Human Rights in Hong Kong

Human rights protection is enshrined in the Basic Law and its Bill of Rights Ordinance (Cap.383). By virtue of the Bill of Rights Ordinance and Basic Law Article 39, the International Covenant on Civil and Political Rights (ICCPR) is put into effect in Hong Kong. Any legislation that is inconsistent with the Basic Law can be set aside by the courts.


In general, Hong Kong is perceived to enjoy a high level of civil liberties. The Hong Kong government generally respects the human rights of the citizens, although core issues remain.  There are concerns over the freedom of assembly which is restricted by the Public Order Ordinance. The police has been occasionally accused of using heavy-handed tactics towards protestors and questions are asked towards the extensive powers of the police. As to the right of privacy, covert surveillance remains the major concern. There is a lack of protection for homosexuals due to the absence of a sexual orientation discrimination law. There are also comments regarding a lack of protection for labour rights.


Human rights in Hong Kong occasionally comes under the spotlight of the international community because of its world city status. This is occasionally used as a yardstick by commentators to judge whether the People's Republic of China has kept its end of the bargain of the "One Country, Two Systems" principle granted to the Hong Kong Special Administrative Region by its current mini-constitution, the Basic Law, under the Sino-British Joint Declaration. Alleged human rights violations are sometimes used by skeptics to argue that the “One Country, Two Systems” policy is a failure.


Protection Framework


Sino-British Joint Declaration

Under the Annex I (Section XI) of the Sino-British Joint Declaration,[9] it stated that: 

The Hong Kong Special Administrative Region Government shall protect the rights and freedoms of inhabitants and other persons in the Hong Kong Special Administrative Region according to law. The Hong Kong Special Administrative Region 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.

The Basic Law of the Hong Kong Special Administrative Region

Under the Basic Law, the constitutional documents of the Hong Kong Special Administrative Region, certain rights and freedoms of Hong Kong residents (including both permanent residents and non-permanent residents) are guaranteed and safeguarded in Chapter III of the law. These rights and freedoms include:

• ·         equality before the law;
• ·         permanent residents' right to vote and to stand for election in accordance with law;
• ·         freedom of speech, of the press and of publication;
• ·         freedom of association, of assembly, of procession and of demonstration;
• ·         freedom to form and join trade unions, and to strike;
• ·         the right from arbitrary or unlawful arrest, detention and imprisonment;
• ·         the right from torture and unlawful deprivation of the life;
• ·         the right from arbitrary or unlawful search of, or intrusion into resident's home or other premises;
• ·         freedom and privacy of communication;
• ·         freedom of movement within Hong Kong, of emigration to other countries or regions, and freedom to enter or leave Hong Kong;
• ·         freedom of conscience;
• ·         freedom of religious belief and to preach and to conduct and participate in religious activities in public;
• ·         freedom of choice of occupation;
• ·         freedom to engage academic research, literary and artistic creation, and other cultural activities;
• ·         the right to confidential legal advice, access to the courts, choices of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies;
• ·         the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel;
• ·      the right to social welfare in accordance with law;
• ·       freedom of marriage and the right to raise a family freely; and
• 
  
• ·       other rights and freedoms safeguarded by the laws of Hong Kong SAR.

Article 39 also expressly states that the provisions of the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and international labour conventions as applied to Hong Kong shall remain in force in Hong Kong to the extent that they shall not contravene the provisions of the rights protected by the Basic Law.


Although these rights are explicitly vested in Hong Kong residents, non-residents in Hong Kong may also enjoy these rights and freedoms in accordance with law by Article 41.


In addition, Article 87 protects and preserves the rights previously enjoyed by parties to any criminal or civil proceedings, especially the right to fair trial by the courts without delay and the presumption of innocence until convicted by the courts. Article 105 protects the rights of property and the right to compensation for lawful deprivation of property of individuals and legal persons. 


Hong Kong Bill of Rights Ordinance


The Hong Kong Bill of Rights Ordinance (Cap. 383)(the "Bill of Rights"), enacted in 1991, is the local adaptation of the provisions of the ICCPR as applied in Hong Kong. The Bill of Rights has largely been recognised by the courts as one of the constitutional documents alongside with the Basic Law. However, the fact that the Bill of Rights was enacted in the form of an Ordinance (as a local primary legislation) means that the Legislature can amend or repeal the Bill of Rights by an ordinary enactment through ordinary legislative procedure, subject to judicial review. Furthermore, if any part of the Bill of Rights is held unconstitutional (i.e. any part contravenes the Basic Law), the courts are bound to strike down that part.


After the transfer of sovereignty, certain provisions of the Bill of Rights ceased to have effect, including sections 2(3) (duty to have regard to purpose of Ordinance in interpretation), 3(1) (duty to construe pre-existing legislation consistently with the Ordinance), 3(2) (pre-existing legislation that cannot be construed consistently is repealed) and 4 (all future to be construed so as to be consistent with the ICCPR as applied to Hong Kong). However, due to the entrenchment of the ICCPR as applied in Hong Kong in Article 39 of the Basic Law, the significance of the Bill of Rights Ordinance, which was modelled after the ICCPR, has been reinstated.


Some Basic Law rights overlap with the rights protected by the Hong Kong Bill of Rights Ordinance to certain extents while the provisions in the Bill of Rights and in the ICCPR are not identical.[12] As a result, a right can be protected by either the Basic Law, the Bill of Rights, or the ICCPR as applied in Hong Kong at the same time. 


Common Law


Before the enactment of the Hong Kong Bill of Rights Ordinance, the protection of human rights in Hong Kong has largely relied on the common law of England. Civil liberties protection have a long history in English common law and are generally transcribed as human rights in modern time.


Under Articles 8 and 18 of the Basic Law, the laws previously in force in Hong Kong includes the common law rules which did not contravene the Basic Law and are part of the laws of HKSAR. Since colonial Hong Kong law defines "common law" as "the common law of England", civil rights principles found in the English law are now part of Hong Kong laws as "laws previously in force in Hong Kong" by operation of Articles 8 and 18 and as "common law in force in Hong Kong" pursuant to section 3 of the current Interpretation and General Clauses Ordinance (Cap. 1).


Those common law principles include those of statutory interpretation, such as the presumption that statutes do not operate retroactively (also codified in the Hong Kong Bill of Rights Ordinance), the doctrine that criminal enactments are to be strictly interpreted, the presumption that mens rea is required in a criminal offence, and the presumptions against a derogation of vested rights, ousting the court's jurisdiction, deprivations of private property without compensation and the presumption that the Legislature does not intend to legislate contrarty to the State's international obligation.


By virtue of Article 81 of the Basic Law, the Hong Kong SAR also inherits a common law jurisdiction which emphasises on due procedure, nature justice, fair trial without delay, the presumption of innocence, the right of silence, the right of bail, the right against double jeopardy, the right against self-incrimination, and the duty to exercise a statutory power fairly. These subjects matter often found in judicial review proceedings in Hong Kong, a significant and noticeable feature of human rights protection framework in Hong Kong. 


Judicial Review


Article 11 of the Basic Law provides that "no law enacted by the Legislature of the Hong Kong Special Administrative Region shall contravene this Law." This Article has the effect that any Ordinance that contravenes the Basic Law shall be null and void. Hence, any legislation that contravenes Article 39 of the Basic Law, which entrenches the ICCPR, is also null and void.


It is well established that the Hong Kong Courts can now conduct the Marbury v. Madison type of judicial review to review the legislative and executive acts of the Hong Kong Special Administrative Region. This power exists before the handover since Hong Kong was governed by the Letters Patent, as opposed to Britain which has an unwritten constitution and where Parliament is sovereign.


In the landmark case of Ng Ka Ling and Others v. Director of Immigration, Chief Justice Andrew Li declared in emphatic terms: 

In exercising their judicial power conferred by the Basic Law, the courts of the Region have a duty to enforce and interpret that law. They undoubtedly have the jurisdiction to examine whether legislation enacted by the legislature of the Region or acts of the executive authorities of the Region are consistent with the Basic Law and, if found to be inconsistent, to hold them to be invalid.

The approach of the courts towards the review of the constitutionality of legislation was laid down in R v. Sin Yau Ming, which adopted the Canadian approach in R. v. Oakes. Once there is a prima facie violation of a protected right, the government bears the burden of justifying the breach by showing:

1.      The impugned provisions pursue a sufficiently important objective which is related to pressing and substantial concerns in a free and democratic society

2.      There is a rational connection between the objective and the means chosen

3.      The means adopted causes minimal impairment to the right of freedom in question

4.      The effects on the limitation of rights and freedoms are proportional to the objective

However, controversies exist over whether the courts have the power to conduct a constitutional review of a legislative act of the National People's Congress or its Standing Committee. The Court of Final Appeal stated in Ng Ka Ling that the courts do have such a power. However, this declaration provoked heavy criticisms from the mainland authorities and developed into a constitutional crisis. 


Civil and political rights under domestic law


Right to life


The right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law (murder and manslaughter). No capital punishment has been carried out since 1966 and it has been formally abolished for all crimes in 1993. 


Freedom of expression


Further information: Censorship in Hong Kong and Internet censorship in Hong Kong

The freedom of expression is protected under Article 27 of the Basic Law and Article 16 of the Bill of Rights. It is regarded as a fundamental right, but the Bill of Rights (and hence the ICCPR) provides that restrictions to it are justifiable provided that the restrictions are provided by law and are necessary for respect of the rights or reputations of others; or for the protection of national security or of public order (ordre public), or of public health or morals.


During a demonstration on 1 January 1998, civil activists Ng Kung Siu and Lee Kin Yun extensively defaced the National and Regional Flags. Certain portions were cut out or torn, black ink was daubed over the flags, black crosses were drawn, and the word "shame" was written on the flags. The two were charged under section 7 of the National Flag Ordinance and section 7 of the Regional Flag Ordinance, which provide that a person who desecrates the national or regional flags commits an offence. The constitutionality of section 7 of the National Flag Ordinance and section 7 of the Regional Flag Ordinance were challenged by the defendants. The defendants were convicted before the magistrate, and were bound over to keep the peace on his own recognisance of $2,000 for 12 months for each offence. The Court of Appeal quashed their convictions. The Court of Final Appeal unanimously held that the provisions were justified and not unconstitutional, as they merely ban the mode of expressing one's message but do not interfere with the person's freedom to express the same message in other ways. The convictions and the binding over ordered by the Magistrate were restored. The decision was heavily criticised by Raymond Wacks in his article "Our Flagging Rights" in Hong Kong Law Journal.


The Edison Chen photo scandal brought people to harbour doubts about the Control of Obscene and Indecent Articles Ordinance, which criminalizes the distribution of obscene articles and the distribution of indecent articles without proper warnings to persons under 18. On 2 February 2008, Commissioner of Police Tang King Shing warned that sharing the photos via email, and even storing them on a personal computer, might be illegal, even if there was no record of distribution. This inaccurate statement of the law led to the objection of Leung Kwok-hung, who accused the police of sowing confusion and creating an atmosphere of "white terror" among netizens. Leung urged Commissioner Tang to clarify whether merely keeping the pictures violated the law. The police later amended Mr. Tang's statement, saying that looking at the photos or emailing them between mutual friends isn't against the law, although posting them to Web sites is. The police's exuberance and inconsistency in cracking down on naked photos of celebrities triggered a public backlash from some netizens, who feel the police was curbing their freedom of expression in order to serve the powerful. The public reaction caused the government to table a review and public consultation of the Control of Obscene and Indecent Articles Ordinance.


Another incident that concerned the freedom of expression in Hong Kong is the Citizens' Radio incident, in which several civil activists were charged for operating a radio station without a license granted by the Chief Executive in Council, contrary to section 8 and 20 of the Telecommunications Ordinance. Constitutional challenge of the licensing regime was unsuccessful.


According to section 4 of the Places of Public Entertainment Ordinance (Cap. 172), no person shall keep or use any place of public entertainment without a licence granted under section 10 of the Ordinance. On 30 May 2010, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China exhibited a replica of the Goddess of Democracy statue in Times Square in the absence of a license in order to commemorate the Tiananmen Square protests of 1989. It was confiscated by the police and after the ensuring scuffle two senior members of the Alliance were arrested for obstruction of a police officer in the due execution of his duty. Secretary for Food and Health York Chow Yat-ngok rebuffed claims of political oppression by saying the authority was merely enforcing the law after receiving complaints.


Despite the incidents mentioned above, Hong Kong is generally considered to enjoy a high degree of freedom of expression, with Freedom House commenting that it is a right that is "generally respected in practice, and political debate is vigorous". 


Freedom of assembly


The freedom of assembly is protected under Article 27 of the Basic Law and Article 17 of the Bill of Rights.

Article 17 of the Bill of Rights provides:


The right of peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.


Although there are no official figures in the number of protests, an analysis of newspaper reports has shown that the reported number of protests increased from under 100 before 2000 to 210 in 2004, and stayed at aroundo 200 cases up to 2006, signalling the maturation of civil society.  It has also been argued that the 1 July march in 2003, in which half-a-million residents took to the streets to protest the proposed national security bill and express strong general dissatisfaction with the government, halted the legislation of the proposed bill and allowed civil society to recognise its strength and potential in the policy-making process. The 1 July march is organised every year. 


Statutory restriction framework

• A public procession consisting of more than 30 persons can only take place if the Police Commissioner has been notified a week in advance and the Commissioner has notified the organiser that he has no objection.
• The Commissioner can object to the public procession, but only if he reasonably considers that the objection is necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others.
• The Commissioner may, where he reasonably considers it necessary in the interests of national security or public safety, public order or for the protection of the rights and freedoms of others, impose conditions in respect of any public procession notified under section 13A, and notice of any condition so imposed shall be given in writing to the organiser and shall state the reasons why such condition is considered necessary.
• Further requirements include the presence of the organiser at the procession, maintenance of good order and public safety, the prohibition of unreasonable use of amplification devices, compliance with directions given by a police officer for ensuring compliance with the Commissioner's requirements and the Ordinance's requirements etc.

On the other hand, certain statutory safeguards are present in the Ordinance.

• The Commissioner can accept the notice that is given in less than a week. If he decides not to, he must inform the organizers in writing as soon as possible and give reasons.
• The Commissioner can only reject an application if he considers objection is necessary for the statutory legitimate purposes. It is to be noted the "protection of public health & morals" purpose in the Bill of Rights is absent in the Ordinance, hence restricting the Commissioner's discretion.
• The objection must be given as soon as possible and within the statutory time limit.
• The Commissioner is obliged not to object if he reasonably considers that the relevant statutory legitimate purposes could be met by imposing conditions.
• The Commissioner's discretion may only be delegated to police officers of inspector or above.
• A decision by the Commissioner can be appealed to an Appeal Board. The decision of the Appeal Board can be judicially reviewed (but not appealed)
  

Constitutionality of the statutory framework


On 10 February 2002, a number of persons gathered at Chater Garden for a procession. Civil activist Leung Kwok-hung was the organizer of the procession but did not notify the Commissioner in advance. A police officer invited him to go through the statutory notification procedure, but Leung refused and was warned of the consequences. Initially, the procession consisted of 40 people, but it eventually grew to about 96 persons. They ignored police advice for several times, but the procession was at all times peaceful.


Leung and two others were later charged under section 17A(3)(b)(i) of the Public Order Ordinance for holding an unauthorized assembly. They were convicted before the magistrate and were bound over on their own recognizance for $500 for a period of three months; the conviction was upheld by the Court of Appeal.


At the Court of Final Appeal, the constitutionality of the entire statutory notification scheme was challenged. Chief Justice Li, Justice Chan PJ, Justice Ribeiro PJ and Sir Anthony Mason NPJ, having considered all the statutory restrictions on the freedom of assembly and the statutory safeguards listed above, held that the notification system was constitutional. However, they held that the norm of "ordre public", which existed as a statutory legitimate purpose at that time, was too vague at a statutory level and hence could not be said to be prescribed by law. "Ordre public" was as a result severed, but the term "public order" was sufficiently precise to survive. They also remarked in dicta that the norm of "protection of the rights and freedoms of others" was too wide and did not satisfy the legal certainty requirement. They affirmed the convictions as the severance did not affect the conviction. Justice Bokhary PJ dissented, noting in his judgment that the whole statutory scheme should be struck down except the entitlement to notification.

                       
                               https://en.wikipedia.org/wiki/Human_rights_in_Hong_Kong