Human rights and the laws

- Bishop Joseph Zen

The controversy about the right of children on recognizance to receive schooling is growing more and more heated with an outstanding columnist of a Chinese paper also entering the arena. Unfortunately, the truth is not made more perspicuous because of that. In my opinion the crucial point is to clarify the relationship between human rights and the law.

Human rights are inseparable from human nature. The laws are made by society. It is also true that civilized society must reflect upon and study human rights before they can be well established. Now, after such extensive and prolonged efforts by the whole of mankind, the most fundamental human rights are quite adequately enshrined in the "Universal Declaration of Human Rights" and many other international covenants. From the point of view of the Christian believer these rights are given by the Creator of mankind. Each human being is very precious in the eyes of the Creator and He wants these rights to be respected by all. The defence of human rights thus enters the sphere of the Divine.

The main purpose of law is precisely to ensure that human rights are respected. Whether a law helps a society to respect human rights is the criterion by which to judge the goodness of the law. Laws that damage human rights are unjust laws.

In a democratic society laws are made through a democratic process and to correct unjust laws a democratic means must be used. A democratic system is precious, so we have to bear with laws we consider unjust before we can correct them. But if a man or woman finds a law unjust and that it seriously contradicts his or her conscience, he or she can only follow their conscience, for behind the voice of conscience is the voice of God. In such cases, civil disobedience is unavoidable.

Here we are making a rational discussion of the problem, we are not being sentimental. Of course we should not easily assume that a law is seriously unjust. Civil disobedience is something very serious and should be decided upon only with reluctance.

In some civilized societies, although the general norm is that the minority obeys the majority, in several cases the majority respects the conscience of the minority. For example, in a society where abortion is legal, doctors and nurses who object on the grounds of conscience would not be forced to take part in an abortion operation.

The ideal when drawing up a law is to balance different rights and duties of different categories of persons without trampling on other people's rights. Because of this there is a hierarchy of human rights, some are absolute, others may be conditional, some are to be always enjoyed, some can be temporarily suspended. For example, the right to life is very fundamental, innocent life can never be taken away. But for the defence of the country or to rescue people in danger individuals may be required to put their lives at risk. But the more fundamental the human rights are, the more serious must be the reasons given for limiting them.

Now let us apply these principles to our particular case. Education is a fundamental right for children. It does not depend on race, religion, political loyalty or any other kind of qualification and status, according to international covenants. This right is enshrined because it not only involves learning but because education is a necessary condition for the healthy growth of children. By going to schoolchildren learn to enter and live society. This is achieved through interaction in their immediate family circle and through interaction with the 'greater family' of teachers and schoolmates.

When children are turned away from school serious psychological damage is inflicted. They feel as if they are abnormal, abandoned by the community. Is there any reason to justify the suspension of their rights? If they were legal immigrants" or "overstayers", they could be immediately sent away and there would be no problem regarding their schooling. If they were "visitors" to Hong Kong, it would be impractical to arrange for their schooling; but these children on recognizance are not illegal immigrants, overstayers or visitors. Their right to live in Hong Kong is indeed in doubt and now under judgment in the courts, but in the meantime they are legally allowed to stay in Hong Kong, although no one knows for how long.

Actually they are children born of Hong Kong residents! According to the original ruling of the Court of Final Appeal they would already have the right to permanent residence. Their right fell in doubt because the Government asked the Standing Committee of the National people's Congress to overturn the CFA's ruling, used dishonest methods (inventing figures to frighten the people) and illegal procedures (the Basic Law only considers the request of reinterpretation by the court.) These children are the victims of the reinterpretation. Those who have undermined thee rule of law now pose themselves as defenders of the law.

How ironical it is!

And now they threaten that admitting children into schools without permission would have legal liabilities. The most outstanding lawyers in Hong Kong - two members of the Legislative Council and the present and Former chairman of the Bar Association could not find which law would be contravened if the children were admitted.

Actually the prescription of having to get permission from the Immigration Department is only an "administrative order'. The purpose if to allow Immigration to intervene in rare cases when, according to data available only to them, the admission of a particular child might be dangerous or detrimental to the schools or society. Now they are using this power indiscriminately, on a basis that cannot stand objective scrutiny. They argue that admitting these children to school would encourage a new wave of illegal immigrants and might make repatriation more difficult if the court rules against their right of abode appeal.

How can you take away a sure and fundamental right from people on the basis of a hypothetical danger or to avoid a hypothetical inconvenience?

The columnist mentioned at the beginning invites us, the church, to show a spirit of sacrifice by helping the children and we are most willing to do. As a matter of fact, before the Government was in the position to provide regular education to all children the sponsoring bodies willingly shouldered the burden. But now denying the right to children to go to regular schools.

I reluctantly ask a final question: Has the Government ever considered us "partners" in education?