The United Nations Working Group on Arbitrary Detention (“Working Group”) issued an opinion (A/HRC/WGAD/2023/30) on 1 May 2023 (“Opinion”) concerning Chow Hang-tung, a Hong Kong human rights lawyer and former vice-chairperson of the now-defunct Hong Kong Alliance in Support of Patriotic Democratic Movements of China (“Alliance”). The Working Group concluded that the deprivation of liberty of Chow is arbitrary detention.
The Working Group requested Hong Kong government to release Chow immediately, accord her an enforceable right to compensation and other reparations, revise the provisions of the National Security Law (“NSL”) to ensure fair trial and avoid arbitrary detention, ensure a full and independent investigation of the arbitrary detention of Chow, and take appropriate measures against those responsible for the violation of her rights. The Hong Kong government was requested to disseminate the Opinion as widely as possible, and to provide information within six months on action taken in follow-up to the above requests.
Hong Kong Centre for Human Rights (“HKCHR”) welcomes the Opinion. We urge the Hong Kong government to immediately implement the Working Group’s requests, and review in accordance with the Working Group’s standards other ongoing cases related to prosecution resulting from the exercise of freedom of expression and assembly.
According to its mandate, the Working Group regards deprivation of liberty as arbitrary in the following cases:
- Category I: When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty
- Category II: When the deprivation of liberty results from the exercise of human rights
- Category III: When the total or partial non-observance of the international norms relating to the right to a fair trial is of such gravity as to give the deprivation of liberty an arbitrary character
- Category IV: When asylum-seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy
- Category V: When the deprivation of liberty constitutes a violation of international law on the grounds of discrimination.
Regarding the situation of Chow Hang-tung, the Working Group found that her detention fell within Categories I, II, III and V, and is therefore arbitrary detention. The details of each category are as follows:
- Category I: For the case of incitement to unauthorized assembly, there were discrepancies in the reasons of arrest and charging of Chow; for the case of denying to provide information of the Alliance, the bail conditions lacked the requisite degree of precision to enable Chow to direct her conduct accordingly.
- Category II: The arrest and detention of Chow resulted from her peaceful exercise of the freedoms of opinion and expression and assembly.
- Category III: Chow’s right to independent and impartial tribunal were violated.
- Category V: Chow’s arrest and detention stems from long-term harassment and targeting by the Hong Kong authorities and that her arrest and detention are therefore arbitrary as they are discriminatory, resulting from her political opinion and activism.
The Working Group criticized that the NSL were not formulated with sufficient precision so that the
individual can regulate his or her conduct accordingly. It stated that such failure may render any detention on the basis of the NSL to be arbitrary. The government was urged to amend the NSL without delay.
It shall be noted that the Working Group has repeatedly criticized the uncooperative attitude of the Hong Kong government in the Opinion. For example, the Hong Kong government did not follow the procedures to seek an extension of the deadline for submission of its reply, but ended up submitting its reply eight days late. The Working Group also pointed out that although the burden of proof for refuting the allegations rests upon the government, the Hong Kong government, when denying a number of different allegations, only kept citing the provisions of the NSL and other legislation, without providing specific arguments or clearly explaining the purported criminal conduct of Chow. The Working Group stressed that mere assertions by the government that lawful procedures had been followed were not sufficient to rebut the source’s allegations.
Besides, the government told the Working Group that publishing statements that are intended to interfere with or obstruct the due administration of justice may constitute “criminal contempt of court. However, the Working Group pointed out that it was not sufficient for the government to argue that its national legislation or domestic legal proceedings prevented it from providing a detailed explanation of the actions of the national authorities. Given that the Working Group was created to serve the needs of victims of arbitrary detention worldwide and as a way for Member States to hold each other accountable, Member States must have intended that the mechanism resolve disputes brought by victims. The Human Rights Council has also reminded States to cooperate fully with the Working Group.
HKCHR expressed regret on the government’s attempt to threaten the Working Group with the offence of contempt of court and to not cooperate with the Working Group by invoking domestic laws. The Working Group has made it clear that domestic legal procedures cannot override the UN investigation. The refusal of the authorities to cooperate with the investigation shows that the authorities are using local law to infringe on human rights.
The International Covenant on Civil and Political Rights applies to Hong Kong. Article 9 expressly prohibits any forms of arbitrary detention while Article 2 requests each State Party to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the Covenant. According to the interpretation of the Covenant made by the Human Rights Committee, a government should not invoke provisions of the constitutional law or other domestic law to justify a failure to perform or give effect to obligations under the Covenant.[1] We demand the government to fully cooperate with the Working Group and implement its recommendations.
The Working Group has the mandate to investigate cases of deprivation of liberty imposed arbitrarily or inconsistently with the international standards set forth in the Universal Declaration of Human Rights, or the international legal instruments accepted by the States concerned. It is composed of five independent experts of balanced geographical representation. The current members are from Malaysia, New Zealand, Ukraine, Ecuador and Zambia.
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[1] General Comment No. 34 (2004) (CCPR/C/21/Rev.1/Add. 13), https://digitallibrary.un.org/record/533996?ln=en