I confess that I am not a regular reader of the Bible. However, I turned to Psalm 8 in the King James Version last week and read:
“Out of the mouths of babes and sucklings, hast thou ordained strength because of thine enemies, that thou mightest still the enemy and the avenger”. This is sometimes paraphrased as: “Wisdom and strength from the mouths of babes.”
I did this after seeing an unusual YouTube video produced by the Law Society of Hong Kong.
About twenty children dressed in bright pink shirts sang a bouncy and bubbly song encouraging us all to pull together and sing the praises of Hong Kong and the rule of law.
The Chairman of the Law Society and a few other Council members, dressed in identical natty sports jackets, bobbed and boogied along and urged us to “Have faith in the years to come”.
The adult contributions to the song did not detract from the message viewers were meant to take away from it.
The message was that the future of Hong Kong and the Rule of Law lay with these children and that we adults were not doing enough to protect it from bad-mouthers and other detractors.
The lyrics went:
“What can we do to protect Hong Kong from unfounded wrong allegations?
Tell the world we’re working well; Rule of Law is strong.”
As if on cue, the United Nations Human Rights Committee (UNHRC) published its “Advance Concluding observations on the fourth periodic report of Hong Kong, China” on 27 July.
The UNHRC gets to examine the state of human rights protection in Hong Kong because, before 1997, the United Kingdom signed the International Covenant on Civil and Political Rights (ICCPR) and applied its provisions to Hong Kong.
China, which was not even a signatory to the ICCPR in 1985, declared in Annex 1 to the Joint Declaration that the ICCPR as applied to Hong Kong “shall remain in force.”
China signed the ICCPR in 1998 but, crucially, has not ratified the treaty so it has no binding effect.
One of the obligations under the ICCPR is to report periodically on implementing the Covenant to the UNHRC and submit to a close examination of the report. China took over when the United Kingdom ceased to have any responsibility under the ICCPR on June 30, 1997.
China made sure that the Hong Kong government reported to the UNHRC when required, with Hong Kong making four reports to the Committee since 1997 under Beijing’s guidance.
The continuation of the ICCPR as applied to Hong Kong beyond 1997 was so important that it found its way into the Basic Law. Article 39 says the Covenant’s provisions “shall remain in force and shall be implemented through the laws of the [Hong Kong Special Administrative Region].” The article also says that no domestic laws should contravene the requirements of the ICCPR as applied to Hong Kong.
The Committee’s concluding observations are like a headmaster’s report on the state of human rights in Hong Kong. Its comments highlighted some bright spots, such as enacting new anti-discrimination laws and establishing a Commission on Children. Still, the rest of the report made grim reading with “fails,” “not enough effort,” and “could do better” remarks all over the place.
The UNHRC identified the national security law as the principal obstacle to Hong Kong residents enjoying the full rights and freedoms they were meant to have under the ICCPR as applied to Hong Kong. It urged Hong Kong, China, to “[T]ake concrete steps to repeal the current National Security Law and, in the meantime, refrain from applying the Law.”
The concluding observations were not well received. According to English-language news reports, the Hong Kong and Macao Affairs Office (HKMAO) said the comments were “biased and untrue,” “fallacious,” and lacked objectivity. Other reports said that the Liaison Office said the security law “fully protects human rights.” In the words of the Law Society song, the UNHRC had made “unfounded wrong allegations.”
The questions now are: What are we going to do about it? Who will “tell the world we’re working well; Rule of Law is strong?”
We all know that saying something is so does not make it so. The UNHRC is not an NGO that might be supposed to have an agenda against Hong Kong. Nor is it a government body that is hostile to China. Its pronouncements matter. People take note of them.
They matter because the UNHRC is an expert body responsible for overseeing the faithful implementation of the ICCPR. Under Article 28(2) of the ICCPR, its 18 members are “nationals of the States Parties to the present Covenant who shall be persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience.”
The present Committee includes members from Paraguay, Egypt, Tunisia, Morocco, Uganda, Chile, Ethiopia, and Togo. Only one member hails from a major Western common law country, Canada. Their backgrounds are mainly legal and bear out the required “recognised competence in the field of human rights” in spades. Notably, the members serve in their personal capacities and are not delegates of their countries.
Against the background of the obligation voluntarily incurred by China to submit reports to the UNHCR and to receive comments on those reports, charges of “meddling” or “interference in internal matters” will not hold water.
Nor can the representatives of the Hong Kong government who presented the report claim that UNHRC members ambushed them. The reporting procedures are well-established. A reporting state deals with implementing the ICCPR thematically, referencing each relevant article. If the UNHRC believes that the reporting state needs to deal with issues of particular concern to its members, it will send notice of those concerns.
On 6 August, 2020, soon after the implementation of the national security law, the UNHRC published a list of issues which it required Hong Kong to address arising out of the promulgation of the new legislation. The government replied at the end of the same month.
In the roughly two years between the UNHRC first raising concerns about the security law to the oral presentation of Hong Kong’s fourth report last month, significant issues of UNHRC concern had arisen following the introduction of the national security law.
They included: the appointment of special judges to deal with national security cases, the abolition of the presumption of bail for national security cases; excessive remand periods in such cases; and the revival of the sedition law as an “offence endangering national security.”
These were all “hot button” topics, and the team of Hong Kong representatives would have expected, as indeed happened, a grilling on them at the oral hearings in July.
The government team did a lousy job in dealing with the UNHRC’s questions. Either that or the Committee was – as lawyers sometimes say of headstrong judges – “off on a frolic of its own,” wilfully ignoring the only relevant legal arguments coming from the Hong Kong representatives at the hearing.
Going back to the Law Society song and the children’s plea that someone needs to speak out about “unfounded wrong allegations,” we need someone with legal skills to demonstrate how badly the UNHRC messed up in its report.
It will not do for that person just to repeat claims made by the Liaison Office and the HKMAO that the UNHRC comments were biased, unfair and lacking in objectivity. Echoing broad criticisms not supported by legal analysis will not cut the mustard with the readers of UNHRC reports with a specialist legal background in protecting human rights.
They will be disposed to accept the views of Committee members. After all, its members are, in the words of the ICCPR, “persons of high moral character and recognized competence in the field of human rights.” Interfering governments and other irritating bodies who wish to bad mouth Hong Kong will use the UNHRC report as a stick to beat the government in the months to come.
The obvious man for the job is our new secretary for justice or his deputy. Either one can make a case for saying that the UNHRC has got it all wrong about the national security law. If someone can step up to the plate and refute the “unfounded wrong allegations,” they will surely not disappoint the Law Society’s juvenile choir members.
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