Human Rights Watch/Asia is a private, independent human rights monitoring organization. We appreciate the opportunity to appear today before this Committee to present our perspective on human rights in Hong Kong.
In less than seventy days, Hong Kong will revert from British colonial rule to Chinese sovereignty on July 1, 1997. But as the transition approaches, there is growing concern about whether China will keep its commitments to uphold basic human rights and the rule of law in Hong Kong as promised in the 1984 Sino-British Joint Declaration and the 1990 Basic Law. The first is an international treaty, registered at the United Nations; the second is the "mini-constitution" for the new Special Administrative Region (SAR) of Hong Kong, adopted by the National People's Congress (NPC) of China on April 4, 1990.
There is good reason for this concern. In recent months, Beijing has accelerated the process of asserting its control over Hong Kong, aiming to ensure "social stability" and "national security" during the transition and in the months after. And it has already begun to renege on key commitments that are crucial to Hong Kong maintaining a "high degree of autonomy" after July 1, 1997.
For example, on December 21, 1996, Beijing set up an appointed "provisional legislature" to replace Hong Kong's Legislative Council (Legco) elected in September 1995, despite the fact that its current four year term has yet to expire. Consisting of sixty individuals chosen by Beijing's hand-picked Selection Committee, the provisional legislature is not mentioned in either the Joint Declaration or the Basic Law. (In fact, Article 68 and Annex II of the Basic Law clearly state that the first Legislative Council of the SAR should be constituted by election.)
But this sham group is already meeting across the border in Shenzhen, and has begun to prepare and draft laws to be enacted and to come into force as of July 1. Fifty of the sixty members are from the Selection Committee itself; thirty-three are members of the elected Legco. The strongest parties represented are pro-business and pro-China; the Democratic Party led by Martin Lee boycotted the entire process calling it illegitimate. Elections have been promised by Mr.Tung Chee-hwa, the chief executive- designate for the SAR, sometime in the next year, under a scheme yet to be devised by the provisional legislature.
Hong Kong thus currently finds itself in the bizarre situation of having two legislatures sitting simultaneously: one elected by the people of Hong Kong, and the other appointed by and accountable to the Chinese government.
There are other clear reasons for concern: Hong Kong's free press and the independent judiciary have been threatened. Foreign Minister Qian Qichen warned last October that the media can be critical, but cannot put forward "rumors or lies" or publish "personal attacks on the Chinese leaders." Self-censorship is already prevalent in much of the press, and the decision last week by the South China Morning Post to hire a senior Chinese editor from Beijing as a "consultant" has increased concern. Article 23 of the Basic Law calls for the adoption of new laws on subversion, succession and theft of state secrets, and measures "to prohibit political organizations or bodies of the Region from establishing ties with foreign organizations or bodies." It is widely feared that these laws could be used by the future SAR government to repress China's critics and to restrict free expression.
Members of the business community I've spoken to in Hong Kong, while publicly optimistic, are privately worried about the possible erosion of the rule of law over time, the spread of corruption into Hong Kong from mainland China, and possible attempts to control the press or restrict the free flow of information. Some are not convinced that Beijing fully comprehends that these are all essential ingredients to Hong Kong's continued success as a thriving international financial center.
In recent weeks, China has unleashed an international and local furor in Hong Kong by its blatant attempts to roll back fundamental freedoms and civil rights protections in the territory. I would like to concentrate, in my testimony today, on these ominous developments and their implications, and then will make some recommendations for U.S. policy towards Hong Kong.
Hong Kong's Civil Rights Laws:
In January 1997, the Preparatory Committee, a body appointed by China to handle transition matters, decided to repeal sixteen Hong Kong laws, including key provisions of Hong Kong's Bill of Rights Ordinance, and to amend nine others. The Bill of Rights Ordinance was enacted in 1991 in order to bring Hong Kong into full compliance with the International Covenant on Civil and Political Rights (ICCPR) by incorporating its guarantees into Hong Kong law. (The ICCPR has been applied to Hong Kong since 1976, when the UK ratified it; China has neither signed nor ratified the ICCPR but has agreed in the Joint Declaration that it should remain in force in Hong Kong.) The National People's Congress ratified the Preparatory Committee's decision in February. But as the Hong Kong Bar Council and other legal experts have observed, Beijing took this action claiming these laws were in contradiction to the Basic Law without providing any explanation whatsoever of precisely how they violated the Basic Law.
Two of the laws to be changed are the 1992 Societies Ordinance and the 1995 Public Order Ordinance, which had been amended to conform with the Bill of Rights in order to firmly protect freedom of association and freedom of assembly. These laws, as amended, have adequately provided for the maintenance of public order even as Hong Kong people have increasingly exercised their right to gather, protest and demonstrate.
To fill the legal vacuum created by the changes, the provisional legislature is preparing to enact new regulations to take effect on July 1. They would require all non-governmental organizations (NGOs) to register with the police, impose restrictions on public demonstrations, and empower the government to ban some organizations altogether. Mr. C.H. Tung issued a "Consultation Document" earlier this month outlining the basic provisions of these draconian proposals, saying he was trying to achieve a "balance between civil liberties and social stability." He also justified these more stringent controls by saying that "Hong Kong is extremely vulnerable to external forces" -- repeating Beijing's constant warnings about subversion. All "political organizations" would be prohibited from soliciting or accepting financial assistance from abroad. Most significantly, Mr. Tung is justifying these measures on grounds of "national security."
In the view of Margaret Ng, a Hong Kong legislator and attorney, "China's paranoia about Hong Kong being used as a base for subversion colors the whole issue of the future of civil liberties in Hong Kong after July 1." In fact, the "Consultation Document" says quite bluntly: "We must (also) take steps to prevent Hong Kong from being used for political activities against China."
Civil rights and church organizations in Hong Kong, legislators, the press, the Hong Kong government and Gov. Chris Pattern, the State Department and the White House, as well as international human rights organizations, have sharply criticized the new proposed laws. Mr. Tung's ratings in the polls in Hong Kong have taken a nose-dive (the South China Morning Post, on April 14, 1997, reported that more than forty-five percent of respondents said they had less trust in Mr. Tung to safeguard their interests than when he was appointed). In the last few days, Mr. Tung and his aides, responding to this barrage of criticism from the Hong Kong community, have stated that changes can be made, but only in minor details and not the basic principles. But the fact that Mr. Tung is reacting to pressure is a positive sign, and we hope the pressure can be increased in the coming weeks.
Here is a brief description of two of the most controversial provisions:
-- Under the 1992 Societies Ordinance, organizations simply notify the police within one month of their establishment. Under the new law, NGO's must register with the police and their application can be denied in the interests of national security or public safety or public order, or if the organization engages in "political activities" and has ties to foreign organizations, such as accepting financial contributions from foreign organizations or allowing foreign groups to influence its activities.
-- Notification of police, under the 1995 Public Order Ordinance, is required if more than thirty people are to gather, not less than 24 hours in advance. The police can deny permission in the interests of public order or safety. In fact, hundreds of protests are routinely allowed without incident. Under the proposed law, the police must issue a "Notice of No Objection" before a peaceful protest or demonstration can take place. They can refuse to issue a notice citing national security, public safety public order, protection of health or morals or the protection of the rights and freedoms of others. The definition of "national security" is extremely vague.
These, and other provisions, give wider powers and enormous discretion to the police, and leave the chief executive, Mr. C.H. Tung, as the ultimate arbiter. An "independent appeal board" chaired by a retired judge will be set up to hear appeals of the Police Commissioner's decisions, but the appointment of that board will presumably be made by the Chief Executive. In fact, many in Hong Kong have pointed out that there is no threat to national security, public safety or public order in Hong Kong to justify these new controls, and no changes are needed in the existing laws.
We are most alarmed by the rationale Mr. Tung has given for these new controls, namely that the International Covenant on Civil and Political Rights allows these restrictions, and that they are no more onerous than similar requirements in U.S. law. In fact, the ICCPR does allow some limitations on basic political rights, such as the rights of association and assembly protected in Articles 21 and 22, but they must be clearly "necessary in a democratic society." As the Lawyers Committee on Human Rights has noted, the broad formulations contained in the ICCPR are customarily interpreted in international law to refer, among other things, to situations that clearly threaten public order and national security such as the event of a civil war, disclosure of military secrets, or a demonstration calling for the violent overthrow of the government. A threat to national security is not the same as a threat to any given government, and mere criticism of the governing party or its policies should not be restricted in the name of national security. But Mr. Tung has apparently interpreted the language to mean that the ICCPR broadly sanctions restriction of rights.
It is certainly true that in the U.S., you are required to notify the police and obtain a permit if you plan to hold a demonstration on a public thoroughfare. However, the only grounds on which the authorities can deny permission are "time, place, and manner" restrictions. They cannot, under the U.S.Constitution, deny a permit because of political context or the ideology of the group sponsoring the demonstration.
It is also true that in the U.S., there are registration requirements for associations, but these stem from the nature of the benefits conferred by different kinds of association rather than from their political content or purpose. For example, organizations have to register as corporations to obtain certain legal benefits or tax status. It is unconstitutional under U.S. law to impose restrictions because of a group's political activities or views, or the nature of its membership. Finally, it is important to note the role of the U.S. courts in providing judicial review of these decisions by police authorities in order to safeguard freedom of speech and assembly. Thus far, it is unclear precisely what role the Hong Kong courts will have in overseeing implementation of the new laws.
I would also add that introducing the concept of "national security" into Hong Kong's laws in this way seems to deliberately echo steps already taken in mainland China to stifle dissent using stringent security laws. In an extensive report we will publish next week with another group, Human Rights in China, we analyze the recent reforms in China's criminal code in which "counterrevolutionary crimes" were abolished, but the NPC has created new categories of offenses under the rubric of "endangering state security."
U.S. Policy:
The U.S. has a strong interest in seeing a smooth transition in Hong Kong, and in Hong Kong maintaining a "high degree of autonomy" after July 1. These interests are well defined in the U.S.-Hong Kong Policy Act of 1992. That law provides specific benchmarks and a regular reporting mechanism to assess the implementation of China's obligations towards Hong Kong, as well as authority to the President to suspend existing laws with respect to Hong Kong if he determines that Hong Kong is "not sufficiently autonomous to justify treatment under a particular law of the U.S...different from that accorded the People's Republic of China."
The U.S. also has a larger agenda with China, with a wide range of economic, security and other interests with Beijing and in the region. The survival of Hong Kong must not be sacrificed for those other interests.
Given the importance of the U.S.-Sino relationship -- as evidenced by Secretary of State Albright's recent visit, literally the day before Deng Xiaoping's funeral -- there is potential leverage that could be used, in a constructive way, to press Beijing to honor its commitments to Hong Kong.
The Clinton Administration, until recently, had been muted and rather low-key in response to China's actions. It said, for example, that the abolition of the elected legislature was "unwise and unnecessary" but refrained from saying it clearly violates the Joint Declaration. The Administration has been more forthright in criticizing the moves taken in the past several weeks to stifle civil rights in Hong Kong, and the President, following his meeting with Martin Lee last week, warned China's leaders to "live up to their agreement" to protect basic rights in Hong Kong.
However, we were deeply disappointed by Vice President Gore's decision not to visit Hong Kong when he traveled to China last month. Nor did he speak up clearly and publicly in Beijing on behalf of Hong Kong, as he might have done, for example, during the ceremony initialing a new consular agreement.
We would urge the Administration and Congress to take the following steps in the coming weeks and months:
1) The Administration has announced that President Jiang Zemin will be invited to the U.S. for a summit meeting later this year, but has yet to set the date. When Foreign Minister Qian Qichen visits Washington this weekend, we hope Secretary Albright and President Clinton will make it clear that future high level exchanges -- including a summit in the U.S. this year and the President's planned trip to China next year -- can only take place in the context of significant progress on human rights in China and full respect of Beijing's obligations towards Hong Kong.
2) The U.S. hosts the G-7 industrial leaders summit meeting in Denver on June 22, just days before the handover. It would be very useful if the G-7 leaders, representing virtually all of China's major trade and aid partners, included in their joint communique a strong call on China to respect its promises to maintain an elected legislature, independent judiciary, free press, and other basic human rights in Hong Kong. The G-7 should also agree to assess, at their 1998 summit, China's compliance with these promises.
A multilateral agenda for Hong Kong and human rights in China is desperately needed in the wake of China's triumphant defeat of a resolution at the U.N. Commission on Human Rights earlier this month, using its economic clout to prevent a mild resolution from even coming up for a debate and vote.
3) When C.H. Tung visits the U.S. later this year, to "dispel misconceptions" about Hong Kong, we hope that the Administration and members of Congress will raise questions with him -- frankly and directly -- about many of the concerns discussed at this hearing.
4) We would urge the Administration, both in Washington and through the U.S. consulate in Hong Kong, to be pro-active in stimulating the U.S. business community to be more outspoken, using both private and public channels to raise concerns with Beijing and C.H. Tung about the rule of law, civil liberties, and the essential role of NGOs in Hong Kong. If the business community is perceived as willing to play along passively, they will be open to criticism later if Beijing miscalculates or moves to gradually dismantle or undermine Hong Kong's key institutions.
5) We appreciate the positive role of the U.S. consulate in supporting NGOs in Hong Kong, listening to their needs, and serving as a channel for their concerns. This role will become even more important later this year and next year as legal reforms being enacted now are actually implemented and NGOs may be targeted.
6) We believe members of Congress have been crucial in speaking out for human rights in Hong Kong, both through legislation -- such as the Hong Kong Reversion Act, adopted in the House on March 11, 1997 -- and through regular visits to Hong Kong. Those visits will become even more valuable and necessary after July 1 this year, and next year. In addition, Congress might consider sending a symbolic message of support to the Legco on its last business meeting in late June. The Senate adopted a unanimous resolution in June 1996 condemning the abolition of Legco; a positive message of support, perhaps in conjunction with parliamentarians from Europe, Japan, Korea, Canada, India and other countries, would no doubt be appreciated by the people of Hong Kong.
Additional US policy options:
The US should develop a range possible responses, on a continuum, calibrated to respond to China's actions towards HK. Where possible, it should try to coordinate multilateral actions with other goverments with strong trade/political ties to Beijing eg EU, Japan, Australia, Korea, Canada.
The US should, for example, react strongly to the enactment of the proposed laws placing new restrictions on civil liberties..It should also respond to any new security laws enacted under Article 23, and formally protest if the framework for elections for the new Legco in the SAR does not allow free & open participation, incluidng from strong critics of China.
Possible actions, in addition to public statements, based on an assessment of what political/economic pressure points will deliver the most effective message directly to Beijing, without damaging Hong Kong: (in no particular order)
-- Put off presidential summit meeting planned for Nov.; or, if meeting goes ahead, downgrade high profile events with Jiang and Clinton, restrict scale and length of visit
-- Withdraw from WTO negotiations or put the talks on hold (most effective if done in conjunction with other governments, though this will be difficult to pull off)
--Coordinate, with EU & others, suspension of any planned trade delegations to China or high level business deals due to be signed with Beijing
-- Use the opportunity of the World Bank/IMF annual meeting in Hong Kong in late September to make public statements, symbolic actions (eg US delegates meeting with NGOs that are targetted, outspoken former Legco members, members of the Bar Council and Journalists Assoc.) Hong Kong should be prominent in private talks with senior Chinese officials attending the meeting & CH Tung.
--Delay MFN renewal decision until September 1997 (Senator Connie Mack is planning to introduce legislation that would do this) --Biapartsian Congressional and business delegations of CEO's go to Beijing to deliver direct messages to senior leaders that continued actions against Hong Kong would seriously affect prospects for either permanent MFN/a WTO deal, or summit meetings. Gingrich and Lott should be prepared to lead such delegations, along with Gephardt and Daschle.
