Recommendations: Reforming the Justice of the Peace System

16 April 2000

Introduction

Justices of the peace (JPs) are counted as the primary mechanism for outside monitoring of Hong Kong's prisons. Appointed by the Chief Executive (previously the Governor), JPs enjoy an array of formal powers, although their main practical function is to visit prisons and other institutions. The job of JP is not a full-time occupation, but rather more of an honorary post and most of the JPs spend limited time on their prison duties.

The Hong Kong Human Rights Monitor finds serious defects in the approach and methodology of Hong Kong's system of JP visits. To begin with, because JPs have no specific training or experience in prison matters, they are ill-prepared to delve beneath the surface in investigating conditions. In addition, their visits are largely overseen by the prison authorities. One knowledgeable observer, commenting on this problem, described the JPs' prison tours as "staged visits." Indeed, the Prison Rules specifically mandate that a high-ranking officer accompany the JPs around the prison and "bring before them" any prisoners wishing to speak to them. It is quite clear that although the rules do not prevent interviews in private, the normal practice is for JPs to speak with prisoners in the presence of prison officials. A few prison officials stated, when pressed on this point during our 1997 prison review, that the JPs might if they preferred speak with prisoners privately.

The lack of confidential communications between prisoners and JPs flies in the face of the requirements of the United Nations Standard Minimum Rules for the Treatment of Prisoners, which state that during prison inspections, "[t]he prisoner shall have the opportunity to talk to the inspector or to any other inspecting officer without the director [of the prison] or other members of the [prison] staff being present." While many prison officials seem not to have contemplated the possibility that prisoners and JPs might speak to each other privately, others are openly hostile to the idea. One superintendent, when asked why this is not the normal practice, stated bluntly that "it has to do with who is running the prison. The VJ [visiting justice of the peace] is not running the prison."

At the close of their visit, the JPs write up their comments in a log book, describing their impressions of the prison and any complaints made to them. Human Rights Monitor viewed these comments at every facility that we visited in 1997. We found them to be brief and almost uniformly uncritical.

Most complaints other than those trivial ones made to the JPs are recorded in the JP Book (and therefore known to the superintendent, or even other officers, of the same prison even if the interview was in private) and it is the Correctional Services Department or even the same prison which handles such complaints. Such an investigation is entirely internal and the involvement of the JPs is minimal except the later are informed briefly of the results in writing. Unless there are obvious problems in the written reply, it is extremely difficult for the relevant JPs to be able to tell the defects in the investigation of the case. It offers little protection to the complainants.

Finally, the JP system suffers from a serious lack of continuity and follow-through. Instead of repeat visits by the same inspector over a period of time, which would permit that person to understand an institution more thoroughly, evaluate whether conditions were improving and recommended improvements were being implemented, and offer certain protection to the complainants -- every two weeks a different set of JPs visits and there are no discussion and collaboration between pairs who have visited the same prison.

An important improvement to ensure independent monitoring is the establishment of an independent professional prison inspectorate. Such an inspectorate would have a broad mandate to investigate conditions in the territory's penal facilities; report its findings to the responsible governmental authorities, to the legislature, and to the public; and make recommendations for reform.

Nevertheless, the Justice of the Peace ("JP") system has the potential to be a critical mechanism for monitoring prison conditions and addressing prisoner complaints. Unfortunately, in the three years since the enactment of the Justice of the Peace Ordinance (Cap. 510) on 22 May 1997, the potential of the office has yet to be realized. Human Rights Monitor welcomes the government's recent efforts to examine the JP system and to consider proposals for reform. Our recommendations for reforming the JP system are without prejudice to our proposal for an independent professional prison inspectorate. We could only set out some of the more important ones in this press release and a more detailed report is available on our web site.

1. Appointment of JP

Rule 55 of the UN Standard Minimum Rules for the Treatment of Prisoners (hereinafter "Standard Minimum Rules") requires that "[t]here shall be a regular inspection of penal institutions and services by qualified and experienced inspectors appointed by a competent authority." The Justice of the Peace Ordinance should be revised to encourage the selection of JPs who will be independent and knowledgeable critics of the prison system, and sensitive and effective advocates for prisoners. Factors that should be considered in the appointment of JPs should include, inter alia, experience in counseling, prison administration, or detention conditions. The Chief Executive should also ensure balance in the composition of the JPs, so that they may respond effectively to the ethnic, linguistic and gender diversity of the prison population. Consideration should also be given to the willingness of a candidate to spend time on prison inspection and investigate complaints.

2. Training for JPs

Despite their lack of experience with prison monitoring, JPs often receive little relevant training. The lack of training makes the JPs ill-equipped to deal with a comprehensive examination of prison conditions; as a result, JPs frequently focus on superficial issues such as the quality of the food. We welcome the Administration Wing's proposal to "organize a briefing for newly-appointed JPs and a seminar for non-official JPs every year."

Human Rights Monitor highlights the need that such briefing to be structured and relevant in content. JPs should, at a minimum, receive information about relevant international norms and techniques of prison inspection (including surprise visits and interviews in private), and international standards setting documents including the Standard Minimum Rules and the Basic Principles for the Treatment of Prisoners. Additionally, the JPs should receive training in local laws and procedures regarding prison and detention such as the JP Ordinance and the Prison Rules. The JPs should be trained to guard against the phenomenon of "capture" (whereby prison inspectors might develop an overly-friendly relationship with prison officials and lose their capacity for independent scrutiny of prisons). Finally, JPs should at least be strongly encouraged by the Administrative Wing to accept, with the assistance of the Wing (e.g. through redirection), publications and information on seminars related to prison inspection by the universities and NGOs.

3. Visits by JPs

3.1 Conducting surprise visits

Ensuring the element of surprise in prison visits is critical to ensuring that JPs have uncensored exposure to prison conditions and unrestricted access to prisoners. Recognizing the importance of surprise visits, even some JPs have called for all visits to prisons to be unannounced. While the Justice of the Peace Ordinance and the Prison Rules give the JPs adequate legal authority to conduct surprise visits, the Ombudsman has noted that "[a]lthough [JPs] may theoretically make unannounced visits, it is practically not possible."

In August 1998, two JPs, Emily Lau and Paul Chan, attempted to conduct a surprise visit at the Ma Po Ping Prison. Their request was technically refused in spite of section 5 of the Justice of the Peace Ordinance (See also section 39 of the Interpretation and General Clauses Ordinance). Instead, the two were permitted to accompany the Superintendent on a "Superintendent's inspection." This visit highlighted the absence of clear procedures respecting surprise visits by JPs outside the normal scheduled visits under Rule 222 of the Prison Rules. It also highlighted the fact that JPs had made few, if at all, surprise visits under the JP Ordinance and that the Department was not prepared for such surprise visits at all. The failure of the Department to let Emily Lau visit on 11 April 2000 under the JP Ordinance but rather Rule 77(9) of the Prison Rule confirmed that no procedure was in place to handle such surprise visit.

The "anger" of some of the officers in the two incidents, as expressed by the Correctional Services Officers' Association, highlighted also that the officers were not psychologically prepared for such surprise visits.

To strengthen the ability of JPs to make surprise visits and to make it clear to all correctional services officers, Human Rights Monitor first proposes that (1) Procedural guidelines and administrative measures to admit (not "allow") JPs without hindrance should be adopted; (2) Section 5 of the Justice of the Peace Ordinance and Rule 222(2) of the Prison Rules be amended to state more clearly the power of the JPs to conduct surprise visits; and (3) JPs should be encouraged to conduct such surprise visits in addition to their normal visits under Rule 222.

Although the Administration Wing of the Chief Secretary's Office and the Correctional Services Department agrees with the importance of surprise visits, the psychological resistance of those officers cast doubt as to whether all the officers were adequately trained in the international norms and techniques in prison inspection, the importance of surprise visits to prisoner rights and proper prison administration, and the professional attitude towards independent prison inspectors. Human Rights Monitor therefore also proposes that more emphasis to these topics should be given in the training of officers.

3.2 Maintaining continuity of visits

Currently, prison visits are assigned to JPs on a roster basis emphasizing only on the spread of the minimum number of visits over time. Visits to one institution are often conducted by different pairs of JPs over a period of time. The resulting lack of continuity in visits makes it difficult to follow-up on the implementation of recommendations or to monitor the resolution of a prisoner's complaint. The lack of continuity also impacts negatively on the JPs ability to gain familiarity with the prison conditions and with the prison's detainees., and their ability to offer reasonable protection to the complainants.

The Administration Wing has recently recommended that "JPs who wish to visit a particular institution on a more regular basis be allowed to do so." Human Rights Monitor believes, however, that at least a quarter of the JPs should be assigned to particular institutions over a longer period of time with strong encouragement of the Administration. The system of the Visiting Committee envisaged in Section 23 of the Prisons Ordinance should also be activated to encourage sharing of views on the same institution and enable more concerted efforts in monitoring the institution. The duties of the Committee should include inspecting the prison (including surprise visits) and the treatment of prisoners, hearing the complaints and requests of prisoners, inquiring into any report of injury, and preparing an annual report to the Commissioner and for the public.

Human Rights Monitor proposes that a Visiting Committee be established for each prison. The Visiting Committee should consist of ten JPs. The establishment of a Visiting Committee for each of the 20 some penal institutions would involve the commitment of less than one-quarter of the 970 JPs presently available. To ensure the independence of each Committee, at least half of the members should be non-official JPs.

The Visiting Committee, as a group, should inspect its assigned prison at least twice a year. During the regular fortnight prison visits required by Rule 222(1)(a) of the Prison Rules, at least one of the pair of JPs should be a member of the Committee; that committee member should also be responsible for briefing the JPs conducting the next fortnight visit. By setting the membership of the Committee at ten, each member would have to make about three Rule 222 visits per year, either in his capacity as a member of the Committee or as part of the pair of visiting JPs. There is still room for one or more surprise visits other than the regular ones if they want.

The participation of committee members in the fortnightly visits would help maintain continuity in the prison visits, while the involvement of new, non-members would guard against the phenomenon of "capture" and provide fresh perspectives. The introduction of these new arrangements should be without prejudice to the continuing right of JPs, regardless of whether or not they belong to the Committee, to conduct surprise visits under Section 5 of the Justice of the Peace Ordinance.

The Committee should convene Committee meetings on a semi-annual basis. While the attendance of Committee members would be required, other non-Committee JPs (particularly those that have or will be conducting visits to the Committee's assigned prison) should be invited to participate. Members of the public, including academics, prison chaplains, non-governmental organizations, and friends and family of prisoners, should also be welcomed at the Committee meetings. Committee meetings should discuss the findings from recent prison visits, the complaints received from prisoners and the general public, recommendations for improvement, and steps taken to implement such recommendations.

3.3 Formulating standardized questionnaires or checklists for use during prison visits

Given the lack of experience and training in prison inspections, a number of JPs may not have a comprehensive understanding of all the potential problems they should take note of or inquire about during a prison visit. Human Rights Monitor recommends that, in addition to receiving training, the JPs should develop a standardized questionnaire covering such topics as the conditions of sleeping accommodations, work spaces, sanitation facilities, clothing, and libraries; opportunities for exercise; the availability of medical and dental services; the administration of discipline and punishment; the use of restraints; access to the outside world, including family, friends, and legal counsel; and arrangements for religious observance. The Administration has agreed to compile a checklist instead. This seems to be an acceptable alternative. We then recommend that non-governmental organizations (NGOs), academics, and other individuals with a specialized knowledge of prison issues (including prison chaplains, prisoners and the family members and friends of prisoners) should be invited to provide input on the checklists. The checklists should be reviewed and updated periodically.

In particular, the checklists should be able to highlights the need to monitor the possible use of administrative segregation, transfer from a low security facility to a higher security facility for punitive or retaliation purposes, the repeated use of punitive and administrative segregation with very brief breaks, and treatments of vulnerable groups like ethnic minorities.

4. Communications and complaints

4.1 Protecting privacy of interviews between the JP and the prisoner

The Standard Minimum Rules require that "[t]he prisoner shall have the opportunity to talk to the inspector or to any other inspecting officer without the director [of the prison]or other members of the [prison] staff being present." While private interviews with JPs may be arranged with permission by the Superintendent, according to announcements posted in the prisons, in fact, few private interviews are conducted. As reported by the Administration Wing, "[s]ome staff of CSD have insisted on remaining in the same room on security grounds when a complaint is made." The Ombudsman has noted the need to maintain the confidentiality of interviews between the JPs and the prisoners in order to preserve the "impartiality and credibility of the [JP] system."

Given the obligatory nature of the duty to preserve the privacy of interviews between the JP and the prisoner, waiver of this right should not be permitted except upon request by the JP or by written consent of the prisoner. Rule 228 of the Prison Rules provides for the JP's duty to hear complaints during visits. This rule should be amended to guarantee the privacy of interviews between JPs and prisoners.

Rule 117 of the Prison Rules states that "[a]n officer not below the rank of Chief Officer shall accompany the visiting justices in their visits of inspection and bring before them any prisoner who wishes to see them." Human Rights Monitor recognizes that the presence of the Chief Officer may be necessary for reasons of security; however, his presence should not compromise the privacy of interviews between the JP and the prisoner. While the Prison Rules should maintain the obligations of the Chief Officer to accompany the JP and to bring prisoners who have requested an interview before the JP, the actual interview should be conducted under circumstances that will not jeopardize the privacy of conversations between the JP and the prisoner. For example, the interviews may be conducted within sight but out of the hearing of the Chief Officer and other prison staff. The prisons must also be equipped with appropriate facilities to enable JPs to conduct private interviews. Unless there are written guidelines or procedures to ensure the privacy of interviews, Rule 117 should be amended to achieve the same.

4.2 Preventing retaliation against prisoners who request interviews with JPs

According to information received by Human Rights Monitor, the right of prisoners to communicate their complaints to visiting JPs is often undermined by the CSD in a number of ways. Prisoners have alleged that they were summoned suddenly for mandatory drug testing at the time of JP visits to prevent them from meeting with the JPs. Others have reported that they were subject to psychological examinations prior to JP visits so that subsequent complaints made to the JPs can be dismissed on the grounds of the unsound mental state of the prisoners. Finally, prisoners also report the use of reprisals against individuals who file complaints with JPs, such as severe punishment for minor infractions, or transfer from a low security facility to a higher security facility. These problems affirm the need to have surprise visits by the JPs and to raise awareness among the CSD about international norms on detention, especially with regard to the right of prisoners to file complaints.

A number of procedural mechanisms should be adopted to decrease the likelihood of retaliation against prisoners who file complaints. First, prison officials should provide the JPs with a list of the prisoners who are unavailable during their visit, the reasons for their unavailability, and an indication of whether these individuals have made a prior request to meet with the JPs. Second, when prisoners request an interview with a JP or request information for filing a complaint with a JP, their names should be recorded immediately in a special log. The JPs should inspect this log to verify that during their visit they have interviewed all the prisoners who have requested to see them. Additionally, the JPs should monitor the treatment of the prisoners recorded in the request log over the next 6 to 12 months from the date of the request for an interview, to ensure that the pattern of punishment or treatment of these prisoners does not reveal any retaliatory action taken by the CSD. Finally, when a prisoner indicates that he wishes to make an written or oral complaint to a JP, the CSD should inform him about his right to complain without retaliation, and about procedural mechanisms that he may take if he believes that he has suffered retaliatory measures.

Human Rights Monitor also recommends that any steps taken by a CSD officer against a prisoner in retaliation for filing a complaint should be punished as a disciplinary offence. Rule 239(1) of the Prison Rules, regarding disciplinary offences by officers of the CSD, should be amended accordingly.

We are disappointed that the Administrative Wing does not want to afford better protection to the complainants and to better assist the JPs in adopting these measures. It owes the public an explanation for such refusals.

4.3 Ending the inaccessibility of JPs to complaints by and communication from the public

Since JPs serve important public functions and exercise vital public powers in monitoring the prison system and in handling complaints relating to the prison system, the general public (including persons other than prisoners) should be able to contact JPs directly or through channels which maximize the confidentiality of such communications and minimize the likelihood of government interference.

Given the inadequacies of safeguards to prevent retaliation against prisoners who make complaints, it is feared that prisoners will continue to remain silent about abuses. Information about potential abuses may come to the attention of the family members of prisoners, in the course of private conversations, or of non-governmental organizations, in the course of their work. It is therefore important that, in addition to prisoners, the general public has a right to file complaints with the JPs directly without hindrance.

Moreover NGOs and other members of the public may want to send JPs reports on the prison system, international standards on rights of prisoners, obligations of correctional authorities and offices, etc. Universities and other organizations may want to send invitation to the JPs to seminars on similar issues.

The Administrative Wing has refused both to disclose the JPs' contacts and to pass on publications and invitations to the JPs in spite of the JPs' important public functions and powers for reasons of privacy. We doubt very much, inter alia, whether the decision of the Wing was justified at all at least in respect of the non-disclosure in relation to complaints by the public. Regarding the redirection of publications and letters to JPs by the Administrative Wing, the Wing has recently said that it has consulted the JPs on their willingness to accept such redirection. The result of the consultation has yet to be disclosed to the public.

Human Rights Monitor proposes that the Administrative Wing to come up with measures to ensure that the general public, including academics, prison chaplains, non-governmental organizations, and friends and family of prisoners, to file complaints with the JPs (and the Visiting Committees) directly or at least through the Wing. In the later case, we also recommend that the Wing should strongly encourage the JPs, rather than simply consulting them passively, to agree to receive publications and letters directed by the Wing to them.


APPENDIX:

Relevant Hong Kong Statutes

JUSTICES OF THE PEACE ORDINANCE (Cap. 510)

Section 5 Powers and functions of justices of the peace

(1) The functions of a justice of the peace shall be-

(a) to visit any custodial institution or detained person;

(b) to take and receive declarations and to perform any other functions under the Oaths and Declarations Ordinance (Cap 11); and

(c) in the case of a justice of the peace appointed under section 3(1)(b), to serve as a member of any advisory panel.

(2) A justice of the peace appointed or nominated under any Ordinance to perform functions under subsection (1)(a) or (c) shall exercise such powers and perform such other functions as may be conferred or imposed on him by such Ordinance.

(3) A justice of the peace shall perform such other functions as may be imposed on him from time to time by the Chief Executive. (Amended 27 of 1999 s. 3)

INTERPRETATION AND GENERAL CLAUSES ORDINANCE (Cap. 1)

Section 39 Exercise of powers

(1) Where any Ordinance confers any power or imposes any duty, then the power may be exercised and the duty shall be performed from time to time as occasion requires.

(2) Where any Ordinance confers any power or imposes any duty on the holder of any public office as such, then the power may be exercised and the duty shall be performed by the holder for the time being of that public office.

PRISON RULES

(Empowering section: PRISONS ORDINANCE Section 25 )

Rule 77: Powers and duties of Commissioner

(b) Senior Officers

(i) Commissioner

(1) The Commissioner shall, subject to the orders and directions of the Chief Executive, have the administrative command and direction of all prisons and such other institutions as may be placed under his control, and the officers of the Correctional Services Department and may transfer for duty anywhere within Hong Kong any such officer. (L.N. 30 of 1982; L.N. 213 of 1986; 15 of 1999 s. 3)

(2) The Commissioner may, subject to the provisions of these rules and to the orders and directions of the Chief Executive, from time to time frame orders and regulations for the observance of all officers of the Correctional Services Department. (L.N. 30 of 1982; 15 of 1999 s. 3)

(3) The Commissioner shall periodically visit and inspect all institutions under his control.

(4) The Commissioner shall issue such orders as may be necessary for the government of all institutions under his control in conformity with these rules, and for the discipline of the persons, other than subordinate officers, employed therein.

(5)-(6) (Repealed L.N. 353 of 1981)

(7) (Repealed L.N. 154 of 1977)

(8) The Commissioner shall pay into the general revenue all moneys received by him in payment of fines. (L.N. 30 of 1982; L.N. 254 of 1999)

(9) The Commissioner may permit persons of respectability to view the institutions under his control at such times as he may approve. Visitors shall, at all times, be accompanied by an officer of the Correctional Services Department. (L.N. 30 of 1982)

(10) The Commissioner shall ensure compliance with the provisions of section 20 of the Ordinance at all times.

(11) The Commissioner may exercise all or any of the powers conferred by these rules on the Superintendent and may perform all or any of the duties prescribed for him.

Rule 222 Duty to visit prisons

(1) Two visiting justices (one official and one unofficial) shall, in company if possible, visit-

(a) each prison at least once a fortnight;

(b) each hostel at least once a month,

and on such other days as they may be required. (44 of 1987 s. 3)

(2) The names of the visiting justices shall be furnished by the Chief Secretary for Administration to the Commissioner and the prisons and hostels shall be open to them at all reasonable times during their tour of duty. (44 of 1987 s. 3; L.N. 362 of 1997)

PRISONS ORDINANCE (Cap. 234)

Section 23 Visiting justices and visiting committees

(1) For the purpose of visiting prisons and other institutions under the control of the Commissioner, the Chief Executive- (Amended 15 of 1999 s. 3)

(a) shall appoint such numbers of justices of the peace as he considers necessary; and

(b) may appoint fit and proper persons to serve on visiting committees.

(2) Visiting justices and visiting committees shall carry out the duties and exercise the powers prescribed by rules made under section 25.

Section 25 Power to make rules

(1) The Chief Executive in Council may make rules providing for- (Amended 15 of 1999 s. 3)

(a) the regulation and government of prisons and hostels; (Amended 44 of 1987 s. 2)

(b) the admission and discharge of prisoners;

(c) the duties and conduct of the officers of the Correctional Services Department and other persons employed in the prisons and hostels; (Amended 44 of 1987 s. 2)

(d) the acts which shall be disciplinary offences on the part of any officer of the Correctional Services Department or other person employed in the prisons and hostels; (Replaced 19 of 1969 s. 7. Amended 44 of 1987 s. 2)

(da) the inquiry by the Commissioner, Deputy Commissioner or such other authority as may be prescribed into a disciplinary offence by any such officer or other person; (Added 19 of 1969 s. 7)

(db) the procedure to be followed in any case where a disciplinary offence or a breach of duty is alleged to have been committed by any such officer or other person; (Added 19 of 1969 s. 7)

(dc) the punishment, including-

(i) dismissal;

(ia) compulsory retirement either with gratuity or other allowances or without such benefits or with reduced benefits and, in accordance with the Pensions Ordinance (Cap 89) or the Pension Benefits Ordinance (Cap 99), with or without pension, or with reduced pension; (Added 31 of 1983 s. 7. Amended 36 of 1987 s. 46)

(ii) imposition of a fine;

(iii) reduction to a lower rank or pay;

(iv) forfeiture of seniority;

(v) stoppage or deferment of increments;

(vi) performance of extra duty;

(vii) reprimand or severe reprimand, of such officer or other person for any disciplinary offence; (Added 19 of 1969 s. 7)

(dcc) the retirement of any such officer or other person in the public interest; (Added 31 of 1983 s. 7)

(dd) the application of money in the possession of a prisoner committed for non-payment of a fine towards the fine adjudged to be paid; (Added 19 of 1969 s. 7)

(de) the conferring on any officer of the Correctional Services Department or other person employed in the prisons and hostels of rights of appeal against a finding of guilt or a punishment awarded; (Added 35 of 1977 s. 6. Amended 44 of 1987 s. 2)

(df) the control, administration and application of the Prisoners' Welfare Fund; (Added 42 of 1986 s. 5)

(e) the control, administration and application of the Correctional Services Department Welfare Fund;

(f) the duties and powers of visiting justices or visiting committees;

(g) the conditions under which visitors may be allowed in the prisons and hostels; (Amended 44 of 1987 s. 2)

(h) the classification, clothing, maintenance, employment, discipline, instruction and correction of the prisoners; (Amended 19 of 1969 s. 7)

(i) the remission of a portion of their sentences;

(j) the granting of gratuities to the prisoners or the remuneration of prisoners for work done;

(k) the regulation of the execution of judgments of death and burials of executed prisoners;

(l) all other matters relating to the prisons and hostels. (Amended 44 of 1987 s. 2)

(2) Any rule made under this Ordinance may provide that a contravention thereof shall be an offence and may provide punishment and penalties for such offence not exceeding a fine of $1000 and imprisonment for 6 months.

(3) Rules made under paragraph (de) of subsection (1) may authorize the Chief Executive to delegate to the Secretary for the Civil Service, or to a public officer not below the rank of Director of Bureau, the determination of an appeal referred to in that paragraph. (Added 35 of 1977 s. 6. Amended 15 of 1999 s. 3)


2000 (c) Hong Kong Human Rights Monitor


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