Select Committee on Foreign Affairs Minutes of Evidence


Memorandum submitted by the Hong Kong Human Rights Monitor


  60. The International Covenant on Civil and Political Rights ("ICCPR"), on ratification by the United Kingdom in 1976, was extended to Hong Kong. Article XIII of the Joint Declaration states:

    "The Hong Kong SAR Government shall protect the rights and freedoms of inhabitants and other persons in the Hong Kong SAR according to law. The Hong Kong SAR Government shall maintain the rights and freedoms as provided for by the laws previously in force in Hong Kong including freedom of the person, of speech, of the press, of assembly, of association, to form and join trade unions, of correspondence, of travel, of movement, of strike, of demonstration, of choice, of occupation, of academic research, of belief, inviolability of the home, the freedom to marry and the right to raise a family freely.

    Every person shall have the right to confidential legal advice, access to the courts, representation in the courts by lawyers of his choice, and to obtain judicial remedies. Every person shall have the right to challenge the actions of the executive in the courts.

    Religious organisations and believers may maintain their relations with religious organisations and believers elsewhere, and schools, hospitals and welfare institutions run by religious organisations may be continued. The relationship between religious organisations in the Hong Kong Special Administrative Region and those in other parts of the People's Republic of China shall be based on the principles of non-subordination, non-interference and mutual respect.

    The provisions of the ICCPR and the ICESCR as applied to Hong Kong shall remain in force."

  61. These treaty provisions are reflected in Article 8, Article 39 and Chapter III of the Basic Law. Article 39 of the Basic Law in fact guarantees the application of the ICCPR, the ICESCR and the international labour conventions to the HKSAR and specifies that they should be implemented through the laws of the HKSAR.

  62. The Hong Kong Bill of Rights Ordinance 1991 ("Bill of Rights") was enacted to incorporate the provisions of the ICCPR into the laws of Hong Kong. It was introduced in the wake of the Tiananmen Square massacre in order to restore confidence in Hong Kong that civil liberties and human rights would be adequately protected in the territory.

  63. The Bill of Rights Ordinance consists of three parts. Part I is introductory and deals with matters such as the effect of the Ordinance, its scope of operation, the interpretation of the Bill, permissible derogations from rights guaranteed, the jurisdiction of the courts to consider Bill of Rights issues and their remedial powers. Part II sets out all the fundamental rights guaranteed to Hong Kong people. The Articles, save for a few minor amendments, mirror those of the ICCPR. Part III consists of a number of limitations and savings. These include those reservations to the ICCPR entered by the UK in respect of Hong Kong.


  64. Key operative sections of the Bill of Rights Ordinance have been declared by the Standing Committee of the National People's Congress on 23 February 1997 to be inconsistent with the Basic Law and thereby not to be adopted as laws of the HKSAR. This resolution has no legal basis as the BORO is a local replica of the ICCPR which has been guaranteed to remain in force in the HKSAR by Article 39 of the Basic Law. This attack on the BORO by the Standing Committee has been continued by Tung Chee-hwa's Government.

  65. The Bill of Rights Ordinance allows challenges to be taken to court and thus goes beyond the scope of the ICCPR. There are however, limitations to its use. Section 7 of the Bill of Rights Ordinance 1991 states,

    (i) the Government and all pubic authorities; and

    (ii) any person acting on behalf of the Government or a public authority."

  66. This limitation on the applicability of the Bill of Rights was further entrenched by a Court of Appeal decision in the case of Tam Hing-yee v. Wu Tai-wai12 which held that the Bill of Rights Ordinance did not apply in intercitizen disputes. This bar contravenes Article 2 of the ICCPR which binds States parties to:

    —  respect and to ensure rights guaranteed in the Covenant;

    —  take the necessary steps to adopt such measures as may be necessary to give effect to the rights recognised in the Covenant; and

    —  to ensure that any person whose rights are violated shall have an effective remedy.

  67. By upholding this bar to the applicability of the Bill of Rights, the Government is effectively denying individuals the right to the full protection of their rights guaranteed by the Covenant. The UN Human Rights Committee was critical of this court decision for its failure to give full effect to Hong Kong's obligations under the Covenant.

  68. In June 1997, Legislative Councillor Lau Chin-shek introduced a private member's bill which broadened the provisions of the BORO so that it applied to "relations between private persons". Although the legitimate Legislative Council passed the bill, the provisional legislature put a freeze on the bill in July. This freeze lasted till January 1998. On 24 February 1998, the provisional legislature voted in favour of a government bill which repealed Lau Chin-shek's amendments.

  69. The SAR Government insisted that this was not "watering down any of the prevailing protection under the BORO" and justified its move on the grounds that the amendments made by Lau Chin-shek's bill to the BORO were capable of three different interpretations and would thus create uncertainty and confusion as well as swamp the courts with litigation. This is misleading and disingenuous. The Monitor considers the Government's move an attack on the Bill of Rights in breach of Article 39 of the Basic Law and the Government's international obligation under the ICCPR.

  70. The Monitor is disappointed that the SAR Government has chosen to continue to erode the protections provided by the BORO and the ICCPR in Hong Kong, to adhere to the hostile attitude towards private member's bills, to reverse legislation moved by the legitimate Legislative Council and its readiness to give effect to share the business community's demand to limit protection against human rights violations between private individuals.

  71. Another problem, perhaps a more fundamental one, is the ability of our judges to interpret the Bill of Rights. Many Hong Kong judges when called upon to interpret the Bill of Rights seem reluctant to challenge the status quo and take an open-minded approach to its provisions. This has resulted in narrowly construed judgments which fail to offer any useful interpretation of the application of the Bill of Rights. Often the provisions of the Bill of Rights are interpreted in such a way as to not afford protection of rights.

  72. While the Bill is certainly a protective measure, an aggrieved individual may only resort to it where there is a matter being litigated. Further, section 6 of the Bill requires that:

    (a)  the remedy sought is one that the court has the power to grant or make in the proceedings concerned; and

    (b)  it must be a remedy that the court considers appropriate and just in the circumstances.

  To date, the Hong Kong courts have not developed any doctrine whereby the violation of one's human rights guaranteed by the Bill could serve as an independent ground for an award of remedies which the court has the power to grant.13 This means that Bill of Rights cases are never brought on the sole ground that there has been a violation of one's human rights. The argument on the human rights point only forms part of the whole case.


  73. On 1 July 1997, the Standing Committee of the National People's Congress exercised its power of repeal under Article 160 of the Basic Law to amend two ordinances which it found to be in contravention with the Basic Law. These were the Public Order Ordinance and the Societies Ordinance which had only recently been amended by the colonial government and by various private member's bills in order to ensure adherence with the Bill of Rights and the ICCPR. The consultation document issued by the Chief Executive Designate's office prior to the handover on the proposed amendments met with much criticism but by and large these were ignored. The amendments were passed by the provisional legislature before the handover (thereby breaching the then constitution, the Letters Patent) and came into effect on 1 July 1997. The following sections set out in detail the previous law, and the changes which have been made.


  74. The Public Order Ordinance is the most important document in Hong Kong in respect of the exercise of the right of assembly. Its 1967 version, which attempted to consolidate laws originally scattered in various statutes, was introduced during the most serious riots in Hong Kong's history and as such it was of a somewhat repressive nature. Major amendments were made in 1970, 1980 and 1995 under British rule. Though not without serious problems, the 1995 Ordinance which was enacted to bring its provisions into accordance with the Bill of Rights, represented a step forward.

  75. The 1995 Ordinance as it stood only required that the Commissioner of Police be notified in the event of a public meeting or public procession being held. This replaced the previous licensing system. Notification was not required for a meeting of not more than 50 persons, meetings in a private premises where the attendance did not exceed 500 persons, or meetings in registered schools organised by the latter or its accredited society. It was also not required for a procession of not more than 30 persons, or a procession which was not on a public highway or in a public park. The Commissioner of Police could prohibit a notified public meeting or a public procession where he reasonably considered such prohibition to be necessary in the interests of public safety or public order. After a private member's bill amendments in 1996, the power of the Commissioner to control and direct music and speech broadcast at public gatherings was subject to more stringent limitations. It could only be invoked if the Commissioner reasonably considered it to be necessary to prevent an imminent threat to public safety or public order.

  76. The amendments effected on 1 July 1997 rolled back any liberalising provisions made in the 1995 version of the Ordinance. The licensing system was reinstated under the euphemism of a "notice of no objection". In particular, the Commissioner of Police was given the power to prohibit a notified public meeting or object to a notified procession on the grounds of "national security" and "for the protection of the rights and freedoms of others".

  77. We take issue with this because national security as a ground of restriction is unnecessary in Hong Kong given that all demonstrations here have been peaceful in the last decade. It is also dangerous, especially when not qualified by the element of force. When questioned on the over-wide discretion given to the police, the then Chief Executive Designate explained that guidelines would be published to guide the exercise of discretion by the police and only restrictions demonstrably necessary in a free and democratic society would be imposed. These guidelines were released in mid-July. They specify, in dealing with notifications relating to public gatherings, that the ground of "national security" would only be invoked by the Commissioner or an officer not below the rank of Senior Assistant Commissioner, and would be invoked only "if he reasonably considers it necessary to do so in order to safeguard the territorial integrity and the independence of the People's Republic of China". In coming to his decision, the Commissioner would take into consideration, among other things, whether or not the declared purpose of the notified public meeting or procession is to advocate separation from the People's Republic of China including advocacy of the independence of Taiwan or Tibet. As the guidelines have not been so far put to test by an actual case of a ban on national security grounds, it is still unclear whether they will be used to prohibit or restrict all peaceful public gatherings with separatist overtones.

  78. Likewise, in dealing with public gathering in progress, when deciding whether to take appropriate action on the grounds of "national security" to regulate a public meeting or procession in progress, the police officer in charge may consider, among other things, whether or not any act is likely to cause or lead to an imminent breach of the peace; and whether or not any person at the public meeting or procession is advocating separation from the People's Republic of China including advocacy of the independence of Taiwan or Tibet.

  79. The guidelines do not incorporate the modern jurisprudence of "national security" as enumerated in the Siracusa Principles or the Johannesburg Principles (see paragraph 161 below), or indeed the United Nations Human Rights Committee interpretation of national security. What is clear is that the police are now required by the guidelines to make political decisions when deciding to prohibit a demonstration or public meeting.

  80. Subject to the above criticism, the Commissioner's power to prohibit has been limited to a certain extent, in that he was not and is not allowed to prohibit a public gathering if he considers that the interests of society could be met by the imposition of conditions on the procession or meeting. Also, in issuing a notice of prohibition, the Commissioner has to state the ground or grounds on which the prohibition is considered to be necessary and the reasons for his opinion as to those grounds. This safeguard of due process might not be very effective though since the grounds for prohibition are so wide and inclusive of national security.

  81. Moreover, the Basic Law provides that the courts of the HKSAR "have no jurisdiction over acts of state such as defence and foreign affairs whenever such questions arise in the adjudication of cases" and the HKSAR courts "shall obtain a certificate from the Chief Executive on questions of fact concerning acts of state whenever such questions arise in the adjudication of cases". Thus, the court's judicial control by way of judicial review will be minimal if not absent, unless an extremely vigilant HKSAR court is ready to defend its jurisdiction and the freedom of the Hong Kong people when the ground of national security is raised by the authorities.

  82. The fundamental objections to such a system of control are the wide grounds for restrictions and the broad and imprecise grounds in the drafting of the Ordinance.


  83. 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.

  84. Before the handover, the police had 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 displayed 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.

  85. 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.

  86. 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.

  87. 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.

  88. 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-restraint. 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.

  89. 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 the demonstrators intended to chant. The nature of the work of the police force has thus 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.

  90. An important feature of post-handover police control of demonstrations is the police's planned intimidation, by prominent deployment of force, of demonstrators led by organisers selectively targeted by the police. Another serious problem is the police's imposition of unreasonable restrictions on the spot instead of their inclusion as conditions in the "letter of no objection" making it impossible for demonstrators to challenge those restrictions before the Board of Appeal which is specifically set up for reviewing refusal or restrictions. Another highly objectionable feature is the readiness to use force on such demonstrators. All these raise questions as to whether the police are law enforcers or uniformed law breakers themselves, and whether the police have begun a transformation into a mechanism of oppression.

  91. 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 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.

  92. 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 were 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."

  93. 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 the 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 value their rights inevitably challenge the police's right to hold them hostage to extract promises, so tension mounts and distrust of the police becomes aggravated. The situation becomes quite beyond the control of the organisers if rights-conscious demonstrators react angrily, so that the very tactic designed to extract compliance becomes a source of disobedience and conflict. To a great extent, the risk of disorder comes from the police tactics. The police-cum-protesters march, the big crowd of police surrounding the demonstrators, and the police blocking off roads to prevent demonstrators from approaching cause far more disruption than would be caused by a less over-policed gathering.

  94. Those who have suffered most under this post-handover intimidation and harassment strategy are those demonstrators specifically targeted. The police have a tradition of discriminating against demonstrations according to the nature of the organisers' political status (ordinary activists compared to those prominent political figures), their political opinion and their demonstration targets. But with the apparent loss of police self-restraint, the situation has deteriorated rapidly. Certain individuals who are frequent participants in demonstrations are marked by the police for special attention.

  95. An example is a group of demonstrators targeted by the police during the World Bank Conference. This case has been investigated by the Monitor. Evidence including unpublished television camera footage taken at the scene, indicates brutal and unlawful police behaviour. The group criticised the Bank as worsening poverty by imposing fiscal policy requirements at the expense of the interest of the poor. As a few demonstrators were individuals 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 was meeting 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. Five of them were arrested even though they held no banners nor placards, chanted no slogans, and did nothing but just waited and watched the police stopping their fellow demonstrators who had just come up. The arrest was for refusing to leave an area which was open to the public, and which other members of the public not identified as demonstrators were entering and leaving freely. It was therefore unlawful. Those arrested were handcuffed, including two slightly 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 unused television footage shows five policemen holding a small woman horizontally at waist height and then dropping her on the pavement.

  96. The following is an observation by the journalist mentioned above on the police control measures.

    "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 were 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."

  97. Another police measure to make the lives of the demonstrators difficult is the arbitrary condition imposed on processions prohibiting the use of an amplification device on a vehicle while in motion. The condition is arbitrary because candidates could use such devices in the 1995 Legislative Council elections.

  98. 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.

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