June 13, 2017
Carrie Lam, Incoming Chief Executive
Room 2601, Convention Plaza Office Tower
1 Harbour Road
Hong Kong Macau Office
Dear Chief Executive Lam,
Human Rights Watch is an independent non-governmental organization that monitors and reports on compliance with international human rights standards in more than 90 countries around the world. We have been reporting on and advocating solutions to human rights abuses in Hong Kong and mainland China for more than 30 years.
We are writing on the occasion of the 20th anniversary of the establishment of the Hong Kong Special Administrative Region (HKSAR), as well as your inauguration as the chief executive of Hong Kong to share our concerns and recommendations relating to human rights in Hong Kong.
Human Rights Watch has, over the past decade, been alarmed by the central Chinese government’s encroachments on Hong Kong’s autonomy, and by successive Hong Kong administrations’ unwillingness to push back vigorously on those threats. Hong Kong authorities are obliged by the Basic Law, the territory’s functional constitution, and by international treaty obligations to uphold human rights protections. Doing so is not only essential for the full exercise of rights, but is also important for the success of Hong Kong as an international financial center. Some in the business community, such as the Canadian Chamber of Commerce, have raised concerns regarding “ongoing degradation of Hong Kong’s press freedom” as well as the abduction of the bookseller Lee Po from Hong Kong in 2016.
We hope you will vigorously defend these rights on behalf of the people in Hong Kong, many of whom have expressed their discontent through repeated protests. Our specific concerns and recommendations include:
1. Central Government’s Rhetorical Attacks
The 1984 Sino-British Joint Declaration, a bilateral treaty, states that the Chinese government will grant Hong Kong "a high degree of autonomy” in matters other than national defense and foreign policy, and that the territory's capitalist system and way of life shall “remain unchanged for 50 years.” The Basic Law, promulgated by China in 1990 to set out the basic policies governing the territory, codifies the principle of “one country, two systems” and provides that, with the exception of laws relating to defense and foreign affairs, China's national laws will not apply in Hong Kong. Instead, as both documents affirm, the “rights and freedoms” enjoyed by Hong Kong's inhabitants will be maintained.
However, since the handover, both central government leaders, officials, and scholars with close mainland government ties have repeatedly sought to walk back on this promise by redefining the relationship between mainland China and Hong Kong. Increasingly, “one country” is stressed over “two systems,” raising serious concerns about Beijing’s commitment towards Hong Kong’s constitutional arrangements. For example, during a visit to Hong Kong in 2008, then-Chinese Vice-President Xi Jinping stated that there should be “mutual understanding and support amongst the Executive, the Legislature and the Judiciary” in Hong Kong, a remark that runs contrary to the territory’s established traditions of separations of powers. In 2014, the Chinese State Council issued a white paper on Hong Kong, which declares that Beijing has “comprehensive jurisdiction” over the territory, that Hong Kong’s autonomy is “subject to the level of the central leadership's authorization,” and that the " ‘two systems’ is subordinate to and derived from ‘one country’.” Most recently, in April 2017, Chief of Legal Affairs at China Liaison Office in Hong Kong, Wang Zhenmin said “One Country, Two Systems” could be abolished altogether if the city “fails to actively defend the sovereignty, national security and development interests of the country in accordance with law.”
Hong Kong’s executive officials have so far failed to publicly protest, or even raise concerns to Beijing, when these statements were made. When asked specifically by reporters about those statements, top Hong Kong officials generally downplayed concerns.
- Human Rights Watch urges you to use the opportunity of the visit by President Xi Jinping to Hong Kong in July to publicly reject the trend towards weakening the “one country, two systems” arrangement, and to publicly assert an expectation that Hong Kong will retain control over all issues other than foreign affairs and defense.
2. Failure to make progress on democratic reform
The Basic Law states that universal suffrage is the “ultimate aim” as a means for the selection of the chief executive, the top leader, as well as members of the Legislative Council. It also provides that the International Covenant on Civil and Political Rights (ICCPR) applies to Hong Kong, and the Covenant’s guarantee of universal and equal suffrage means that people not only have the right to vote in elections, but also that they should have the right to stand for elections regardless of their political views. The Basic Law also states that after 2007, Hong Kong could move towards the goal of universal suffrage by amending the electoral methods in three steps. Yet the central government, in a series of decisions made since 1997, has backtracked and seemingly foreclosed on this obligation to institute universal and equal suffrage.
The commitment to allowing electoral reform to be decided by Hong Kong people was first broken on April 6, 2004, when the National People’s Congress Standing Committee (NPCSC) made an “interpretation” of the Basic Law adding a requirement that the chief executive submit a report to Beijing justifying the need for any further democratization. The decision means that electoral reforms can only be initiated by Beijing's hand-picked chief executive, and that the NPCSC must then approve any reform proposals initiated by the chief executive before the Legislative Council can weigh in. This in effect bars Hong Kong's semi-democratic legislature from taking any action without Beijing’s approval. In 2004, NPCSC ruled out universal suffrage for the 2007 selection of the chief executive and the selection of the 2008 Legislative Council. In 2007, it ruled again that there would not be universal suffrage for the next elections of the chief executive and the Legislative Council in 2012. In 2014, the NPCSC ruled that while it will allow all eligible voters in Hong Kong to cast ballots for the territory’s chief executive, it will impose a stringent screening mechanism that effectively bars candidates the central government in Beijing dislikes from nomination for chief executive.
Beijing encroached on Hong Kong’s judicial independence in November 2016 when it intervened in a politically charged court case. The central government issued an interpretation of the Basic Law which compelled the Hong Kong court to disqualify two elected legislators from office who support Hong Kong independence.
Successive chief executives have failed to challenge Beijing at these and other key moments. Following the central government’s first judicial interpretation in 2004, then-Chief Executive Tung Chee-Wah praised the decision because it “further the success of the implementation of One Country, Two Systems.” In 2007, when Beijing ruled out democracy for Hong Kong’s next election, then Chief Executive Donald Tsang again praised the decision “as a major step towards the development of Hong Kong’s political system.”
In 2017, Hong Kong’s Chief Executive Leung Chun-ying conducted a five-month public consultation on political reform, and presented his report to the NPCSC. That report asserted that it is “mainstream opinion” in Hong Kong that chief executives must “love China and love Hong Kong;” that the power to nominate chief executive candidates should be vested in a committee like the current structure controlled by Beijing; and that the legislature should not be democratized before the next elections. Although the public consultation was ostensibly open to public input, the results as presented to the central Chinese government as “mainstream opinion” were clearly manipulated and failed to reflect different views articulated by large segments of the population, who have consistently expressed strong desires for genuine democracy.
Although you have expressed “understanding” that many in Hong Kong “desire…universal suffrage,” you have also agreed to abide by Beijing’s framework, which does not offer genuine democracy.
- Human Rights Watch urges you to restart the political reform process by submitting to Beijing a report justifying the need for greater democratization, that acknowledges compliance with international standards, the Basic Law, and the opinion of a large segment of the population requires the equal right of Hong Kong people to elect and to be elected in the selection of top leaders.
3. Increasing harassment of opposition political parties
Hong Kong government actions are increasingly tarnishing the territory’s reputation as a place that allows a diversity of political parties, including pro-democracy parties.
Political parties have to register as companies because there are no specific laws regulating these entities. Usually individuals are only required to submit a few simple documents, such as an incorporation form, and it typically only takes days, to obtain registration. If documents are deemed “unsatisfactory,” the Company Registry can refuse a registration application. The Company Registry has refused to register a number of pro-democracy groups. In 2014, it rejected the application of the Occupy Central civil disobedience movement, a group tied to the Umbrella Movement, on the grounds that it intended to “commit unlawful activities.” In 2017, it again rejected the application of the Hong Kong National Party, because the promotion of “Hong Kong independence is against the Basic Law.” It has not approved the application filed by the Demosistō political party, led by activist Joshua Wong, since April 2016. Instead, it has contacted the group to seek clarification of its activities, including how they may “not be contrary to the provisions of the Basic Law.”
These political parties have also faced obstacles to opening bank accounts, which hampers their abilities in raising funds – a peculiar development, given Hong Kong’s consistent rating as one of the world’s leading centers for financial activity. In 2016, HSBC refused to open a joint account for Joshua Wong and Agnes Chow of Demosistō, for “administrative” and “commercial” reasons. Similarly, spokesperson for the pro-independence group Youngspiration said almost all the Hong Kong banks they approached refused to open an account for them. The Bank of China, which had allowed Youngspiration to open an account in 2016, abruptly closed the account in February 2017 “due to various reasons,” while HSBC froze the account of its convener, Baggio Leung Chung-hang.
Harassment of opposition political parties even extended to the sale of merchandise. In 2017, the Food and Environmental Hygiene Department barred Youngspiration and Hong Kong National Party from the annual Chinese New Year fair, where many other political parties were allowed to run stalls, because their pro-independence message may cause “disagreements” and “endanger public safety.”
Hong Kong authorities have increasingly pursued politicized prosecutions of pro-democracy activists. On April 26, 2017, Hong Kong police arrested Yau Wai-qing and Baggio Leung, two pro-independence activists and former legislators, on charges of “unlawful assembly” and “attempted forced entry.” The charges stem from the pair’s attempt to attend a Legislative Council meeting on November 2, 2016, after they were barred from meetings pending a judicial review of their council membership. Nine more activists were arrested the next day, April 27, 2017, and charged with participating in unlawful assembly, obstructing police, and inciting disorderly conduct in a public place. The charges stem from a November 6, 2016 protest, which was largely peaceful, against a decision by China’s top legislative body that forced Hong Kong courts to disqualify Yau and Leung.
- Human Rights Watch urges the Hong Kong government to drop charges against protesters and pro-democracy leaders for their peaceful activities.
- The Hong Kong government should also immediately approve the company registration applications of Demosistō, and scrap the original decision to deny such registration to Hong Kong National Party.
4. Lack of clarity concerning the role of mainland security agents in Hong Kong
In 2016 and 2017, respectively, two individuals – a British bookseller, Lee Po, and a Canadian billionaire, Xiao Jianhua – disappeared from Hong Kong. Lee later returned to Hong Kong, but there has been no information about Xiao’s whereabouts. In both cases, credible evidence suggests that the two were abducted by mainland security agents in Hong Kong. Lee went missing while his travel documents remained in Hong Kong; he later resurfaced in China, saying that he had gone there voluntarily “using his own methods” in order to “cooperate in a judicial investigation.” In Xiao’s case, witnesses say he was taken away by half a dozen unidentified men.
Hong Kong Chief Executive CY Leung had said, soon after news broke about Lee Po’s abduction in January 2016, that it would be “unacceptable for mainland law enforcement to operate in Hong Kong” because it “violates the Basic Law.” However, at the same time, Leung also said there was “no indication so far” that these agents were involved.” Six months later, in June 2016, CY Leung sent a letter to Beijing seeking information about the case, including whether any mainland security agents had operated in Hong Kong. Although mainland authorities had acknowledged receipt of the letter, so far it has not replied directly to this crucial issue, and there is no public information indicating that the chief executive has further pressed the question. Similarly, Commissioner of Police and Secretary of Security of Hong Kong both said in February 2016 that “there was no evidence to suggest that Lee Po was forcibly taken away;” while they both vowed to “follow up,” neither has released any information about it.
To date, there continues to be no clarity of the role of mainland agents in the two cases of abductions, despite repeated requests from the press and civil society. In addition, the uncertainty on Hong Kong’s posture towards external agents seeking Hong Kong residents was reinforced when it came to light that Sri Lankan CID officers were seen in Hong Kong searching for the asylum-seekers who sheltered Edward Snowden. No official report on this incident has been made either.
Pro-democracy activists and politicians have also alleged that they have been subjected to surveillance and monitoring by mainland security agents in Hong Kong. It is unclear whether and to what extent the Hong Kong authorities may be involved in such monitoring, and the extent to which Hong Kong and Chinese authorities cooperate or share information.
- Human Rights Watch urges you to publicly challenge President Xi on the issue of cross-border abductions, and to clarify the nature of cooperation with mainland security agents in Hong Kong, including in the cases of the bookseller, Xiao Jianhua, and pro-democracy activists.
The steady deterioration of Hong Kong’s press freedom has been well-documented. The 2016 detention of Hong Kong-based booksellers, and the 2016 imprisonment in mainland China of booksellers Yiu Mantin, chief editor of Morning Bell Press, James Wang Jianmin, a US citizen and editor of magazines Multiple Face and New-Way Monthly, and his associate Guo Zhongxiao, all sent a deep chill through Hong Kong’s media and publishing industry. There is also evidence that the Chinese government has tightened control over the sale of sensitive political books by monopolizing ownership of almost all storefront bookstores.
Political censorship has extended to academia. In 2015, CY Leung attacked the University of Hong Kong Student Union magazine Undergrad for advocating independence. In September 2015, the University of Hong Kong council rejected its own search committee’s recommendation to appoint former law dean Johannes Chan Man-mun as pro-vice chancellor; it was widely believed that Chan was rejected because he had supported the Umbrella Movement. A spokesperson for the Education Bureau warned teachers in August 2016 that if they were found advocating independence in school they could lose their professional qualifications.
- Human Rights Watch notes that you signed the Pledge to Uphold Press Freedom in a forum held by the Hong Kong Journalists Association prior to being selected as the chief executive, and promised to introduce an access to information law and archive law and to allow access by online media to government press events and facilities. If these commitments are fulfilled, it would certainly be an encouraging step.
- Human Rights Watch also urges you to make a strong public statement advocating for freedom of expression in Hong Kong, including by rejecting the previous warning issued by the Education Bureau to teachers concerning the peaceful advocacy of political positions in schools.
We look forward to your reply and would be pleased to discuss these matters with appropriate officials at your convenience.
Human Rights Watch