Hong Kong: Freedom of expression under attack as scores of peaceful protesters face “chilling” prosecutions
🔎 Hong Kong; Freedom of expression; censorship
The Hong Kong government must drop prosecutions aimed at having a chilling effect on freedom of expression in the city, Amnesty International said ahead of the third anniversary of the 2014 pro-democracy Umbrella Movement.
Three years on from the start of the unprecedented 79-day protest in late 2014, scores of protesters, who were arrested for their involvement in the largely peaceful protests, remain in legal limbo, uncertain if they will face charges.
“Three years since the Umbrella Movement protests, a cloud of uncertainty hangs over Hong Kong. The government’s stance is having a chilling effect on peaceful assembly and freedom of expression,” said Mabel Au, Director of Amnesty International Hong Kong.
“The government must drop prosecutions which have the effect of deterring people from participating in peaceful protests, particularly on sensitive issues such as Hong Kong’s autonomy and democracy. The authorities’ continued obfuscation has left protesters in legal limbo and is detrimental to human rights in Hong Kong.”
According to government figures, 955 people were arrested during the Umbrella Movement. After the protests, the government further arrested 48 people, mostly key individuals involved in the pro-democracy demonstrations. They were arrested for a range of offences including “unlawful assembly” and ”unauthorized assembly”.
Many of them were released after their arrest, but police notified them that criminal investigations were still ongoing and they would be re-arrested and charged, should there be sufficient evidence to prosecute them.
Among the 48 prominent activists who were arrested after the Umbrella Movement protests were Associate Professor Benny Tai, Rev. Chu Yiu-ming and Chan Kin-man, arrested for “unlawful assembly” in 2015. In March this year, the charges were changed to “public nuisance”, ambiguous charges with a maximum penalty of seven years imprisonment.
Earlier this month, Amnesty International wrote to Hong Kong’s Secretary for Justice, Rimsky Yuen, to ask for clarification on the legal situation of all those arrested. In its reply, the Department of Justice, stated that as of 31 August, 225 people who were arrested have or are undergoing judicial proceedings.
The Department of Justice also stressed that in two cases those prosecuted for “unlawful assembly” “were not peaceful but…involved violence.” While Amnesty International acknowledges there were isolated incidents of small-scale violence, the protests were overwhelmingly peaceful. The presence of smaller groups of people within a public assembly who use violence is not a sufficient reason for the police to restrict, prohibit or disperse the whole assembly.
Many of the charges against activists are for actions in largely peaceful protests that are protected under international human rights law and that are supposed to be protected under Hong Kong law.
The charge of “unlawful assembly” and other vague provisions in Hong Kong’s Public Order Ordinance and their implementation have been repeatedly criticized by the UN Human Rights Committee for failing to fully meet international human rights law on the right to peaceful assembly.
In August, student leaders Joshua Wong, Alex Chow and Nathan Law, were handed jail terms between six to eight months after being convicted under these vague offences for their roles in a demonstration that helped spark the Umbrella Movement. The court originally ordered community service or suspended sentences but prosecutors successfully appealed, seeking harsher penalties.
“The arbitrary arrests and prosecutions of Umbrella Movement participants using vague and broad charges reeks of political motivation, aimed at silencing those promoting democracy in Hong Kong,” said Mabel Au.
Published on Amnesty International on September 26, 2017
By Valerie Strauss
In 2004, Congress declared Sept. 17 as Constitution Day, a federal holiday that requires all schools that receive federal funding to offer some type of “educational program” on the Constitution, though it doesn’t define what that should be (and it doesn’t have consequences for those that don’t). The effort to establish the day was led by Sen. Robert C. Byrd (D-W.Va.), who died in 2010.
Why is the holiday on Sept. 17? It was the last session of the 1787 Constitutional Convention in Philadelphia, during which the final version of the newly written Constitution was signed by 39 delegates.
Since then, schools at every level have taken different approaches to teaching the Constitution on this day — or a day close to Sept. 17 if the holiday falls on a weekend, as it does this year. Some hold constitutional fairs, others offer formal lessons. There are numerous online lessons available for teachers and students, including some by the National Archives, which suggest ways to teach six big ideas about the Constitution.
Though schools are charged with teaching the Constitution on this holiday (and presumably, on other days as well), public education is not mentioned in the document, with that responsibility left to the states. There is no federal right to a high-quality public education.
Should there be? This post is an argument in favor. It was written by Noliwe Rooks, director of American studies at Cornell University, and who was for 10 years the associate director of African American studies at Princeton University. She is the author of three books, including “Cutting School: Privatization, Segregation, and the End of Public Education,” out this month.
By Noliwe Rooks
The late Sen. Robert C. Byrd (D-W.Va.) is the reason we now observe September 17th as Constitution Day, a federally recognized holiday. Some might say the senator was a fitting champion; he rarely left home without a copy of our nation’s founding document tucked into his jacket pocket.
At his funeral in 2010, many noted that with 51 years in office, Byrd was the longest serving member of the Senate. They would have also known that while running for the U.S. House of Representatives in 1952, he was called upon to renounce his role as a chapter founder, recruiter, and elected leader — an “exalted cyclops” to be exact — in the Ku Klux Klan.
Of his membership in the white supremacist group, Byrd said he had been young and ambitious, and that the Klan provided access to political power and electoral support. At that point in our nation’s history, and in that region of the country, Klan membership would fling wide open doors of opportunity potentially closed to a young man like Byrd who came from an impoverished, rural background.
Economic mobility, white supremacy and the power to define an American identity were as deeply meshed in the senator’s story as they are in the holiday itself.
On Constitution Day, all K-12 schools, as well as colleges and universities receiving federal funds (and all federal agencies) are supposed to host programs devoted to the study and appreciation of the United States Constitution, according to a 2004 law that Byrd championed.
In light of the neglected state of public schools in countless districts throughout the United States, it’s high time that the relationship between education and the Constitution abides more than just an assembly or a 30-minute video in third-period social studies class.
We the people should be guaranteed the right to a high-quality education by the U.S. Constitution, which doesn’t mention public education.
The push for a federally supported celebration of the Constitution was first championed in 1917 during World War I by the Sons of the American Revolution. The committee advocating for the new holiday included President Calvin Coolidge, business tycoon John D. Rockefeller, and Army General John Pershing. They proposed its enactment just as Congress was set to ratify the 1917 Immigration Act barring immigration from China and other Asian countries due to a widespread belief among the political and business elite that Asians were sneaky, violent, and more likely to be criminals than were whites.
Celebrating the American Constitution went hand in hand with a sharp, public rise in ethnic stereotyping and xenophobia. Affirming and protecting an American identity meant denigrating others.
In 1939, during World War II, newspaper magnate William Randolph Hearst began prevailing upon his congressional contacts and writing columns in his newspapers to call for the creation of a holiday to celebrate American citizenship. He even made a short film released to wide acclaim titled, “I Am An American.” In 1940, Congress acquiesced, designating the third Sunday in May as “I Am An American Day.”
Most who read Hearst’s columns knew that he often wrote about people from Asia — the “yellow peril” as he called them pejoratively — who were conspiring to bring about the global demise of the “white race.” He was particularly brutal in his verbal attacks on Japanese people outside and within the United States. Some historians hold him at least partially responsible for the internment of Japanese-Americans in internment camps, since he consistently advocated such measures in person and in print. “I Am An American Day” was as much about carving out who was not American as it was about celebrating who was.
In February 1952, Congress moved “I am an American Day” to September 17, the date the U.S. Constitution was signed in 1787, and renamed it “Citizenship Day.” President Truman announced the change in a speech explaining that the country was now in a war against communism, and U.S. communists in particular. Before long, the persecution of innocents charged of being communist, along with a paranoia and forced conformity in American public life, sowed widespread fear among many Americans. There were acceptable and unacceptable American citizens, and the relabeling of this holiday came at a time when which type you were mattered greatly.
We can do better. This is a holiday that has always demanded, but has yet to receive, guidance and direction from the American people as to how best we can have — and celebrate — an inclusive expression of American citizenship and identity. What better place to start than by enshrining into the Constitution the right of all children in America, regardless of race, ethnicity or economic background to receive a quality education?
In 2005, Robert Moses, a veteran of the Civil Rights Movement, MacArthur Genius Award winner and founder of The Algebra Project, published a collection of essays called “Quality Education as a Constitutional Right: Creating a Grassroots Movement to Transform Public Education.” The movement never materialized.
According to Stephen Lurie’s 2013 article in the Atlantic, “Why Doesn’t the U.S. Constitution Guarantee the Right to Education,” accessible congressional records indicate that there have only been “two proposals — one by Rep. Major Owens (D-NY) and repeated efforts by Rep. Jesse Jackson Jr. (D-IL) — for an education amendment, ever.”
Lurie noted that Jackson regularly introduced an identical education amendment in every session of Congress from 1999 to 2012 “regarding the right of all citizens of the United States to a public education of equal high quality.” In each case, the resolution was referred to and killed in the House Judiciary Committee.
In 1945, more than 1 million people attended Citizenship Day celebrations in Central Park reaffirming the privileges and responsibilities of U.S. citizenship. Today, we could make an even bigger and more lasting impact by discussing and passing a constitutional amendment guaranteeing a quality education to our nation’s most vulnerable citizens.
Published on The Washington Post on September 17, 2017.
By Owen Bowcott
Social media may be putting the right to a fair trial at risk, according to a public consultation launched by the government’s chief legal adviser.
On Friday the attorney general, Jeremy Wright QC, published a call for evidence to assess the impact of social media on criminal cases and establish whether extra reporting restrictions are needed.
The initiative follows recommendations by the senior appeal court judge, Sir Brian Leveson, following legal challenges over what could be published about the trial of two schoolgirls who were eventually convicted of murdering Angela Wrightson in Hartlepool in 2014.
The first trial of the teenagers, who were 13 and 14 at the time of the killing, was abandoned by the crown court judge amid a torrent of social media comments and abuse that threatened to prejudice the hearing.
Before the second trial began there was a legal challenge over restrictions imposed on the mainstream media. They were eventually partially relaxed but nonetheless prevented reports of the trial being released on Facebook and compelled editors to disable comments on website message boards.
The case highlighted the increasing problems faced by courts and law enforcement officers in upholding traditional, strict contempt laws designed to ensure that defendants receive a fair trial.
The Contempt of Court Act 1981 sets out what can be published before and during a trial. It is contempt of court to publish anything that creates a “substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced, even if there is no intent to cause such prejudice”.
While journalists are well aware of the traditional restrictions, most of the public posting comments on social media sites are unaware of such limits. For example, juveniles are not normally named in criminal cases.
Launching the consultation, Wright said: “Every defendant in this country is entitled to a fair trial where a verdict is delivered based on the evidence heard in court.
“Our contempt of court laws are designed to prevent trial by media. However, are they able to protect against trials by social media? I am looking for expert evidence on whether the increasing influence and ubiquity of social media is having an impact on criminal trials and, if so, whether the criminal justice system has the tools it needs to manage that risk.”
Wright told the Guardian that he was not approaching the issue with any preconceptions about whether there was a need to change the law. Judges, lawyers, police, victims’ organisations, journalists and human rights groups are being approached for comments.
“We have to keep a balance between the principle of freedom of speech and the integrity of the trial process,” he explained. “What I want to see is how broad the concerns are, then we can start to think about the issues. I want to see whether judges have the tools required or whether they are crying out for some new powers or changes in the law.”
The scope of the inquiry could also extend to any problems caused by archived media content – old stories that remain easily accessible via the internet – as well as the dangers jurors face if they research trials they are hearing online.
Wright said that the Wrightson case demonstrated that social media “is having some impact on the administration of justice in criminal trials, but it does not show to what extent … Was this an isolated incident or are there more examples of trials being affected by social media commentary?”
The consultation asks respondents whether they have been involved in a case in which reporting restrictions have been breached by social media and whether the “risks posed by social media to the administration of justice are greater than five years ago”.
The call for evidence is open until 8 December. The attorney general’s office will produce a report and/or recommendations afterwards.
Published on The Guardian on September 14, 2017.
A group of independent human rights experts today called on the Government of India to create a safer environment for independent voices, after Indian journalist and human rights defender Gauri Lankesh was killed earlier this month.
“The Indian authorities should unequivocally condemn the killing of Gauri Lankesh, investigate it, bring all the perpetrators – including the masterminds – to account, and take seriously the safety of journalists,” said the Special Rapporteurs on freedom of opinion and expression, David Kaye, on summary or arbitrary executions, Agnes Callamard, and on the situation of human rights defender, Michel Forst.
They called the murder of Ms. Lankesh, who was shot dead outside of her home on 5 September a “terrible and painful tragedy” and a “vicious attack” on the freedom of the press.
“We urge the authorities in India to take active steps to reverse a political climate that in recent years have become increasingly polarized and hostile, especially to the media and those exercising the freedom of expression,” the Special Rapporteurs said, adding that they are in contact with the Government regarding the situation.
According to the Office of the High Commissioner for Human Rights (OHCHR), Ms. Lankesh was known as a “rationalist,” a term used in India for people who stand against the use of religion in politics.
OHCHR confirmed that her killing is the fourth in the last three years of activists who had opposed the rise of Hindu fundamentalism in politics.
“Governments have a responsibility to build a safe environment for independent voices, including those of journalists critical of the authorities,” they said.
UN Special Rapporteurs and independent experts are appointed by the Geneva-based Human Rights Council to examine and report back on a specific human rights theme or a country situation. The positions are honorary and the experts are not UN staff, nor are they paid for their work.
Published on the UN News Centre on September 13, 2017.
By José Miguel Vivanco, Americas Director, Human Rights Watch
Last week, the rights group Derechos Digitales released the text of a worrying draft decree, signed by President Michelle Bachelet in June, that could greatly increase intrusive government access to personal data.
The decree, which still needs to be approved by the Comptroller General’s Office to take force, would run counter to Chileans’ right to privacy and emulates some of the worst such policies around the globe.
The decree would require telecommunication companies to retain, for at least two years, data on electronic and mobile communications of everyone in the country, including phone calls, e-mail, and messaging cellphone applications. It greatly expands the types of data companies must store, while extending the retention period from one year to two. While it does not mandate retaining the content of the communications, it covers information like the location data and the phone numbers called that can provide a detailed portrait of the user’s intimate life, especially when collected at large scale or combined with other data. If the government knows that someone placed a call to a labor union representative or a suicide hotline, it can potentially draw conclusions about the caller, even without knowing what they said. Cell phone location data can provide authorities a detailed map of a person’s movements for years.
This is a grossly disproportionate intrusion on Chileans’ privacy. It is, of course, reasonable to demand disclosure of specific data to prevent or investigate crimes, subject to safeguards. But data retention under the decree would go much farther, affecting all users, regardless of whether they are suspected of a crime. The European Union’s top court, its Court of Justice, has twice struck down similar blanket data retention laws, noting that they impose an unjustifiably broad infringement of the right to privacy. The UK ignored the ruling and passed an expanded data retention law last year, but overall the rulings have fostered an encouraging trend in the EU. In contrast, such authoritarian countries as China and Russia have recently expanded their data retention laws to increase surveillance over their citizens.
Worse, while Chile’s decree would require a court order to intercept phone and other communications, it does not include such a requirement to access data already retained. Without judicial control, the decree could virtually turn the Chilean government into a “big brother” capable of knowing where everyone is, and whom they are contacting, all the time.
The draft also forbids companies from incorporating technology or equipment that can hinder the interception or recording of communications. If this provision is interpreted broadly to forbid encryption, it would set a troubling precedent. In the digital age, encryption is a cornerstone of security for vulnerable activists and journalists working in repressive regimes around the globe. It also protects millions of ordinary users from cybercriminals and malicious hackers. Even in the U.S., one of the most intrusive countries, lawmakers have not move forward with proposals to restrict encryption, acknowledging its key role to impede cybercrime. The Chilean government should set a positive example by promoting encryption as essential to security, rather than following the lead of countries like Russia, Ethiopia, and Turkey that have restricted it.
When it reviews the decree in coming days, the Comptroller General’s Office will decide whether it will protect Chileans’ right to privacy or allow the government to emulate authoritarian countries. There should be no doubt about its decision.
Published on the HuffPost on September 9, 2017.
Reporters Without Borders (RSF) called for more protection for journalists and more efforts to combat impunity when it met Colombian President Juan Manuel Santos last week, while President Santos regretted that Colombia was ranked no better than 129th in RSF’s World Press Freedom Index.
The meeting between President Santos and RSF secretary-general Christophe Deloire at the presidential palace in Bogotá on 31 August was marked by hope – a hope sustained by the recent peace accords with the FARC rebels ending half a century of civil war.
Deloire stressed the importance for Colombia of providing better protection for its journalists, who for decades have been the victims of rebel groups, drug traffickers, paramilitaries and sometimes government officials and politicians.
According to RSF’s tally, 58 journalists were murdered in Colombia from 2000 to 2015 in a clear or probable connection with their work, making Colombia one of the western hemisphere’s deadliest countries for media personnel. Around 90% of these murders went unpunished.
Nonetheless, it is important to note that no journalist has been murdered in Colombia since the start of 2016. The security situation is now satisfactory in the capital, Bogotá, but journalists continue to be exposed to terrible threats in many parts of the country, threats that prevent them from working properly.
One of the most emblematic cases of impunity in Colombia is that of Nelson Carvajal Carvajal, a Radio Sur journalist killed in April 1998 while investigating corruption. After 17 years of foot-dragging and irregularities, the Colombian judicial system has yet to identify and punish those responsible. The case was referred to the Inter-American Court of Human Rights in San José, Costa Rica, in 2015. Colombian government representatives testified to the court about the case in hearings held on 22 and 23 August. In a 28 August letter, the Bogotá-based Press Freedom Foundation (FLIP), an RSF partner organization, accused them of blaming the Carvajal family for the failure to convict anyone of his murder and of minimizing violence against the media and impunity.
“While President Santos now embodies peace, partly because of his Nobel peace prize, we think he should also embody freedom of the press,” Deloire said. “He seemed disturbed by the fact that Colombia is as low as 129th in the World Press Freedom Index. We believe that, in his final year as president, he should carry out major reforms that help combat impunity for murders of journalists and make the Unit for the Protection of Journalists more effective in the most difficult regions, so that Colombia can become a model for media freedom in Latin America.”
President Santos indicated his sympathy with the causes defended by RSF. He was a columnist and then deputy director of El Tiempo, Colombia’s leading daily newspaper, which was owned by his family. He also headed the Inter-American Press Association’s committee on freedom of the press.
Asked by RSF about combatting media ownership concentration, he expressed a neoliberal view. “The less regulation, the more freedom of the press,” he said. He also mentioned the “considerable” efforts made by Colombia to be a world leader in open data. Colombia is 4th in the OECD’s 2017 open data ranking (OURdata Index).
The RSF delegation also met interior minister Guillermo Rivera, who is responsible for implementing the “Public Policy on Freedom of Expression”, an ambitious accord that was the result of two years of consultation with national and local media and with civil society groups. Unveiled in May 2016, it includes judicial guarantees for journalists, guarantees of protection and guarantees of access to information. But nothing has so far been done to implement it. Rivera undertook to implement by the end of President Santos’s term in May 2018.
The peace accords include other media freedom provisions such as more openness to news gathering in regions affected by the conflict. However, in RSF’s view, community and public interest media need guarantees that they will be able to compete freely and guarantees (funding etc) that they will be viable in the long term. A 2014 access to information law has helped to break down a culture of secrecy and to make state-held information more transparent. But problems persist with regard to defence and security.
Colombia rose five places in the 2017 World Press Freedom Index but is still in the bottom third (129th out of 180 countries).
Published on Reporters Without Borders on September 6, 2017 (rsf.org/en/news/santos-wants-improve-colombias-press-freedom-ranking).
By Maya Wang
China’s new “super agency” to fight corruption is slated to start work in March 2018. However, the draft State Supervision Law establishing that body is not public, and what is known about the agency suggests the government and Chinese Communist Party are set to entrench an abusive system, not reform it.
The “super” agency will not only consolidate graft-fighting powers currently vested in various government departments, it also has new powers, including a detention procedure called "liuzhi" (留置). The agency is also empowered to investigate anyone exercising public authority – officials, managers in state-owned companies, and even public school managers. The agency will share space and personnel with the Central Commission on Disciplinary Inspection (CCDI), the powerful Communist Party body responsible for enforcing Party rules.
Scholars have speculated that liuzhi may have been designed to reduce the use of “shuanggui,” an extra-legal and abusive CCDI-run detention system imposed on Party members. Last December, Human Rights Watch published a report on shuanggui, detailing the use of arbitrary detention, torture and enforced disappearance, and called for its abolition. Around the same time, CCDI head Wang Qishan pledged to curb shuanggui abuses with steps such as videotaping interrogations.
Official articles suggest liuzhi will offer improvements: the system will be codified in law and subjected to stricter internal procedures; detainees will be given adequate food and rest; detentions will have time limits – three months, and, upon approval, another three months. But similar measures by the CCDI since the 1990s have not deterred abuses in the shuanggui system. There is no indication that those held under liuzhi will enjoy access to lawyers or redress mechanisms – two problems Human Rights Watch identified as facilitating serious human rights violations in shuanggui.
The available information suggests that liuzhi may simply be the legal, but no less abusive, twin of shuanggui – and no more likely to succeed in deterring corruption.
Wang Qishan, the CCDI chief tipped to head the super agency, has warned that “power without restraint is dangerous.” China’s top legislature should ensure that effective restraints, which can only be provided through fair trial protections for detainees, are included in a revised State Supervision Law.
Published on Human Rights Watch on August 31, 2017 (www.hrw.org/news/2017/08/31/chinas-super-anti-corruption-agency-set-repeat-past-abuses).
A civil right is an enforceable right or privilege, which if interfered with by another gives rise to an action for injury. Examples of civil rights are freedom of speech, press, and assembly; the right to vote; freedom from involuntary servitude; and the right to equality in public places. Discrimination occurs when the civil rights of an individual are denied or interfered with because of their membership in a particular group or class. Various jurisdictions have enacted statutes to prevent discrimination based on a person's race, sex, religion, age, previous condition of servitude, physical limitation, national origin, and in some instances sexual orientation.
Source: Cornell University Law School