Written submission from the Progressive Lawyers Group (HIA0012)
A. Introduction
(a) Should the UK Parliament have better mechanisms for scrutinising the human rights protections contained in international agreements contemplated by the UK?
(b) If yes, what processes, information and analysis might be appropriate?
(c) What should the JCHR’s role be?
(a) Yes;
(b) The Foreign Secretary should be required to report regularly on such human rights protections to Parliament. Parliamentary committees such as the House of Commons Foreign Affairs Committee and the JCHR should participate in scrutinising the Foreign Secretary’s reports; and
(c) See above.
9. The PLG would like to emphasise that staying silence to any breaches of the JD amounts to an avalanche of the breaches where any parties of any international conventions to which UK is a party may get the wrong message that they can go scot-free without ramifications.
B. Abuse of the Public Order Ordinance (“Ordinance”)
10. Since the Umbrella Movement protests in 2014, the government has prosecuted over 100 protesters and one in three pro-democracy legislators. Many such prosecutions have been brought under the Ordinance.
11. Lord Patten of Barnes, the last colonial governor of Hong Kong, noted in June 2018 that the Ordinance does not adequately protect political rights enshrined in the International Covenant of Civil and Political Rights (“ICCPR”). The ICCPR applies to Hong Kong by virtue of Annex I to the JD.
12. Under the Ordinance, prior notice must be given to the Commissioner of Police of all intended public processions. Sections 14 and 15 empower the Commissioner to impose conditions upon, or prohibit, processions (“power of prior restraint”). Under section 17A, it is a criminal offence to break conditions imposed by the Commissioner, or to participate in a procession that has been prohibited.
13. Although a majority of the Court of Final Appeal upheld the power of prior restraint in Leung Kwok Hung v. HKSAR, the PLG submits that the power of prior restraint nonetheless constitutes an impermissible restriction on freedom of assembly:
(a) The notification requirement and the power of primary restraint all but eliminates the possibility of spontaneous processions;
(b) The maximum sentences of 3 years’ imprisonment (on summary conviction) and 5 years’ imprisonment (on indictment) under section 17A are much higher than comparable offences in other jurisdictions;
(c) There are no statutory guidelines governing how the Commissioner of Police ought to exercise the power of prior restraint; and
(d) The failure to notify the police is per se a criminal offence.
C. Extra-Judicial Abductions
14. Under Annex I to the JD, the Hong Kong SAR Government is responsible for maintaining public order in Hong Kong. Military forces sent by the Central People’s Government (“CPG”) for the purpose of defence “shall not interfere in the internal affairs of the Hong Kong Special Administrative Region.”
15. Under Basic Law article 22, no department of the CPG may interfere in affairs that are within the scope of Hong Kong’s autonomy.
16. There is no legal arrangement between Hong Kong and Mainland authorities for the transfer of criminal suspects or the surrender of fugitives.
17. Evidence suggests that Mainland authorities have conducted at least two extra-judicial abductions from Hong Kong since 1997.
18. Bookseller Lee Bo, a British Citizen, disappeared from Hong Kong on 30 December 2015. On the night that he disappeared, Lee called his wife, asking her to stay quiet about the incident. The caller identification showed a Mainland Chinese number.
19. When Hong Kong police officers investigated, they discovered that Lee’s Home Return Permit was still at his residence. No immigration records of Lee’s departure from Hong Kong were found.
20. On 27 January 2017, Xiao Jianhua, a Chinese billionaire connected to PRC President Xi Jinping, disappeared. He was last seen at the Four Seasons Hotel in Hong Kong. It appears that he was taken by Mainland state security.
21. In the circumstances, there is a pattern of extra-judicial abductions from Hong Kong conducted by Mainland authorities, in contravention of the JD and international human rights agreements.
D. Freedom of Expression and Association
22. Freedom of expression and of association are protected under the JD and the Basic Law.
23. The Hong Kong Government is actively undermining these rights by seeking to exclude the peaceful advocacy of Hong Kong independence from the ambit of freedom of expression and of association.
24. Regardless of the political feasibility or prudence of Hong Kong independence, the peaceful advocacy of independence is legally protected by the freedom of expression: see Human Rights Committee General Comment No. 34 and the Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPR.
25. Hong Kong officials have asserted that the peaceful advocacy of Hong Kong independence is per se illegal, merely because it is contrary to the Basic Law. Under this logic, the peaceful advocacy of any change to the Basic Law would also be per se illegal.
26. On 14 August 2018, the Foreign Correspondents’ Club in Hong Kong hosted an event featuring Hong Kong National Party (“HKNP”) spokesperson Andy Chan.
27. Hong Kong authorities subsequently refused to issue Mallet with a work permit, extensively interrogated him, and later denied him entry to Hong Kong as a visitor. To date, authorities have yet to give any explanation.
28. On 24 September 2018, Hong Kong authorities banned the HKNP under the Societies Ordinance, asserting that HKNP was a threat to national security. Due to the ban, associating with the party is an offence punishable with up to three years’ imprisonment.
29. In her recommendation that HKNP be banned, Assistant Societies Officer Rebecca Lam referred to “concrete steps” that supposedly warranted a ban. Many such steps were mere instances of political expression, such as printing newsletters.
E. Conclusion
30. The PLG acknowledges that some of these events are too recent to be covered by the Six-Monthly Reports. Nonetheless, the PLG considers the Foreign Secretary’s responses to developments in Hong Kong inadequate to protect the interests of British Citizens and British Nationals (Overseas) in Hong Kong.
31. The PLG therefore recommends that, for future treaties with human rights protections:
(a) The Foreign Secretary should be required to report regularly on such human rights protections to Parliament;
(b) Parliamentary committees such as the House of Commons Foreign Affairs Committee and the JCHR should participate in scrutinising the Foreign Secretary’s reports;
(c) Parliamentary committees should conduct a holistic review of the implementation of the JD and the alleged breaches since 1997.
14 January 2019
Annex I List of Concerns of Potential Breaches of Joint Declaration
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No. | Date | Issue | Description of issue | Articles in JD or Basic Law Concerned |
1 | 25 Jan, 1997 | Establishment of Provisional Legislative Council (PLC) | Provisional Legislative Council was established by the Chinese Government on 25 January 1997, before the establishment of Hong Kong Special Administrative Region. The 60 members in PLC were elected on 21 December 1996 by the 400-member Selection Committee for the First Government of the HKSAR. In the Six-monthly Report on the Implementation of the Joint Declaration on Hong Kong, 1997 Jan-Jun, Secretary of State for Foreign and Commonwealth Affairs stated that the PLC 'cannot be called an elected body' as required by the JD. It 'did indeed carry out a range of legislative acts giving rise to potential legal challenge, in the weeks and months before 30 June.' New amending laws (e.g. Societies Ordinance) were passed by PLC before 30 June, and given effect by Hong Kong Reunification Ordinance adopted on 1 July, 1997. This effectively changed the law of Hong Kong, which is required by JD to be maintained after the change of sovereignty.
| Annex 1, Part 1 "The legislature of the Hong Kong Special Administrative Region shall be constituted by elections." Part 2 "After the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong (i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained" |
2 | 26 Jun 1999 | The Chinese Government interprets of Basic Law in "Rights of Abode" case to overrule the judgement of the court of Hong Kong | After the Hong Kong court made a final judgement with interpretation of the Article 24 of Basic Law, the National People's Congress Standing Committee interpreted the article, at the request by Hong Kong Chief Executive, instead of the Hong Kong court as required by Article 158, effectively overruling the final judgement of the Hong Kong court. | Annex 1, Part 1 "Except for foreign and defence affairs which are the responsibilities of the Central People's Government, the Hong Kong Special Administrative Region shall be vested with executive, legislative and independent judicial power, including that of final adjudication." Basic Law, Art 158 "The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the Court of Final Appeal of the Region."
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3 | Mar to May 2002 | Concerns of compromising freedoms guaranteed in JD - Charging people involved in protests with Public Order Ordinance and banning demonstration on security ground
| Demonstrators were arrested and charged with obstructing the police, or under the Public Order Ordinance (POO) with offences relating to unauthorised assembly. The Police banned demonstrations in May outside the Central Government Offices on security grounds. The Appeal Board held that the ground was flawed. The Secretary of State for Foreign and Commonwealth Affairs stated concerns and reminded of not compromising freedom of assembly and freedom of speech (both provided for in the JD and the Basic Law).
| Annex 1, Part 13 "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..." |
4 | Jul to Dec, 2002 | Proposal of Legislation of Article 23 of Basic Law, which was regarded violation of human rights | In the legislation process National Security Law, according to Article 23 of Basic Law, the proposed Bill was criticized as incompatible with the principles of Joint Declaration in several ways. For example, Foreign Office Mr. Rammell commented in response to the proposed National Security Bill: "[We have concerns that] the proscription of organisations endangering national security is an unnecessary addition to Hong Kong law and, in introducing into Hong Kong legislation linkages to mainland law, blurs the dividing line between the separate legal systems of the SAR and the Mainland, as laid out in the Joint Declaration and the Basic Law.". It was also commented that "as sedition is essentially a crime of expression, this offence needs to be defined in a very tight way in order to be compatible with the principles of the Joint Declaration [in guaranteeing freedom of speech]." The Foreign Office was concerned and reminded the Hong Kong Government that the legislation must fulfil human rights provided by Article 27 of Basic Law and must fulfil the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) as required by Art 39 of Basic Law. The legislation of the Bill was stopped shortly after over 500,000 of people protested in demonstration on 1st July, 2003 opposing the legislation. | Annex 1, Part 1 "the Hong Kong Special Administrative Region shall be vested with executive, legislative and independent judicial power, including that of final adjudication." Annex 1, Part 13 "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..." Basic Law Article 27 "Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike." Basic Law Article 39 "The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region."
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5 | Sept 2003 | Concerns of compromising freedoms guaranteed in JD - Chinese officials influencing media and press | In September, Standing Committee Member of the Politburo Li Changchun, when speaking to Hong Kong news executives in Beijing, stated “The media should exercise its positive effect in this respect by supporting the Chief Executive and the SAR Government.” Li’s comments were criticised by the Hong Kong Journalists’ Association as "trying to influence Hong Kong newspapers". The British Government stated in its six monthly report that she "would be concerned if pressure were put on Hong Kong’s media to report news in a particular way."
| Annex 1, Part 13 "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..." |
6 | Mar to Apr 2004 | The Chinese Government interprets the Basic Law on its own initiative to effectively change the Basic Law requirement of election of Chief Executives and the Legislative Council in Hong Kong | On 26 March, NPC Standing Committee interpreted the Basic Law on their own initiative, and effectively change the Basic Law requirement by adding additional requirements election methods for the Chief Executive and the Legislative Council. This was only the second time since 1997 that the central authorities had conducted an interpretation of Hong Kong's Basic Law; and the first time that they had done so on their own initiative, rather than at the request of the Hong Kong authorities. The effect of exercising legislative authority by the Chinese Government through the 'interpretation' of Basic Law raised concerns for the violation of independence of both judicial and legislative power guaranteed in the Joint Declaration. On 26 April, Foreign Office Minister Bill Rammel issued, "This decision seems to us to be inconsistent with the “high degree of autonomy” which Hong Kong is guaranteed under the Joint Declaration. I am also disappointed that the NPC has set limits to constitutional development in Hong Kong that are not required by the Basic Law, especially before the Hong Kong Government has completed its consultation and put forward proposals for development." | Annex 1, Part 2, "After the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong (i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained", Part 3, "Judicial power in the Hong Kong Special Administrative Region shall be vested in the courts of the Hong Kong Special Administrative Region." Basic Law, Art 158 "The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the Court of Final Appeal of the Region." |
7 | 16 Jun 2004 | The Chinese Government disregards the separation of jurisdictions and exercises legal enforcement in Hong Kong | On 16 June, seven men claimed to be mainland public security officials found to be in possession of a pair of handcuffs and conducting investigations and taking law enforcement actions in Hong Kong. The Hong Kong Police had not approved or even been informed of the actions. | Annex 1, Part 12, "The maintenance of public order in the Hong Kong Special Administrative Region shall be the responsibility of the Hong Kong Special Administrative Region Government" |
8 | May 2004 | Concerns of compromising freedoms guaranteed in JD - Chinese officials influencing media and press | Three radio-show hosts of a popular show focusing on discussion of social and political issues abruptly resigned. On 27 May, Allen Lee, one of the hosts gave evidence to the Legislative Council Home Affairs Panel on why he had resigned. Lee said that a number of mainland "friends" had requested meetings with him to talk about his radio programme. He had continually refused to discuss it as he did not want to be pressured to alter his style. On 18 May he was phoned at 10.30 pm by someone claiming to be a retired mainland official called Chan. Although Lee said he did not recall "Chan", the latter claimed he had once sat next to Lee and his wife at an event. He made comments about Lee's wife and daughter and then asked to discuss the programme. Lee resigned the following day on the grounds that he did not want his family to be harassed. It was later revealed that the caller was Cheng Shousan, a former Deputy Director of the Hong Kong and Macau Affairs Office.
| Annex 1, Part 13 "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..." |
9 | April 2005 | The Chinese Government interprets of Basic Law on the term of Chief Executive required in the Basic Law effectively changing the requirement of the Basic Law
| Hong Kong Government submitted a report to State Council of Central People's Government, and proposed the State Council make a request to the Standing Committee of the NPC to interpret Article 53 of Basic Law, in relation to the term of office of the new Chief Executive. The interpretation effectively added new requirement in the Basic Law in situation when the office of Chief Executive becomes vacant. The UK government stated "it would have been preferable for a referral to the NPC to have been the outcome of due process in the Hong Kong courts."
| Part 3, "Judicial power in the Hong Kong Special Administrative Region shall be vested in the courts of the Hong Kong Special Administrative Region." |
10 | 17 Jul 2005 | Concerns of compromising freedoms guaranteed in JD - Chinese and Hong Kong officials influencing media and press | The Hong Kong Journalists’ Association released its annual report on Hong Kong’s press and speech freedoms on 17 July. The report set out the Association’s concerns that the Central People's Government had been “interfering” more in Hong Kong affairs and that that this would directly impact on freedom of speech. In the report the Association commented that the Chief Executive had a “wavering stance” on the freedom of speech and had been giving “mixed signals”. A spokesman for the Association said that “the Chief Executive has pledged not to rein in Radio Television Hong Kong yet has called on the broadcaster to drop horse racing and entertainment programmes, implying that it should do more to sell the Government's policies”. The Association also noted an increase in the number of instances where mainland officials openly commented on local affairs and urged the Government to reflect Hong Kong's objections to the central authorities.
| Annex 1, Part 13 "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..." |
11 | 5 Aug 2005 | Hong Kong journalist holding a British Passport (Oversea) being prosecuted by Chinese Government and request for information of the case was denied | Hong Kong journalist Ching Cheong, while researching former Communist Party leader, Zhao Ziyang, was detained by the Chinese Government in April and formally arrested on 5 August on charges of spying for Taiwan. The case was not handed over to the prosecutors within a two-month period under "normal circumstances". A Chinese government spokesman said on 9 December that “because the case is complex the investigation and detention period for Ching Cheong was extended”. Mr Ching is a British National (Overseas) passport holder and UK Government have pressed the central authorities for information on the circumstances of his arrest and sought consular access, which has been denied.
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12 | Mar 2006 | Failing by the Hong Kong Government in implementing electoral system to fulfil requirement of International Covenant | The Committee [of International Covenant on Civil and Political Rights (ICCPR)] considered that: “the electoral system in Hong Kong does not meet the requirements of article 25 of the Covenant.” Article 25 b) states that every citizen shall have the right and the opportunity to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors. The Committee recommended that: “All necessary measures should be taken whereby the Legislative Council is elected by universal and equal suffrage. It should be ensured that all interpretations of the Basic Law, including on electoral and public affairs issues, are in compliance with the Covenant.” The SAR Government argued, "...when ratifying the Covenant, the United Kingdom reserved the right not to apply that provision in so far as it might require the establishment of an elected Executive or Legislative Council in Hong Kong... It is our firm view that the reservation remains fully operative." The UK Government states they believe that Hong Kong should advance to a system of universal suffrage as soon as possible.
| Part 13, "The provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force." |
13 | Nov 2006 | Concerns of Chinese officials influencing freedom and autonomy of trade and business in Hong Kong | On 29 November, the Financial Times alleged that Liao Hui, Director of the State Council’s Hong Kong and Macao Affairs Office, had intervened in June 2006 to block the sale of PCCW (Hong Kong’s dominant fixed-line telecommunications provider) assets to foreign investors. Following the breakdown of the proposed sale, Richard Li, PCCW chairman, attempted to sell his controlling 23 per cent stake in the company. Many commentators noted that if true, such an intervention would amount to a serious breach of Hong Kong’s commercial autonomy.
| Part 6, "Rights concerning the ownership of property, including those relating to acquisition, use, disposal, inheritance and compensation for lawful deprivation (corresponding to the real value of the property concerned, freely convertible and paid without undue delay) shall continue to be protected by law." |
14 | 26 Apr 2007 | Concerns of compromising freedoms guaranteed in JD - Hong Kong officials refusing entry of activists to Hong Kong based on their political stand | On 26 April, Secretary for Security, Ambrose Lee, speaking on an RTHK radio programme said that Hong Kong would not welcome anyone who advocated the splitting of the country and he urged restraint on those considering protesting during the Olympic Torch Relay’s passage through Hong Kong. Later that day, Danish sculptor, Jens Galschiot, and his two sons were refused permission to enter Hong Kong. According to a letter from the Hong Kong Director of Immigration, Mr C P Yu, to Mr Galschiot on 16 June, this was on the grounds that their “presence in Hong Kong was not considered to be conducive to the public good”. The Galschiots were planning to visit Hong Kong in order to participate in the 1 May demonstrations and to attend the 2 May Olympic Torch Relay to protest at human rights violations in China. The UK Government expressed concern at the time that such exclusions risked giving the impression that freedom of expression was being compromised and that this could damage Hong Kong’s international reputation.
| Annex 1, Part 13 "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..." |
15 | 30 May 2009 | Concerns of compromising freedoms guaranteed in JD - Hong Kong officials refusing entry of activists to Hong Kong based on their political stand | On 30 May, Danish sculptor and activist, Jens Galschiot, was refused entry to Hong Kong. Mr. Galschiot had indicated before leaving Denmark that he intended to visit Hong Kong to repair the “Pillar of Shame” monument at Hong Kong University and to attend other events to commemorate the 20th anniversary of Tiananmen. ... "As we have said in previous reports, we have expressed our concern that such exclusions risk giving the impression that freedom of expression is being compromised in Hong Kong, and that this could damage Hong Kong’s international reputation."
| Annex 1, Part 13 "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..." |
16 | 17 May 2011 | Hong Kong Government proposed change to rule of election, which was criticized to deprive Hong Kong people rights of stand for an election | On 17 May 2011, the HKSAR Government introduced proposals for revised arrangements for filling vacancies in LegCo arising from the resignation or death of a LegCo member in a directly elected seat. Under the proposed arrangement, such vacancies are to be filled by the candidates with the second highest votes in the election, and by-election will not be required. In 2010, five members of Legislative Council resigned and triggered a by-election. The resigned members announced that the by-election is to be treated as a referendum for Hong Kong people to vote to express whether they wish to stop the prolonged delay to implement a truly democratic election system as required by the Basic Law. The proposal introduced by the Hong Kong Government in 2011 was generally believed to be a measure to prevent any future by-election to be used as replacement of referendum so as to stop this channel for people to express their view through a voting system. In response to the proposal, the Hong Kong Bar Association said the government's proposal to scrap by-elections was incompatible with articles 26 and 68 of the Basic Law, which state that Hong Kong permanent residents should have the right to vote and to stand for election, and that LegCo should be constituted by elections. The Bar Association also said the proposal would go against the United Nations International Covenant on Civil and Political Rights, which applies to Hong Kong. In its submission, the Association said: "The mechanism does not serve to express the free will of the electors. Rather, it forces the choice of the backup candidate upon them by operation of law. The electors are deprived, in substance, of their right to vote for the candidate to fill the vacancy. …… Those who wished to seek election when a vacancy arose would also be deprived of their right to stand for election.”
| Basic Law, Art 26 "Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law." Art 68 "The Legislative Council of the Hong Kong Special Administrative Region shall be constituted by election. ..." |
17 | 21 Jan 2012 | Concerns of compromising freedoms guaranteed in JD - Chinese and Hong Kong officials influencing media and press | A report published by the Hong Kong Journalists Association (HKJA) on 21 January cited frustrations of local reporters covering Vice-Premier Li Keqiang's three-day visit to Hong Kong, during which reporters complained of being assaulted, intimidated in their reporting or being monitored by plain-clothes security officers. This echoed claims in the Civil Human Rights Front’s annual report released on 11 January which alleged that the Government had adopted measures such as restricting media coverage and arresting reporters to suppress freedom of expression, and that at least 416 protesters had been arrested in 2011, about eight times the number in 2010.
| Annex 1, Part 13 "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..." |
18 | Jun to Jul 2012 | Concerns of compromising freedoms guaranteed in JD - Hong Kong Government restricts protests and press activities with excessive power | On 30 June, protesters demanding an investigation into the death of Li Wangyang, a labour rights activist jailed for 22 years as a member of the Tiananmen Square Protest in 1989, rallied near President Hu’s hotel, during his visit to Hong Kong. Police used pepper spray to control the crowds and arrested two protestors. In another event during Hu's visit, Apple Daily reporter Rex Hon Yiu-ting, who yelled out a question about China's post-Tiananmen Square crackdown, was immediately forcibly removed from the press area by police and accused of causing a disturbance. The director of Hong Kong Human Rights Monitor, Law Yuk-kai, criticised the security measures as an attempt to shield the Chinese leader from any “embarrassing demonstrations”.
| Annex 1, Part 13 "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..." |
19 | Aug 2012 | Chinese Government interfering the election in Hong Kong | There were a number of allegations of interference in the election of Legislative Council by representatives of the Central Government Liaison Office (CGLO). It was reported in the news that CGLO had approached a number of Legislative Council election candidates and arrange mainland organisations to field voluntary workers to support pro-China candidates. | Annex 1, Part 1 "The Hong Kong Special Administrative Region shall be directly under the authority of the Central People's Government of the People's Republic of China and shall enjoy a high degree of autonomy." Basic Law, Article 22 "No department of the Central People's Government and no province, autonomous region, or municipality directly under the Central Government may interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this Law."
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20 | Jan to Mar 2013 | Chinese Government exerting pressures on the reforms of the election system in Hong Kong | During the period when the Hong Kong Government is considering the new design of the election in Hong Kong to fulfil the requirement of JD and Basic Law, Chinese Officials spoke in various occasions to press the requirement that only those who are pro-Beijing can be elected. The Chairman of the NPC Law Committee, Qiao Xiaoyang, speaking in Shenzhen on 14 January, said that “anyone wishing to become Chief Executive has to love China and love Hong Kong”. He added that anyone who confronted the CPG could not become Chief Executive. And on 8 March, the newly-appointed NPCSC Chairman, Zhang Dejiang, was quoted by local Hong Kong NPC delegates as saying he hoped that the Chief Executive elected by universal suffrage in 2017 would be patriotic and have both the central government's trust and Hong Kong people's backing.
| Annex 1, Part 1 "The chief executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People's Government. ... The legislature of the Hong Kong Special Administrative Region shall be constituted by elections." |
21 | 10 June 2014 | Chinese Government tuning down the autonomy of Hong Kong provided by the JD and exerting pressures on the reforms of the election system in Hong Kong | On 10 June, the Central People’s Government (CPG) published a White Paper entitled The Practice of the One Country, Two Systems Policy in the Hong Kong Special Administrative Region. The Paper asserts "The high degree of autonomy of the HKSAR [Hong Kong Special Administrative Region] is not full autonomy, nor a decentralised power.", "The high degree of autonomy of HKSAR is subject to the level of the central leadership's authorization. There is no such thing called "residual power." With China's Constitution stipulating in clear-cut terms that the country follows a fundamental system of socialism, the basic system, core leadership and guiding thought of the "one country" have been explicitly provided for." It emphasises that "The Hong Kong People Who Govern Hong Kong Should Above All Be Patriotic" and "the chief executive to be elected by universal suffrage must be a person who loves the country and Hong Kong" which is generally understood as requiring only those who are pro-Beijing can be eligible for the candidacy of the election. The White Paper resulted in significant media coverage and intense debate in Hong Kong. Many in the pro-democratic camp criticised the paper, arguing that it was in breach of the Joint Declaration and attempted to limit Hong Kong’s autonomy. There was specific criticism from the Hong Kong Bar Association, which voiced concern that the paper appeared to categorise the judiciary as part of the machinery of government, which they described as “an error” that risked undermining judicial independence. Some also raised concern over the reiteration in the paper of the notion that those who govern Hong Kong “should above all be patriotic”.
| Annex 1, Part 1 "The Hong Kong Special Administrative Region shall be directly under the authority of the Central People's Government of the People's Republic of China and shall enjoy a high degree of autonomy. Except for foreign and defence affairs which are the responsibilities of the Central People's Government, the Hong Kong Special Administrative Region shall be vested with executive, legislative and independent judicial power, including that of final adjudication." |
22 | 31 Aug 2014 | Chinese Government set restrictions to the election of the Chief Executive in Hong Kong against the general expectation in Hong Kong, leading to the Umbrella Revolution in Oct 2014 | Against the general expectation of the Hong Kong people, the National People's Congress Standing Committee of the Chinese Government made a decision to restrict the eligibility of candidacy for the Chief Executive election in 2017. The key restrictions are: i) the candidate must be approved by the Election Committee, of which the members are mostly handpicked by the Chinese Government; and ii) Only two to three candidates are allowed. The Civil Nomination, that is nomination by the Hong Kong residents, was generally requested by the civil society but was not allowed under the decision. The decision also reiterated that the candidate must love China and Hong Kong, which is generally understood as a requirement that only pro-Beijing candidates will be approved.
| Annex 1, Part 1 "The chief executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People's Government. ... The legislature of the Hong Kong Special Administrative Region shall be constituted by elections." |
23 | 28 Nov 2014 | The Chinese Government restricting UK's monitoring of the implementation of the JD | On 22 July, the UK Foreign Affairs Select Committee (FAC) launched an inquiry entitled "The UK’s relations with Hong Kong: 30 Years after the Joint Declaration‟. The term of the Committee states, "“As co-signatory of the Joint Declaration, the UK retains an enduring commitment to Hong Kong following the transfer of sovereignty in 1997. This inquiry will consider how the FCO monitors the implementation of the Joint Declaration, as well as the broad range of the UK’s relations with Hong Kong, including economic and cultural ties.” The Chinese government strongly opposed the inquiry, calling it “foreign interference”. As part of the inquiry, the FAC planned to visit Hong Kong in mid-December, but on 28 November the Deputy Head of Mission at the Chinese Embassy in London informed the FAC that the Committee would be prevented from visiting Hong Kong.
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24 | Jan 2015 | The Chinese Government exerting pressures on introduction of patriotic education in Hong Kong | Speaking at a forum in Beijing on 8 January, former Deputy Director of the HKMAO Chen Zuo'er said that it was “clear there are problems with the education in Hong Kong along with its development” and that the nation’s “national interest” must be considered when Hong Kong considered its education policy. On a similar theme, Peking University Professor Rao Geping said at a forum in Beijing that “many young people have not been able to get used to the fact that Hong Kong is a Special Administrative Region of China. They grew up with a lack of national education, coupled with sentiments against the Communist Party of China, which has led to some of them being on the front line.” He advocated that “national education should be introduced again, but with an emphasis put on Chinese history and culture, but not ideology. We should have it in schools.” In his Policy Address, Chief Executive CY Leung criticised Undergrad, Hong Kong University‟s campus magazine, for publishing an article advocating self-determination. Subsequently Hong Kong University Law School and some of its faculty members were subjected to strong criticism in the pro-mainland press including Chinese language newspaper Wen Wei Po, which asserted in several articles over a period of a few weeks that former Law School Dean Professor Johannes Chan had “meddled” in politics, and that under his leadership the quality of the research in the department had deteriorated. Some commentators speculated that the apparent campaign was intended to prevent Chan‟s anticipated appointment as Pro-vice Chancellor.
| Annex 1 Part 10, "The Hong Kong Special Administrative Region Government shall on its own decide policies in the fields of culture, education, science and technology, including policies regarding the educational system and its administration, the language of instruction, the allocation of funds, the examination system" Annex 1 Part 13, "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." |
25 | Nov 2015 | The Chinese Government alleged to kidnap book publishers who published books not favouring the Chinese leadership to China for prosecution | In November, it was reported that four men associated with Causeway Bay Books and the Mighty Current Publishing House, a bookshop and publishing house known for printing material critical of senior mainland political leaders, had gone missing. One was last seen in Hong Kong and then revealed in China, without the travel documents necessary to have crossed the border through legal channels. Information indicates that at least one of the them was involuntarily removed to the mainland without any due process under Hong Kong law. Immediately following the disappearances, civil society groups expressed concern. Amnesty International said: “If the information is true, it is a deeply troubling case and it will have serious implications about the deterioration of freedom of expression in Hong Kong.” | Annex 1 Part 12, "The maintenance of public order in the Hong Kong Special Administrative Region shall be the responsibility of the Hong Kong Special Administrative Region Government." Part 13, "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."
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26 | 29 Sep 2015 | The Chinese Government exerting pressures on academic appointments in university | On 29 September, the HKU Governing Council voted 12-8 against the search committee’s recommendation to appoint Professor Chan. The decision prompted criticism from students and alumni who condemned it as politically motivated. | Annex 1 Part 13, "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."
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27 | 14 Jun 2016 | The Chinese Government alleged to abduct book publishers who published books not favoring the Chinese leadership to China for prosecution | Lam Wing-kee returned to Hong Kong on 14 June, eight months after his disappearance. Hong Kong police confirmed on the same day that he had cancelled his missing person’s report and said he required no assistance from the Hong Kong authorities. Two days later, Lam held a press conference at which he told the press that he and the other booksellers had been held against their will by mainland agents, denied due process, interrogated, required to sign non-disclosure documents, and forced to make false statements. Lam said he had decided to risk his own and his family’s safety by speaking out because “this isn’t just something which involves me, but implicates the whole of Hong Kong society”. The UK Government regards Mr Lee's involuntary removal to the mainland was a serious breach of the Sino-British Joint Declaration. | Annex 1 Part 12, "The maintenance of public order in the Hong Kong Special Administrative Region shall be the responsibility of the Hong Kong Special Administrative Region Government." Part 13, "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."
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28 | 14 Jul 2016 | Hong Kong people banned from standing for election based on political ideology | In the election of the Legislative Council in 2016, the run-up to the elections was marked by controversy. In the nomination process, an additional Confirmation Form was required by the Election Affair Committee for the candidates to declare their understanding of Hong Kong being an inalienable part of China. Following weeks of media scrutiny, the Election Affairs Committee confirmed on 2 August that six out of the total 154 confirmation forms were invalid. The most high-profile candidate barred from running was Edward Leung of localist group Hong Kong Indigenous who finished third in February 2016’s New Territories East by-election with approximately 66,000 votes. Though Leung had signed the Confirmation Form, the returning officer said: “Mr Leung has not provided sufficient reasons or evidence to prove that the media reports on his advocacy for ‘Hong Kong Independence’ were not true.” | Annex 1 Part 13, "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." |
29 | Aug 2016 | The Chinese Government alleged to influence the election in Hong Kong with death threats | In late August, Liberal Party candidate Ken Chow Wing-kan announced that he would suspend his campaign due to threats made to people around him. Chow said it would be pointless to provide information to law enforcement agencies: “How can they investigate when the power is not from Hong Kong? It is out of the range of their law enforcement.” | Annex 1 Part 13, "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."
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30 | 8 Sep 2016 | Newly elected Legislative Council member received death threat | On 8 September, newly elected legislator Eddie Chu Hoi-dick reported death threats against him and his family to the Hong Kong police. In the days following the elections, Chu told reporters that the “violent threats have intensified”, leading to him and his family moving out of their home, and being given police protection. | Annex 1 Part 13, "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."
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31 | 7 Nov 2016 | The Chinese Government interprets of Basic Law effectively changing the meaning of the Basic Law and adding new requirement to local laws | On 7 November, while the Hong Kong Court is still in the process of judicial review of the relevant law, the NPCSC published its interpretation of Basic Law Article 104 and adding new requirements in the article. The new requirements are about the form of oaths one must take to be legally effective, and should normally be governed by local laws. A number of pro-democracy parties argued that the interpretation in effect changed local laws, in contravention of the SAR’s high degree of autonomy. "The most recent interpretation was the first which concerned an issue subject to ongoing judicial proceedings, giving rise to specific concerns about the effect on Hong Kong’s separate legal system and independent judiciary. On 7 November, the UK Government expressed concern about developments in the LegCo and the timing of the interpretation." Six newly elected Legislative Council members were disqualified from their office in the council because of the form of their oaths after the interpretation of the Basic Law. | Annex 1, Part 1 "Except for foreign and defence affairs which are the responsibilities of the Central People's Government, the Hong Kong Special Administrative Region shall be vested with executive, legislative and independent judicial power, including that of final adjudication." Basic Law, Art 158 "The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the Court of Final Appeal of the Region." |
32 | 15 Aug 2016 | Discussions of independence banned in schools | Students from a number of schools planned to establish ‘localist’ concern groups in early August. On 15 August, the Bureau of Education said that “no pro-independence advocacy or activities should appear in schools ... and any organisation which serves to promote independence must be banned”. Vice-President of the Professional Teachers’ Union, Cheung Yui-fai, said secondary school students should have the right to discuss Hong Kong’s independence in schools and that moves by the authorities to stop discussion on the issue hinder interaction between students and teachers. | Annex 1 Part 13, "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."
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33 | May 2017 | The Chinese Government tuning down the autonomy of Hong Kong | While the interpretation of Basic Law in 2016 is generally regarded as interfering of the Hong Kong Legislation, NPCSC Chairman Zhang Dejiang described the interpretation as one of the NPC’s top achievements and said that the interpretation “fully demonstrated the CPG’s resolve in upholding the ‘One Country, Two Systems’ principle and its firm stand against Hong Kong independence”. In May, Zhang described the relationship between the CPG and the Hong Kong SAR Government as one of “delegation of power, not power sharing” and making clear that “under no circumstances should the CPG’s powers be confronted in the name of a high degree of autonomy”.
| Annex 1, Part 1 "The Hong Kong Special Administrative Region shall be directly under the authority of the Central People's Government of the People's Republic of China and shall enjoy a high degree of autonomy. Except for foreign and defence affairs which are the responsibilities of the Central People's Government, the Hong Kong Special Administrative Region shall be vested with executive, legislative and independent judicial power, including that of final adjudication."
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34 | 1 Jan 2017 | The Chinese Government alleged to abducted Xiao Jianhua from Hong Kong | In late January, it was reported that Chinese-born Canadian citizen Mr Xiao Jianhua left his apartment in a wheelchair with his head covered, accompanied by six unidentified men. Many in Hong Kong and internationally highlighted the numerous similarities between Xiao Jianhua’s apparent abduction and the case of the Hong Kong booksellers, including British citizen Lee Po who was involuntarily removed from Hong Kong to mainland China in late 2015. | Annex 1 Part 12, "The maintenance of public order in the Hong Kong Special Administrative Region shall be the responsibility of the Hong Kong Special Administrative Region Government." Part 13, "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."
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35 | 30 Jun 2017 | The Chinese Government tuning down the validity and importance of the JD | On 30 June, a spokesperson for the Chinese Ministry of Foreign Affairs (MFA) said: “It's been 20 years now since Hong Kong's return to the motherland, and the arrangements during the transitional period prescribed in the Sino–British Joint Declaration are now history and of no practical significance, nor are they binding on the Chinese central government's administration of the Hong Kong SAR.”
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36 | 17 Aug 2017 | Possible case of double jeopardy, DOJ applying for sentence review of three political activists despite the completion of their original sentence
| The Department of Justice sought for harsher sentences for activists Joshua Wong, Nathan Law and Alex Chow. The activist were found guilty at CFI over the "Reclaim Civic Square" movement which preceded the 2014 Occupy Central movement. The trio were later sentenced to six to eight months of imprisonment despite having completed their community service sentence imposed by the Trial Judge. Said custodial sentence was overturned at CFA.
| Art 3(3), Annex I, Part 2 of JD; rule against double jeopardy is deeply embedded in common law criminal justice |
37 | 11 Oct 2017 | Denial of entry to Hong Kong of Benedict Rogers | On 11 October, the UK national and human-rights activist Benedict Rogers was denied entry to Hong Kong on arrival, following intervention from the CPG in Beijing. Ben Rogers himself made clear publicly that his trip would have been a low-key personal visit to Hong Kong, not in any official capacity, and that he had no plans for any public events or media engagements. The Joint Declaration and the Basic Law refer to immigration controls as the responsibility of the Hong Kong SAR Government. In this case, the Chinese Government, not the Hong Kong SAR Government, instigated the process to deny Ben Rogers entry. A Chinese Ministry of Foreign Affairs spokesperson said “It falls within China’s sovereignty to decide who is allowed to enter the Chinese territory and who is not. Hong Kong was returned to China in 1997 and Hong Kong affairs are purely China’s internal affairs. The Chinese Government’s firm opposition to interference in China’s internal affairs by any foreign government, organization and individual in any form remains steadfast.” | Annex 1 Part 1, "The Hong Kong Special Administrative Region shall be directly under the authority of the Central People's Government of the People's Republic of China and shall enjoy a high degree of autonomy. Except for foreign and defence affairs which are the responsibilities of the Central People's Government, the Hong Kong Special Administrative Region shall be vested with executive, legislative and independent judicial power, including that of final adjudication." |
38 | 18 Oct 2017 | Assertion of PRC's "overall jurisdiction" over Hong Kong in the Work Report of 19th CPC National Congress | In Xi Jinping's Work Report submitted to 19th CPC National Congress, "overall jurisdiction" is asserted over Hong Kong; alluding to the similar phrase employed in the June 2014 white paper regarding the accurate interpretation of the "One Country, Two Systems" ideology. One may construe said phrase as the control or supervision exercisable over the three branches of HK government including the judiciary and the concept is referable to the recent iterations of HKSAR's power being derived ("authorized by") from the CPG. | Annex 1, Part 1 "The Hong Kong Special Administrative Region shall be directly under the authority of the Central People's Government of the People's Republic of China and shall enjoy a high degree of autonomy. Except for foreign and defence affairs which are the responsibilities of the Central People's Government, the Hong Kong Special Administrative Region shall be vested with executive, legislative and independent judicial power, including that of final adjudication." Note: Consistent with an isolated reading of the first sentence but in full context, "overall jurisdiction" is a breach of JD and 1C2S.
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39 | 4 Nov 2017 | Natural Anthem Law inserted in Annex III of the Basic Law and to be enacted locally; NAL bill gazetted in 10 January 2019 | The proposed law undermines freedom of thought and creation in imposing rigid forms and rites in the use of the National Anthem. The Law also imposes an ideology on Hong Kong citizens by requiring them to respect the national anthem to such an extent that will “promote patriotism”, clearly violating freedom of thought. Freedom of education and academic freedom are also violated as the education of National Anthem's background and more is mandated in a piece of legislation that provides for criminal liability. Local anthem law could have chilling effects on dissent and become a tool for the government to suppress opposition, considering the vague criminalizing language and lack of adequate public consultation.
| Art 3(5) and Annex I, Part 10 "shall maintain... freedom... of speech"; "[HKSAR] shall on its own decide policies... in education... students shall enjoy freedom of choice of education" Art 27, Art 32, Art 34, Art 39, Art 136, 137, 140 of the Basic Law and as a “basic policy” of the PRC contained in Art 3 of JD, entrenched under Art 159 of BL. |
40 | 27 Dec 2017 | The Chinese Government approving the Co-operation arrangement of the High Speed Rail Station in Hong Kong, allowing Chinese Law to be enforced in the territory of Hong Kong | In a Decision issued on 27 December, the NPCSC approved the Co-operation Arrangement signed in November by Guangzhou and the Hong Kong SAR authorities on the establishment of a joint checkpoint on the territory of the SAR. Under the terms of the Agreement, mainland officials will have jurisdiction over part of the West Kowloon terminus for the new high-speed rail link to the mainland when it is operational. The legal basis for the joint checkpoint has been the subject of intense debate for much of the year because Article 18 of the Basic Law stipulates that Chinese national laws shall not be applied in the SAR. No clear rationale was given by the NPCSC to illustrate how enforcement of Chinese Law in Hong Kong territory would be consistent to Article 18.
| Annex 1 Part 2, "After the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong (i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, save for any that contravene the Basic Law and subject to any amendment by the Hong Kong Special Administrative Region legislature." The Basic Law, Art 18, "National laws shall not be applied in the Hong Kong Special Administrative Region..." |
41 | 27 Jan 2018 | Agnes Chow banned from by-election | Returning Officer invalidated the nomination of Ms Agnes Chow for the 2018 Legislative Council By-election. The requirement under section 40(1)(b)(i) of the Legislative Council Ordinance (Cap. 542) for a “declaration to the effect that the person will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region” is, on its face, a procedural requirement. It is highly questionable whether that subsection empowers the Returning Officer to investigate the nominees’ state of mind and then make a determination on their level of sincerity when signing the declaration; yet the Returning Officer has done so in invalidating Chow. The process by which decisions relating to nominations were made is opaque, arbitrary, and inconsistent as to what criteria and evidence would be used in determining whether a candidate truly has an intention to ‘uphold the Basic Law’ and ‘pledge allegiance to the Hong Kong Special Administrative Region’.
| Art 3(5) and Annex I, Part 13 of JD (freedom of expression); BL Art 26, BORO Art 21 (Right to stand for election and right to vote) |
42 | 30 March 2018 | Condemnation of Associate Professor Benny Tai Yiu-ting | In March 2018, HKU professor Benny Tai’s academic comments at a conference in Taiwan was condemned by the HKSAR press and other pro-establishment stakeholders. Note that the interpretation of Prof. Tai’s comments as advocating the independence of Hong Kong is factually incorrect, Prof. Tai's comments are literarily hypothetical and is made of an academic capacity.
| Art 3(5) and Annex I, Part 13, "shall maintain... freedom... of speech,... of academic research"; Art 27, Art 34, Art 39 of the Basic Law and as a “basic policy” of the PRC contained in Art 3 of JD, entrenched under Art 159 of BL. |
43 | 24 Sept 2018 | Prohibition of Hong Kong National Party's operation under Societies Ordinance | The Secretary for Security prohibited the continued operation of the Hong Kong National Party in purported relying on section 8(1)(a) of the Societies Ordinance (Cap.151). The probable rationale is that prohibition of the Hong Kong National Party's operations is necessary in the interests of national security or public order or the protection of the rights and freedoms of others. It is doubtful whether the promotion of a certain “political idea” of itself could suffice as a legitimate basis of invoking the “national security” ground of Section 8 to prohibit the continued operation of a society in Hong Kong and the restriction to freedom of association must pass the proportionality test as laid down in Hysan Development.
| Art 3(5) and Annex I, Part 13, "shall maintain... freedom... of assembly,... of association"; Art 27, Art 39 of the Basic Law and as a “basic policy” of the PRC contained in Art 3 of JD, entrenched under Art 159 of BL. |
44 | 12 October 2018 | Disqualification of Lau Siu-lai from 2018 LegCo Kowloon West Constituency by-election | Returning Officer Franco Kwok wrote in a letter that Ms Lau Siu-lai’s nomination was invalid since Lau “completely rejected the governing rights of the Central People’s Government over the Hong Kong Special Administrative Region.” Government spokesperson noted the inconsistency of Lau's democratic self determination ideal as a ground for her invalidation.
| Art 3(5) and Annex I, Part 13 of JD (freedom of expression); BL Art 26, BORO Art 21 (Right to stand for election and right to vote) |
45 | 8 Nov 2018 | Vice-President of Foreign Correspondents’ Club Victor Mallet denied entry | Victor Mallet, Vice-chairman of the FCC in Hong Kong organised and chaired a lunchtime talk with Andy Chan, convenor of the Hong Kong National Party, known advocate of independence. Mallet was subsequently denied the issue of a working visa in Hong Kong 20 , subjected to an extended interrogation by the HK immigration officers and was denied entry to Hong Kong as a visitor 21. As of now, even after receiving international pressure due to its far-reaching diplomatic and human rights implications, the Immigration Department of Hong Kong have yet to issue an explanation for said decisions, with the Chief Executive Lam having responded that she would not “respond to speculation” perfunctorily.
| Art 3(5) and Annex I, Part 13, "shall maintain... freedom... of speech... of press... of travel... of movement"; BL |
46 | 20 Nov 2018 | Permission scheme to use Civic Square of government headquarters for public meetings/processions | In Cheung Tak-wing, the administrative scheme of requiring applications to be made for the use of the Civic square for public processions, blanket refusal on all weekdays and Saturdays to demonstrate and the need to apply for permission on Sundays and public holidays deemed unconstitutional and disproportionate in restricting the freedom of speech and assembly at the Forecourt. Activists Joshua Wong, Nathan Law and Alex Chow have previously been sentenced to imprisonment for six to eight months at CA and later restored to a community service sentence at CFA for unlawfully holding an assembly at the Civic Square in order to "reclaim" it as a space for public demonstration.
| Art 3(5) and Annex I, Part 13, "shall maintain... freedom... of speech... of assembly,... of association"; Art 27, Art 39 of the Basic Law and as a “basic policy” of the PRC contained in Art 3 of JD, entrenched under Art 159 of BL. |
47 | 12 Dec 2018 | Non-prosecution of ex-Chief Executive CY Leung and misstatement of corresponding prosecutorial policy | The allegation of corruption and misconduct in public office against former Chief Executive CY Leung has been investigated by the ICAC and the Department of Justice, after considering the relevant material, concluded that there is insufficient evidence and decided not to prosecute. This decision is discredited as it is reached without seeking independent legal advice, which is a convention that is adopted when the prosecutorial decision relates with senior government official to avoid conflict of interest. Secretary for Justice Teresa Cheng derailed from said convention and stated that prosecutorial decision-making process regarding any senior government official remains internal unless an official within the Department is involved.
| Annex I, Part 3, para 5 for independent prosecuting authority (free from any interference); Art 63 Basic Law |
48 | 12 December 2018 | Eddie Chu Hoi-Dick's disqualification from rural representative election | A Returning Officer decided that Chu Hoi Dick Eddie is not validly nominated as a candidate in the 2019 Rural Ordinary Election. The Decision violates the rights of Chu and of voters, and lacks proper legal basis. In effect, it constitutes political censorship. Despite Chu’s responses to the relevant Returning Officer’s questions stating that he did not support Hong Kong independence, the Returning Officer decided that Chu did not have the requisite intention to uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region (“HKSAR”), and hence was not validly nominated under section 24 of the Rural Representative Election Ordinance (Cap. 576) (“RREO”). Chu is one of nine nominees in Legislative Council elections to have been disqualified from running since 2016, including Agnes Chow in January 2018, and Lau Siu Lai in October 2018.
| Art 3(5) and Annex I, Part 13 of JD (freedom of expression); BL Art 26, BORO Art 21 (Right to stand for election and right to vote) |
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