• wethepeopleofhk

Secondary School 2020 DSE exams are illegal under law

Updated: Apr 26, 2020


Background


The majority of Secondary School students in Hong Kong (HK) sit the Diploma of Secondary Education (DSE) examination at the conclusion of their schooling. It is an important examination for them as results determine admission into universities and pathways into other study options (or even employment). Similar to the 'lockdown' many countries have initiated to combat the global Coronavirus pandemic, since early February HK has been practicing 'social distancing' - a move that has been legislated by the Chief Executive (CE) under guidance from medical advisers.



Summary


  1. Under international law the right to life is the sole determining factor of everything. All humans have a "supreme human right" which under international law, including ICCPR, is their UN human right to life (see "International Law" below). This supreme human right can NOT be derogated by the State for any reason; derogation "is the act of talking about or treating someone in a way that shows you do not respect him, her, or it." ICCPR is legislated into law in HK as the HK Bill of Rights Ordinance;

  2. The Hong Kong (HK) government has chosen to ignore its GREATEST HUMAN RIGHTS OBLIGATIONS during the current pandemic health crisis which is to protect its citizens' human rights to life, and also to respect the human rights of children and parents with regards to education (see below).

  3. The HK government made the announcement on 21 April 2020 of an extension of an additional 14 days of social distancing from 24 April until 7 May 2020 in regulations Cap.599F and Cap.599G, although this has NOT yet formally been updated (we can not see any update as of today, 22 April 2020) on the HK government website;

  4. On 22 April 2020 the Chief Secretary visited a DSE examination centre at Queen Elizabeth School (see below);

  5. Because a public announcement has been made, it is natural and normal to assume that there must not be conflict within the law including the enforcement of the law, so that the HK government must honour this 14 day extension of social distancing...THE DSE EXAMINATIONS CAN NOT TAKE PLACE BECAUSE THEY ARE AN ILLEGAL GATHERING OF MORE THAN FOUR PERSONS!

  6. By holding these DSE exams the HK government is illegally discriminating against children;

  7. Therefore, why is the HK government holding these DSE examinations? (see below).



Announcement


On 21 April 2020 RTHK "Social distancing measures extended until May 7" (bold added)

"Chief Executive Carrie Lam on Tuesday announced that social distancing measures put in place by the government to fight the coronavirus pandemic will be extended until May 7."


The ban on public gatherings of more than four people and the forced closure of venues such as bars, gyms and cinemas were due to expire on Thursday.


But Lam said they need to be extended for another two weeks as the city must remain vigilant against the spread of Covid-19.


Speaking to reporters before the weekly Executive Council meeting, she admitted it was a difficult decision because of the adverse impact brought to residents and businesses, but she noted that Hong Kong is already better than many other places as the city doesn’t have to order a lockdown.


“The government totally understands that Hong Kong citizens feel helpless that they have lost their normal social activities. A lot of inconvenience is caused to their leisure activities. But we should tolerate it for some time,” Lam said.


“I have come to this view together with the advice of the experts and my colleagues that for the time being, the better balance to be struck and a safer approach to ensure that all the success that Hong Kong has achieved over the last three months will not be wasted, is to extend these social distancing measures for another 14 days,” she said.


The CE did not say any measures will be relaxed, but a statement issued by the Food and Health Bureau soon after Lam spoke said one curb imposed on restaurants will be eased.


It said the 50 percent capacity restriction for restaurants will be removed, but other measures like compulsory mask wearing, a limit of four people per table and a distance of 1.5 metres between tables will remain in place."



Context of the Pandemic


Hong Kong (HK) schools were shut down for the traditional Lunar New Year celebrations, which this year fell on 25 January 2020, and have to date not been reopened nor is there a schedule to reopen.


Currently, final year DSE exams are due to be held starting on 24 April 2020 and may continue for about 14 days.


In addition to the worries and concerns of final year examination performance, parents and children are understandably also nervous and worried about the risk of infection from asymptomatic carriers of the virus. There have been both imported and local transmission of covid-19 in the city within the last 14 days which has forced CE Carrie Lam and her administration to extend the HK government's social distancing decree as announced on 21 April 2020.


The cancellation worldwide of internationally accredited exams such as IB and IGCSE should be setting a clear example to educational authorities and the government in HK, yet the unaccredited HK Diploma of Secondary Education is reportedly going ahead. Secondary Schools that act as host venues for the examinations have been instructed to prepare for them. Anecdotal reports suggest that arrangements in some schools may be less than ideal.


While the HK Education Bureau (EDB) pushes ahead with the DSE examinations, even teenagers recognise the health risk they could be exposed to during their test-taking. Louis Campion, 15, from South Island School, believed it was right to scrap the IGCSE exams at her school because of the health risks. “With the Education Bureau having officially announced that schools are not set to resume on April 20, I can’t see how 200 students can be seated together in an exam hall when the government is advocating social distancing,” Campion said.


Checking the exam candidates' temperatures and wearing face masks is inadequate. Some students complain that whatever arrangements are made by schools, taking an exam during the current health crisis is never going to be optimal. Their study preparation, contact with teachers and normal routines have also been impacted by the pandemic and the entirely necessary social distancing recommended by the medical experts (including the W.H.O.) as a non-pharmaceutical intervention (NPI). How about the safety of the staff supervising candidates as they arrive at venues, and those invigilating the exams for hours at a time?


This is just like the tension many governments are facing between the desire to get their economies restarted and the other goal of avoiding a massive increase of new infections. In the HK case, however, by running the DSE examinations the EDB is gambling with the health and wellbeing of thousands of teenagers and their immediate families.


See our blog HK Chief Executive Carrie Lam discriminates & coerces Foreign Domestic Helpers! Quote: "The first public statement made by the Hong Kong Government requesting "social distancing" of HKers was on 8 February 2020. RTHK reported "Hong Kong government on Saturday appealed to the public to stay at home as far as possible and reduce social contacts in an effort to prevent larger outbreak of the coronavirus in the city."


The official HK regulations listed on HK government website on 22 April 2020 declares two regulations currently in force:

  1. Cap. 599F Prevention and Control of Disease (Requirements and Directions)(Business and Premises) Regulation which commences on 28 March 2020 due to expire on 23 April 2020. This regulation is primarily focused for restaurants, etc.

  2. Cap. 599G Prevention and Control of Disease (Prohibition on Group Gathering) Regulation which commences on 29 March 2020 due to expire on 23 April 2020. This regulation applies because it is for group gatherings - which is what will happen inside an examination centre such as a school hall, etc.


Quote Cap.599G includes (highlighted in bold):

1. Commencement This Regulation comes into operation on 29 March 2020.


2. Interpretation

In this Regulation— authorized officer (獲授權人員) means an authorized officer appointed under section 14(1); fixed penalty (定額罰款) means the fixed penalty under section 8(1); group gathering (羣組聚集) means a gathering of more than 4 persons; prohibited group gathering (受禁羣組聚集) means a group gathering the taking place of which is prohibited under section 3; public place (公眾地方) means a place to which the public or a section of the public may or are permitted to have access from time to time, whether by payment or otherwise; Secretary (局長) means the Secretary for Food and Health; specified disease (指明疾病) means the disease specified in item 34AAA of Schedule 1 to the Ordinance; specified period (指明期間) means a period specified under section 4(1).


3. Prohibition on group gathering during specified period (1) No group gathering may take place in any public place during a specified period. (2) Subsection (1) does not apply to— (a) an exempted group gathering specified in Schedule 1; and (b) a group gathering that is permitted under section 5(1).


4. Period specified by Secretary (1) For preventing, protecting against, delaying or otherwise controlling the incidence or transmission of the specified disease, the Secretary may, by notice published in the Gazette, specify a period for the purposes of section 3(1)*. (2) Any period specified under subsection (1) must not exceed 14 days. (3) Any notice published under subsection (1) is not subsidiary legislation. * Editorial Note: Notice Period specified With effect from

G.N. (E.) 27 of 2020 10 April 2020 to 23 April 2020 10 April 2020

Remarks: G.N. (E.) 19 of 2020 has been suspended from 10 April 2020.

5. Chief Secretary for Administration may permit group gathering (1) The Chief Secretary for Administration (Chief Secretary) may permit any group gathering for the purposes of section 3(2)(b) if satisfied that the taking place of the gathering— (a) is necessary for governmental operation; or (b) because of the exceptional circumstances of the case, otherwise serves the public interest of Hong Kong. (2) The Chief Secretary may, if considered necessary, attach conditions to a permission. (3) The Chief Secretary may cancel a permission or vary a condition attached to a permission. (4) A permission, attachment of conditions, cancellation or variation under thissection must be made in writing.



Action of the Chief Secretary; 22 April 2020 CS inspects DSE exam centre

"Chief Secretary Matthew Cheung today visited Queen Elizabeth School to inspect the preparatory work of an examination centre for the Hong Kong Diploma of Secondary Education (DSE) Examination. Mr Cheung was briefed on anti-epidemic precautionary measures for candidates and examination personnel before they enter the centres. They will be required to wear masks, make health declarations, undergo temperature checks, disinfect the soles of their shoes and clean their hands with alcohol-based sanitiser. He then visited the school hall to understand the preparation required for an examination centre, such as disinfection and widening the distance between candidates’ seats to 1.8m. The Chief Secretary also learnt about the arrangements for candidates during the sessional break and the use of washrooms to help ensure that social distancing is maintained. Mr Cheung was pleased to know that the Education Bureau had earlier distributed masks to candidates and made available about 200,000 bottles of alcohol-based sanitiser for candidates at examination centres. The bureau has also set fallback dates, should the DSE examination be halted if the epidemic situation worsens. He thanked the bureau, relevant government departments, the Examinations & Assessment Authority, principals, teachers and school staff for the additional work they have done to protect the candidates’ health and safety. He encouraged the some 50,000 candidates to tackle the examinations positively and optimistically and reminded them to heighten their anti-epidemic awareness and strictly follow examination arrangements. Additionally, Mr Cheung appealed to all employers to allow their staff to follow flexible working hours to divert passenger flows on public transport during the morning peak hours between 7am and 8am, thus enabling candidates to reach examination centres on time."



International Law


We refer to our recent blog Mandates of the UN special rapporteurs 19 February 2020 on arrests of HK medics during protests which includes in the Annex an excellent outline of international law which applies in Hong Kong including (bold format added):

  1. "While we do not wish to prejudge the information made available to us, the acts described above appear to contravene article 3 of the Universal Declaration of Human Rights (UDHR) which guarantee the right of every individual to life, liberty and security. The right to life is also enshrined in article 6(1) of the International Covenant on Civil and Political Rights (ICCPR), signed by China on 5 October 1998. While China is yet to ratify the ICCPR, as a signatory, it has the obligation to act in good faith and not defeat the purpose of the Covenant. We note in addition China’s notification to the Secretary--General regarding the application of the ICCPR to Hong Kong indicating that the Covenant will also apply to the Hong Kong Special Administrative Region."

  2. "In its General comment No. 36 (CCPR/C/GC/36), the Human Rights Committee has stressed that the right to life is the supreme right from which no derogation is permitted, even in situations of public emergencies that threaten the life of the nation (para 1). The deprivation of life of individuals through acts or omissions that violate provisions of the Covenant other than article 6 is, as a rule, arbitrary in nature."

  3. "The Committee highlights that the right to life should not be interpreted narrowly; it concerns the entitlement to be free from acts and omissions that are intended or may be expected to cause individuals’ unnatural or premature death (para 2). The obligation to respect and ensure the right to life extends to reasonably foreseeable threats and life--threatening situations that can result in loss of life and there may be a violation of article 6 even if such threats and situations do not result in loss of life (para 7)."

  4. "In this connection, we would like to refer to article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), ratified by China on 27 March 2001. The article recognizes the right to the highest attainable standard of physical and mental health and establishes obligations of States parties to protect, respect and fulfill this right."



Children's UN human rights are being violated in HK


HK has signed and ratified the UN Convention on the Rights of the Child (CRC) which includes (bold format added):

  1. Article 3 "1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

  2. Article 6 "1. States Parties recognize that every child has the inherent right to life."

  3. Article 12 "1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child."

  4. Article 18 "1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. 2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children."

  5. Article 24 "1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services."



United Nations World Health Organization (WHO)


Please see our blog International independent inquiry into China & World Health Organization WHO on Covid-19 is needed.


Under Treaties sub-section “Health” HK Department of Justice has signed and ratified the UN’s WHO “International Health Regulations” (IHR) (2005).


The purpose and scope of WHO’s International Health Regulations IHR (2005) are “to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.”


The IHR (2005) contain a range of innovations, including:

(a) a scope not limited to any specific disease or manner of transmission, but covering “illness or medical condition, irrespective of origin or source, that presents or could present significant harm to humans”;

(b) State Party obligations to develop certain minimum core public health capacities;

(c) obligations on States Parties to notify WHO of events that may constitute a public health emergency of international concern according to defined criteria;

(d) provisions authorizing WHO to take into consideration unofficial reports of public health events and to obtain verification from States Parties concerning such events;

(e) procedures for the determination by the Director-General of a “public health emergency of international concern” and issuance of corresponding temporary recommendations, after taking into account the views of an Emergency Committee;

(f) protection of the human rights of persons and travellers; and

(g) the establishment of National IHR Focal Points and WHO IHR Contact Points for urgent communications between States Parties and WHO.



Healthcare professionals view


Because of democracy and human rights our human lives are more important than money; this means politically saving human lives is more important than saving the economy! The Lancet, 21 March 2020 'How will country-based mitigation measures influence the course of the COVID-19 epidemic?'"Governments will not be able to minimise both deaths from coronavirus disease 2019 (COVID-19) and the economic impact of viral spread. Keeping mortality as low as possible will be the highest priority for individuals; hence governments must put in place measures to ameliorate the inevitable economic downturn."



The question remains to be answered, why is the HK government holding these DSE examinations? Is it because a weak Chinese Communist Party (CCP) needs to prove that HK is now under its direct control and that China's rule BY law applies? Is this the forerunner to HK's "economic recovery" after CCP's global COVID-19 pandemic in which HK peoples lives pay the ultimate price for the glory of the CCP and HK's CE Carrie Lam?


Pepe.


See our other Education-related blogs:

Education: It's just NOT happening!

We live and learn in Hong Kong



References:

RTHK 26 April 2020 UN warns against crackdowns amid coronavirus crisis

RTHK 25 April 2020 Sick candidates drop out as DSE exams continue

RTHK 24 April 2020 DSEs underway as schools take extra precautions













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