LETTER OF THE LAW
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How Hong Kong contributes to China’s human rights law

Case of jailed Pakistani shows we are a lot closer to the mainland model than we like to admit

PUBLISHED : Monday, 23 January, 2017, 11:38pm
UPDATED : Monday, 23 January, 2017, 11:38pm

Everyone talks about the lack of human rights on the mainland. Yet, the recent case of the 32-year-old Pakistani man, known in court documents as Zn, shows Hong Kong’s own affinity for the “Chinese model” of protecting human rights.

Zn allegedly informed the police, immigration and labour departments that he was a victim of human trafficking. Instead of helping him, they imprisoned him. Hong Kong – it seemed – did not have specific laws against forced labour. Too bad.

Actually, the case has nothing to do with the law on human trafficking but everything to do with the city’s human rights law.

Sure the Basic Law mentions the International Covenant on Civil and Political Rights as constitutional law in Article 39, nestled in a section about residents only.

Yet, unlike most constitutions, which give the covenant direct effect, only the Hong Kong Bill of Rights Ordinance and other laws can implement these rights. Sorry Zn.

Sometimes constitutional effect can make all the difference.

In Eastern Europe (a human rights challenged part of the world like Hong Kong), government administrations I work with actively think how to better uphold human rights.

They obviously do not always succeed – as war weary Ukrainians can attest. Yet, their constitution makes clear in its third article that “human rights and freedoms and their guarantees determine the essence and orientation of the activity of the State”. Wow! Imagine if Hong Kong had something similar.

How do you think our efficient authorities would have reacted to Zn if we had something in the Basic Law like Azerbaijan’s constitutional article 24 observing that “everyone, from the moment when they are born possesses inviolable and inalienable rights and liberties”.

Wouldn’t something like that encourage the Immigration Department to be a bit more proactive? Instead, they pass tougher visa restrictions.

Individuals dealing with the Basic Law Consultative Committee knew what they were doing when they, albeit unsuccessfully, proposed giving direct effect to the covenant in the Basic Law’s Chapter 3.

But never mind. What can we do now? The Standing Committee of the National People’s Congress probably wouldn’t approve these changes to our Basic Law.

At least, administrative agencies like the immigration authority can draft internal regulations that actually go out and try to achieve the spirit of our human rights law.

Our courts, as valiantly led by the just and good Mr Justice Kevin Zervos, can interpret our Basic Law as imposing far more responsibilities on our government for protecting rights. Rather than waiting until someone harmed cries.

At the end of the day, the question boils down to whether the immigration, police and the rest of government consider Zn a nuisance. Or an opportunity to mould our Chinese model of human rights.

Dr Bryane Michael is a senior fellow with the University of Hong Kong’s Asian Institute for International Financial Law