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Submission by the Democratic Party of Hong Kong to the Human Rights Committee on the Report of the HKSAR in the light of the ICCPR

(CCPR/C/HK/99/1)

(Geneva, 29 Oct 1999)

On July 1, 1997, the Government of the People's Republic of China resumed the exercise of sovereignty over Hong Kong and established the Hong Kong Special Administrative Region (HKSAR). It has been over 800 days since the transfer of sovereignty or the hand-over. In our opinion, over these 800 days, there has been a major setback of democracy and a gradual deterioration in the rule of law, respect for the independence of the judiciary, respect for the fundamental rights and freedoms of the Hong Kong citizens.

Democratic accountability will be significantly curtailed when the HKSAR Government scraps the two unique municipal councils and restores the system of appointment in the District Councils. Thereby, the opportunity of public participation in public life will be very much reduced.

Fundamental rights and freedoms will be gradually restricted and threatened when more and more stringent police tactics and conditions are imposed in respect of demonstrations and public processions and peaceful demonstrators are prosecuted for displaying defaced national flags.

Last but not least, the most disturbing development has been the undermining of the authority of the courts of the HKSAR by the executive branch of the Government. Redress for violations of rights through courts are being imperiled by incidents of disrespect and even defiance and contempt of the courts, the judges and their decisions. The HKSAR Government requested for a re-interpretation of the Basic Law after the Government lost its case in the highest court in the HKSAR was one of the most prominent examples.

We, the most widely supported democrats in the HKSAR, urge the Human Rights Committee to show its concern over the current deteriorating situation in the HKSAR so that the international community may together help avert this slow regression of human rights in the HKSAR. Together we must strive to promote universal respect for, and observance of, human rights and freedoms.

A. Progress and Development of Democracy (Article 1) & Right to Participate in Public Life (Article 25)

  1. The HKSAR Government decided to scrap the two municipal councils ─ A clear violation of Art. 25 of the ICCPR.

    1.1 HKSAR has two municipal councils - the Urban Council and the Regional Council. They are responsible for providing a wide range of municipal services at the district level. These include safeguarding the environment, food hygiene, and public health as well as providing cultural, recreational, and sport programs and managing venues and facilities.

    1.2 The Councils have full autonomy in determining their budgets and in setting priorities for their programs. Rates collected from each household constitute the primary source of income for the Councils. The Urban Council has over one hundred years of history and thus has been part of Hong Kong's constitutional system for a long period of time. Currently, they occupy an important position in the structure of district organizations.

    1.3 Since 1983, the public have voted directly for their representatives on the Urban Council. About 130,000 voters elected their own Urban Councilors in 1983. As democracy gradually takes root in the territory, almost 300,000 voters cast their votes in 1995. The Regional Council was established in 1986. Over 140,000 voters turned out for the election of their own Regional Councilors that year. In 1995, the figure rose to over 260,000 voters. This was the result of continuous development of democracy over an extended period of time.

    1.4 In its proposal to scrap the two municipal councils, the HKSAR Government plans to transfer the executive powers vested in the Councils to two government branches. In the name of providing better, coordinated services to the public, the Government works to centralize its power. By doing this, the Government not only deprives the public of their right to elect their own municipal representatives, a right the public have enjoyed for a long time. It is essentially taking away the public's right to self-governance at the district level. This is clearly in contravention of Article 25 of the ICCPR, which is to protect the right to participate in public life.

     1.5 As a factual note, we must emphasize that the Basic Law, HKSAR's mini constitution, which became effective on July 1, 1997, does not restrain the development of democracy in district organizations. Quite the contrary, the Preparatory Committee for the establishment of the HKSAR, in its decision regarding district organizations of the HKSAR, resolved that the HKSAR Government, on its own timing, is to establish the first district organizations under the new administration to replace the current provisional ones. Therefore, it is the responsibility of the HKSAR Government to follow the resolution and set out the schedule for the establishment of first District Councils (already under way), and the first municipal councils, but not to annihilate them before their birth.

    1.6 The Democratic Party asked the Government to hold a referendum for the general public to decide on this important issue. The Government rejected this outright, saying that the Chief Executive had already made the decision when he delivered his 1998 policy address. The Government also argued that this is too complicated an issue to be decided by a referendum. When confronted with suggestions about relegating municipal councils' functions to the District Councils, transforming them from purely advisory organizations to ones with executive powers, the Government would not even take serious consideration. This is a total disrespect for the public's right.

    1.7 HKSAR needs directly elected municipal councils to protect the public's right to participate in public life.

  2. The HKSAR Government reinstated the Chief Executive's power to appoint members to the District Councils ─ A clear violation of Article 1 of the ICCPR. 2.1 The District Councils are district organizations that are to replace the present Provisional District Boards when their term of office expires by the end of this year. The primary role of the District Councils remains the same as that of the District Boards before the handover, that is, to advise the Government on matters affecting the interests or well being of the districts.

    2.2 In addition to scraping the two municipal councils, the HKSAR Government has also decided to reinstate the system of appointment for the District Councils. There will be over 100 appointed members, meaning that about one-fifth or 20% of all the District Council members will serve without public mandate.

    By reinstating the appointment system when full direct elections have already been tried and proven, the HKSAR Government is dragging Hong Kong's democratic development backward. This is a serious setback for democracy in Hong Kong.

    2.3 Hong Kong people do not want appointees on the District Councils. They want their own elected representatives who are accountable to them to reflect their views to the Government.

  3. The HKSAR Government has no plan to develop a fully elected Legislative Council ─ Reluctant to develop a democratic and representative legislature.

    3.1 The Basic Law restricts the number of directly elected seats in the Legislative Council. There are 20 seats at present and there will be 24 in the year 2000. In 2004, 30 out of 60 seats, that is only half of the legislature, will be returned by direct election. Whether and when the HKSAR will have a fully directly elected legislature is as yet unknown.

    3.2 The community has all along shown keen interest in having all our legislators elected under universal franchise. Yet, the Government shows no interest and no sign of taking the people's will seriously. It is not willing to review HKSAR's democratic progress, citing as a reason that the Basic Law should not be amended. The pace is too slow for HKSAR's democratic progress especially since we do not have a directly elected government

    3.3 HKSAR urgently needs a review of the formation of the legislature, and needs to put together concrete proposals on how to institute a faster pace of democratic progression well before the year 2004 when it is time to legislate for the election of the Legislative Council. The need to amend the Basic Law should not be taken as an excuse.

    3.4 We would also like to urge the committee to note that the HKSAR Government has engineered a most bizarre amalgam of voting systems for the Legislative Council election. A proportional representative voting system is used in the geographical constituency to elect 3 to 5 seats for each district. For the majority of the non-directly elected seats, a single-seat-single-vote system is used in some, and multiple-seats-multiple-votes system in others. For some functional constituencies, rules were changed so that organizations, not individuals, are eligible to vote. This unduly complicated scheme has been conjured up to limit the democrats' opportunity to be elected to the legislature.

  4. The HKSAR Government has no plan to develop a fully elected government ─ Reluctant to develop a democratic and accountable government.

    4.1 The Basic Law stipulates that the Chief Executive is to be "elected" by an Election Committee of 800 people. The community has all along criticized the Election Committee for being unrepresentative and urged for direct election of the Chief Executive.

    4.2 The Chief Executive's term of office expires in mid 2002; yet, the HKSAR Government has no plan to review the election of the Chief Executive before year 2002.

    4.3 HKSAR urgently needs to review the democratic progress of its election of the Chief Executive and to put together concrete proposals on how to institute for faster pace of democratic progression well before the year 2002 when it is time to legislate for the election of the Chief Executive. The need to amend the Basic Law, again, should not be taken as an excuse.

  5. The HKSAR Government has no plan to provide funding for candidates in the election process ─ Reluctant to promote the public's participation in election activities.

    5.1 Many democratic countries or places provide funding for election candidates so potential candidates who are financially less well off will not be deprived of the opportunity to stand for election. These include Australia, Canada, Denmark, France, Germany, Taiwan and some Eastern European countries like Albania, Bulgaria and Russia, etc. The funding comes from the national budget. Funding is provided on account of votes they get in the elections.

    5.2 The HKSAR Government has been asked to consider providing such a funding scheme to encourage more citizens participation as election candidates. To our disappointment, the Government rejected this proposal. The reluctance of the Government in removing hurdles to public participation in elections has hampered Hong Kong's progress toward democracy.

    5.3 We urge the Human Rights Committee to consider making recommendations to the HKSAR Government so that subsidies will be available for election campaigns.

B. Equal Rights of Men and Women (Article 3)

  1. The HKSAR Government is reluctant to legislate in regard to the rural village representatives elections.

    6.1 The community has all along criticized the rural village representatives elections for being unfair and unregulated. In particular, female villagers or female residents are forbidden to vote. It was only in 1994 that the Heung Yee Kuk, a body representing the rural villages' interests, published guidelines for electing rural village representatives. The guidelines provide for equal rights of men and women in voting for their rural representatives.

    6.2 Yet, we still hear of cases in which women are forbidden to vote in various village representatives elections. As the guideline is not a piece of legislation, it has no binding power. The HKSAR Government was asked to legislate in order to regulate the rural village representatives elections but has been reluctant to do so.

    6.3 The HKSAR Government simply cannot shirk its responsibility to protect the equal rights of men and women, especially in the rural village representatives elections.    .
C. Ensuring to All Individuals the Rights Recognized in the Covenant (Article 2)
  1. The HKSAR Government had given up establishing a statutory independent body to handle complaints against police.

     7.1 Complaints against police officers are currently dealt with by the Complaints Against Police Office (CAPO) under the auspices of the Commissioner of Police. The Human Rights Committee would no doubt recall your dissatisfaction in the previous hearing with this arrangement in which police are responsible for investigating police officers. You had asked the HKSAR Government to conduct a review on this arrangement.

    7.2 The HKSAR Government, in its reply to the Committee, has suggested setting up a statutory independent body to monitor CAPO. However, the Government has withdrawn the bill to establish the statutory Independent Police Complaints Council (IPCC) because amendments were made by legislators to the bill to allow for the IPCC to have investigative power. Since then, the Government has not had any follow up action. The present IPCC remains a non-statutory body without power.

    7.3 Let's illustrate with a case the importance of having an independent body to handle complaints against police officers. On June 30 1997, an officer in charge was complained for abusing the power given to him when he ordered to broadcast Symphony music loudly to cover the voices of the protestors. The case was brought in front of and investigated by CAPO. It found the case to be unsubstantiated. Then, the IPCC looked into the case further but concluded the contrary. Notwithstanding the officer in charge was not only unpunished, he was even promoted to be Senior Police Officer in charge of CAPO.

    7.4 HKSAR needs an independent IPCC to ensure the transparency and credibility of the existing complaints system against the police, thus to protect the rights recognized in the covenant.

D. Right of Peaceful Assembly (Article 21)

  1. People's right to peaceful demonstration is strictly and unnecessarily restricted ─ A violation of Article 21.

    Case 1.
    On June 30, 1997, about 30 demonstrators marched to the Convention Centre to voice out grievances against the Chinese leaders and to call for the Chinese leaders to step down. Voices of demonstrators were covered by music played by the police so that their protesting voices could not be heard.

    Case 2.
    On September 21-23, 1997, about 10 demonstrators marched to the Convention Centre to call for the release of political dissidents and recognition of June 4 massacre. Demonstrators were met with severe police force and some were arrested as they left the scene of demonstration.

    Case 3.
    On October 1, 1997 (the PRC National Day), about 25 demonstrators marched to the Convention Centre to call for the release of political dissidents and recognition of June 4 massacre. Demonstrators were surrounded tightly by over 100 police officers hand in hand to restrict their movement.

E. Freedom of Association (Article 22)

  1. Organization with the name "Never Forget June 4" was held up from registration ─ A violation of Article 22.

    9.1 The Provisional Legislative Council passed amendments to the Society Ordinance that requires organizations formed in the HKSAR to be registered. The community had criticized this Ordinance for infringing on the freedom of association under Article 22.

    9.2 The HKSAR Government reported that no organization has ever been barred from registering under the Ordinance since its passage. However, the application for registration by an organization with the name "Never Forget June 4" was held up for an extended period of time for no reasons. This is clearly a violation of Article 22.

F. Freedom of Opinion and Expression (Article 19)

  1. Fear of intervention in press freedom.

    Case 1.
    Chinese Political Advisor Mr. Xu Si-min had once openly admonished the Chief Executive to rein in Radio Television Hong Kong (RTHK) so that it will refrain from criticizing and satirizing the Government, and help promote government policies. The Chief Executive did not defend the editorial independence of the RTHK but instead replied that he would handle that in time, step by step.

    Case 2.
    RTHK's decision to gave airtime to Mr. Cheng An Kuo, manager of a travel agency in Hong Kong, also the de facto Taiwanese envoy, to propound Lee Teng Hui's "two states theory," in its program "Letter to Hong Kong" was vehemently criticized. Critics, with backing from the Central Government in Beijing, said that the statement of Mr. Cheng violated the "One Country Principle" and that RTHK committed a mistake by airing it. The HKSAR Government spokesperson even publicly commented that it was inappropriate for Mr. Cheng to give such a statement in Hong Kong and that Mr. Cheng, as the manager of a travel agency, should stick to economics and travel related issues, but not politics. This is clearly a threat to freedom of expression and freedom of the press.

    Case 3.
    The head of the RTHK, Ms. Cheung Man-yee, is being transferred to another post without announcing immediate successor gave rise to general public concern. People see it as a scare tactic - whoever fails to listen to the HKSAR Government will be removed. The editorial independence of RTHK is in jeopardy.

    Case 4.
    Suggestion was made to establish a Press Council with members appointed by the Government. The stated aim is to regulate the press media's conduct in regard to infringement of the privacy of the public. There are, however, deep concerns that it may provide an easy channel for the Government to control the press and thus limit press freedom.


  2. Fear of restriction to freedom of expression.

    Case 1.
    Two demonstrators were holding a National flag and a Regional flag with the a Chinese character meaning "shame" on it in a peaceful procession held to commemorate the June 4th Massacre. They were prosecuted for desecrating the national flag. By doing this, the Government is actually penalizing those who dare to express their grievances towards the PRC.

    Case 2. Chinese dissidents were not permitted to enter the HKSAR to attend academic meetings and forums on the democratic movement of China. Some of them were able to enter Hong Kong before the handover.

G. Protection of Privacy, Family, Home, Correspondence, Honor and Reputation (Article 17)

  1. 12. The Chief Executive failed to enforce the Interception of Communications Ordinance.

    12.1 The pre-handover Legislative Council has passed law to regulate interception of communications by requiring the law enforcement agencies to obtain a warrant before acts of interception of communications. Yet the Chief Executive had failed to enforce the Ordinance by not giving it a commencement date.

    12.2 The bill was drawn up by legislator Mr. James To with full consultation with the Administration. Members of the former Legislative Council were able to study and compare the bill drawn by Mr. James To and a similar white bill presented by the Administration. Mr. To had made amendment to his bill after considering the Administration's suggestion to extend from 30 days to 90 days the warrant period in the case of renewal application, so that a total of 120 days are allowed for acts of interception of communications for each individual application (initial plus renewal). From the data collected by the Electronic Privacy Information Centre, this piece of legislation provides for a fair and average standard in the application for warrants for interception of communications.

    12.3 The law has been on the statutory book for over two years. The HKSAR Government owes the public an explanation for not enforcing the Ordinance.

    12.4 HKSAR needs legislation to protect the public's right to privacy from arbitrary and unlawful interception of communications.

H. Equality before the Courts and the Right to Fair and Public Hearing (Article 14)

  1. 13. Undermining the authority of the courts by the HKSAR Government.


    13.1 The Court of Final Appeal (CFA), the highest court in the HKSAR, ruled on 29 January 1999 on the right of abode of Mainland children of HKSAR permanent residents.

    13.2 Instead of respecting the judgements and implementing them, the HKSAR Government ignored them and reported to the State Council of the Central People's Government, exaggerating the impact of the judgement on the number of possible influx of immigrants into HKSAR. Thereby, the Government asked the State Council to propose a resolution before the Standing Committee of the National People's Congress (NPCSC) to re-interpret relevant provisions in the Basic Law. The re-interpretation by the NPCSC essentially nullified the judgements of the CFA.

    13.3 In opting to seek re-interpretation by the NPCSC, the HKSAR Government had apparently brushed aside the views of people in the legal profession and human rights NGOS that favored the route of amending the Basic Law to re-define prospectively the conditions of eligibility for the claimants.

    13.4 Equality before the courts is being questioned as our Court of Final Appeal is not final after all; it is at best semi-final, subject to the HKSAR Government's political decision. HKSAR needs judicial independence and power to final adjudication to protect the people's right to fair and public hearing.

Dated 27 October 1999