UN Human Rights Committee Criticizes Rulings of Hong Kong’s Top Court
The United Nations Human Rights Committee, the official watchdog of the implementation of the International Covenant on Civil and Political Rights (ICCPR), issued strong-worded concluding observations in light of Hong Kong’s human rights violations after the National Security Law (NSL) was enacted.
Article 39 of the Basic Law, a constitution-like document in Hong Kong, warrants that the ICCPR and other international human rights treaties remain applicable in Hong Kong. Thus the Hong Kong government has an obligation to fulfill the requirements and recommendations of the treaty bodies. The local Bill of Rights Ordinance (BORO) in Hong Kong is a domestic law that brings the ICCPR into the local legal framework. The ICCPR, the Basic Law, and the BORO form a “metal triangle” that is supposed to safeguard the civil and political rights of the people of Hong Kong in line with the universal human rights standards.
The concluding observations from the U.N. Human Rights Committee were authored by independent human rights experts in the committee, whose backgrounds range from serving judges to lawyers and international legal scholars. Findings from the U.N. committee are authoritative and influential in advancing the international human rights regime in a domestic context.
While most of the media attention focused on the Committee’s call for Hong Kong to repeal the NSL, one key highlight of the concluding observations should be its implicit disagreement with several Court of Final Appeal (CFA) rulings.
The CFA serves as Hong Kong’s top court, enjoying the power of final adjudication in the city. Many lawyers and legal scholars see the CFA as the guardian of civil and political rights in Hong Kong. In the early days after Hong Kong’s handover to China’s control, the CFA demonstrated a solid commitment to protecting fundamental rights like freedom of expression and free peaceful assembly. As our analysis highlighted, the CFA issued rulings citing international human rights laws, scholarly principles like the Siracusa Principles, and judgments from the European Court of Human Rights.
That said, Hong Kong has only a limited degree of autonomy nowadays, and court rulings have reflected this. In recent years, the CFA took extraordinary steps to restrict the fundamental political rights of citizens, with less appreciation of international human rights standards.
Since China imposed the NSL on Hong Kong, only two pre-trial hearings related to the NSL were heard at the CFA, and they were both about bail appeals. Under the NSL, defendants are no longer entitled to the common law principle of “presumption of bail” before criminal trials. Instead, they must convince the court that they would not commit any activities endangering national security if they were granted bail. Otherwise, the court would regard the defendants as providing insufficient grounds for bail, thus keeping them in detention without trial. Most NSL defendants have been remanded for more than one year without knowing the date of their formal trials.
The CFA not only affirmed this new bail principle under the NSL but also decided to stretch this principle to other trials for sedition, which is not an offense in the NSL. The CFA ruled that sedition is one of the offenses endangering national security, and thus the court shall apply the NSL bail principle in those cases. In essence, the CFA took the lead in expanding the application of the NSL in Hong Kong’s legal system. Consequently, it imposed a wider restriction on defendants’ rights to a fair trial and due process in national security cases. Such a ruling is inconsistent with international human rights standards prohibiting lawful arbitrary detention.
The CFA also gave disappointing rulings on protecting free speech in its constitutional review of the city’s anti-mask regulation. In 2019, Hong Kong’s chief executive exercised power under the local emergency law to promulgate the anti-mask rule without legislative approval. The CFA affirmed the constitutionality of the emergency law. It further claimed the anti-mask regulation is consistent with the BORO and serves as a proportionate restriction on protest rights.
The new concluding observation by the U.N. Human Rights Committee should be read as a subtle but robust rebuttal to the CFA decisions above. The Committee asserts that the ICCPR prevails over local legislation and laws applicable in Hong Kong, including the NSL. It implies that the CFA and the Hong Kong government must take the ICCPR into account as a constitutional obligation under the Basic Law, as well as the commitment of Hong Kong as part of the international human rights regime.
The concluding observation further criticizes the CFA rulings in the past few years. The Committee argues that the anti-mask regulation imposes undue restrictions on the exercise of the right of peaceful assembly and must be repealed. It denounces the emergency law, which does not conform to the ICCPR standards and should be revised. The Committee worries about “sedition” becoming a new national security crime as upheld by the CFA and asks the Hong Kong government to repeal the sedition law and review all pending sedition cases. Lastly, it disapproves of the new principle of the presumption against bail under the NSL framework, which was endorsed by the CFA.
The NSL indeed prohibits the CFA from challenging the constitutionality of the law. China’s National People’s Congress Standing Committee would override any CFA decision to that effect by re-interpreting the Basic Law, as it did in the past. Yet it does not mean that the CFA can shirk its responsibility to uphold the ICCPR standards in its rulings. The concluding observations from the Human Rights Committee reiterate many rights-respecting arguments against the acts of the Chinese and Hong Kong authorities since the 2019 protests. Still, the CFA preferred the narratives and views of the sovereign state in its rulings on politically-sensitive cases, leading to the deterioration of basic rights protections in the Hong Kong judicial system.
The CFA had recently given fair rulings in some protest-related cases. Although the U.N. Committee’s concluding observations are not legally binding, the CFA must continue demonstrating its constitutional commitment to safeguard human rights and the rule of law by incorporating the Committee’s recommendations in future rulings. The government’s position that isolates Hong Kong from universal values of human rights, civil liberties, and the rule of law is not the right track for the judiciary to follow.
(Published in the Diplomat, 29 July 2022)