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Response to United States report on human rights

     In response to media enquiries, a Government spokesman today (May 25) made the following response to the comments in the United States State Department's Country Reports on Human Rights Practices 2011 relating to the Hong Kong Special Administrative Region (HKSAR):

Constitutional development

     In respect of Hong Kong's constitutional development, the decision adopted by the Standing Committee of the National People's Congress (NPCSC) in December 2007 has made clear the universal suffrage timetable for Hong Kong, i.e. the Chief Executive may be elected by universal suffrage in 2017 and the Legislative Council (LegCo) may be elected by universal suffrage in 2020. Moreover, the two electoral methods for 2012 can be made more democratic.

     The constitutional reform package for 2012 introduced by the Government was passed by the LegCo in June 2010 and the relevant amendments to Annexes I and II of the Basic Law were approved or recorded respectively by the NPCSC in August 2010. This greatly enhances the democratic elements of the two electoral methods for 2012 and broadens the room for political participation. Under the package, close to 60 per cent of all seats in the LegCo will have an electorate base of over 3 million electors. All registered electors will have two votes in the 2012 LegCo election, one in the Geographical Constituency election and the other in the Functional Constituency election.

     The passage of the Chief Executive Election (Amendment) Bill 2010 and the Legislative Council (Amendment) Bill 2010 by the LegCo on March 3 and 5 last year respectively implements the constitutional reform package.

     As to how the Functional Constituencies should be dealt with when universal suffrage for the LegCo is implemented, we have already made it clear that any universal suffrage model for the LegCo in 2020 should comply with the Basic Law and the principles of universal and equal suffrage. Different sectors of the community have diverse views on how this issue should be dealt with in future and need time to discuss it thoroughly.

     As for the District Council's appointment system, the number of appointed members has been reduced from 102 to 68 starting from January 1, 2012. The Administration published a Consultation Paper on the District Council Appointment System on February 20 this year to invite public views on how to abolish the remaining 68 seats. The public consultation ended on April 20. We stated in the Consultation Paper that the Administration is inclined to abolish all remaining 68 seats by January 1, 2016, which is more compatible with the steps Hong Kong has taken in constitutional development. We are analysing the views collected during the public consultation and will put forth a final proposal for the consideration of the next-term Government.

Copyright protection

     The Copyright (Amendment) Bill 2011 aims to introduce a technology-neutral communication right to enhance copyright protection in the digital environment. Australia and the United Kingdom introduced the communication right to their copyright laws about a decade ago, and their experience demonstrates that the communication right would not hamper the freedom of expression. The Bill does not contain any provision targeting parody or satire. It will not alter the existing legal principles in determining what constitutes a copyright infringement. A parody that does not amount to copyright infringement today will remain so under the Bill. The freedom of expression on the Internet will not be affected.

     Both the existing Copyright Ordinance and the Bill contain no provisions requiring an online service provider (OSP) to police its service platform for copyright infringement. The Bill further clarifies that this is not a prerequisite for OSPs to get protection under the proposed "safe harbour" which exempts OSPs from any pecuniary liability arising from copyright infringements occurring on their service platform. The safe harbour provisions are modelled on the Digital Millennium Copyright Act of the US. OSPs will qualify for safe harbour provided that they take certain actions upon notification of infringing activities occurring on their service platforms.


     As far as corruption-related offences are concerned, section 30A of the Prevention of Bribery Ordinance (POBO) provides that no information for an offence under the POBO shall be admitted in evidence in any civil or criminal proceeding save that the court is satisfied that an informer wilfully made a material statement which he knew or believed to be untrue or did not believe to be true. If in any other proceeding, a court is of the opinion that justice cannot be fully done between the parties thereto without disclosure of the name of an informer, the court may permit inquiry and require full disclosure concerning the informer. The same section also provides protection to informers in that their names or description or information which might lead to their discovery shall be concealed from view or obliterated from the documents presented to court in order to protect them from discovery. We believe the above measures can provide adequate protection to whistleblowers.

Basic Law

     Under Article 158 of the Basic Law, the NPCSC has the power to interpret the Basic Law. Moreover, the Court of Final Appeal (CFA) has decided in Lau Kong Yung v Director of Immigration [1999] 3 HKLRD 778 that the NPCSC has a general power to interpret the Basic Law. The power of interpretation conferred by Article 158(1) is in general and unqualified terms. Article 158(4) requires the NPCSC to consult its Committee for the Basic Law of the HKSAR before giving an interpretation of the Basic Law. The power of interpretation of the Basic Law under Article 158 is part of the constitutional order of the HKSAR. The power of the CFA to interpret the Basic Law is delegated by the NPCSC, which retains the ultimate power to interpret the Basic Law.

     On the state immunity case involving the Democratic Republic of the Congo, the CFA, in seeking interpretation by the NPCSC of the relevant provisions of the Basic Law of the HKSAR under Article 158(3) thereof, confirmed and fulfilled its obligations under the Basic Law. There is no question of jeopardising the principles of "One Country, Two Systems" and "a high degree of autonomy" or the judicial independence of the HKSAR under the Basic Law.

Ethnic minorities

     The Race Discrimination Ordinance (RDO) protects the rights of individuals against discrimination, harassment and vilification on the grounds of race. The definition of race under the RDO is in line with the definition in the International Convention on the Elimination of All Forms of Racial Discrimination (i.e. race, colour, descent, or national or ethnic origin).

     The Government is committed to facilitating non-Chinese-speaking (NCS) students to adapt to the local education system and early integration into the community. NCS parents are encouraged to send their children to mainstream schools to learn the Chinese language, and we have implemented a series of support measures. The support measures are developmental in nature. We have undertaken to examine the support for NCS students, the approaches to which have included, among others, stepping up the promotion of an early start for NCS students to learn the Chinese language, expansion of the school network for supporting NCS students and strengthening school-based professional support to schools.

Academic freedom

     Academic freedom is an important social value treasured by Hong Kong and well protected by the Basic Law. It is also a cornerstone of our higher education sector. The HKSAR Government attaches great importance to upholding academic freedom and institutional autonomy. The eight University Grants Committee-funded institutions are all independent and autonomous statutory bodies. They have their own governing ordinances and statutes which set out their objectives, functions and governance structures. The legislation provides the institutions with the power and freedom to carry out their objectives and functions.

Labour Advisory Board

     All registered employee unions in Hong Kong, including those affiliated to the Confederation of Trade Unions, have the same right to nominate candidates for the biennial election of employee members of the Labour Advisory Board. They are free to elect their representatives to sit on this tripartite body. The election results fully reflect the choices of the unions. There is no question of any particular union being excluded from the tripartite process.

Ends/Friday, May 25, 2012