立法會 CB(2)1335/17-18(04)號文件 LC Paper No. CB(2)1335/17-18(04) CIVIC PARTY (CP) Submission to the United Nations UNIVERSAL PERIODIC REVIEW Hong Kong Special Administrative Region (HKSAR) CHINA 31st session of the UPR Working Group of the Human Rights Council November 2018 Introduction 1. We are making a stakeholder’s submission in our capacity as a political party of the pro-democracy camp in Hong Kong for the 2018 Universal Periodic Review on the People's Republic of China (PRC), and in particular, the Hong Kong Special Administrative Region (HKSAR). Currently, our party has five members elected to the Hong Kong Legislative Council, the unicameral legislature of HKSAR. 2. In the Universal Periodic Reviews of PRC in 2009 and 2013, not much attention was paid to the human rights, political, and social developments in the HKSAR, whilst some positive comments were reported on the HKSAR situation. i We wish to highlight that there have been substantial changes to the actual implementation of human rights in Hong Kong since the last reviews, which should be pinpointed for assessment in this Universal Periodic Review. In particular, as a pro-democracy political party with members in public office at the Legislative Council (LegCo), we wish to draw the Council’s attention to issues related to the political structure, election methods and operations, and the exercise of freedom and rights within and outside the Legislative Council in HKSAR. Most notably, recent incidents demonstrate that the PRC and HKSAR authorities have not addressed recommendations made by the Human Rights Committee in previous concluding observations in assessing the implementation of International Convention on Civil and Political Rights (ICCPR). There are worrying signs of further erosion of rights in the HKSAR. 3. This submission focuses on issues related to Art. 19, 21, and 25 of the ICCPR. Civic Party urges the PRC and HKSAR governments to ensure the implementation of the relevant rights in the HKSAR . Part 1 - Constitutional Reforms for Chief Executive and Legislative Council elections 4. Constitutional reforms for genuine universal suffrage for the Chief Executive and the Legislative Council elections have been delayed for almost a decade and still lack progress. As it currently stands, LegCo is a semi-democratically elected body comprising 70 members, 35 of whom are directly elected through five geographical constituencies (GCs) under the proportional representation system with largest remainder method and Hare quota. The other 35 seats are indirectly elected through trade-based and profession-based functional constituencies (FCs) with limited electorates largely controlled by the pro -Beijing camp. The main functions of the Legislative Council are to enact, amend or repeal laws; examine and approve budgets, taxation and public expenditure; and raise questions on the work of the government. Meanwhile, the Chief Executive is elected by the Election Committee comprising 1200 members from selective constituencies and industries, while ordinary residents of HKSAR are not entitled to direct votes in the election. 5. When constitutional reform was initiated in 2014, on 31 August 2014, the Standing Committee of the National People ’s Congress (NPCSC) adopted a decision (831 Decision) on the selection method of the 2017 Chief Executive and 2016 Legislative Council elections. The 831 Decision provides for a “one person, one vote” electoral framework. However, it came with a pre -selection process that raised serious concerns about the representativeness and openness of the nomination process. The requirement that “the Chief Executive has to be a person who loves the country and loves Hong Kong" also brought about controversy. As the 831 Decision stipulates that a nomination committe e of 1200 members, which is largely controlled by the pro-Beijing camp, would nominate two or three candidates, and each candidate must have the endorsement of more than half of all members of the nominating committee. There was public backlash against the 831 Decision as the mechanism it proposed would exclude candidates of certain political views, especially ones that are not pro -Beijing. 6. The Human Rights Committee stated its concerns in its Concluding Observations (April 29, 2013, para 6) and recommend ed that: “Hong Kong, China, should take all necessary measures to implement universal and equal suffrage in conformity with the [ICCPR] as a matter of priority for all future elections. It should outline clear and detailed plans on how universal and equal suffrage might be instituted and ensure enjoyment by all its citizens, under the new electoral system, of the right to vote and to stand for election in compliance with article 25 of the Covenant, taking due account of the Committee's general comment No. 2 5 (1996) on the right to participate in public affairs, voting rights and the right of equal access to public service. It is recommended to consider steps leading to withdrawing the reservation to article 25(b) of the Covenant.”ii (Emphasis added). 7. Civic Party LegCo members co-signed a submission in response to OHCHR’s request on 16 November 2017 for information relating to the Questionnaire on the contribution of parliaments (See Annex I), illustrating the incompatibility of the 831 Decision with Art. 25 of the ICCPR, and the lack of proper human rights considerations in the NPCSC as the 831 Decision was formulated. As of today, the NPCSC and the HKSAR Administration have not shown any initiative in altering or removing the 831 Decision so that it would be aligned with universally recognised standards for democratic elections, such as that provisioned in ICCPR. Worse still, it appears that the HKSAR Administration has no plan to introduce any constitutional reform in this administrative term (2017 -2022). This highlights that the PRC and HKSAR Administration have no desire to fulfill their treaty obligations under Art. 25 of the ICCPR or under their constitutions to implement genuine universal and equal suffrage for the Chief Executive and Legislative Council elections. Part 2 - The Freedom of Assembly, of Procession, of Demonstration and of Expression 8. Public backlash to the 831 Decision prompted the 79-day Occupy Central protests, aka the Umbrella Movement, a peaceful demonstration drawing a large number of HK residents and members of the civil society to the streets. In its aftermath, the HKSAR Administration ordered numerous a rrests and prosecution of student leaders, politicians, and participants of the movement. This shows the HKSAR Administration’s increasing intolerance on the exercise of freedom of assembly and expression by Hong Kong residents. 9. On 7 November 2017, a group of UN experts urged the HKSAR Government to honour its human rights commitments towards democracy activists when three democracy activists, Joshua Wong, Nathan Law and Alex Chow were sentenced by the Court of Appeal to imprisonment. They were charged un lawful assembly as they had entered into an enclosed area, commonly known as the Civic Square, outside the Government Headquarters at the beginning of Occupying Central. iii Although the three student leaders successfully appealed against their imprisonment s entences in the Court of Final Appeal, the relatively strict sentencing guidelines set by the lower court with regards to unlawful assemblies were upheld. iv 10. It is worth noting that the Human Rights Committee has expressed concerns regarding the Public Order Ordinance itself : “[t]he Committee is concerned about (a) the application in practice of certain terms contained in the Public Order Ordinance, inter alia, “disorder in public places” or “unlawful assembly”, which may facilitate excessive restriction to the Covenant rights, (b) the increasing number of arrests of, and prosecutions against, demonstrators, and (c) the use of camera and video -recording by police during demonstrations (arts. 17 and 21).” It also recommended that “Hong Kong, China, should ensure that the implementation of the Public Order Ordinance is in conformity with the Covenant. It should also establish clear guidelines for police and for records for the use of vi deo-recording devices and make such guidelines accessible to the public. ” (Emphasis added). v 11. The same Court of Appeal, upon a similar application made by the Secretary for Justice to review sentences, changed the sentences of thirteen activists convicted of unlawful assembly from community service orders to 8-13 months of imprisonment on 15 August 2017.vi These cases are pending appeal at the Court of Final Appeal. Another nine Occupy Central leaders are facing different charges of common law public nuisance, an archaic offence rarely used in Hong Kong, vii with ongoing hearings in process. 12. These legal actions criminalise legitimate and relatively peaceful exercise of fundamental rights of opinion and expression, peaceful assembly and association, and the right to defend these rights under Art. 19 and 21 of the ICCPR. Part 3 - The Right to Vote and to be Elected, to Take Part in Public Affairs, and the Rule of Law Barring Candidates from Running at Elections 13. Following the Umbrella Movement, the HKSAR administration barred a number of candidates from standing in elections. In the Legislative Council General Election in September 2016 (2016 LegCo Election), five candidates were disqualified on the basis that they allegedly campaigned on pro-independence platforms, despite most of them were non-violent. viii This contrasts with the fact that Edward Leung Tin Kei, who ran a similar pro-independence campaign, was qualified to run in the Legislative Council By-Election in February 2016. Among the disqualified five in September 2016 was Chan Ho Tin, convener of the Hong Kong National Party, who launched a petition against the Returning Officer’s decision to disqualify him from running. The court however ruled against him, citing NPCSC’s interpretation of the Basic Law and that the Returning Officer ’s decision was “clearly correct”.ix 14.