I. Universal Suffrage and Democracy
1. Universal and equal suffrage, as noted in the ICCPR, and as guaranteed in the Sino- British Joint Declaration for the election of Hong Kong’s Chief Executive, has yet to be realized. Hong Kong’s Chief Executive is currently still elected by a committee of 1200, who are not elected by the people – the authority of the head of government does not rest on the will of the people, as in the United Nations Charter, and the Universal Declaration of Human Rights.
2. Although the government has initiated constitutional reform, the proposal was actually a definition from the spread assessor, controlled by the Chinese government. Hong Kong 1 people are expected to only vote for candidates vetted and endorsed by the Chinese government.
3. The functional constituency of the Legislative Council elections in Hong Kong allows professionals and enterprises a disproportionate representation within the legislative arm of the government, as those who do not belong to such a category are only allowed to vote for five “super-seats”, and those who do (226,591 bodies and individuals) may choose their 30 representatives. This would indicate that 6% of registered voters have the power to elect 43% of all legislators. 2
4. Following the Legislative Elections in September 2016, six pro-democratic members of the Legislative Council were disqualified. The first two due to their vows not being validated on the spot, and the other four by a judicial review which has deemed their oath- taking “insincere”, and therefore, invalid. Finding an excuse as such to eliminate political 3 opponents was clearly a sign of disregard for the people’s will, which the Universal Declaration of Human Rights has deemed to be the basis of a government’s authority.
II. Elections into Legislative Office
5. The disqualification of the six aforementioned lawmakers was evidently targeted political prosecution, depriving the six individuals from their right to hold public office and participate in the conduct of public affairs. After the disqualification, the six were asked to reimburse their salaries, which would mean that their months of work that they and their team have put in are not recognized, in spite of the Council not revising past votes to which they have contributed.
6. Following the disqualification of the six legislators, two are still in the process of an appeal at the magistrate. By-elections were thus held for the other four seats in March 2017. There have been twelve disqualifications of candidates; Agnes Chow of Demosisto was one of them. The Returning Officer justified the decision by saying that Chow was a
core member of a party which holds self-determination in 2047 as one of its main values, which she saw as a stance against the Basic Law’s “One Country Two System” framework. Without an opportunity to explain her stance on the matter, Chow was 4 disqualified – a clear suppression of Chow’s right to stand for office.
7. The restriction on those imprisoned for more than three months from standing for office strips political prisoners of their rights to participate in elections in the next five years. Given the number of prominent, young political figures involved in the Umbrella Movement, and consequently were incarcerated for more than that period of time, the Department of Justice’s actions have quenched youth politics from the Legislative Council for the next few years.
8. Hong Kong should also retract its restrictions on bankrupt persons from standing as candidates in elections in the next year – this has prevented and will continue to prevent disqualified legislators from being re-elected, given that they are required to reimburse their salaries.
III. Registration of Political Organisations
9. In Hong Kong, political groups are required to register as companies, failure to do so would prevent the group from properly going through administrative procedures, such as opening a bank account. Demosisto was founded two years ago and has still yet to be recognised by the government as an official organisation or company. Hong Kong should codify the recognition of such political groups, and ensure the smooth running of registration for similar political groups in order to ensure their rights to participate in public affairs.
IV. Violence Against Human Right Defenders
10. Pro-democracy student activist and chairman of Demosisto, Nathan Law, was attacked at the Hong Kong International Airport in January 2017 by a pro-China mob. The frenzied attack had Law’s collar pulled, his thighs kicked, and his chest punched. The protestors poured water on the staircase, causing Law to slip and fall, resulting in bruises and injuries.
11. After the decision to incarcerate policemen who have been violent with protestors was handed down, the judge – David Dufton – had to face threats to his safety, as a Communist Party princeling offered a 10,000-yuan award to assault him. 5
12. The Hong Kong government needs to protect the physical safety of human right defenders and prosecute those who threaten or violate this principle of protection, in honour of the covenant that it has signed, which protects the security of person in the ICCPR, and the freedom of speech of the people in the Universal Declaration of Human Rights.
V. Article 23 of the Basic Law
13. The pending enactment of Article 23 would indicate further political persecution, as it provides that the HKSAR “shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.”
14. The law will put the opposition in peril, as any action in resistance to decisions by the Hong Kong or Chinese government would qualify the individual or group to prosecution by the Department of Justice.
15. The Hong Kong government needs to ensure its people’s freedom of speech, freedom of expression, and the right to participate in public affairs. The codification of this article is evidently against all such morals.
VI. Police Violence
16. Ken Tsang, one of the peaceful activists who participated in the Umbrella Movement in 2014, was surrounded and beat up by seven policemen. Such is only an example of the 6 unnecessary violence that the Hong Kong police force has inflicted upon citizens.
17. Since the Umbrella Movement, the relationship between the police and citizens has been tense. Such is partly the result of the police’s abuse of power, and the use of excessive violence against peaceful protestors. They would grab protesters into police cars, assaulting them and beating them up; one such example would be the police’s intervention in the 1 July protest at the flag raising ceremony, where Xi Jinping was present for the occasion of the 20th anniversary of the transfer of Hong Kong’s sovereignty to China. However, since members of the Independent Police Complaints Council are appointed by the Chief Executive , the Council’s level of independency has yet to be questioned. 7
VII. Freedom of Movement
18. Over the past five years, more human right defenders have been denied access into Hong Kong – one such figure was Benedict Rogers, deputy chairman of the UK Labour Party’s human rights commission. Rogers was deemed a threat to public order and security and was asked to return to the UK upon arrival in Hong Kong. Such a free range of interpretation for the terms “threat to public order”, and for “foreign affairs”, will continue to prevent human right defenders from entering Hong Kong soil. 8
19. Joshua Wong of Demosisto was also detained in Thailand in October 2016, following a request from China. He was going to Bangkok’s Chulalongkorn University to speak about his campaign for human rights. Thai student activist Netiwit Chotipatpaisal noted that the
Thai authorities received a letter from the Chinese government regarding Wong’s visit, and Chotipatpaisal was denied the right to visit while Wong was being detained. Wong 9 was flown back to Hong Kong after being detained for twelve hours.
20. Article 13 of the ICCPR states that an alien entering foreign soil may only be expelled in accordance to the law, and would have the right to have his case reviewed by competent authorities. In both cases, the decision process and reason for expulsion remain vague, and
VIII. Freedom of expression
21. Five staff members from Causeway Bay Book disappeared between October and December 2015. The bookstore was known for publishing political books deemed sensitive, and the books were thus banned in Mainland China. The five revealed to later be in custody in Guangdong the following year, supposedly for a traffic case related to Gui Minhai. Extrajudicial detention and political abductions were not part of the agreement when Hong Kong’s sovereignty was transferred to China, despite not having an official record of them leaving their location of residence for China, be it from Hong Kong, or from Thailand. Among the five, two hold dual nationalities – Lee Bo holds both a British and a Hong Kong passport, while Gui Minhai is also Swedish. As such, the act 10 is a serious breach of local and international laws.
22. Bowing to international pressure, the five were allowed to reappear one by one, three of which asked the police to drop their missing person cases. Gui Minhai confessed to having violated Chinese law, and asked the public not to hype up his disappearance. Lam Wing-kee was the first to claim the disappearance to be a case of abduction. Gui was later on kidnapped by ten men sent by the Chinese authorities right in front of the two Swedish diplomats who were accompanying him for a medical visit in Beijing in January 2018. 11
23. Students did not enjoy the immunity that the police force has when they engage in any form of protest which may disrupt public order. Just this year, Hong Kong already had 16 young people being put in jail for their participation in the Occupy Central Movement and in the protest against the NE New Territories Development Plan - these political talents are barred from participating in any election for the next five years, since their sentences are all longer than three months, making them ineligible candidates according to Hong Kong law. The city shall soon have 118 dissidents who will face probable jail time this year, which is clearly political persecution, an attempt to be rid of pro-democracy voices in the political landscape in the coming decade.
24. In 2017, the Hong Kong Department of Justice began a series of appeals and judicial reviews targeting human right activists and democracy fighters. Three years after the Umbrella Movement, young leaders of the movement saw themselves accused of disruption of public order and contempt of court, and having to go to jail for periods
ranging from three to thirteen months for judgments which have already been passed down, and potentially five to ten years for upcoming trials regarding the Mongkok civil unrest, which took place during Chinese New Year in 2016. Pro-democracy lawmakers saw themselves disqualified after working for almost a year, as the judicial review deemed their oath-taking as invalid due to their perceived insincerity.
25. All the above showcase the suppression of the freedom of expression in Hong Kong and in China; especially since such discourses did not incite hatred. Selective political prosecutions by the Department of Justice were attempts to suppress voices of opposition.
26. The Hong Kong government needs to protect its citizens’ freedom to express, and their personal safety while doing so, as per Articles 3 and 19 in the Universal Declaration of Human Rights. The codification of co-location will only worsen the situation, as it would enable extrajudicial punishment by China.
IX. Access to information
Public Records Act
27. Hong Kong currently does not have a Public Records Act, and only follows internal guidelines regarding official archives. However, certain documents deemed “sensitive” are not archived, or were altered before being archived. The term “sensitive” has not been defined, and is perceived at the discretion of the government, which poses a danger to freedom of access to information. 12
28. During the negotiations regarding the reclamation of land in Wang Chau by the government, officials claim that there are no records regarding their negotiations with representatives from the New Territories, despite them having taken place. There are no 13 laws in Hong Kong which require documentation of any talks, and internal disciplinary actions can take a long time due to bureaucratic procedures.
29. Hong Kong should follow recommendations of the Law Reform Commission, and enact laws to govern official archives and protect access to information for its citizens within one year.
30. Since the Umbrella Movement, there have been removals of controversial academic figures from their posts at universities, and efforts to block promotions of dissident professors. One such academic is Dr Benson Wong, chair of the Hong Kong Baptist University Faculty and Staff Union. Dr Wong is known for supporting students during the movement in 2014 and during their protests against compulsory Mandarin classes at Hong
Kong Baptist University. He was informed in February 2018 that his contract will not be extended, and shall come to an end come August. 14
31. As of now, the Chief Executive is by default the chancellor for the universities. This practice, which came from Hong Kong’s colonial history, politicises the position, and would endanger the neutrality required in academic practices. Universities would no 15 longer be safe havens for free speech should this trend continue.
X. Human Rights Education
32. Hong Kong has been teaching its young human right concepts through civic education, but this is far from sufficient, as only vague concepts of freedom and justice are introduced, and subjects like General Studies and Liberal Studies tend to lean towards national history and identity when conducting the units on civic education. Human Rights should have its own unit, if not its own subject, and be taught with sufficient resources and monitoring latest by 2020. 16
XI. Rule of Law
33. Judicial reviews have been used to disqualify six democratically-elected Legislative Council members. The Basic Law was re-interpreted by the National People’s Congress, and it was decided to be published at the very sensitive time after the legal arguments are over, but before the issuing of the judgment regarding the legitimacy of Yau and Leung’s oath-taking. The government wants to fully control the legislature, and the disqualifications have led to the pro-democracy camp losing their veto power in the Council. Such a manipulation is a clear infringement of Article 25(a) of the ICCPR, where citizens take part in the conduct of public affairs through their chosen representatives.
34. Despite Article 15 of the ICCPR and Article 11 of the Universal Declaration of Human Rights emphasizing that no one should be held guilty of any criminal offence if the act was not illegal at the time when it was committed, the Chinese government used the reinterpretation of the Basic Law to essentially change the Election Ordinance – which it had no right to change, and traced four lawmakers a year back to when they took the oath, and declared them illegitimate to continue their duties as democratically-elected representatives in the Legislative Council.
35. The Department of Justice filed for an appeal on Joshua Wong, Alex Chow, and Nathan Law for entering Civic Square in 2014, despite them having already served their sentence of community service. The three were then sentenced to prison, and have served three months before their case was brought before the Court of Final Appeal, where the judge overturned the High Court’s decision. The Department of Justice’s attempt to incarcerate
the three is in violation of Articles 14 and 15 of the ICCPR, which state that individuals may not be tried again and receive a heavier sentence than the initial one.
XII. Peaceful Assembly
36. Although protestors were peaceful and only protected themselves with umbrellas and masks during the Umbrella Movement, not only were they greeted by tear gas thrown by the police force, leaders of the movement, including Joshua Wong, Benny Tai, and Tanya Chan are facing accusations of incitement and causing public disorder, as the Department of Justice pursue them through the ‘Public Order Ordinance’, which dates back to Hong Kong’s colonial days. 17
37. The Ordinance was abolished when it came time to have Hong Kong’s sovereignty handed to China, but was re-enacted not long after – it allows the government to filter and screen which protests it would allow; the Hong Kong government needs to ensure the freedom of expression and right to participate in public affairs for its citizens, and should not take part in such a clear act to repress the people’s voices. Even though the Civic Square was once again open to the public from December 2017 onwards, the continued existence of the Public Order Ordinance means that the public is not free to express their opinions to the government in this supposed public space. 18
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