Select Committee on Foreign Affairs Minutes of Evidence

APPENDIX 3

Memorandum submitted by the Hong Kong Human Rights Commission

1. INTRODUCTION

  1. With the revert of sovereignty from British to Chinese government, Hong Kong people are now suffering from the regression of democratic development and human rights protection. It is witnessed that there has been enormous changes stemmed from the governmental attitude towards individual rights and democracy of the new Hong Kong Special Administrative Region Government (SAR Government).

  2. Evidently, the SAR Government deprives human rights development with far-reaching structural and legislative changes. Soon after the inauguration of the SAR Government, various laws have been changed that infringed the constitutional rights of the people and triggered the spirit of rule of law. For instance, the amendments of the Immigration Ordinance empowered the government to repatriate people who have right of abode, which is clearly an irrespective action of the SAR Government towards the constitution and the law.

  3. Indeed, more than one example showed that the SAR Government intends to devote individual rights to serve administrative and political purposes. The intention of amending the civil liberties related Public Order Ordinance and Societies Ordinance is evidently based on the "national security" concept. However, "national security" as a ground for restricting fundamental rights is too vague and too imprecise. It is also a mistake to apply it for public gathering and freedom of association. Unfortunately, the SAR Government is now imposing strong state control over individual activities. It intends to control and suppress the collective expression of voices that is deviant from the government opinions.

  4. Regarding the political development, the SAR Government not only inherited the unfair electoral system from the colonial government, but took away the already limited voting power and rights to political participation of the public. Whether it is the election of the SAR Chief Executive, the setting up of the provisional legislature or the election of National People's Congress delegations, the election mechanism itself did restrict and discourage mass participation. As a result, Hong Kong is ruled by a small elite group composed of the conservative pro-China businessmen and the professional sector.

  5. Any move to empower the working class and the deprived groups will then be interpreted as detrimental to Hong Kong. After years of reviewing the employment laws, the government tabled an employment bill in June 1997. To protect workers' rights in a more comprehensive scale, a trade unionist Legislative Councillor submitted to the Legislative Council (Legco) a Member's Bill. It was passed several days before the handover to protect workers' rights in collective bargaining, anti-discrimination on trade union activities and trade union organizing. Regrettably these provisions were repealed by the undemocratic Provisional Legislative Council (PLC) which is dominated by the pro-China politicians and businessmen. The workers' rights protected by law were taken away by the PLC. It is a derogation and restriction of the rights already existed pursuant to law which violated article 5(2) of the ICCPR and ICESCR.

  6. As a coalition of non-governmental human rights groups, we feel obliged to provide independent and reliable information on the post handover human rights situations, particularly at the time when there is evident derogation of human rights and democratic developments in Hong Kong. We are confident that, as proven from past experience, the continuous monitoring and intervention of the Committee are of great importance in improving the human rights situation in Hong Kong.

2. RIGHT TO PEACEFUL ASSEMBLY AND RIGHT TO FREEDOM OF ASSOCIATION

  7. 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

  8. 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.

Societies (Amendment) Ordinance

  9. 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.

Iron Police Control over Public Procession after 1 July 1997—Threatened the Right to Peaceful Demonstrations

  10. 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.

3. RIGHT TO POLITICAL PARTICIPATION

  11. 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.

4. RIGHT OF ABODE

  12. 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 1 July 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 (article 12.4). It also constitutes a violation of the Sino-British Joint Declaration (article 158), the Basic law (article 24.3), the Hong Kong Bill of Rights Ordinance (article 8.4), as well as ICESCR (article 10) and CRC (articles 9 and 10).

  13. 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.

  14. This issue had been the subject of legal proceedings. The first ruling on October 9, 1997 is much critiqued as jeopardising the rule of law and as a judgment to fit the amended immigration law.

5. LABOUR RIGHTS

  15. On 26 June 1997, the former Legco passed three labour laws, which protected the right of collective bargaining, anti-discrimination on trade union activities and trade union organising, 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.

  16. Nevertheless, during the first week of its operation, the SAR Government moved to halt the implementation of these newly passed ordinances. Two of the three ordinances were replaced and the third was amended.

  17. 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.

RECOMMENDATIONS

  18. We strongly urge 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.

  19. We strongly urge 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 to form societies should not be regarded as "unlawful" (if not seeking registration or exception from registration) if the behaviour itself is not unlawful as prescribed by law.

  20. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government to make the application to court should it have 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.

  21. 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.

  22. 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 the Functional Committee and the Election Committee.

  23. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government to reform the election system so that the Chief Executive and all members of the Legislature should be elected by universal and equal suffrage.

  24. 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 on 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.

  25. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government not to deport the 1,500 Hong Kong permanent residents, who are mostly children, and issue permanent identity cards which state their right of abode.

  26. 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.

  27. 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 in Hong Kong in an orderly manner.

  28. 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 mothers 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.

  29. We strongly urge the Committee to request the Hong Kong SAR Government to enact comprehensive legislation on labour rights' protection.

March 1998

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Prepared 7 August 1998