The Human Rights Committee this morning concluded its consideration of the fourth periodic report of Hong Kong Special Administrative Region of China on how it implements the provisions of the International Covenant on Civil and Political Rights, with Committee Experts praising legislation improving same sex couples' access to public housing and visas, and asking about rights restricted by the National Security Law enacted in June 2020.
A Committee Expert welcomed that the High Court of the Hong Kong Special Administrative Region of China had ruled that married same sex couples should be allowed to apply for public housing. In 2018, the court also made a landmark judgment granting spousal visas to same sex couples. What measures, the Expert asked, had been taken to protect lesbian, gay, bisexual, transgender and intersex persons from hate speech and hate crimes?
Several Committee Experts expressed concern about the National Security Law. One Expert said that this law was promulgated by Beijing overnight without consultation, bypassing the local legislature. The Expert reported that there was a growing number of persons being convicted under this law for innocuous acts such as publishing children's books and clapping in court. How did those legitimate exercises of free expression rights constitute national security crimes?
Another Expert expressed concern over statistics showing that national security police had over two years arrested 201 individuals for allegedly endangering national security, among which a total of 125 individuals and five companies had been charged. Nine of the charged persons were underage; and three were only 15 years old. Why, the Expert asked, had more than half of persons arrested under this law been remanded without trial for more than one year?
The delegation said that there were views that the Government should implement laws to protect lesbian, gay, bisexual, transgender and intersex persons, but there were also views that the Government should maintain traditional family values. The Government therefore needed to be cautious in this regard.
Erick Tsang Kwok-Wai, Secretary for Constitutional and Mainland Affairs of Hong Kong Special Administrative Region of China and head of the delegation, introducing the report, said that from June 2019, Hong Kong Special Administrative Region of China had been held hostage by rioting mobs who committed acts of secession, violence and terrorism. To suppress those activities, the Standing Committee of the National People's Congress had adopted the National Security Law in June 2020.
The delegation said that the National Security Law had played an important role in stabilising Hong Kong Special Administrative Region of China and there were no immediate plans to repeal it. It added that cases involving national security were handled fairly and in accordance with the law. Processing times of such cases depended on the time taken to collect evidence. If a minor was charged with a national security offence, the court considered the defender's age and likelihood of reoffence. The judiciary aided young people on remand.
In his concluding remarks, Mr. Kwok-Wai said that the dialogue had allowed for frank and constructive exchanges to dispel doubts on the human rights situation in Hong Kong Special Administrative Region of China. The National Security Law was vital in safeguarding sovereignty, security and development interests. Hong Kong Special Administrative Region of China was firmly committed to protecting human rights and sought to improve these rights through legislation and policy.
Photini Pazartzis, Committee Chairperson, in concluding remarks, welcomed the Government's commitment to protecting human rights and freedoms. The Committee, she said, had raised concerns regarding the protections of human rights mainly against the backdrop of the National Security Law. These concerns related to fair trial guarantees, independence of the judiciary, freedom of the press, and freedom of association. Ms. Pazartzis concluded by stating that, in a democratic society, freedom of speech, expression and participation, and pluralism should not be unduly restricted.
The delegation of Hong Kong Special Administrative Region of China was made up of representatives of the Constitutional and Mainland Affairs Bureau; Department of Justice; Education Bureau; Security Bureau; Hong Kong Police Force; Labour Department; and the Permanent Mission of Hong Kong Special Administrative Region of China to the United Nations Office at Geneva.
The Human Rights Committee's one hundred and thirty-fifth session is being held from 27 June to 27 July. All the documents relating to the Committee's work, including reports submitted by States parties, can be found on the session's webpage. Meeting summary releases can be found here. The webcast of the Committee's public meetings can be accessed via the UN Web TV webpage.
The Committee is next scheduled to meet in public at 10 a.m. on Wednesday, 13 July, to consider the second periodic report of Macau Special Administrative Region of China (CCPR/C/CHN-MAC/2).
Report
The Committee has before it the fourth periodic report of Hong Kong Special Administrative Region of China (CCPR/C/CHN-HKG/4).
Presentation of the Report
ERICK TSANG KWOK-WAI, Secretary for Constitutional and Mainland Affairs of Hong Kong Special Administrative Region of China and head of the delegation, said that 2022 marked the twenty-fifth anniversary of the establishment of Hong Kong Special Administrative Region of China. Hong Kong Special Administrative Region of China was an inalienable part of the People's Republic of China, a local administrative region that enjoyed a high degree of autonomy under the "one country, two systems" policy. The policy enjoyed the full support of more than 1.4 billion people of the motherland, had the unanimous endorsement of residents, and was widely recognised by the international community.
The Constitution of the People's Republic of China and the Basic Law guaranteed fundamental rights and freedoms, including equality, and was buttressed by the rule of law and an independent judiciary. Article 39 of the Basic Law further provided for the provisions of the Covenant to be implemented through the laws of the State. The Government was firmly committed to the protection of human rights.
Two critical developments were the enactment of the Law of the People's Republic of China on Safeguarding National Security in June 2020, and the improvements to the electoral system made in 2021. In June 2019, Hong Kong Special Administrative Region of China had faced unprecedented challenges which derailed "one country, two systems" and paralysed the Government. For almost one whole year, Hong Kong was held hostage by rioting mobs, who committed acts of secession, violence and terrorism. These, together with foreign interference, seriously jeopardised national sovereignty, unity and territorial integrity.
To stop and suppress those activities, the Standing Committee of the National People's Congress had adopted the Law of the People's Republic of China on Safeguarding National Security in Hong Kong Special Administrative Region of China in June 2020. The law clearly stipulated that the Special Administrative Region should protect the rights and freedoms enjoyed by residents under the provisions of the Covenant. However, many rights and freedoms recognised in the Covenant were not absolute, and were subject to restrictions if necessary for the protection of national security and public safety. That law had restored peace and stability. Law enforcement actions only targeted criminal acts, and they were all based on evidence and conducted strictly according to the law. The principle of prosecutorial independence by the Department of Justice was constitutionally guaranteed, and judgments were made public.
Activities endangering national security were fuelled by persons conspiring with external forces who managed to enter public offices through open elections. Those people made use of their public offices to obstruct or even paralyse the operation of the Government. The chaos exposed loopholes and deficiencies in Hong Kong's electoral system at that time. The National People's Congress had thus adjusted the Special Administrative Region's electoral system. In March 2021, the National People's Congress adopted the Decision on Improving the Electoral System of Hong Kong Special Administrative Region of China, which provided a robust systemic safeguard for "patriots administering Hong Kong." The new electoral system amended and improved the electoral methods for the Chief Executive and the Legislative Council, and introduced a mechanism for reviewing the eligibility of candidates.
Three public elections had been held under the improved electoral system, in an open, fair and honest manner. The improved electoral system allowed for unprecedentedly broad coverage and balanced composition of public voices in the Election Committee and the Legislative Council. Membership of the Legislative Council was also increased from 70 to 90. The new legislature was now rid of extremists who had wished to obstruct or even paralyse the operation of the Government. There was popular support for early solutions to long-standing livelihood problems. The quality of legislative scrutiny and debates, as well as the efficiency of the Legislative Council, had significantly improved.
The Chief Executive was elected upon nomination by a broadly representative nominating committee, in accordance with democratic procedures. Citizens' rights such as the right to vote, to stand for election, and the freedoms of speech and of the press were well-enshrined in the Basic Law.
The Government would continue to work with the whole community to fight against the COVID-19 pandemic, improve people's livelihood, strive for economic development, build a caring and inclusive society, integrate the Special Administrative Region into the overall development of China, and promote the Guangdong-Hong Kong-Macao Greater Bay Area's fourteenth five-year plan.
Questions by Committee Experts
A Committee Expert said that article 158 of the Basic Law entrusted its interpretation to the Standing Committee of the National People's Congress. A 2017 co-location decision had permitted Chinese law to be applied within the Hong Kong Special Administrative Region's West Kowloon Express Rail Terminus. In this situation of creeping jurisdiction by the central Government, how did the Hong Kong Special Administrative Region guarantee the safety of its residents and ensure the protections of the Covenant?
A concerning issue was the promulgation by Beijing of the National Security Law in June 2020, done overnight without consultation and bypassing the local legislature. Article 23 of the Basic Law expressly conferred authority on the Hong Kong Special Administrative Region to enact laws relating to treason and sedition. Article 65 of the National Security Law stated that it took precedence over the Hong Kong Special Administrative Region's laws, and entrusted the Standing Committee with the final say on its interpretation. That had significant implications for the obligations of Hong Kong Special Administrative Region of China under the Covenant.
Domestic law was prioritised over the Covenant under the National Security Law. How was that justified? The National Security Law allowed mainland officials to enforce national security laws in the Hong Kong Special Administrative Region of China. Would mainland officials respect the human rights obligations of the Covenant? What recourse existed for residents whose rights were violated by mainland officials?
The Government had asserted that there was no need to establish an additional human rights institution, as the existing mechanisms functioned well. However, the Equal Opportunities Commission was considered non-compliant with the Paris Principles and granted "C" status. That Commission was not independent and could not function as a national human rights institute as its mandate was not comprehensive. Independent assessments pointed to the lack of power and independence of the Ombudsman. There were instances where public authorities such as the police had blatantly refused to comply with recommendations from the Ombudsman. Was there any intention to establish an independent national human rights institute with a comprehensive mandate and appropriate powers? Would consideration be given to strengthening existing institutions to ensure their independence and effectiveness?
The Expert said that the colonial-era offence of sedition was resuscitated in 2020 and had since been deployed against members of civil society for exercising basic free speech rights. A growing number of persons were being arrested, charged and convicted for innocuous acts such as publishing children's books, clapping in court, chanting slogans like "liberate Hong Kong" and criticising the Government's COVID-19 pandemic response on social media. Because those were considered national security crimes, the stringent provisions of the National Security Law had been applied to those charged, leading to a denial of bail, weakened rights for defenders, and expanded official powers of search and surveillance. How did those legitimate exercises of free expression rights constitute national security crimes? Would the Government ensure that no one was prosecuted or targeted for legitimate acts of peaceful political expression?
Another Committee Expert said that several rights under the Covenant were absolute and non-derogable, and even the rights and freedoms that were not absolute must not be unduly restricted. The Expert asked the delegation to clarify the relationship between the Covenant and the National Security Law. How could one challenge the constitutionality of the National Security Law?
The Expert expressed concern over statistics showing that national security police had over two years arrested 201 individuals for allegedly endangering national security, among which a total of 125 individuals and five companies had been charged. Nine of the charged persons were underage; and three were only 15 years old. Further, all 12 suspects whose cases went to trial had been convicted. What sentences were handed down to those individuals? Forty-four persons were also charged with sedition. Why had more than half of arrested persons been remanded for more than one year? Why were travel documents being confiscated for indeterminate periods of time under the National Security Law?
Had the Hong Kong Special Administrative Region of China discussed adopting a comprehensive anti-discrimination law? Plans had been announced to bring Government functions and powers within the scope of the "Race Discrimination Ordinance." What concrete steps had been taken in that regard, in particular in relation to the Hong Kong Police Force and the Hong Kong Correctional Services Department?
The Expert noted with surprise that of 19 cases brought to the Equal Opportunities Commission until 31 August 2020, 18 were discontinued and no unlawful acts had been found. Did any aggrieved persons seek assistance from the Commission to make civil claims in court? How many complaints had been received in the last two years? The Expert asked for information on complaints filed under the Sex Discrimination Ordinance, the Disability Discrimination Ordinance and the Family Status Discrimination Ordinance.
The Expert welcomed that the High Court of the Hong Kong Special Administrative Region of China had ruled that married same sex couples should be allowed to apply for public housing. In 2018, the court also made a landmark judgment granting spousal visas to same sex couples. However, measures adopted under the National Security Law had led many lesbian, gay, bisexual, transgender and intersex activists to flee overseas, and many prominent figures from the community had been arrested or jailed for their participation in political protests.
The High Court had held that same sex couples in Hong Kong Special Administrative Region of China had no constitutional right to marry. The Court had also upheld a government policy requiring transgender people to undergo surgery before having their gender legally recognised. Had any progress been made in legally recognising transgender persons and in gender reassignment? What measures had been taken to protect lesbian, gay, bisexual, transgender and intersex persons from hate speech and hate crimes? Were there any awareness-raising campaigns conducted in that regard? Were any measures planned to facilitate the holding of events such as gay pride parades? There were reports that transgender persons in custody were subjected to inhumane and degrading treatment. How were the rights of such people protected?
One Committee Expert said that the National Security Law allowed Hong Kong Special Administrative Region police to engage in a warrantless search of physical property and electronic devices of individuals with alleged connections to national security crimes. Police were also authorised to order that online content posted on local websites be removed when the publication was likely to constitute an offence endangering national security. How were those measures compatible with the Covenant? Hong Kong Special Administrative Region police had accused some organizations located overseas of violating the National Security Law and demanded that their websites to be taken down. On what grounds was the National Security Law extraterritorially applicable?
Under the Emergency Regulation Ordinance, the Chief Executive could make any regulations whatsoever in cases of "public danger," which was different from a state of emergency. When imposing the "mask ban" in October 2019, the Chief Executive had stressed that the Hong Kong Special Administrative Region of China was not in a "state of emergency." What was the difference between "public danger" and "state of emergency?" What safeguards were provided to prevent unnecessary or disproportionate restrictions of human rights in instances of "public danger" under the Emergency Regulation Ordinance? What measures had been taken in response to the COVID-19 pandemic?
Responses by the Delegation
The delegation said that fundamental rights and freedoms of citizens of Hong Kong Special Administrative Region of China were guaranteed by the Basic Law. National security law had always fallen under the purview of the central Government. The central authority had the ultimate responsibility for security in all special administrative regions. Before adopting the law, the Standing Committee of the National People's Congress had consulted with civil society, and the enactment process was transparent and compliant with domestic law. The Department of Justice had ensured that cases involving national security were handled fairly and in accordance with the law. Processing times of cases depended on the time taken to collect evidence. If a minor was charged with a national security offence, the court considered the defender's age and likelihood of reoffence. The judiciary aided young people on remand.
Police implementing the law acted in accordance with national laws and respected human rights. Enforcement measures were implemented against persons who posted messages on electronic platforms which threatened national security. Seditious acts had endangered national security, and the Government had a responsibility to prevent and suppress them in a prudent manner.
National security laws in many Western countries had extraterritorial effects. The rights of residents of Hong Kong Special Administrative Region of China were protected under the Basic Law. There was no cause for concern regarding the extraterritorial effects of the National Security Law.
Proposed legislative amendments would be in line with the provisions of the Convention. Those proposals would be explained to the public, and the Government would listen to the public's views on those amendments.
The power of the Standing Committee of the National People's Congress to interpret domestic laws was stipulated in the Constitution. The courts of the Hong Kong Special Administrative Region of China were authorised to interpret the provisions of the Basic Law. The court of final appeal of Hong Kong Special Administrative Region of China was obliged to refer to the Standing Committee of the National People's Congress when cases fell under the purview of the central Government, such as cases involving foreign affairs.
The West Kowloon Express Rail Terminus co-location arrangement had been implemented in a process that checked the arrangement's constitutionality. The implementation of that arrangement was in accordance with the autonomy provided for the Hong Kong Special Administrative Region of China. Passengers entering the area were well-informed of the judicial arrangement, and were free to choose whether or not to enter the area.
The existing mechanism of human rights commissions worked well in protecting human rights, and there was no need to set up another national human rights institute, the delegation said. The Equal Opportunities Commission was not the sole human rights commission and had a limited purview, therefore it could not fully respect the Paris Principles. The Sex Discrimination Ordinance had been amended to strengthen protections for breastfeeding women.
There were views that the Government should implement laws to protect lesbian, gay, bisexual, transgender and intersex persons, but there were also views that the Government should maintain traditional family values. The Government therefore needed to be cautious in this regard. Prison officials were prohibited from discriminating against transgender persons.
The police force had established mechanisms to protect victims of domestic violence, including providing protection shelters and ensuring healthcare support. Reformatory programmes to change abusers' attitudes were also in place. The police force would continue to work to fight domestic violence.
Questions by Committee Experts
A Committee Expert said that the Committee was grateful that civil society would be consulted regarding revisions to security legislation.
There were reports that police responses to demonstrations were frequently excessive, involving the indiscriminate use of less-lethal weapons and the use of chemical substances past their expiry date, actions which resulted in serious injuries for participants. How were such responses consistent with international human rights standards? The commander-in-chief of the riot police had been recorded by the media instructing his subordinates to shoot at protestors' heads. What was the justification for such methods?
Another Committee Expert said that the Committee had previously recommended that the Government establish a fully independent mechanism to investigate abuses of power by the police. Had any steps been taken to implement that recommendation? The Court of First Instance had ruled that the existing complaints mechanism involving the Independent Police Complaints Council was inadequate. Had the Government taken any steps in response to that decision? Had the number of complaints about ill-treatment by the police increased since the entry into force of the National Security Act in June 2020? Had any new regulations been issued following periodic reviews of police guidelines on the use of force? Had the Government considered establishing compulsory recording of all police interrogations?
There had been 126 deaths in the prison system from 2011 to 2019. What were the causes of those deaths? Had there been an increase in deaths since the entry into force of the National Security Act on 30 June 2020? Could the delegation provide disaggregated data on complaints of ill-treatment in prisons that had resulted in a formal accusation before court?
Under the National Security Law, national security offences were handled by judges directly designated by the Chief Executive. How many judges had been designated under the National Security Law? In 2021, two senior British judges resigned from the Hong Kong Court of Final Appeal, stating that the National Security Law presented a serious obstacle to the due process of law. What was the delegation's response to those comments?
Some 74.3 per cent of defendants charged with national security crimes were denied bail and detained indefinitely. For the several dozen politicians and activists charged with subversion on 28 February 2021, pre-trial detention had already lasted over a year. Decisions to refuse bail had been based on allegations which had occurred prior to the National Security Act. Did the Act have a retroactive effect? How many closed-door trials without a jury had been conducted under that law?
