of the Provisional Legislative Council (PLC) and the "right of abode" for mainland children born to Hong Kong parents -- were criticized by the legal community for not adequately protecting rights established in the Basic Law. Irritating signs hindering human rights development also include the strong social control over public demonstrations and associations, as well as the scrapping of laws protecting labour rights.
Retrogression of Democratic Development
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2. Hong Kong's electoral experience has been relatively short. Only in 1991 were legislative elections held in which some seats were directly elected, and just 18 of the Counci's 60 seats were directly elected on a geographical basis. In 1995, all seats were elected through direct or indirect election as a result of the last British governor's reform. China opposed the British's unilateral decision on the election reform and decided to dissolve the Legislative Council upon reversion.
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Election of Chief Executive and the PLC
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3. In December 1996, the 400-member Selection Committee established by the China appointed 150-member Preparatory Committee, chose Tung Chee-hwa as Chief Executive and selected 60 PLC members, including ten individuals who had failed to win election to the 1995 LegCo. The democratic camp chose to boycott the appointed council and protested the entire process as unnecessary, illegal and undemocratic.
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Shortcoming of the Election Law
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4. As limited by the Basic Law, in the 1998 election, 20 seats are to be elected on a geographic basis through universal suffrage, 30 seats through functional (occupational) constituencies, and 10 seats through indirect election (Election Committee). The new election law was criticized as a system that maximizes political power for economic and political elites and minimizes the participation of the citizens at large. It dramatically reduces the number of voters in indirect elections, which accounts for two-thirds of the legislature, from 2.5 million to less than 20,000. It distorts the electoral results by adopting a proportional representation for the other one-third of the legislature which comprise of directly elected seats and prohibiting individuals from holding foreign passports to run for it.
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Selection Process of the National People's Congress
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5. Hong Kong's delegates to the Chinese legislature, the National People's Congress (NPC) will pay a key part in developing the relationship between the SAR and the Beijing government and in the course of Hong Kong's constitutional development, since any amendments to the Basic Law require the approval of two thirds of Hong Kong's NPC delegates. They are entitled to sit on the 800 Election Committee will choose 10 Legislative Council members in 1998.
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6. In October 1997, the China Preparatory Committee opted to reconvene the same 400-member Selection Committee who had chosen Chief Executive Tung to select the 36 Hong Kong's NPC delegates. In this process, the Selection Committee would narrow a list of candidates and identified self-nomination. The election was exempted from the law of Hong Kong, nor did it require candidates to declare Hong Kong residency and lack of criminal record. The whole exercise was heavily criticized as undemocratic, lack of transparency and a small-circle election. No democrat got to the pre-election stage because they could not even win enough nominates.
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7. Being excluded from the whole process of selection, the majority Hong Kong people feel detached. Indeed, the selection process raises concerns about the relationship Beijing and the SAR. The expectations that the NPC delegation would be composed of Hong Kong residents appears inconsistent with the winning of Jiang Enzhu, director of Xinhua, a mainland official who is not a permanent resident of Hong Kong, should be allowed to represent the SAR.
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From "Rule of Law" to "Rule by Law"
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New Law to Deprive Children's Abode Right
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8. Evidences indicated a disturbing lack of commitment on the SAR administration to uphold the rule of law. The Basic Law guarantees the right of abode -- the right to permanent residency -- to all persons, among others, of Chinese nationality born to Hong Kong residents regardless of their place of birth. However, instead of speeding up the migration process, the SAR government proposed a new law requiring that persons claiming such abode right in Hong Kong must prove it with a certificate of entitlement and was swiftly passed by the de facto appointed PLC by three readings within one same day. Under the new law, the SAR government was empowered to deport these children who had not followed the prescribed procedures to China. It shows how the SAR government has devoted administrative convenience over the children's constitutional rights.
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Amendments of Civil Liberties Related Ordinances to Tighten Social Control
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9. In March 1997, the Standing Committee of the National People's Congress made a determination as to which "some existing Hong Kong laws were contrary to the Basic Law and would not apply after July 1". Subsequently, the Public Ordinance reintroduced licensing for demonstrations and empowered the police to raise objections on national security grounds. The Societies Ordinance reintroduced registration of parties and banned ties between them and foreign political groups. Its move to scrap liberalized laws on demonstrations and political parties caused an outcry. Critics include the arbitrarily defined terms on national security grounds for prohibiting demonstrations or parties (Remarks 1). Such amendments tighten the control and suppress the collective expression of voices that is deviant from the government opinion.
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Selective Non-Prosecution on China related Institutions
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10.The recent selective "non-prosecution" incident raised the concern that the SAR government would not necessarily hold figures or groups with ties to the mainland to the laws of the SAR. In February 1998, the Justice Department chose not to take legal action against Hong Kong branch of Xinhua, the official news agency of China (which was functioning as mainland's embassy before the handover), when it failed to comply with local privacy laws (Remarks 2).
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Exemption of Mainland Institutions from Local Laws
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11. In March 1998, the SAR government proposed a bill that would require all laws to specify whether they apply to Chinese state organ. The Adaptations of Law (Interpretive Provisions) Bill was passed on the last day of the PLC. The new law exempts administrative bodies of the mainland government, including subordinate organs of the central government in the exercise of "executive functions" of the central bodies such as Xinhua, as well as the SAR government itself, from 17 local laws. The new law seemingly violates the Basic Law, as it stipulates that all offices of the central government and their personnel "shall abide by the laws of the Region (Hong Kong)" (Remarks 3). The new law has drawn fierce criticism from many legal experts, who fear that it will create a two-tier system in which Chinese government bodies would be out of reach of local laws.
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Independence Test of the Judiciary
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Challenge to Legitimacy of PLC
12.Two court cases provided alarming indication that Hong Kong courts would not question the legality of an act of the sovereign even that act violated the Basic Law. In July l997, a court ruling upheld the legitimacy of PLC, even though the Basic Law clearly does not provide for any provisional or appointed legislature. (Remarks 4) The Court upheld the argument that because Hong Kong is now part of China, as special administrative region directly under the central government, actions of the NPC with respect to the SAR could not be challenged in Hong Kong. The Court of Appeal found that Hong Kong courts have no jurisdiction to question the legality of an act of the sovereign, such as a decision of the NPC.
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Right of Abode Case
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13.The judgment of the early prescribed right of abode case allowed the government's move to protect public interest (to control the flow of mainland children into Hong Kong) to supersede a right guaranteed in the Basic Law. The ruling nevertheless suggests that mainland laws automatically limit rights guaranteed by the Basic Law. For the sake of respecting the immigration law of the sovereign in the Hong Kong courts, the children's exercise of their constitutionally guaranteed residency rights can only be made subject to the laws of another jurisdiction.
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Strong Control over Rights to Demonstration and Associations
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14.The Public Order (Amendment) Bill and Societies (Amendment) Bill were rushed into laws by the PLC in June 1997 in the mainland China only after a swift three-week public consultation. As prescribed above, these ordinances clearly refocused the restrictions permissible under the international covenant and tighten the social control in order to prevent anti-China activities under outside influence. However, what is unclear is what activities will be considered as being anti- China (Remarks 5). The passage of laws threatened the right to peaceful demonstration and the iron control of the police handling demonstration curtailed the exercise of this right, particularly when dealing with demonstration critical of the Chinese party leaders (Remarks 6).
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Scrapping of Labour Laws
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15.Legislative protection for labour rights, which has undergone years of discussion, including two laws on collective bargaining and anti-union discrimination moved by an ousted unionist were passed by the then Legislative Council in the final week of British rule. However, during the first week of its operation, the SAR government moved to halt the implementation of these newly passed laws. Finally in October 1997, the PLC approved scrapping two labour laws and passed a government-sponsored legislation. The administration argued the law on mandatory collective bargaining would harm industrial harmony and deter foreign investment. The hasty pass of legislation without adequate consultation with affected parties resulted in strong oppositions. Unionists and grassroots legislators heavily criticized the move violated the spirit of rule of law and deprived the worker's rights.
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Remarks:
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1. The definition of "National Security" is too broad and unclear, which is refereed to as "the safeguarding of the territorial integrity and the independence of the People's Republic of China".
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2. The case involved a prominent democracy activist, Emily Lau, who sought in 1996 to see any files that Xinhua held on her. Ten months later, after Lau complained to the Privacy Commissioner, Xinhua responded that it had no such files. The local privacy law states that such requests much be answered within 40 days. Hong Kong's Privacy Commission investigated the case and submitted its finding to the Justice Department, which subsequently decided not to take legal action against Xinhwa for its violation of the law.
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3. Basic Law, Article 22. 4
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4. HKSAR v. Ma Wai Kwan, High Court of Hong Kong, Court of Appeal, July 29, 1997.
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5. See notes 1.
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6. "230 Police Keep Tight Rein on 15 Li Peng Protesters", South China Morning Post, September 24, 1997.