HKDF newsletter - 20 - Human Rights in Hong Kong Post-1997

The Monitor acts as an information centre on human rights in Hong Kong and worldwide. There was enormous demand for its services in 1997. And it is still called on by every visitor to Hong Kong interested in the rights field. The Monitor had an educational programme, helping to explain to people what human rights were and how they could be protected. A few months ago, Mr Harris said, he gave a talk to sixth form girls in Kowloon.

The worst event in human rights terms since the handover was the reinterpretation of the Basic Law

The Monitor’s role was to speak out on human rights issues, and to campaign. The Monitor employed a researcher to ensure that when it did speak out, it had factual support. Generally, Mr Harris was very pleased at the way the Hong Kong Government had reacted to their existence. One area of confrontation was at the United Nations in Geneva. Whenever the Government was summoned there for scrutiny of its human rights record, the Monitor always sent people to brief the UN delegates and give them questions to put to the Hong Kong Government. The Government’s line was that human rights were well-defended in Hong Kong, and that there were strong human rights groups which spoke out on the issues. So he felt, Mr Harris said, that their message was getting through.

The Hong Kong Human Rights Monitor had been deliberately set up as an independent entity, without connections to overseas organisations, so as not to fall foul of Article 23 of the Basic Law. It relied for effectiveness on its members and their commitment. It operated bilingually, always insisting on publishing everything in both English and Chinese. The membership were very diverse.

Hong Kong’s rights record
One should not be complacent, but after the handover things had gone much better than some people had expected. He had been warned by a fellow barrister to leave before 1997. Another person had told him he would be expelled. A pro-Beijing critic had told him he would be imprisoned. When he and Law Yuk Kai, their Director, had visited the US, a woman had told Yuk Kai that he would go to prison for being his friend, said Mr Harris.

Of course there were also many people who had said things would go well, and as it turned out they were right. Compared with many places in the world, Hong Kong’s human rights situation was very good. Ironically, human rights were under less pressure in Hong Kong than in some democracies, such as Gujarat in India. For most people, life in Hong Kong was good. However, no country was a human rights paradise, and Hong Kong was weak in places. Most important of all, Hong Kong was a small enclave within a large country in which human rights were very weak. This was a unique historical experiment. No one could know how long it would last. But it would last longer if more people spoke up on human rights issues.

Reinterpretation
The worst event in human rights terms since the handover was the reinterpretation of the Basic Law. The Basic Law defined the right of abode in Hong Kong as applying to children of Hong Kong permanent residents born outside the territory. No one knew how many of such people there were. On 1 July 1997, these people began arriving in Hong Kong. The Hong Kong Government said they could not stay here unless they were born in the territory. The abode seekers appealed, taking the case right up to the Court of Final Appeal, and won. Then the Government, worried that larger numbers of people might follow, asked the Standing Committee of the National People’s Congress for a reinterpretation. It was clear that the Standing Committee had the right to issue such reinterpretation, but much less clear that the Hong Kong Government had the right to ask for it. Mr Harris said that he had heard that the Standing Committee were reluctant to act, but did so on the urging of the Hong Kong Government.

He felt enormous sympathy for the frustrated abode seekers, said Mr Harris. It was a considerable ordeal going through the trial process, and to do so and win up to the final court was a triumph for them. Imagine how they felt when the Government took this legitimate victory away from them. The Government’s move weakened the Court of Final Appeal. If on a future occasion the Government felt that the Court had got it wrong it could seek a further reinterpretation. Of course the Government was embarrassed at what it had done, and would be reluctant to do it again. But the precedent was there.

So there was a question mark over the rule of law in the territory. For most purposes the courts ruled impartially and their judgements were final. The legal process was more efficient than in many countries. But there were a few other worrying signs.

Failure to prosecute
He was very very concerned, said Mr Harris, with the failure of the Government to prosecute Ms Sally Aw. The three staff of her newspaper the Hong Kong Standard who were convicted of falsely inflating circulation figures and sent to prison were not even in their jobs when the fraud began. So who was responsible for initiating the fraud? Ms Aw was named as a co-conspirator in the prosecution. One could only draw the conclusion that this influential person was not prosecuted because of her influence. And the ground the Secretary for Justice gave for non-prosecution was even more disturbing. The ground was that if Ms Aw had been prosecuted, the newspaper would have been jeopardised. This meant, presumably, that the owner of any large enterprise would never be prosecuted.

It was the norm in many Asian countries for the authorities to avoid prosecuting well-connected persons. It appeared that Hong Kong was moving in this direction.

There were other such cases. One was the non-prosecution of Godfrey Newan, the son of Justice Newan, for possessing drugs. It was not that the non-prosecution was objectionable per se, Mr Harris emphasised. It could indeed be a reasonable policy to be lenient on such cases. But one wondered whether the approach would have been the same if the individual concerned had been less well connected. Another case was the non-prosecution of the Deputy Director of Housing for shoplifting. It was the norm in many Asian countries for the authorities to avoid prosecuting well-connected persons. It appeared that Hong Kong was moving in this direction.

Freedom of expression
On freedom of expression, Hong Kong was basically very good. Partly this was because newspaper ownership was not highly concentrated, as it was for example in England or Australia. This led naturally to diversity of expressed views. There were also lively radio channels. And RTHK maintained its independence, although one could not be rest easy about the continuation of this as long as people like Xu Xi Min were calling for it to become a Government mouthpiece.

Overall, Hong Kong compared well with anywhere. But this could go rather quickly. There was some self-censorship. The South China Morning Post had had a lot of people leave who had been critical of the Beijing authorities. The Monitor’s view was that this was not a coincidence. These people had upset the owners of the newspaper with their views on Beijing.

Right to demonstrate
The right to demonstrate in Hong Kong was an area of current concern. Mr Harris confessed that he was embarrassed that the Metropolitan Police in his own country, Britain, had clamped down on a demonstration by Tibetans during Jiang Zemin’s visit to London. This was hardly a good example.

In Hong Kong up to 1991, a permit was needed to demonstrate. This was clearly an infringement of human rights. The requirement was repealed. But in 1997 it was restated in the form of a requirement for the demonstrators to obtain a "certificate of no objection" from the police. In the Monitor’s view, said Mr Harris, this was a permission. Up until now, about one-fifth of the demonstrations after the handover had not had such certificates, and no action had been taken. But now the police had arrested three activists.

In the Monitor’s view, it was fair for demonstrators to be required to give the police notice of their intention. But to require police permission was not acceptable. The Monitor had seen the police tighten up in a lot of areas. The Monitor always attended large demonstrations as observers, and the police used to welcome this, since the Monitor was impartial and sometimes its testimony could clear the police of wild accusations. But now the police were less welcoming. Monitor personnel were now not allowed to cross police lines.

Democracy
Hong Kong scored much less well than many other countries in respect of democratic rights. It was very strange that rights were better protected in Hong Kong than in many democracies. But this could only be as long as the Government tolerated it. When the Government changed its view, the rights would just go, and there would be very little anyone could do about it. So democracy was the key to protection of the other human rights. The ultimate safeguard was for the citizens to get rid of a government that had got it wrong.

Hong Kong proclaimed itself to be a world city, but it was centuries behind leading cities in the democracies. Hong Kong was ruled by an adapted colonial form of government, one that had been superceded in other former colonies decades ago. The concern was that if the Central Government of China changed its approach of not interfering in Hong Kong’s affairs, and if Hong Kong continued to have a leader so anxious to do what the Central Government wanted, human rights were in jeopardy. Mr Harris was glad, therefore, that he was speaking to the Democratic Foundation. He hoped that they, and others of like mind, would do all they could to promote democratic progress in Hong Kong.

One particular point of concern was the Hong Kong Government proposal to enact legislation on Article 23 of the Basic Law. Article 23 concerned treason, sedition, subversion and cessation. Subversion and cessation were not crimes at all in democratic countries. Sedition was a crime in the UK, but its meaning was an intention to overthrow the Government by violence. People feared that the law would criminalise expressions of support, for example, for Taiwan independence, or independence for Tibet.

Maintaining human rights in Hong Kong was a constant battle at the margins. It was easy to be complacent. The standard of living in Hong Kong was very high; Hong Kong was a pleasant place to live. But one should not forget that just across the border was a community with massive corruption. Hong Kong residents were being detained on the Mainland. Li Shaoming had been released, but Lu Xirong was serving a thirteen year jail sentence – for publishing an article on the role of the Chinese Communist Party in the Malayan Emergency in the 1960s. This was an historical article, yet he was prosecuted for stealing state secrets. So no one would now study such a subject in Hong Kong any more. Hong Kong’s rights record post-1997 had been reasonably good, although there had been blemishes. But the outlook was cloudy.