International Commission of Jurists
Hong Kong: ensure police do not use excessive force against protesters

Hong Kong: ensure police do not use excessive force against protesters

Nov 18, 2019 | News

Authorities in Hong Kong must avoid using excessive force to respond to protesters as the political crisis in the city deteriorates, the ICJ said today.

Media reports today show scenes of spiraling violence as police try to force their way into the campus of Hong Kong Polytechnic University (PolyU) past barricades erected by students and demonstrators.

“Any police who use excessive force, particularly as they surround and attack student protesters inside PolyU, must be sanctioned,” said Frederick Rawski, ICJ’s Asia Director.

“The events of the past week mark a further deterioration in the situation in Hong Kong – one that can only be effectively addressed through genuine political dialogue, and a commitment to holding police who use unlawful force accountable,” he added.

This morning, more than 100 people were also arrested in Tsim Sha Tsui, hands zip-tied by police and detained in public.

The ICJ urges the Hong Kong SAR government to:

• Ensure that people are able to exercise their freedom of expression, assembly, association and right to political participation;
• Review the means and methods used for the policing of assemblies, including the use of water cannons, tear gas, batons and shields, to ensure that they are not applied indiscriminately and excessively or against peaceful protesters and that they do not result in an escalation of tension;
• Ensure that all victims of excessive use of force by law enforcement officials are provided with access to medical services;
• Ensure that the detained people’s rights to timely and confidential access to counsel;
• Undertake prompt, independent, impartial and thorough investigation of all allegations of unlawful use of force, with a view to holding accountable any responsible authorities including possibilities of criminal prosecution of police officers, and providing an effective remedy and reparation, including compensation and rehabilitation to victims.

Additional information

  • Under the Bill of Rights Ordinance and Basic Law Article 39, the International Covenant on Civil and Political Rights is applicable in Hong Kong. Pursuant to the ICCPR, the Hong Kong SAR government has a duty to guarantee and protect the rights to freedom expression and freedom of assembly and freedom from torture and other cruel, inhuman or degrading treatment or punishment, including through the unlawful use of force.
  • Under the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, “Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”
  • Since June, large numbers of people have taken to the streets of Hong Kong to protest against the now-withdrawn extradition bill, which would have allowed case-by-case fugitive transfers to mainland China.
  • Police have used excessive and indiscriminate force against protesters, in contravention of international standards, as well as arrested, harassed and attacked journalists. Police have regularly deployed tear gas against crowds and using water cannons, rubber bullets, pepper spray, and batons on protesters. On 15 November, hundreds of riot police fired more than 1,500 canisters of tear gas on the grounds of the Chinese University of Hong Kong (CUHK). On November 11, a police officer shot a protester with live ammunition.

Contact

Frederick Rawski, ICJ’s Asia Director, t +66 644781121 ; e: frederick.rawski(a)icj.org

Boram Jang, ICJ Legal Adviser, Asia & the Pacific Programme, e: boram.jang(a)icj.org

Hong Kong: the ICJ welcomes court’s decision to permit transgender woman to marry

Hong Kong: the ICJ welcomes court’s decision to permit transgender woman to marry

May 13, 2013 | News

On 13 May, the Hong Kong Court of Final Appeal granted W, a transgender woman, the right to marry her male partner. The ICJ, which made submissions in the case, applauds this decision.

W is a resident of Hong Kong who has undergone gender reassignment surgery, paid for by the Hong Kong Government, and who holds a national identity card and passport recording her sex as female.

In 2008 she applied to the Registrar of Marriages seeking confirmation that she could marry her male partner.

The Registrar denied her request on the grounds that “the biological sexual construction of an individual is fixed at birth and cannot be changed.”

Because “only an individual’s sex at birth counts,” the Registrar would not celebrate the marriage.

The trial court and court of appeal upheld the Registrar’s interpretation of the Marriage Ordinance and Matrimonial Causes Ordinance and ruled that it did not conflict with Hong Kong’s Basic Law or its obligations under the International Covenant on Civil and Political Rights.

These courts relied on the 1970 British case of Corbett v. Corbett, which held that sex was fixed immutably at birth.

W won her case at the Court of Final Appeal, which ruled in a 5-4 decision that the Marriage Ordinance and Matrimonial Causes Ordinance ignored the “psychological and social elements of a person’s sexual identity” and thus were inconsistent with the constitutional right to marry.

Furthermore, the ordinances were unconstitutional because they denied W the right to marry at all and thus impaired the very essence of the right.

While the Court granted the parties leave to make further submissions as to the exact nature of the declaratory relief, it held that “a transsexual in W’s situation” should in principle be granted a declaration that she is in law a woman within the meaning of the marriage ordinances and “therefore eligible to marry a man.”

Importantly, the Court also stated: “We would not seek to lay down a rule that only those who have had full gender reassignment surgery involving both excising and reconstructive genital surgery, qualify. We leave open the question whether transsexual persons who have undergone less extensive treatment might also qualify.”

“This is a historic decision,” said Alli Jernow, Senior Legal Advisor at the International Commission of Jurists. “Not only has W won her own case at the Court of Final Appeal, her courage and commitment have changed the lives of transgender people in Hong Kong.”

The parties have an additional 21 days to file written submissions. The Court’s proposed order gives the Hong Kong legislature time to respond but indicates that even in the absence of intervening legislation, the marriage ordinances would be given a remedial interpretation to include W.

Photo by K.Y. Cheng: Michael Vidler, solicitor of the appellant, holds the judgment in his hand outside Court of Final Appeal.

 

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