[dropcap]I[/dropcap]t is a truth universally acknowledged (save in mainland China perhaps) that Hong Kong’s pro-democratic protests are among the most peaceful and disciplined in history. It has been, as the BBC reported, a very ‘civil’ disobedience. It should hardly come as a surprise. The protest is officially known as ‘Occupy Central with Love and Peace’; the protesters comprise mostly well-educated students, cultured academics and peace-loving middle-class citizens. Indeed, the movement was initiated in 2013 by a law school professor, Benny Tai Yiu-ting, and is driven by citizens with a strong sense of civic duty. In all this, one sees a glimmer of hope for Hong Kong.
Yet, it is also a fact universally condemned (again, save in the mainland) that the movement and its persistent calls for genuine democracy under the rule of law has been met with intransigence and crackdowns. The Hong Kong government has employed every means at its disposal – both direct and indirect – to undermine the movement. In this sense, Hong Kong has gone through the darkest hours in human rights protection since 1997.
No piece of writing, no word of reprimand, can adequately illustrate the blatancy of the government’s conduct or do justice to the suffering that many peaceful protesters have endured. Suffice it to say, in the ten days since Occupy began, Hongkongers have fallen victim to at least five types of human rights violations. The government has breached its obligation under Article 64 of the Basic Law to ‘abide by the law and be accountable’.
The Basic Law is the constitutional document of Hong Kong, drafted by a committee composed of members from both Hong Kong and the mainland. Under Article 43, the head of the Hong Kong government is the Chief Executive. In the last election, the Chief Executive was selected by an Election Committee comprising 1,200 members returned from various functional constituencies – hardly representative of a population of 7 million people.
In 2007, the Standing Committee of the National People’s Congress (“NPCSC”) made the decision to allow universal suffrage in Chief Executive elections from 2017 onwards. Based on this decision, the current government, led by C.Y. Leung, launched the consultation process on the precise nomination and election procedures. The government has indicated that the reform must ‘comply’ with the Basic Law. This culminated in a consultation report submitted to the Central People’s Government on 15 July 2014. Citing ‘mainstream opinion’ that the Chief Executive should be a person who loves and obeys the country, a nominating committee in accordance with Article 45 of the Basic Law was deemed necessary to screen out disagreeable candidates. Professor Simon Young observed that the report leaves little hope of a genuinely democratic solution.
On 31 August 2014, the NPCSC made a binding decision on the electoral reforms. It prescribed a nominating committee with the same composition as the Election Committee, for the purpose of selecting two to three candidates for a vote by universal suffrage. The rationale – only a person who ‘loves the country’ can be a candidate. The Deputy Secretary-General of the NPCSC even went so far to say that there is no international standard or fundamental political right to democracy other than that granted by the State.
On that same night, Benny Tai declared the “era of civil disobedience” as thousands gathered in Tamar Park opposite the Government Headquarters to protest against the NPCSC’s undemocratic decision. During the week of 22 September, university and secondary school students took part in a classroom boycott and subsequently moved to the Government Headquarters to protest. On 26 September, a group of students stormed a fenced-off public space in front of the Headquarters, the Civic Square. The students were kettled and later arrested.
As the crowds around the Headquarters surged, Occupy was officially launched in the early hours of Sunday 28 September. The protests rapidly spread to the districts of Admiralty, Wan Chai and Central, prompting a violent crackdown by the police that same night. This has provoked public outcry from many Hongkongers, and since then the government has resorted to other tactics to undermine the movement.
Throughout the ten days that followed the launch of Occupy, the Government has committed at least five types of human rights violations. These rights are guaranteed by the Basic Law (in Chapter III) and also the International Covenant of Civil and Political Rights (“ICCPR”), the latter of which is applicable to Hong Kong by virtue of Article 39 of the Basic Law.
1. Unreasonable restriction on the right to vote and stand for election
The unconstitutionality and violation of the Sino-British Joint Declaration of the proposed reform has been explored in detail in an earlier article. By refusing to heed the protests and propose a genuinely democratic election free from any pre-selection, the Government has violated Article 25 of the ICCPR, which expressly provides that ‘every citizen shall have the right and the opportunity… to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors’.
The Human Rights Committee has emphasised in General Comment No. 25 (paragraph 15) that ‘the effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates’, and restrictions must not be by reason of political affiliation. Furthermore, ‘if a candidate is required to have a minimum number of supporters for nomination this requirement should be reasonable and not act as a barrier to candidacy’ (paragraph 17).
To this end, Article 26 of the Basic Law also gives every permanent resident of Hong Kong the right to vote and to stand for election, and this right shall be enjoyed equally by all before the law. Although Article 45 states that the Chief Executive shall be elected by universal suffrage ‘upon nomination by a broadly representative nominating committee in accordance with democratic procedures’, interpreting Article 45 in a way that would mandate an undemocratic procedure and violate Article 26 of the same Basic Law undermines the rule of law. These provisions should have been construed consistently in the context of the Basic Law as a whole (see Li CJ in Ng Ka Ling v Director of Immigration  HKCFA 72 -).
The government’s proposed reforms as mandated by the NPCSC’s decision would rob universal suffrage of its substance, since candidates supported by the electorate may fail to get nominated due to unwritten and unreasonable reasons hidden in the back of the mind of the committee. This violates Article 26 of the Basic Law as well as Article 25 of the ICCPR, completely ignoring the Human Rights Committee’s concerns in its Concluding Observations in 2013 over ‘the lack of a clear plan to institute universal suffrage and to ensure the right of all persons to vote and to stand for election without unreasonable limitations’ (paragraph 6).
2. Kettling restricting right to liberty
Students who stormed the Civic Square were essentially kettled by the police for over twelve hours until they were arrested. They were not allowed to leave, use the toilet or obtain food and water. This was a disproportionate violation of the right to liberty as protected by Article 9 of the ICCPR.
As recognised in Austin v UK  ECHR 459 , ‘the use of containment and crowd control techniques could, in particular circumstances, give rise to an unjustified deprivation of liberty’, having regard to the ‘coercive nature of the containment within the cordon; its duration; and its effect on the applicants, in terms of physical discomfort and inability to leave’. The period of kettling was unnecessary and disproportionate, given that the number of students was small and there was no threat of violence.
Moreover, the prolonged containment amounts to cruel, inhuman and degrading treatment within the meaning of Article 7 of the ICCPR. As pointed out in Kudla v Poland  ECHR 512 , it is a violation if the treatment was ‘applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering… such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them’. The suffering and anguish from being unable to use toilets or obtain food and water was clearly degrading and disproportionate.
3. Unreasonable detention without charge
Student leaders, most notably Joshua Wong, were arrested and detained without charge for over 40 hours. The High Court granted the writ of habeas corpus in order to secure his release, holding that the detention was ‘unreasonable’. Such arbitrary arrest and detention was in violation of Article 28 of the Basic Law and Article 9(3) of the ICCPR – a person arrested must be brought promptly before a judge.
In Brogan v UK (1988) 11 EHRR 1159 , it was stressed that ‘promptly’ has a limited scope and connotes immediacy, and no restriction should take away the very essence of the right. The police cannot arrest someone first and then determine whether they have a connection with some offence (see the Canadian case of R v Whitaker, 2008 BCCA 174). Given that the delay by the police was due to investigations and searches for the purpose of finding evidence of some unknown offence, it was an abuse of police custody and plainly disproportionate. He was arrested for the reason of threatened breach of the peace during the protests and for unlawful assembly contrary to the Public Order Ordinance.
4. Use of force violates right to life and right of peaceful assembly
In a desperate attempt to disperse the crowds before it gained momentum, the police used pepper spray, tear gas and baton charges on peaceful, unarmed protesters, including students and elderly people at point blank range. While the police justified that decision, it was clearly a disproportionate use of force in violation of international standards as well as domestic law governing the use of force.
Article 2 of the UN Code of Conduct for Law Enforcement Officials requires the police to protect human rights, and under Article 3 they “may use force only when strictly necessary”. More specifically, Principle 13 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides that “in the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force”.
Under domestic law, s. 46(3) of the Public Order Ordinance provides that any police officer ‘who uses such force as may be necessary for any purpose, in accordance with the provisions of this Ordinance [including the dispersal of any unauthorised public gathering], shall not be liable in any criminal or civil proceedings’. Thus, consistent with international law, the police may only use force if it is strictly necessary.
As Amnesty International pointed out in Understanding Policing at p.131, ‘non-lethal’ riot control devices ‘can result in serious injury and even death’. The police was putting the lives of the peaceful protesters at a disproportionate risk. One cannot escape the impression that the measures of crowd control were in fact ‘used by the national authorities directly or indirectly to stifle or discourage protest’ (see Austin v UK  ECHR 459 ).
As noted by in the Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns (paragraph 119), there is a “presumption against limitations on assemblies”. In an assembly which was generally peaceful in spite of the large numbers, the police’s violent conduct was itself the breach of the peace, threatening the lives and rights of protesters unnecessarily. This violates the right to life and the right of peaceful assembly protected under Articles 6 and 21 of the ICCPR respectively.
The Report of the Special Rapporteur (paragraph 42) has made it very clear that ‘the individual does not lose the protection of the right when sporadic or isolated violence occurs’. The Police cannot justify their acts by the violence of a few. Moreover, given that a majority of protesters spontaneously joined the demonstrations after the police’s conduct towards the students, it is a ‘spontaneous demonstration’ with no opportunity for prior notice, and should be regarded as legal and protected (see paragraph 40).
5. Breach of positive duty to facilitate and protect protesters
Protesters were violently attacked by thugs masquerading as anti-Occupy citizens, without any intervention from the police, including sexual assaults on female protesters. Journalists have also been harassed and attacked by individuals and by the police directly.
The Government has a positive duty to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress” a violation of rights committed by a private person, as pointed out by paragraph 8 of General Comment 31. Specifically, in Njaru v Cameroon, Communication No. 1353/2005, 3 April 2007, the Human Rights Committee recognised the duty to protect individuals, especially journalists, from threats to the exercise of the freedom of expression (paragraph 6.3).
Therefore, as emphasised in paragraph 23 of General Comment 34, the government ‘should put in place effective measures to protect against attacks aimed at silencing those exercising their right to freedom of expression’. Indeed, ‘journalists are frequently subjected to such threats, intimidation and attacks… All such attacks should be vigorously investigated in a timely fashion, and the perpetrators prosecuted’.
There is a flagrant violation of the right of peaceful assembly under Article 21 of the ICCPR, in that the police has failed in its duty to halt and arrest the attackers. As held in United Macedonian Organisation Ilinden and Ivanov v Bulgaria, application no 44079/98, 20 October 2005, , ‘it is the duty of Contracting States to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully (see Plattform “Ärzte für das Leben”, judgment of 21 June 1988, Series A no. 139, p. 12, §§ 32‑34)… The authorities were therefore bound to take adequate measures to prevent violent acts directed against the participants’.
Every undemocratic regime has an unspeakable fear of dissent and civil disobedience, for to it nothing is more threatening, more unpalatable, than the systematic persuasion of the masses that it is not living up to its billing. It is therefore unsurprising, but nonetheless appalling, that the government in Hong Kong has resorted to such means of oppression. Such violations must be condemned by the international community.
If the government seeks to undermine the movement by appealing to the lack of majority support, they are doomed to fail. For as held in Stankov and the United Macedonian Organisation Ilinden v Bulgaria, application no 29221/95, 2 October 2001 at , ‘the national authorities must display particular vigilance to ensure that national public opinion is not protected at the expense of the assertion of minority views, no matter how unpopular they may be’. As I have written elsewhere, ‘it is precisely when a minority voice is being subdued that the law must step in to protect fundamental rights’.
The more the regime revels in misuse of power and abuse of the law, the more it will fuel civil disobedience. The Occupy movement is a timely reminder to the government that the legitimacy of it’s authority flows from its ability to uphold the common good, and on that basis comes the consent of the people – The Hobbesian theory of law has taught us that much at least. To use Gandhi’s words, ‘every ruler who defies public opinion is alien to me.’
[toggle title=”Sources” state=”close”]
1. Thomas Hobbes, Leviathan (1651) chapters 13-15.
2. UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.
3. Code of Conduct for Law Enforcement Officials, adopted by GA resolution 34/169 of 17 December 1979.
4. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990).
5. The Basic Law of the Hong Kong Special Administrative Region, adopted on 4 April 1990, effective as of 1 July 1997.
6. UN Human Rights Committee (HRC), CCPR General Comment No. 25: Article 25 (Participation in Public Affairs and the Right to Vote), The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, 12 July 1996, CCPR/C/21/Rev.1/Add.7.
7. UN Human Rights Committee (HRC), General comment no. 31 , The nature of the general legal obligation imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13.
8. Anneke Osse, Understanding Policing (Amnesty International Nederland, 2007).
9. Christof Heyns, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, 23 May 2011, A/HRC/17/28.
10. UN Human Rights Committee (HRC), General comment no. 34, Article 19, Freedoms of opinion and expression, 12 September 2011, CCPR/C/GC/34.
11. Alston and Goodman, International Human Rights Law (OUP 2012).
12. Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (3rd edn, OUP 2014).
13. Simon NM Young, ‘Was it Lawful for the Police to Use Tear Gas on Protesters in Hong Kong?’ (HKU Legal Scholarship Blog, 29 September 2014) <http://researchblog.law.hku.hk/2014/09/legal-authority-for-police-to-use-tear.html> [8 October 2014].
14. Mathias Cheung, ‘A Human Rights Defence of Hong Kong’s Occupy Central’, (OxHRH Blog, 16 August 2014) <http://ohrh.law.ox.ac.uk/?p=13104> [8 October 2014].
15. Mathias Cheung, ‘The Violence Must Stop – Abuse of Police Power in Hong Kong’s Democracy Protests’, (OxHRH Blog, 30 September 2014) <http://ohrh.law.ox.ac.uk/?p=13864> [8 October 2014].