Latest news with #BillofRightsOrdinance
HKFP
12-07-2025
- Politics
- HKFP
So soft resistance is not a legal concept? Why this is a worrying thought
One does not wish to seem ungrateful, but the enduring mystery of the hour – exactly what do officials mean by 'soft resistance' – has not been much clarified by the secretary for justice, who offered a definition last month. Soft resistance, said Paul Lam, has three main elements: making false or misleading statements, expressing them irrationally with emotional bias, and having the intention to create misunderstandings about the Chinese or Hong Kong governments and their policies. This looks like an extension of the law on subversion, already unmoored from its Common Law attachment to the provocation of violence. If this were the case, it would still leave a variety of tricky questions. For example, would sincere belief in the truth of the statement complained of be a defence? But Mr Lam scotched this notion by adding that 'methods of soft resistance may not always be illegal, but that did not mean they did not harm society.' He also said that although the term was hard to define the government would not use it arbitrarily. 'You can say it is a political term,' he mused. 'Not all issues in society should be addressed by legal means. [Legal means] are also not always the most effective way of handling [matters].' This brings us to a rather alarming question: What non-legal means is the government proposing to use? A few reminders: We have repeatedly been assured that freedom of expression continues to be protected in Hong Kong. Both the Basic Law and the National Security Law reiterate the point, which is often also made by officials. Anyone who complains about apparent infringements will be referred to the relevant part of the Bill of Rights Ordinance, which permits exceptions to protect – put briefly – reputations, public order (including national security) and public decency. But there is one condition attached to these exceptions: They must be 'provided by law.' That means that if a person engages in soft resistance, deplorable though that may be, using methods which are not illegal, then he or she is exercising the right to self-expression and is entitled to Mr Lam's protection while doing so. The answer to soft resistance that does not break the law is, of course, soft repression. This could take the form of counterarguments, pointing out untruths, denouncing irrational language and correcting misinterpretations of government policies. This should not be too difficult. The government has a whole department devoted to putting its version of events before the public. RTHK is at its service, and most of our surviving media take pride in doing more than justice to the government line. The answer to erroneous speech is, or should be, correct speech. Yet somehow, I do not think this was on the mind of the numerous senior officials who thought a 28th Handover anniversary speech was a good opportunity to denounce the evils of soft resistance and promise to extirpate it. Rosanna Law, the secretary for culture, art and tourism, for example, promised to step up scrutiny before allowing funding or the use of venues for shows. Other issuers of permits of various kinds are apparently putting their shoulders to the wheel. Of late, we learn that restaurants can lose their licences, social workers and teachers can be drummed out of their professions. Some people cannot run a bookshop without entertaining a stream of visitors from government departments, citing anonymous complaints about hygiene, fire safety, business regulations or whatever. We may have a government which, as Mr Lam said, welcomes criticism, but it is not very good at looking like that. The problem with this sort of thing is that after a while it makes people suspicious. Maybe the venue you wanted to hire really does have an air-conditioning problem. Who knows? The Lord moves in mysterious ways and routinely refuses to discuss individual cases. Recently the Inland Revenue Department resumed sending me annual tax returns. In normal times I would put this down to a lucrative one-off freelance gig in 2023 after which the employer very properly filed the usual form reporting how much it paid me. As it happened, though, this sudden renewal of interest in my finances coincided with several stories about news media and individual reporters being asked for large tax payments they did not owe. So an innocent bit of bureaucratic routine looks … fishy.
HKFP
30-04-2025
- Politics
- HKFP
Hong Kong trans activist launches new legal challenge over ID card gender policy
A Hong Kong activist behind a landmark lawsuit allowing trans people to be issued ID cards matching their gender identity has launched another legal challenge over the new requirements. In a writ seen by HKFP, Henry Tse's lawyers submitted that the Immigration Department's new policy still requiring 'partial' gender-affirming surgery and ongoing hormone treatments was still unlawful. The activist is also seeking to challenge the government's lack of a legal framework recognising transgender people. In April last year, the government revised rules to make it easier for trans people to amend their ID cards to reflect their gender identity, more than a year after the Court of Final Appeal ruled in a landmark decision that Hong Kong's rules on changing gender on identity documents were unconstitutional. The judicial review brought by Tse two years ago challenged the government's policy barring trans people who had not undergone full surgery from applying to change the gender stated on their ID cards. 'Arbitrary' requirements Hong Kong's trans community generally sees the updated policy only as a partial victory, given that it still requires trans applicants to complete surgeries to alter sexual characteristics, namely removing the breasts or the penis and testes. According to Tse's judicial review application filed on Friday, it is unconstitutional to impose such requirements on trans people who have not received those gender-affirming surgeries. Tse's lawyers also argued that the government had set down different and, therefore, discriminatory surgery requirements for trans men and trans women 'without any reference or consideration as to the function of such organs.' They said that the top court had 'expressly agreed… that it is rare that a person's genitals would be exposed and that most transgender persons would go to great lengths to avoid being placed in a position where they need to expose such areas.' They further argued that the requirement for trans women to effectively undergo sterilisation – a significantly more intrusive procedure compared with the mastectomy required of trans men – amounted to discrimination under the Sex Discrimination Ordinance. The activist is also challenging requirements that trans people declare they will submit medical reports certifying hormone levels within 30 days of a request from authorities and consent to the sharing of blood test reports with the government. The slew of requirements amounts to a violation of the constitutional right to privacy under Hong Kong's Bill of Rights Ordinance, a core tenet cited by the five top court judges who delivered the landmark ruling two years ago, he argued. The Court of Final Appeal said in February 2023 that any incongruities between a trans person's outward appearance and their identity card could elicit doubt and questions involving a 'violation of dignity and invasion of privacy.' In a similar vein, Tse's lawyers argued that the updated policy still amounted to an intrusion upon his private life. The policy would allow authorities to request Tse's medical reports arbitrarily for the rest of his life, 'without any reasonable restrictions, without any safeguards and over an indefinite period of time,' they said. Tse would be unable to foresee the circumstances under which he would be asked to provide a report, 'the results upon which may lead to potential criminal sanction,' they added. 'Such random 'spot checks' without any reasonable suspicion that a crime has been committed, cannot be 'in accordance with the law' and each spot check amounts to a significant intrusion into his private life,' the lawyers argued. They also submitted that the medical report requirement had no legitimate aim, saying that Tse's hormone level was one of the most inconsequential factors 'in a basket of others,' such as whether he was living and being accepted as a man in society. According to the Immigration Department, the gender marker on a Hong Kong ID card only serves as an 'identifier' and 'does not represent change of the holder's sex as a matter of law.' Tse is also seeking to challenge the absence of a framework that would legally recognise him as a man, the lack of which would deprive him of family and marriage rights.
