I have been posting about the review of the Hong Kong SAR by the UN Human Rights Committee (Hong Kong Within One Country and Between Two Systems of Outside Normative Expectations: Mediating Human Rights Under Conditions of Economic Autonomy and in the Shadow of Global Norms). On 12 July 2022, the Human Rights Committee concluded its consideration of the fourth periodic report of Hong Kong SAR of China on how it implements the provisions of the International Covenant on Civil and Political Rights.
The Press Release of the prepared summary follows.
Press releases Treaty bodies
In Dialogue with Hong Kong Special Administrative Region of China, Experts of the Human Rights Committee Welcome Legislation Supporting Same Sex Couples’ Access to Housing and Visas, Raise Issues Concerning the National Security Law
12 July 2022
The Human Rights Committee this morning concluded its consideration of the fourth periodic report of Hong Kong Special Administrative Region of China Opens in new windowon 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 visasOpens in new window, 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 webpageOpens in new window. Meeting summary releases can be found hereOpens in new window. The webcast of the Committee’s public meetings can be accessed via the UN Web TV webpageOpens in new window.
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/2Opens in new window).
Report
The Committee has before it the fourth periodic report of Hong Kong Special Administrative Region of China (CCPR/C/CHN-HKG/4Opens in new window).
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 Opens in new windowof 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
Committee Expert said that article 158 of the Basic Law entrusted its interpretation to the Standing Committee Opens in new windowof 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 Opens in new windowto 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?
The Government had stated that it had no intention of establishing an independent legal aid authority. How would it address the gap between available legal services and the community’s needs for legal assistance? Lawyers such as Chow Hang-tung who initiated judicial review suits or who represented opposition figures and protestors were subjected to intimidation. The Expert called for more information on the case against Chow Hang-tung. In another case, Tong Ying-kit abandoned an appeal of his nine-year criminal sentence for terrorism and inciting secession after the Legal Aid Department assigned him new lawyers with ties to the Government. What was the Government’s position on that?
Another Committee Expert said that asylum seekers were subject to domestic immigration laws, which made them extremely vulnerable. Asylum-seekers with refugee status were prohibited from working, except in cases where the Immigration Department granted a work permit valid for 6 months, subject to renewal. The Government’s humanitarian assistance programme also did not meet basic needs. Would the Government grant an alternative immigration status to refugees to allow them to remain legally in Hong Kong Special Administrative Region of China, and facilitate their access to legal work? Could asylum seekers challenge a decision related to their claim?
From 2014 to 2020, out of 17,618 non-refoulement applications, the Immigration Department had only considered 179 to be substantiated. The Government continued to detain asylum seekers. Tai Tam Gap Correctional Facility had become a detention centre, with one-third of the places allocated for immigrants. Was the Government considering alternative options to detention for asylum seekers? Had it introduced procedural safeguards against arbitrary detention for petitioners? Had the Government stopped keeping statistics on detention since 2019? Were there plans to ratify the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, and the 1961 Convention on the Reduction of Statelessness?
Another Committee Expert said that under the National Security Law, the police were allowed to search the homes of suspects without a warrant and spy on their communications. What safeguards protected citizens from such acts in legislation and in practice?
Hong Kong Special Administrative Region of China did not explicitly prohibit human trafficking for the purpose of exploitation. The Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons was not applied. Did relevant domestic laws conform to the Protocol? Between 2017 and 2019, only 30 victims of trafficking had been identified. What procedure was taken to ascertain whether persons were victims of trafficking? What measures had been taken to improve screening mechanisms?
The Employment (Amendment) Ordinance 2018 had substantially raised maximum penalties for employment agencies that overcharged job seekers and for businesses that operated without a licence. How many offences had been committed by employment agencies?
Migrant domestic workers were required to find new employment or leave Hong Kong Special Administrative Region of China within two weeks after an employment contract ended. That rule was a deterrent from reporting exploitative employment. Would the Government consider repealing the two week-rule for workers who reported exploitation? How many applications to change employers had been made by domestic workers, and how many had been approved?
One Committee Expert asked if the Government had taken any steps to inform the public about issues related to the lesbian, gay, bisexual, transgender and intersex community?
The Interception of Communications and Surveillance (Amendment) Ordinance provided a code of procedure on interception of communications and surveillance procedures, and sanctions for public officers that did not comply with the code. How many such sanctions had been issued? Did that ordinance override the Basic Law, which provided for protection from arbitrary intrusion into privacy? How was the ordinance compatible with the Covenant?
The Health Ministry required any inbound traveller to Hong Kong Special Administrative Region of China to download the Government-mandated “StayHomeSafe” mobile application, while residents were expected to download the Government tracing application “Leavehomesafe.” Leavehomesafe had the ability to read, modify and delete the contents of USB storage and view network connections on citizens’ private smartphones. Who could access the data collected by these applications? How did the delegation respond to concerning reports of unrestricted school surveillance and surveillance and interception of trade unions’ data? How many complaints had been brought to the Office of the Privacy Commissioner for Personal Data in the past two years?
In 2021, an amendment ordinance had been adopted to combat so-called “doxing acts” that were intrusive to personal data privacy. Was that ordinance a move to curb freedom of speech and expression on social media? The Privacy Commissioner had issued cessation notices to 14 social media companies regarding approximately 3,900 social media messages that reportedly contained “doxed” information. What was the criteria for sending out such cessation notices? Why were police permitted to access, without a warrant, private data on the smartphones of persons arrested during protests?
Responses by the Delegation
The delegation said that in 2019 and 2020, there had been allegations of police officers raping detained protesters--allegations which had been proven in court to be false. Media organizations covering the riots had used footage that portrayed violence from police, but did not display violence from rioters. Rioters threw over 5,000 petrol bombs, damaged traffic lights and signs, and blocked railway operations. They had used live weapons, set an opponent on fire, and used bricks to kill a man who videoed them. Police had used a proportionate level of force in response to the protests. No protesters had been killed by police. Safe chemical agents were used to disperse crowds and control violence.
The Government had put in place a unified mechanism for screening asylum seekers that met the highest standards of human rights protections. Claims were assessed by an independent board made up of retired judges and experts. Only about 1.2 per cent of asylum claims were substantiated, and all other claims came from irregular migrants. The Immigration Department was obliged to detain illegal immigrants who posed a risk to the community. There was no arbitrary detention. The Department regularly reviewed cases of detainees. Only about 3 per cent of asylum seekers were detained, and those persons had criminal records. The Department considered applications from asylum seekers asking to take up employment on a case-by-case basis.
There were over 50 legal provisions relating to human trafficking, and screening was rigorously carried out. The number of trafficking victims was low as trafficking was not a serious issue in Hong Kong Special Administrative Region of China. Exploitation of foreign domestic helpers was prohibited, and those persons were able to file complaints against their employers.
Complaints regarding police were handled fairly and effectively. The Independent Police Complaints Council had conducted an investigation into police actions in response to the 2019 riots, and had suggested several measures to improve responses. The Interception of Communications and Surveillance (Amendment) Ordinance provided guidelines for covert surveillance conducted by the police. There was a monitoring body that assessed the implementation of the Ordinance’s guidelines.
Remedies for violations regarding the National Security Law were provided under mainland China law. Under the Basic Law, all judges were appointed under the Chief Executive. The Chief Executive appointed a list of judges to hear national security cases, rather than specific judges for specific cases, and consulted relevant parties in this process.
The delegation said that the Chief Executive was not able to interfere in judicial matters. Judges were disqualified from sitting on cases when they had an actual or perceived conflict of interest. The National Security Law did not apply retroactively, but the courts could consider actions taken before the introduction of the law when considering the context. The Law thus did not violate the principle of non-retroactivity. The Basic Law and the Covenant did not specifically state that defendants had the right to a trial by jury. When trials involved State secrets, the aspects of the trial that considered those were closed, but the results of the trial were made public. Lawyers were not above the law. The burden remained on the prosecutors to prove that a defendant was guilty. The National Security Law was compatible with the Covenant and the Basic Law.
Police were required to defend national security, and implement the National Security Law strictly in line with the law. Complaints could be filed against the police force, and such complaints had been filed and reviewed impartially by the courts.
Covert surveillance was necessary to detect offenses against national security and protect national security. Covert operations were only authorised when the oversight body deemed them to be necessary and proportionate to the threat posed.
The judiciary was committed to upholding the rule of law. This commitment was not affected by the recent departure of two United Kingdom judges from the Court of Final Appeal, and the Court was currently seeking replacements for these judges.
The Privacy Commissioner for Personal Data could request the removal of doxing messages if there had been an unlawful and harmful exposure of personal data of persons from Hong Kong Special Administrative Region of China. The impact of doxing was severe, and it was necessary to remove such information swiftly. Persons whose messages were removed could lodge an appeal.
The “Leavehomesafe” app did not identify personal data, and all data collected was automatically erased after 31 days unless a person was infected with COVID-19. This data was not passed to other Government organizations.
Questions by a Committee Expert
A Committee Expert said that the National Security Law drastically curtailed freedom of expression. The Government had applied criminal sanctions against journalists who took a critical stance on aspects of police or Government policy. More than a dozen journalists were in jail awaiting trial and some faced life imprisonment, 13 media outlets had been closed, and six media executives had been deprived of liberty. Some 1,115 journalists had lost their jobs for issuing opinions.
The police also raided the offices of Apple Daily newspaper and the digital media outlet Stand News in 2021. The Government froze these organizations’ funds and took legal action against them related to content published prior to the introduction of the law. Further, the State had increased control and censorship and introduced new editorial guidelines for the public broadcaster Radio Television Hong Kong. The Hong Kong Journalists' Association had filed a judicial review against the police for actively obstructing lawful journalistic activities.
Internet censorship was also becoming increasingly prevalent. Under the law, the police had the power to censor the Internet without a warrant. What was the scope of this power? Eight online media outlets had been blocked during the protests.
Was the Government considering repealing the National Security Law, or amending the "sedition" provision of the Crimes Ordinance to bring it fully in line with the Covenant? What punitive force would the draft “fake news regulation” have? Had the Government considered immediately and unconditionally releasing journalists? Did the Government plan to restore the editorial independence of Hong Kong Radio Television? What measures could be implemented to end online censorship?
There had also been a crackdown against professors and student unions that were critical of the Government. For example, on 28 April 2021, administrators at the University of Hong Kong imposed sanctions on their student union, including the withdrawal of financial aid, for expressing concern about the newly announced mandatory national security curriculum. Could the Government reveal the full list of books removed from public libraries? Would the Government consider taking action to restore the freedom of thought and expression in academia, and consider dropping charges and releasing all academics, students and others arbitrarily detained for academic, artistic or cultural expression?
Another Committee Expert asked for information on the number of public meetings prohibited over the last five years. Did the Appeal Board on Public Meetings and Processions oversee the Commissioner of the Police’s decisions regarding prohibitions of public meetings? How many appeals had the Board received and how many decisions had it reversed over the past five years? How many arrests and prosecutions had been made in relation to public assemblies and processions over the last five years? Fifteen arrests had been made in 2019 for the offenses of “organising an unauthorised assembly” or “knowingly taking part in an unauthorised public assembly”. The Government had also imposed an almost total ban on mask-wearing at public assemblies. Participants in a three-person protest in support of Ukraine were arrested and fined for breaking anti-pandemic measures. How were any of these measures compatible with the rights guaranteed in the Covenant?
One Committee Expert said that an international non-governmental organization had described the police force’s response to protests as “reckless and indiscriminate”. The non-governmental organization reported that the police used excessive force against unarmed protestors; used contaminated water in water cannons; used intimidatory tactics, such as mass arrests, strip searches and even sexual assaults; and did not provide medical treatment for persons arrested and detained. Had any of the “suicides” that occurred during protests been investigated? What medical facilities had been made available for persons arrested and detained? Why had only a fraction of the 2,000 complaints made against police been examined? Were any individual police officers found liable for having caused injuries? Was the use of force recorded promptly in a transparent report, as required under the Covenant? How many protesters had been arrested, charged and convicted in respect of the 2019-2020 protests, and how many cases were pending?
Of the Legislative Council’s 90 seats, only 20 were elected directly by eligible voters, a reduction by 15 from what existed before. The remainder were chosen by special constituencies such as the Election Committee. This Committee was not a representative body and its members were closely aligned to the central Government.
Another Committee Expert said that almost 100 civil society organizations operating in Hong Kong Special Administrative Region of China had been forced to relocate after the introduction of the National Security Law. How did the Government ensure that the right of association was not violated by this law? Since the enactment of the law, many trade unions had disbanded. What was the reason for this? Would civil society organizations that engaged in the review be criminalised?
Responses by the Delegation
The delegation said that the development of democracy needed to be consistent with the Constitution. The new electoral system was a quantum leap forward for democracy. The number of seats in the legislative council had been increased from 70 to 90, including representatives from small and medium enterprises and grassroots organizations. This system reflected the requirements of Hong Kong Special Administrative Region of China under the “one country, two system” policy. Public elections were conducted in a fair and open manner. Elections promoted broad representation and safeguarded the overall interests in society.
Candidates in the Legislative Committee were screened by the Election Committee. Representatives came from a wide range of backgrounds. The right to vote for residents of Hong Kong Special Administrative Region of China was enshrined under the Basic Law and consistent with the provisions of the Covenant.
The freedoms of assembly and of association were fully protected under the Basic Law, but could be restricted to protect the rights and freedoms of others. The police were required to restrict assemblies that posed a threat to residents. The notification requirement for conducting assemblies had been upheld by the Court of Final Appeal. The police would only reject an assembly request when it posed a threat to society. Accusations that COVID-19 restrictions were used to restrict political assemblies were unfounded. The ban on masks at protests had been implemented in the context of violent acts committed by masked protesters. The right to anonymity was not absolute, and could be restricted in cases of threats to public safety. European countries had implemented similar laws.
The two-tier police complaint system ensured that complaints were handled fairly and effectively. The Independent Police Complaints Council submitted regular reports to the Chief Executive with recommendations for strengthening policing mechanisms.
Newly-recruited police force members underwent training on the use of force so as to use force appropriately in response to threats. Police could not be obstructed or hindered. During the 2019 social unrest, some protesters had pretended to be reporters and obstructed the police’s activities. The police had increased staff monitoring media organizations, but did not intend to obstruct their lawful activities.
A safe, pepper-based coloured solution was used in water cannons, but this did not pose a risk to protesters’ long-term health.
The Internet was not beyond the law. Certain reports shared online about the police were false, and persons who shared such information had been arrested and imprisoned. Investigations were conducted both in Hong Kong Special Administrative Region of China and overseas.
No entities were above the rule of law. The Government of Hong Kong Special Administrative Region of China was firmly committed to safeguarding national security, as well as freedom of the press. There were over 200 media organizations, and they were free to comment on and criticise the Government’s work if such comments were not in violation of the law.
Civil society organizations may have decided to leave Hong Kong Special Administrative Region of China due to the violent protests that occurred in 2019 and 2020.
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.
Trade unions had the right to conduct activities, and to affiliate with workers’ organizations in foreign countries; 600 unions had been registered over the past five years, and no application had been refused. The Government would continue to defend the rights of employees to form trade unions.
Academic freedom was defended by the Basic Law, and the Government attached great importance to defending the integrity of higher education institutions. The Government required such institutions to be transparent regarding the allocation of their funds. Operations of such institutions needed to abide by the law. Funding for student unions was a matter for these institutions to determine.
In response to concerns raised by a Committee Expert that detainees at a new “smart prison” were filmed in all locations, including showers and toilets, the delegation said that the correctional services department respected the privacy of detainees in smart prisons. The toilet area was blurred to protect this privacy.
Questions by a Committee Expert
A Committee Expert said that five overseas experts had stepped down from the Independent Police Complaints Council, citing concerns regarding the body’s independence. How was this body’s independence ensured? What measures had been implemented in response to the body’s recommendations regarding the police force?
Closing Remarks
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 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. Hong Kong Special Administrative Region of China had a free economy, independent judiciary and strong rule of law. The National Security Law was vital in safeguarding sovereignty, security and development interests. Membership of the Election Committee had been increased to 1,500 to enhance its representation, and this committee ensured that the Chief Executive and legislators it selected held the same political beliefs.
Hong Kong Special Administrative Region of China was firmly committed to protecting human rights and sought to improve these rights through the establishment of statutory paternity leave in 2015, a Commission on Children in 2018 and four anti-discrimination ordinances in 2020 and 2021; and through amendments to the Personal Data (Privacy) Ordinance and the Immigration Ordinance in 2021. As Hong Kong Special Administrative Region of China celebrated its twenty-fifth anniversary, it would continue to promote openness, diversity and harmony under the successful and well-proven “one country, two systems” policy.
PHOTINI PAZARTZIS, Committee Chairperson, said that the dialogue with Hong Kong Special Administrative Region of China had been frank and constructive. The Committee welcomed the Government’s commitment to protecting human rights and freedoms. It had raised concerns regarding the protection of human rights mainly against the backdrop of the National Security Law, including its stringent measures and extraterritorial reach. Concerns had been raised regarding fair trial guarantees, independence of the judiciary, freedom of the press and freedom of association.
In a democratic society, freedom of speech, expression and participation, and pluralism should not be unduly restricted without considering the requirements of necessity and proportionality as provided for under the Covenant. The Committee thanked civil society for its participation, and expected that the engagement of civil society in the dialogue would not result in any adverse consequences. Ms. Pazartzis thanked the members of the delegation for their participation in the dialogue.
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Produced by the United Nations Information Service in Geneva for use of the information media;
not an official record. English and French versions of our releases are different as they are the product of two separate coverage teams that work independently.
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