Submissions to the United Nations Human Rights Committee regarding the SAR Government's ICCPR Report 1999

Introduction

Chapter 1 Self-determination and the Right to Participate in Public Life (Articles 1 and 25)

    Internal Aspect to Self-determination
    Provisional Legislative Council and Other Provisional Bodies
    Post-Handover Legislative Council
    Post-Handover Municipal Councils and District Councils
    Political Rights of Women
    Village Representatives Elections

Chapter 2 Ensuring Rights to All individuals and Effective & Enforceable Remedies without Distinction (Articles 2 and 3)

    Erosion of the Rule of Law
    The Bill of Rights Ordinance
    Human Rights Commission and Ombudsman's Office

Chapter 3 Emergency and Limitation on Derogation; Right to Life; No Torture and Slavery (Articles 4, 6, 7 and 8)

    Emergency Regulations Ordinance 1922

Chapter 4 Liberty and Security of the Person; Detention and Rights of detainees; & Prohibition of Torture and Inhuman Treatment (Articles 7, 9 and 10)

    Police Complaints System
    Prosecution and Disciplinary Measures for Police Officers
    Monitoring of Prisons
    Rights of Complaint in Prison
    Death of a child in the Social Welfare Department's Custody
    Monitoring of the Immigration Department

Chapter 5 Liberty of Movement; Choice of Home; & Aliens' Right to Appeal against Expulsion (Articles 12 and 13)

    Immigration Law and Immigration Appeal

Chapter 6 Children and Family; Equality before Courts; Right to Fair and Public Hearings; Legal Aid; Due Process; Equality before the Law; Privacy (Articles 14, 17, 23, 24, and 26)

    Right of Abode Cases
    Legal Immunity of Persons and Organizations Close to the Central Authorities
    Legal Aid and the Duty Lawyer Scheme
    Invasion of Telecommunications Privacy

Chapter 7 Freedoms of Expression, Opinion, Thought, Conscience, and Religion (Articles 18, 19, 20, 21 and 22)

    Display of Taiwanese Flags Prohibited
    Unnecessary and Restrictive Flags Ordinances
    Politically Motivated Censorship
    Immigration Barrier to Political and Academic Discussions
    Immigration Barrier to Religious Freedom
    Pillar of Shame

Chapter 8 Right of Peaceful Assembly; Freedoms of Association & Trade Union (Articles 21 and 22)

    Rolling back of Societies Ordinance
    Restricting Foreign Connections
    Policing of Societies Tightened
    Right to Form Trade Unions
    Right to Protection from Anti-union Discrimination
    Right of Trade Unions to Function Freely

Chapter 9 Rights of Minorities and Equal Opportunities (Articles 2, 3 and 27)

    Failure to Combat Racial Discrimination
    Sexual Orientation Discrimination in Hong Kong
    Two-week Rule for Foreign Domestic Workers
    Denial of Maternity Protection to Foreign Domestic Workers


Introduction

The Hong Kong Human Rights Monitor appreciates that the People's Republic of China has agreed to honour its obligation under the Sino-British Joint Declaration on Hong Kong, and under the International Covenant on Civil and Political Rights (ICCPR)1 to submit a report on behalf of the Hong Kong Special Administrative Region (HK SAR) Government to the United Nation Human Rights Committee. This is in spite of the fact that China itself has not yet ratified the Covenant. The submission of the Report is unprecedented. It has helped the development of international human rights law, in particular the devolution of the protection of human rights with territory. In spite of shortcomings in the report, we also appreciate the SAR Government's timely effort in preparing a relatively comprehensive Report and its liberal attitude towards NGO participation in United Nations human rights processes.

The reunification of Hong Kong with China has been a fundamentally important event, with wide-reaching implications for human rights, the constitutional framework, and the political landscape. Far from the end of colonial rule bringing about improvements to the rule of law and human rights protection, the new constitutional order has, on the contrary, posed serious threats to institutions essential to the protection of human rights, particularly the rule of law and democracy. This in turn has made more difficult the realization of the substantive rights enshrined in the ICCPR. Not many of the recommendations made in the 1995 Concluding Observations of the United Nations Human Rights Committee have been adopted by the new Hong Kong Special Administrative Region Government (hereafter referred to as "the SAR Government"). Hong Kong therefore has to face the old issues left behind by British rule in addition to new problems created by Re-unification.

This report deals in detail with the range of human rights issues which have arisen in Hong Kong since our previous report. For a short overview of the most significant issues Committee Members may wish to refer to the Joint Submissions by Hong Kong NGOs including Human Rights Monitor submitted on 6 September 1999.

Chapter 1

Self-determination and the Right to Participate in Public Life

(Articles 1 and 25)

Internal Aspect to Self-determination

The UN Human Rights Committee has explained that the right to self-determination has an internal aspect which is the determination of the constitution by the people themselves. This internal aspect has been substantially ignored in the drafting of the Basic Law, the mini-constitution for Hong Kong.

The drafting of the Basic Law ten years ago was done by persons appointed by the Chinese authorities. The Chinese authorities had real control and final say over the content, and no referendum or other democratic means was used to test the acceptability of the draft Basic Law to the public. On the other hand, opinion polls revealed that the Basic Law did not command support from the majority of the Hong Kong people.

Among the worst Basic Law provisions are those limiting democratic development in Hong Kong, the requirement of a separate vote count by divisions in the legislature2 (private member's bills or amendments to government bills have to be passed by majorities in each of those divisions of the Legislative Council, the first consisting of functional constituency legislators; and the second consisting of both legislators returned by the Election Committee and legislators elected on the basis of universal and equal suffrage); and the requirement that the SAR has to legislate to prohibit treason, sedition, session, subversion, theft of state secrets and the foreign ties of political groups3. Some of these provisions were included to restrict the democratic trends in Hong Kong in response to the Hong Kong people's obvious support of the 1989 pro-democracy movement in Mainland China.

Provisional Legislative Council and Other Provisional Bodies

Hong Kong's political system has undergone much change since 1 July 1997. The SAR Government has wilfully and systematically distorted the democratic features of government introduced by the out-going colonial administration. There has been a backward movement away from the very limited democracy Hong Kong possessed on 1 July 1997.

All three tiers of elected councils, i.e., the Legislative Council, Municipal Councils (Urban Council & Regional Council), and the 18 District Boards4 were abolished by the SAR authorities on 1 July 1997. Provisional bodies were set up as their respective successors.

As a recognition of their popular mandate, all elected members to the old District Boards and the old municipal councils were appointed to the provisional bodies. However, the SAR Government added 116 extra seats to the bodies5 and appointed other persons to fill those seats. These appointees were largely from the pro-Beijing lobby, including members of the Progressive Alliance and the Democratic Alliance for the Betterment of Hong Kong. Many of the appointees were candidates which had been defeated in the previous elections. There was no justification for these appointments and the addition of new seats and appointees were intended to, and did in fact, distort popular representation as expressed in the elections.

Despite the guarantee in Basic Law Article 68 that the "Legislative Council of the Hong Kong Special Administrative Region shall be constituted by election,' the Provisional Legislative Council (PLC) was set up by the Mainland Chinese authorities. The PLC was a body comprising 60 members selected by a group of 400 persons handpicked by Beijing. Its composition was incompatible even with the Basic Law's specifications for the first Legislative Council6 which requires 20 seats of the Legislative Council to be returned by universal and equal suffrage. The creation by the Chinese authorities of such a non-elected Hong Kong legislature, even though a temporary body, constituted a serious breach of Articles 1 and 25 of the Covenant. The Government's argument that it was "legal" or "constitutional" in our legal system highlights the fact that our constitutional order in this area is inconsistent with the ICCPR.

The PLC continued in existence from January 19977 until 30 June 1998. The first post-Handover Legislative Council commenced on 2 July 1998.

Post-Handover Legislative Council

The composition of the post-Handover Legislative Council and the schedule for future elections are explained in paragraphs 458 to 480 of the Government's submission. What the Government's report does not mention is that the 1998 Legislative Council election, although efficiently administered, was extremely unfair. The design of the electoral system deliberately ensured that popularly elected Members are disproportionately outnumbered by candidates who have been elected on the basis of limited franchises from so called "functional" constituencies that represent what are overwhelmingly business and professional interests. The reduction by 88% in the size of the total electorate of the functional constituencies, the re-introduction of corporate voting, and the requirement to select 10 candidates from an Election Committee ensured that, no matter how well the pro-democracy parties do in the popular vote, they can hardly win the control of the Legislative Council8.

Hong Kong's functional constituency elections permit corporate voting. This peculiar system was extended by the SAR Government in the 1998 elections. A study by Human Rights Monitor found that some businessmen control multiple votes through subsidiary companies. For instance, one property developer owns in his own name at least 17 voting companies registered in the Real Estate functional constituency, which has only 410 registered electors. In addition, he has a personal vote in that constituency. His electoral power in the Real Estate constituency is equivalent to that of 15,490 voters in the geographical constituencies. A businessman may control votes in more than one functional constituency. The property developer mentioned above also controls another two votes in the Tourism functional constituency because he owns two tourism-related companies. This is not an isolated example of this phenomenon9, the true extent of which is hard to determine, as there is no way of identifying companies controlled by nominees.

The majority of functional constituencies have electorates of fewer than 1500 persons. The two smallest functional constituencies, the Urban Council and the Rural Council, each consists of 50 members. The next five smallest constituencies are the Heung Yee Kuk rural organization (132 voters), Transport (137 voters), Agriculture and Fisheries (165 voters), Insurance (196 voters), and Finance (207 voters). Apart from the Heung Yee Kuk these electors are all corporations. Between these five constituencies, 837 electors elect the same number of Legislative Council Members as one quarter of the total registered electorate of Hong Kong - 698,843 people - in the geographical constituencies.

The composition of the election committee is essentially a duplication of the functional constituencies. Every elector in a functional constituency is also an elector in the equivalent "sub-sector" of the Election Committee. It is therefore another effort to give undue power to the business and professional sectors - an aim already condemned by the UN Human Rights Committee. The property developer referred to above, with his 19 votes in functional constituencies controls another 19 votes in equivalent sub-sectors of the Election Committee. The requirement that a member of the election committee must vote for exactly the specified number of people to be returned by the election committee is another feature of the system designed to undermine the chances of returning a pro-democracy candidate to the Legislative Council. It ensures that the few liberal members on the committee must vote for candidates they dislike if they want to support a pro-democracy candidate. As might be expected, none of the more liberal candidates were returned by the election committee.

The Basic Law states that the ultimate aim is to have all legislators elected on the basis of universal and equal suffrage. However, this depends on the Chief Executive and members elected in functional constituency elections, because Annex II to the Basic Law requires that amendments to the composition of the Legislative Council be endorsed by a two-thirds majority among all the legislators and the Chief Executive. Thus, the review due to take place in 2007 may not lead to any improvements to the electoral system, not to mention universal and equal suffrage.

We urge your Committee to recommend the abolition of this unfair electoral system and its replacement by genuine universal and equal suffrage embodied in a one-adult-one-vote system.

Post-Handover Municipal Councils and District Councils

The Government is attacking the limited democracy that exists by scrapping the elected Municipal Councils and re-introducing appointed members to the District Boards (to be renamed "District Councils" in the year 2000). Although the appointment system in the District Boards was abolished by the colonial government in 1994, the SAR Government rushed through a District Council Bill to provide a statutory basis for the reinstatement of the same appointment system in mid-March 1999.

The first post-Handover election of the District Councils will take place before the end of 1999 and the terms of these members will commence on 1 January 2000. The restoration of the appointment system was intended to prevent pro-democracy politicians from forming a majority. It will also strengthen the support for the Government at the District Council level. It also makes it possible for the Executive to exercise stronger control on politically sensitive issues. Since District Council members have a role in the selection of the Chief Executive, the appointment system will also give the Chief Executive a chance to influence his own re-selection or the selection of his successor.

Abolition of the Urban and Regional Councils, Hong Kong's oldest representative bodies, removes the one tier of Hong Kong Government which was fully democratic. It has been presented by the Government as a move towards greater efficiency. There is little doubt that the real reason is to weaken the democratic parties in Hong Kong.

Political Rights of Women

Contrary to the Covenant's requirement, the Government has done little to eliminate social and political disadvantages traditionally faced by women.

As pointed out in the Concluding Observations of the UN Committee on the Elimination of All Forms of Discrimination Against Women, the functional constituency election system discriminates against women. The government uses the system to allocate political power to those quarters in the community it considers to have a function or a contribution to make to society. Household chores are deemed to be of insufficient importance to warrant a functional constituency in the Legislative Council. People performing such chores therefore have no functional constituency. As these people are predominantly female, the current electoral system inherently discriminates against women. On the other hand, social, cultural and institutional restraints have only a limited number of women in the most senior posts in corporations, rendering them less likely be appointed as corporate representatives. Appendix I, compiled by Human Rights Monitor, indicates that functional constituency elections are dominated by men at the expense of women.

Village Representatives Elections

Although Hong Kong's Sex Discrimination Ordinance prohibits overt discrimination in certain forms, it is a sad fact that such discrimination is part of the culture and practice in many indigenous villages in the New Territories. Subordination of women in the political life of these villages is commonplace. Many villages still refuse to allow women to vote in village elections. In other villages, women have reported that they feel intimidated by the male-dominated political establishment, which in turn prevents them fully participating.

Discrimination can also occur in the family, where a male member will usually act as the head of the household, a status that has legal significance both in land ownership and rights to participate in village affairs. When a village representative is elected from amongst household heads, a woman can stand as the head of a household (where there are no adult males in the family) but she is at a severe disadvantage because most of her fellow electors will be men. As a result, among the 1000 or so village representatives in Hong Kong, only 17 are women. Village representatives should be elected not on a household basis but on an individual basis so that all villagers above a certain age are allowed to vote.

In many villages, residents who are not indigenous people are ineligible to participate in village representative elections. "Indigenous" villagers are those who can trace their ancestry through only male decent to some-one living in the village at the start of British rule in the New Territories in 1898 -- even -- they themselves do not live there. Thus an "indigenous villagers" can spend his or her whole life in the UK or USA and still have a vote in the village, while another person who has lived their whole life there is not allowed to vote because they failed the ancestral test. In other villages, non-indigenous residents' rights to stand for and to vote in village elections are more restricted than those of indigenous villagers. There is thus widespread discrimination in these elections on the grounds of descent, gender and ownership of property.

The Government has failed to combat discrimination in these elections except by half-hearted persuasion. It has even been defending this unfair system by supporting appeals against two court rulings which recently struck down as unconstitutional the disqualification of non-indigenous residents in village representative elections.

We ask your Committee to urge the Government to take steps to establish a one-person-one-vote system in all elections.

Chapter 2

Ensuring Rights to All individuals and Effective & Enforceable Remedies without Distinction

(Articles 2 and 3)

Citing the rule of law, the independent judiciary, the Bill of Rights and institutions such as the Ombudsman's Office, the Equal Opportunities Commission, the Privacy Commissioner's Office, the legislature, the press and NGOs, the Government states in its recent ICCPR and ICESCR reports that "the system has served Hong Kong well and has provided a sound framework for the protection and development of human rights in the territory", and that it "does not see any obvious advantage in introducing a new institution such as a Human Rights Commission."10

Several developments since Re-unification have weakened these institutions and highlighted the need for a human rights commission.

Erosion of the Rule of Law

The Basic Law came into operation on 1 July 1997. The authority, jurisdiction and power of the Hong Kong courts are threatened both by the Basic Law and by Government practices. (see Chapter 1 of this report as to some of the serious defects in the constitutional document).

Mainland China has made enormous strides towards the reintroduction of a system of law in the Mainland since 1979, and it has also promised in the Sino-British Joint Declaration that the common law shall continue to apply in Hong Kong. However, although the Basic Law provides for an independent judiciary, it is doubtful whether the central authorities fully understand what this means, namely that judges are under a duty to decide cases according to the law, even when this entails deciding against Beijing's stated or perceived interests. Whether China really wishes a genuinely independent, impartial and effective legal system to operate in Hong Kong remains one of the major issues after the transfer of sovereignty.

This uncertainty was highlighted by China's criticism of the Court of Final Appeal's (CFA) view that it had the power to review acts of the National People's Congress, as expressed in the right of abode cases judgment. The Central authorities' subsequent pressure on the CFA to clarify the judgment and the re-interpretation of the Basic Law by the Standing Committee at the request of the SAR Government, intensified the doubt. The Government's refusal to guarantee that it will not request another interpretation from the Standing Committee and its assertion that the Standing Committee has the power to interpret the Basic Law without, before, during or after a court case continue to threaten the rule of law in Hong Kong.

In spite of the guarantees in the Basic Law that branches of the Chinese central authorities in Hong Kong should abide by the laws of Hong Kong and that all are equal before the law, the "adaptation of laws" exercise has immunised Mainland subordinate state organs operating in Hong Kong from the control of some 500 statutes.

The Joint Declaration promised Hong Kong courts the power of final adjudication. This promise was broken by the Basic Law, which provides in its Article 158 that "in the case of affairs which are the responsibility of the Central People's Government or which concern the relationship between the Central authorities and Region, the courts shall, before making a non-appealable final judgment seek an interpretation from the Standing Committee of the National People's Congress in Beijing."

The Hong Kong Legislative Council in 1990 passed a resolution condemning this provision and calling for that part of the Basic Law to be amended. However, the British Government reached an agreement with China in 1995 on the arrangements for the Court of Final Appeal which included introducing an ordinance implementing the provisions of Basic Law Article 158. Thus, in any matter which the SAR Government or the Central People's Government deems to affect the Central authorities, the final decision will be made not by Hong Kong judges but by the political leadership of Mainland China that forms the membership of the Standing Committee of the National People's Congress.

The recent re-interpretation of the Basic Law in the right of abode cases by the Standing Committee (see Chapter 6) was a natural consequence of the combined effect of the defective constitutional provision in the Basic Law and the lack of respect for the rule of law by the Chinese and SAR Governments. This incident unequivocally demonstrated the SAR Government's willingness to ignore the finality of judgments made by Hong Kong's highest court and to resort to political solutions when displeased by that court's decisions. It has also undermined the critical function of the judiciary in the protection of rule of law and human rights. The re-interpretation has severely curtailed the development of a constitutional convention to limit the erosion of the court's power of final adjudication.

Since the handover, whenever confronted with mainland interest or assertions of authority, the SAR Government usually backed down and failed to defend Hong Kong's autonomy and legal jurisdiction. Article 18 of the Basic Law prevents the application of Mainland criminal laws to try acts committed in Hong Kong11, and Article 19(2) of the same law ensures that Hong Kong courts have jurisdiction over all Hong Kong cases12. Article 22(1) of the Basic Law requires all Mainland authorities not to interfere in affairs over which the Hong Kong courts have jurisdiction13. Two widely debated cases have thrown all these provisions into serious doubt. Both involved failure to seek rendition (return) of criminal suspects apprehended in the Mainland. In the past such rendition has been a frequent occurrence.

In the Cheung Tze-keung case, a Hong Kong permanent resident popularly known as "Big Spender" and his four accomplices, also Hong Kong permanent residents, kidnapped two local tycoons for ransoms. The crimes were mainly committed within SAR territory. The kidnappers got the ransoms, released the two victims, and then escaped to the Mainland. They were arrested by Mainland police officers and tried there under Mainland criminal law behind closed doors. Cheung was sentenced to death after a cursory appeal process and was immediately executed. The SAR Government did nothing to try to ensure a fair and public trial for him. The Secretary for Justice did not defend the jurisdiction of the Hong Kong courts and failed to apply for the rendition of the five suspects, as she should have, for the crimes were committed in Hong Kong. She even went as far as to defend the Mainland courts' reasoning that the suspects "planned the crimes in the Mainland" and, therefore, could be tried under Mainland law.

In the "Telford Garden" case, Li Yuhui, who was a People's Republic of China citizen without Hong Kong residency, apparently murdered five Hong Kong women by poisoning after tricking them into giving him their money. He later escaped to the Mainland with the money and was arrested, tried under Mainland national criminal law under the same conditions in which Big Spender and his accomplices were tried, and executed. Since the alleged crime was committed in Hong Kong and Hong Kong courts have jurisdiction over all Hong Kong cases, the Secretary for Justice should have sought his rendition, which she failed to do. She did not protest against the use of national law to try acts committed in Hong Kong by the Chinese court although it breached the Basic Law prohibition of any application of national laws to Hong Kong save under certain conditions which were not met in Li Yuhui's case. Leung should have sought his rendition to Hong Kong for trial. Worst of all, to justify the claim of jurisdiction by the Mainland court, the Secretary for Justice deliberately misinterpreted national criminal law by saying that Hong Kong was not part of Chinese territory (lingyu), and therefore Mainland provisions as to extra-territoriality applied. The relevant provision in the Chinese national criminal law claim jurisdiction over acts of Chinese nationals on soil outside Chinese territory. Hong Kong is definitely within Chinese territory but it is governed by Hong Kong criminal laws, not the Mainland national criminal ones, in accordance with the Basic Law. The crimes law of the Mainland has no application in Hong Kong. Indeed, Article 22(1) of the Basic Law prohibits the application of national criminal laws to Hong Kong.

In these two cases, instead of defending Hong Kong's own legal framework for the protection of civil rights, the Government attempted to justify the Mainland's encroachment into Hong Kong's jurisdiction.

The effect of the SAR Government's statement that Mainland courts may apply Mainland criminal laws to try acts committed in Hong Kong by Chinese citizens effectively opens a way for the Mainland authorities to penalize most Hong Kong permanent residents (since they are also Chinese citizens) for acts done in Hong Kong, including acts which are lawful under Hong Kong laws. The Government's view obviously contravenes the Basic Law. The Government has cynically used cases involving unpopular suspects to create a precedent that can be used against Hong Kong residents, e.g. those who are political opponents of the Central Government, and has also circumvent the absence of the death penalty in Hong Kong -- while Li Yuhui's alleged crimes carry the death penalty in a significant number of countries, Cheung Tze-keung's kidnapping and smuggling offences would not carry the death penalty in any country with the rule of law.

In another three recent cases, the Government ignored pending and on-going court hearings and repatriated right of abode claimants to Mainland China from the Hong Kong jurisdiction, thereby defeating the purposes of two interim injunctions and a pending hearing to stop the Government from removing those claimants. In the court hearings of two of these cases, the Government's counsel acknowledged that the Director of Immigration knew about the hearings in progress, but asserted that it was the government policy "not to wait".

Two years after the passage of the Interception of Communications Ordinance, the Chief Executive still has not assigned a day for the Ordinance to take effect. This Ordinance provides for a court warrant system against interception of telecommunications to replace the current warrant system which is administered exclusively by the Executive on the broad and vague ground of "public interest."

All these have reduced the effectiveness of the courts and the judiciary's role as the guardian of life and liberty.

The courts' role is further diminished by improper enforcement of the law, such as the selective enforcement of the law in removing Taiwanese flags and unjust prosecution and non-prosecution decisions made by the Secretary of Justice at the expense of equality before the law. The Sally Aw, Xinhua, and water torture cases are obvious examples, as this Report will highlight.

There are important provisions in the Basic Law which undermine the jurisdiction of Hong Kong courts. For example, the wording of Basic Law Article 19 limiting the court's jurisdiction in respect of acts of state may someday be used to exclude the court's jurisdiction over a wide range of matter14. This may one day seriously undermine the rule of law in Hong Kong.

Human Rights Monitor urges your Committee to express concern at the Government's lack of respect for the judiciary and recommend amendment of the Basic Law to preserve the jurisdiction of the judiciary; (3) recommend the firm vesting of the final power of interpretation of the Basic Law in the Court of Final Appeal and the repeal of Article 158 of the Basic Law. The Governments should be encouraged to take these actions in order to preserve the integrity of the Hong Kong judicial system and to enable the Hong Kong Court of Final Appeal to exercise genuine final power of adjudication.

The Bill of Rights Ordinance

In 1976 the United Kingdom government ratified the ICCPR for Hong Kong. The British and Chinese governments agreed in the 1984 Sino-British Joint Declaration that the provisions of the Covenant "shall remain in force" after sovereignty transfer15. In response to widespread public demand for the effective protection of human rights by legislation after the crack down on the 1989 pro-democracy movement in China, the Hong Kong Bill of Rights Ordinance (BORO) was enacted. This was in spite of opposition by China. The Ordinance came into force in 1991.

The Standing Committee of the National People's Congress has power under the Basic Law to repeal Hong Kong laws which conflict with the Basic Law. It exercised this power in spring 1997 to repeal three operative sections of the BORO which embodied the basic canons of statutory interpretation. It is unclear what effect this decision will have on the law, as those parts of the BORO simply gave statutory form to common-law rules about interpreting statutes which already existed and still exist now. However, it seems likely that the intention behind the Standing Committee's decision was to emasculate the Bill of Rights, and prevent Bill of Rights challenges to draconian new laws curbing civil liberties, or to embarrass the British authorities which had insisted on the enactment of the Ordinance in spite of Chinese opposition.

Human Rights Monitor is also concerned that the Standing Committee had no legal basis for repealing the operative sections of the Ordinance. The Secretary for Justice Elsie Leung expressed her personal disagreement to the repeal. We worry about the lack of respect for the law and the Standing Committee's interpretation of the Basic Law as a means to interfere with the laws of Hong Kong for political purposes. This worry was reinforced by the right of abode saga.

In Tam Hing Yee's case in 199116, the Court ruled that the wording of Section 7 of the BORO prevented the Ordinance from repealing legislation governing inter-citizen relationships. This interpretation of the Section has led to the UN Human Rights Committee's emphasis in its 1995 Concluding Observations that a State Party "does not only have an obligation to protect individuals against violations by the Government but also by private parties."

In June 1997, Legislative Councilor Lau Chin-Shek introduced a private member's bill, clarifying the interpretation of the BORO as repealing all pre-existing laws inconsistent with the BORO, including laws governing "relations between private persons." The amendment was passed by the Legislative Council under British rule. As the amendment was in line with the UN Human Rights Committee's comment, it should have been supported by the SAR authorities. But the Provisional Legislative Council put a freeze on the amending Ordinance in July 1997. This freeze lasted till January 1998. On 24 February 1998, the PLC voted in favour of a government bill that repealed Lau Chin-Shek's amendment without providing for any substitute measures. In repealing the amendment, the Government reaffirmed its intention to provide protection against violations of rights by the public sector, but not by the private sector.

Article 2(3)(a)17 of the ICCPR requires that violations (whether by people acting in private or official capacities) of any person's rights have an effective remedy. Paragraphs 8 to 19 of the SAR Government's report provide weak explanations for the non-adoption of Lau's 1997 amendments to the BORO.

We urge your Committee to urge the SAR Government to afford adequate protection against all human rights violations by private parties in inter-citizen relationships.

Human Rights Commission and Ombudsman's Office

The UN Committee on Economic, Social and Cultural Rights recognised in its General Comment 10 that the establishment of a human rights commission is one of the "appropriate means" envisaged by Article 2(1) of the International Covenant on Economic, Social and Cultural Rights18. The important role that human rights commissions may play in the protection and promotion of human rights has also been affirmed by the United Nations General Assembly and the Commission on Human Rights. The UN Human Rights Committee recommended in its 1995 Concluding Observations that the Government reconsider the establishment of a Human Rights Commission. The Government has not acted on this recommendation. The general public, non-governmental organisations (NGOs), and even the Legislative Council have never been consulted about the possible establishment of a human rights commission.

The Government has simply ignored the arguments in favour of a Commission, and overlooked the weaknesses of the existing institutions. The independence of the Office of the Ombudsman, for instance, has been called into question. In 1998, the Chief Executive declined to renew Andrew So's tenure as Ombudsman, despite considerable public support for him and his own stated wish to remain in office. Mr. So was replaced by Alice Tai, who had been a civil servant for 24 years. It was widely reported that the Government's refusal to retain Mr. So was motivated by his vigorous investigation into government mal-administration and his attempts to expand the Ombudsman office into a broad-based human rights body19.

The Ombudsman Ordinance (Cap. 397) contains a number of restrictions preventing the Ombudsman's office from functioning as an independent and effective human rights commission as envisaged in the "Principles relating to the status of national institutions" (also known as the "Paris Principles")20. For example, the Paris Principles provide that appointment of members to national human rights institutions shall be in accordance with a procedure that ensures a pluralistic representation of society. Section 3 of the Ombudsman Ordinance, however, merely states that the Chief Executive shall appoint the Ombudsman. Not only is there no opportunity for input into the selection process from the legislature, the judiciary, and the public, the Ordinance does not even set out any criteria for candidacy.

The jurisdiction of the Ombudsman is severely limited by broad and vague exceptions in the Ombudsman Ordinance. According to Section 7 of the Ombudsman Ordinance, the Ombudsman may only investigate actions taken by or on behalf of specified government departments21. With regard to the Hong Kong Police force, the Ombudsman may only investigate actions in the "exercise of its administrative functions in relation to the Code on Access to Information published by the Government." The Ombudsman is also barred from investigating "[a]ny action taken in matters certified by the Chief Executive as affecting security, defence or international relations (including relations with any international organization) in respect of Hong Kong." Restricting the jurisdiction of the Ombudsman in this manner is incompatible with the Paris Principles, which provide that a "national institution shall be given as broad a mandate as possible."

Finally, Section 15 of the Ombudsman Ordinance requires the Ombudsman and his staff to maintain secrecy regarding any investigation or complaint. Individuals who breach the secrecy of a complaint may be subject to a $50,000 fine or imprisonment for two years. In practice, this has meant that when a Justice of the Peace, responsible for inspecting prisons in Hong Kong, refers a prisoner's complaint to the Ombudsman, he is unable to learn about the outcome of the complaint because of the Ombudsman's obligations to maintain secrecy22.

Similar structural and operational defects can be found in the Equal Opportunities Commission and the Office of the Privacy Commissioner23. Improvements to these institutions are necessary to meet the standards set out in the Paris Principles.

As discussed above and in other parts of this report, there are serious problems with our institutions essential to the protection of human rights. We need an independent Human Rights Commission.

We recommend that your Committee should urge the Government to set up a Human Rights Commission in accordance with the Paris Principles.

Chapter 3

Emergency and Limitation on Derogation; Right to Life; No Torture and Slavery

(Articles 4, 6, 7 and 8)

Emergency Regulations Ordinance 1922

The Emergency Regulations Ordinance (Cap. 241) grants the Chief Executive sweeping powers to "make any regulations whatsoever which he may consider desirable in the public interest" during times of emergency or public danger24. Although in theory this Ordinance has the trappings of Article 4(1)25, such regulations may provide for, among other things, censorship and the control and suppression of publications, writings, photographs, and other means of communications. Emergency regulations may also empower the Government to require persons to do work or render services, or to appropriate or control property, which can potentially violate Articles 7 and 11, respectively, of the Covenant.

In the Government's Third Report to the United Nations Human Rights Committee, the Government admitted that there are no existing defined criteria for invoking the powers provided by the Emergency Regulations Ordinance. This is very unsettling as the Ordinance provides for tremendous powers, imposes heavy penalties (including mandatory life imprisonment), and allows derogatory measures restricting human rights, subject to the limit of preserving some uninfringeable rights like the right to life and freedom from torture and slavery. The Emergency Regulations Ordinance therefore still has serious implications for the freedom of expression as prescribed by Article 19(2) of the Covenant26. Pre-Handover efforts to amend the Ordinance only succeeded in removing the draconian regulations that had been made under it.

The United Nations Human Rights Committee has already expressed its concern over the scope of the Emergency Regulations Ordinance and its incompatibility with the International Covenant on Civil and Political Rights which also requires that any restrictions on rights be narrowly construed and strictly necessary. The wording of the Emergency Regulations Ordinance does not conform to the requirement in Article 4 of the Covenant that any limitation on rights must be compatible with the nature of the right and necessary to promote the "general welfare in a democratic society." Since the Emergency Regulations Ordinance contravenes the ICCPR, it violates Article 39 of the Basic Law, which requires that "restrictions [on rights and freedoms] shall not contravene the provisions" of the ICCPR. Thus, the Government has an obligation to revise the Emergency Regulations Ordinance itself and repeal all provisions that violate the ICCPR and the Basic Law. To prevent the Government from invoking the offending provisions and rushing through draconian regulations in the agony of the moment during an actual or perceived emergency, this Ordinance needs substantial revision.

Article 18 of the Basic Law provides that the Standing Committee of the National People's Congress may declare a state of emergency "by reason of turmoil within the Hong Kong Special Administrative Region which endangers national unity or security and is beyond the control of the government of the region." In a state of war or emergency, the Central People's Government may apply relevant national laws in the Region. Amendment of Article 18 is necessary, in the face of deficiencies and vagueness in the Article. Firstly, Article 18 lacks procedural and other safeguards regarding the declaration of a state of emergency. Secondly, key words such as "turmoil" and "endangerment of national unity" are undefined, leaving the provision open to abuse. Thirdly, Article 39 of the Basic Law provides that the "rights and freedoms enjoyed by Hong Kong Residents shall not be restricted unless as prescribed by law" and that "such restrictions shall not contravene" the ICESCR, the ICCPR and the international labour conventions. However, it is unclear whether the word "law" as used in Article 39 and the requirement of the law's conformity with international human rights standards apply also to Chinese national laws when they are extended to Hong Kong by means of Article 18 of the Basic Law27. Article 18 should be amended to clarify that the application of Chinese national laws to Hong Kong is subject to the Article 39 requirement of conformity to international human rights law. Finally, the scope of Article 18 exceeds the requirements of necessity and conformity with human rights imposed by Article 4 of the Covenant.

Human Rights Monitor asks your Committee to request that the Government amend the Emergency Regulations Ordinance and Article 18 of the Basic Law to bring them to conformity with Article 4 of the ICCPR.

Chapter 4

Liberty and Security of the Person; Detention and Rights of Detainees; & Prohibition of Torture and Inhuman Treatment

(Articles 7, 9 and 10)

There is a general lack of independent monitoring and investigatory mechanisms to prevent and redress abuse of power by officers in the police force, the Correctional Service Department, the Immigration Department, and detention facilities for children supervised by the Social Welfare Department. There are problems of torture and other mal-practices in these law enforcement and rehabilitation authorities left unadressed. Complaints are rarely properly investigated. In the rare cases where complaints against officers are substantiated, the charges against them and the punishments are disproportionately light.

Police Complaints System

The absence of an independent mechanism to handle complaints against police brutality and abuses continues to be a problem. This was highlighted by the embarrassing situation in which the Senior Assistant Commissioner Dick Lee headed the branch of the police force, the Complaints Against Police Office (CAPO), that was responsible for handling a complaint against himself. Special arrangements were needed so that he would not oversee the investigation. He was later found by CAPO to have been acting lawfully in drowning a demonstration by broadcasting music on the eve of Re-unification. The Independent Police Complaints Council (IPCC), however, concluded that the complaint against him was substantiated. The Commissioner of Police insisted that the complaint was not substantiated. The chairman of the IPCC then wrote to Chief Executive Tung Chee-hwa who told Human Rights Monitor that the incident was over. The credibility of the whole complaints handling system, already the current the subject of widespread public skepticism, has been further thrown into question by this episode.

Complaints of police brutality, fabrication of evidence, unnecessary use of force, neglect of duty, abusive language and impolite conduct are commonplace in Hong Kong. Such complaints usually relate to interrogation practice, treatment during custody and identity checks. The total number of complaints in the past five years has been around 4000 to 5000 per annum. The proportion of substantiated complaints remains around 3% per annum28. Many factors contribute to a high rate of withdrawal of complaints of around 50 or 60%29. These factors include lack of trust in the non-independent system, fear of retaliation, discouragement by police officers, delay in investigation, time conflicts with appointments, the time-consuming nature of various processes related to a complaint, disturbances during anti-social hours, and deliberate and unwanted involvement by the police of the complainants' employer. An average of about 15 to 20 % of the complaint cases are dealt with annually by way of informal resolution in which the officer complained against is merely informed of the complaint against him or her and given informal advice. To enhance their image, the police have changed their definition of "substantiated rate" by including all "not fully substantiated" cases as "substantiated" and by discounting all the cases not fully investigated by themselves, i.e., by excluding all the cases withdrawn and all those "resolved" by informal resolution30.

The fact is that the rate of substantiated cases remains suspiciously low31. People who attend open meetings of the IPCC can see how vigorously and uncritically the police representatives from CAPO defend the complainees. Recent figures disclosed by the police show that 37 % of the non-videotaped confession statements adduced by the police in the High Court and challenged by the defendant in 1997 were rejected by the court because of doubts about the voluntariness of the defendant in giving the statement32. This year alone there were three suspicious deaths in police custody and another death in the custodial ward of a hospital in which the deceased had complained to the court that he had been beaten up by the police.

All deaths in custody are required by the Coroners Ordinance to be inquired into by a coroner in the presence of a jury33. The Coroners Ordinance and the Police Force Ordinance, however taken together establishes in practice a system where the police investigate all such deaths and provide their findings to the coroner34. The absence of any provision for independent investigations has made coroner's inquests into deaths in police custody much less effective. To ensure the independence of coroner's inquests, the Ordinances should be amended so that investigations into deaths in policy custody are entrusted to an independent investigator.

The UN Human Rights Committee recommended in its 1995 Concluding Observations that the "State party adopt the proposal of the Independent Police Complaints Council to incorporate non-police members in the investigation of all complaints against the police." The Government has refused to adopt the recommendation. In fact, the Concluding Observations' welcome of the proposed establishment of a statutory IPCC was misdirected. This was because in May 1997 the Government withdrew the whole IPCC Bill from its Third Reading after the Legislative Council successfully amended the Bill in its Second Reading to provide a power of investigation to the IPCC. The Bill has never been re-introduced and the IPCC remains, as before, a non-statutory body at risk of abolition by administrative fiat. It is clear that the Government has been vigorously defending the black sheep in the Police Force from independent investigation - a gross breach of ICCPR Article 2, which provides that there should be an effective remedy for violations of the security of person.

We consider that as a minimum the Government should provide the IPCC with statutory status, empower the IPCC to undertake investigation of serious cases, introduce a civilian to head CAPO, and implement a lay observer scheme at police stations.

Prosecution and Disciplinary Measures for Police Officers

Human Rights Monitor very much doubts the Government's sincerity in enforcing the Crimes (Torture) Ordinance (CTO). In an obvious case of torture - the one mentioned in paragraphs 109 to 112 of the Government's submission - the officers responsible for acts of torture have not been prosecuted for torture under the CTO. The Government's submission does not adequately summarise the way in which the victim was tortured. This is a serious omission. As a result, the UN Human Rights Committee and the Legislative Council cannot judge with proper information the validity of the Government's justification for not prosecuting the concerned police officers under the CTO.

It was a crime of extreme and senseless cruelty as described in the court judgment. Four police officers handcuffed a victim, took him to an empty refuse room, and made him lie on his back before one officer sat on his pelvis and another on his shins while he was being punched in the chest. The officers then stuffed a shoe in the victim's mouth and inflicted a form of water torture that involved pouring water into his ears, nose, and mouth until he could hardly breathe, while two officers sat on him. The four policemen then carried him to the railings in the refuse room, which was on the 16th floor, and threatened to throw him to his death. At that point, the victim agreed to "confess" to an alleged crime. But the torture continued. The officers returned him to his former position of lying on the floor. One policeman pressed his thumbs into the victim's neck, while another poured more water into his nose and mouth, causing him to lose consciousness.

The Secretary for Justice did not prosecute the said policemen under the CTO. She reasoned that it would have been difficult to prove the officers intended to inflict "severe" pain on the victim "above that which is normal," as required by the CTO. The acts of torture, especially those which were perpetrated after the "confession," were obviously intended to inflict severe pain "above that which is normal." The Secretary for Justice thus failed to identify the required intention although it was obvious from the officers' observable acts.

The Government chose to charge the officers in the Magistrate's Court with assault occasioning actual bodily harm, resulting in four months' imprisonment for two officers, and six months' sentences for the other two. Had they been tried for torture under the CTO alone, or tried for assault as an alternative to the CTO torture charge, the responsible officers would most probably have been convicted of torture and might have been liable to life imprisonment. They would almost certainly have received much heavier sentences.

The Government's decision not to charge the officers under the CTO sets an alarming precedent. Your Committee should urge the Government to reconsider its position, and to state publicly that the unreasonable test it applied for prosecutions under the CTO as described in paragraph 111 of its submission will not apply in the future. The prohibition of torture required by ICCPR Article 7 will not be effectively implemented otherwise.

The Commissioner of Police has discretion whether to discipline officers, and whether to refer cases to the Public Service Commission for its advice on the conduct and discipline of officers under the Public Service Ordinance (PSO). Section 12 of the PSO prohibits the disclosure of any information on disciplinary processes without the written permission of the Chief Executive. Section 10 ensures that the relevant documents are privileged because their production may not be compelled in any legal proceedings unless the Chief Executive under the hand of the Chief Secretary consents to their production in such proceedings. This secretive process makes it difficult for the public to monitor the punishment of convicted officers.

Monitoring of Prisons

Although Hong Kong prisons are reasonably well-managed by international standards, the protection of inmates' civil rights is in need of improvement.

There is, on the face of things, a profusion of prison monitoring bodies. Prisoners' grievances may in principle be aired before Correctional Services Department (CSD) internal bodies, visiting Justices of the Peace (JPs), the Ombudsman, and the courts. JPs are the primary mechanism for outside monitoring of the prisons. Appointed by the Chief Executive (previously by the Governor), JPs enjoy an array of formal powers, although their main practical function is to visit prisons and other penal and correctional institutions. The job of a JP is not a full-time occupation. It is an appointment meant to honour the recipient for services rendered. JPs include both government officials (known as official JPs) and members of the public (known as unofficial JPs). In spite of their name, they have no judicial functions.

According to the Prison rules, each prison should be visited by two JPs (one official and one unofficial) every fifteen days. Training centres, detention centres, and drug addiction centres entertain JP visits should be held once a month. Within this prescribed monthly period, JPs have considerable flexibility to choose the date and time of their visits, and they can arrive without prior notice. JPs normally receive a fifteen-minute to half-hour orientation from the facility superintendent, then tour the facility in the company of the superintendent or a high-ranking officer. Although the amount of time spent at a given facility varies according to its size and the preferences of the JPs, JPs normally spend between one and one-half to three hours per visit.

There are serious defects in the arrangements for JP visits. Because JPs have no specific training or experience in prison matters, they are ill prepared to delve beneath the surface in investigating conditions. Their visits are largely overseen by the prison authorities. One knowledgeable observer described JPs' prison tours as "staged visits". Indeed, the Prison Rules specifically mandate that a high-ranking officer accompany the JPs around a prison and "bring before them" any prisoners wishing to speak to them. Although a few prison officials stated, when pressed on this point, that JPs might if they preferred speak with prisoners privately, it is quite clear that the normal practice is for JPs to speak with inmates in the presence of prison officials.

The JP system suffers from a serious lack of continuity. Instead of repeated visits by the same inspector to the same institution over a period of time - which would permit him to evaluate whether conditions improve and whether recommendations are implemented - different pairs of JPs visit a given facility.

Your Committee should urge the Government to revamp this fundamentally flawed inspection complaints system. A board of visitors system should be implemented to enable JPs to focus on one prison over an extended period in order to better monitor the facility. An independent inspectorate with proper training and expertise should be established to ensure proper external monitoring of the prison system.

Rights of Complaint in Prison

Prison Rule 68B, which is closely modeled on the UK's Prison Rule 43, authorizes segregation "for the maintenance of good order or discipline" or for prisoners' own protection. There are three types of Rule 68B segregation.

The first type covers those who require protection from other prisoners because they are ex-policemen or because they provided testimony for prosecution in a criminal cases. The second type is for those who ask for protection for other reasons e.g. because they are in debt to other prisoners or they fear that other prisoners will hurt them. The final type, also the most problematic, is called administrative confinement. It covers prisoners deemed to be "violent and influential characters." Prisoners of this type are segregated from the general prison population because prison officials fear that they would cause disruption, either through their own actions or through influencing other prisoners. Inmates placed in disciplinary confinement for a set period of time are often subsequently placed in Rule 68B administrative confinement for an indefinite period. Although this type of confinement is technically not punishment, it is no different from punishment when viewed from the prisoners' perspective. The fact that it is technically not punishment, however, means that the concerned inmates are deprived of the right to a disciplinary hearing and that the confinement can be extended indefinitely.

During a visit to Ma Po Ping prison by a Hong Kong Human Rights Monitor / Human Rights Watch delegation, we learned of one prisoner who had been transferred from Ma Po Ping Prison to Shek Pik Prison, probably as retaliation for making a complaint. The delegation found out about the case by reading the log kept at Ma Po Ping prison. The log's first relevant entry was in mid-December 1996. It stated that the inmate, a Pakistani man, was in administrative segregation and complained to a visiting JP that he was being unjustly punished. The CSD response to the entry, also included in the log, was that the inmate had been removed from association with other prisoners under Rule 68B because he had "intimidated a fellow prisoner to jointly sign a letter in order to protest against the allegedly poor quality of food provided to prisoners of non-Chinese nationalities."35

We urge your Committee to ensure that Rule 68B is not misused or abused by the authorities, and to press the Government to institute an effective prison complaints mechanism. These would enhance the implementation of ICCPR Article 10(1)36.

Death of a Child in the Social Welfare Department's Custody

The Social Welfare Department is responsible for the custody and treatment of young persons detained in facilities called "homes." The reason for placing juveniles in the custody of the Social Welfare Department is the belief that it will be humane and caring in its treatment of young people, with an emphasis on rehabilitation, not institutionalization. However, Human Rights Monitor questions the adequacy of the training of the staff of these homes, as well as the control of such staff. It appears that there are serious deficiencies in terms of policy, procedure, internal supervision and independent audit.

These deficiencies are clearly illustrated by the case of a 14 year-old boy, Tseung Siu-ming, who committed suicide on 5 April 1997, Children's Day, while in custody at the Pui Yin Juvenile Home. Siu-ming had been kept in isolation for seven days before he hanged himself with a rope made from a torn blanket in his room. The Superintendent of the Home admitted at the Coroner's inquest that he might have used strong words to scold Siu-ming hours prior to the suicide. The Superintendent denied that the boy had exhibited suicidal tendencies, but witnesses testified that after the Superintendent's conversation with the boy, the Superintendent had instructed an assistant social welfare officer to keep close watch on the boy as he had a high chance of committing suicide. The jury found beyond reasonable doubt that such a warning had been made. The assistant social welfare officer, who was praised by the coroner as "an impressive and honest witness", further testified that the boy had been upset, cried and claimed that he had been scolded for no reason.

Human Rights Monitor gathers from the Inquest Report37 that Siu-ming's suicide might be a result of mental torture, initially as a result of the unfound and wrong assessments of his behaviour by the Deputy Superintendent, and subsequently and being verbally abused before his death. Referring to the wrong assessments, the Coroner at the end of the hearing voiced his concern that "[i]f this state of affairs had accumulated up to a point leading to the deceased acquiring a suicidal frame of mind, surely those genuinely mindful of social welfare and reform of delinquents should have cause for concern." The Social Welfare Department initially refused to conduct an internal inquiry into the incident on the ground that there had been a coroner's inquest. It later held an internal investigation, but has never released its report. Nor was there any report of any punishments of those responsible for putting Siu-ming into a "suicidal frame of mind" or other possible faults.

The placing of Siu-ming into solitary confinement for seven days was prima facie a breach of Rule 67 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty38, which provides among other things that, "All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned."

Such solitary confinement is also in violation of the Convention Against Torture39, which not only prohibits physical, but also mental torture and all forms of other cruel, inhuman or degrading treatment or punishment.

Principle 34 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment40 provides that, "The findings of such inquiry [on the death of a detained person] or a report thereon shall be made available upon request"

Human Rights Monitor asks your Committee to (1) urge the SAR Government to set up an independent inquiry with wide-ranging powers to investigate this incident, (2) review the training program and procedures of the Social Welfare Department to ensure that there is sufficient care and protection for children in custody and that there are effective internal control procedures and independent external monitoring mechanisms.

Monitoring of the Immigration Department

The role of the Immigration Department in Hong Kong is a particularly important one in view of the large number of migrant workers in the territory, of Hong Kong families with relatives elsewhere and of foreign business and other visitors.

Human Rights Monitor has received numerous consistent complaints of abuses by officers of the Immigration Department this year during when assisting right of abode claimants and other minorities. These complaints were mainly about deliberate misleading information and use of duress to extract agreement to "voluntary" repatriation, verbal abuse, and racial discrimination. Instances of complaints of physical abuse have also been recorded. There were also several allegations of disclosure to Mainland authorities of video records or written information on the campaigning activities in Hong Kong of some of organizers of local self-help groups dealing with right of abode claims. Providing this kind of information exposes them to more severe penalties or confiscation of travel documents by the Chinese authorities on return to the Mainland.

We hope this sudden increase in complaints does not represent a serious deterioration in the standards of the Immigration Department.

All formal complaints against the Immigration Department were investigated by the Department and reviewed by a Complaints Review Working Party headed by the Assistant Director (Administration and Planning). Such a complaints handling mechanism is entirely internal and is therefore institutionally even less independent than that the system for handling complaints against police officers.

Victims of immigration abuses are usually visitors, right of abode claimants and ethnic minorities, unfamiliar with the system and their rights, vulnerable to retaliation (including repatriation), handicapped by language barriers and by detention, and with little outside assistance. They are thus persons particular vulnerable to abuses, and usually also ignorant about how to lodge complaints. They are also prejudiced by the Director's acknowledged policy of refusing to inform them of their statutory right of appeal under the Immigration Ordinance against most of the decisions of the Director of Immigration.

As other disciplined forces, the Government should introduce an effective independent mechanism to prevent and investigate abuses by immigration officers.

Chapter 5

Liberty of Movement; Aliens' Right to Appeal against Expulsion

(Articles 12 and 13)

Immigration Law and Immigration Appeal

Immigration Ordinance 1972 Section 53 provides that all decisions made by immigration officers under the Ordinance may be reviewed by the Chief Executive in Council except for decisions mentioned in Sub-section 8, which are removal orders of one kind or another.

This means that decisions in individual cases concerning the imposition of conditions of stay can be reviewed. Thousands of such decisions are made each year. But Human Rights Monitor understands that when a decision which could be reviewed under S53 (1)41 is made, the person affected is not informed of the right to review as a matter of course. This is not acceptable administrative practice. A public body having the power to make decisions affecting lives and livelihoods is normally expected to alert affected people to the existence of a right to appeal or review as a matter of fairness and good administration. Non-publication of this right probably accounts for the small number of reviews that take place each year. If all persons adversely affected by immigration decisions knew of the right to review, a good part of the weekly business of the Chief Executive in Council would be taken up with such reviews. This may be one reason for the Government's rejection of our request that existence of this right be published. Human Rights Monitor urges your Committee to ensure that the Government desists from this intentional withholding of information on this right to appeal.

Quite apart from the prospect of the Chief Executive in Council being overwhelmed by review work if people were informed of their rights, Human Rights Monitor believes that there is a strong case for devolving the review function of the Chief Executive in Council to an independent review body. Human Rights Monitor notes that it was the absence of an effective appeal body that gave rise to a feeling of unfairness and lack of transparency in UK immigration law. Such feeling led to recommendations in 1969 by a special committee that the UK system, which then closely resembled Hong Kong's current system, be changed. The recommendations were adopted in the UK's Immigration Act 1971. Under that Act, immigration policy for routine cases (e.g., the conditions to be satisfied for obtaining entry as a student or fiancee/fiance) was published in the form of rules that the Home Secretary would follow. If a person claimed that the Home Secretary misapplied or misunderstood the rules, resulting in curtailment of leave to remain or the imposition of extra conditions, he had a right of appeal. Human Rights Monitor urges your Committee to recommend the creation of a right of appeal to an independent body for the effective implementation of Article 1342. This would be a progressive step welcomed by all those people in Hong Kong who do not have the right of abode and who live here subject to conditions imposed by immigration officials, as well as their relatives and employers.

Human Rights Monitor is also disappointed that regressive legislation was enacted to deal with the anomalous situation of resident Britons who prior to the Handover had the protection of having deportation decisions reviewed by an independent panel. The post-Handover legislature abolished this institution altogether. Given the very serious impact of a deportation order43 on a non-permanent resident lawfully in Hong Kong and his family, Human Rights Monitor recommends that in common with the situation in many other countries, procedural safeguards be included in the Immigration Ordinance in all deportation cases. Where deportation is on the ground of the commission of a criminal offence, such an order should normally only be made if a court has first recommended it. This is because judges and magistrates are usually best equipped to decide whether a particular crime could warrant the heavy sanction of deportation in the public interest in addition to any other punishment imposed. Where deportation is said to be justified on the ground of public interest, there should also be a right of appeal to an independent body.

Chapter 6

Children and Family; Equality before Courts; Right to Fair and Public Hearings; Legal Aid; Due Process; Equality before the Law; Privacy

(Articles 14, 17, 23, 24, and 26)

Since the transfer of sovereignty, there have been a number of important cases and incidents concerning family re-union, the right of abode, privacy, and prosecution decisions, which have called into question the continuation of equality and the law, due process, and the right to fair and public hearings. These cases and incidents have highlighted not only the violations of the relevant substantive rights, but also a general deterioration in the rule of law in Hong Kong, as well as, the lack of protection of Hong Kong permanent residents in the Mainland.

Right of Abode Cases

The definition of "Hong Kong permanent resident" in Article 24 of the Basic Law was drafted at a time of "brain drain" from the territory after the crackdown on the 1989 pro-democracy movement in the Mainland. It was deliberately drafted to enable a lot of people to be eligible for permanent resident status44. This liberal definition took legal effect when the Basic Law came into operation on 1 July 1997. Children born to Hong Kong permanent residents who previously had no right of abode in Hong Kong became permanent residents on that day. NGOs had warned the Government well before the Re-unification to prepare for the influx of these children by making available various facilities. The Government, however, was not very keen to address the need for the re-union of split families except by increasing the daily quota to 150 for Mainlanders to come to Hong Kong.

Due to close interaction between Hong Kong people and Mainlanders since the inception of the Mainland's "open door policy" since the late 1970s, there has been a great increase in cross-border marriages and relationships which gave rise to a large number of children born in the Mainland to a Hong Kong parent (or parents). Government figures on the number of such children for the years immediately before the Handover were about 30,000.

The Basic Law took effect on 1 July 1997. Its Article 24 conferred for the first time such children the right of abode in Hong Kong. They applied to the Immigration Department for recognition of the right of abode in Hong Kong of their Mainland-born children who had already entered Hong Kong on temporary travel permits. However, the Immigration Department refused to accept that the Basic Law gave all these children the right of abode. The dispute turned on whether or not the children of Hong Kong residents were within the categories of people given the right of abode by Article 24(2)(3) of the Basic Law, as they appeared to be on the ordinary wording of the Article45. The number of claimants for the right of abode continued to increase over time. The Government amended retrospectively46 the Immigration Ordinance to require all right of abode claimants to apply in Mainland for a certificate of entitlement issued by the SAR Government and also for a one-way permit issued by the Mainland Public Security Bureau. Only when the certificate was affixed to the one-way permit was that claimant to be eligible to exercise his or her right of abode to come to Hong Kong. The system was in fact instituted to delay or deny by administrative means the constitutional right of abode guaranteed in the Basic Law. The Government asserted that Article 22 of the Basic Law has provided the justification for the one-way permit system. As a result, several court cases were initiated to challenge the new system established under the amended Immigration Ordinance, and these cases in due course found their way to Hong Kong's highest court, the Court of Final Appeal (CFA).

The CFA gave its judgment on 29 January 1999. It declared the linkage of the certificate of entitlement to the one-way permit to be unconstitutional because it delayed or denied enjoyment of the right of abode by making it depend on the decision of Mainland bodies over which the HKSAR had no control.

The judgment was initially welcomed by most of the Hong Kong public and even by pro-Beijing politicians and newspapers as a victory of the rule of law. The legal and human rights community considered it an important assurance that the rule of law survived the new constitutional order. However, after China voiced its disapproval of the CFA's views expressed in the judgment, especially that the CFA had the power to review the acts of the National People's Congress if such acts violated the Basic Law, the Government applied to the CFA to clarify its judgment. The Government's application was made at a time when the CFA was under tremendous pressure exerted by open criticisms by Chinese authorities and verbal intimidation by pro-Beijing politicians. The CFA agreed to clarify its judgment by repeating its view in a more acceptable way, e.g. "the Court accepts that it cannot question, the authority of the National People's Congress or the Standing Committee to do any act which is in accordance with the provisions of the Basic Law and the procedure therein."47 Such an act of clarification after the final adjudication of a case was unprecedented -- worst of all, it was done at the request of a government whose lawyer admitted in the application proceedings that all parties to the case understood perfectly well the judgment and indicated that the clarification was necessary for someone not in the courtroom.

The Government did not stop there. It used political means to accomplish what it could not do legally. Several weeks later it first used a grossly inflated estimate of the number of persons eligible for right of abode to scare the public, to fan discrimination against Mainlanders, and to create hostility against the CFA judgment. Then, on 20 May 1999, it requested the Standing Committee of the National People's Congress to give an "interpretation" of the Basic Law on which the CFA had based its judgment. On 26 June 1999 the Standing Committee accepted the SAR Government's request and its interpretation of the Basic Law overturned many important aspects of the judgment of the CFA but without any legal argument.

The Basic Law gives the power of final adjudication to the Hong Kong CFA. The SAR Government's request for "interpretation" was actually for a referral of the final verdict of the CFA. It was a deliberate attack on the rule of law and not permitted under the Basic Law. The Executive has no legal power to refer any court cases to the Central Authorities. The Basic Law only provides the CFA itself - not the SAR Government - with the right to seek interpretation from the Central Authorities. Secondly, the Standing Committee has no power to accept any requests for interpretation from any body - including the SAR Government - other than the CFA. Thirdly, the Standing Committee's interpretation of the right of abode as extending to fewer categories of people than recognized by the CFA's ruling is inconsistent with the Basic Law. Article 39(1) provides for the continued application of the ICCPR after sovereignty transfer48.

The CFA's decision 29 January 1999 -- based on its interpretation of the Basic Law as informed by the Joint Declaration, with due regard to the obligations laid down in various international human rights treaties -- should have been a final decision, and as such the Government was obliged to apply it. In the case of ambiguity, issues should be resolved in the favour of individuals' rights. It is established under Hong Kong law and confirmed by the CFA in the judgment that a generous and purposive approach to interpretation of the Basic Law should be adopted, as was done by the CFA. The Standing Committee's "interpretation" method, in contrast searched the memory of Basic Law drafters and legislators for their "original intent" as well as others in the Standing Committee regarding the constitutional provision. This was done without adhering to the legal rules of statutory interpretation which requires legislative historical material to be (a) contemporaneous, (b) reliable and, (c) accessible to the public. Nor were the parties directly affected allowed to be present or make representations. Those right of abode claimants were denied access by the Mainland and Hong Kong authorities to a fair and public hearing before the Standing Committee. The process of re-interpretation was a process involving only the Central and SAR governments. This violates the basic notions of equality before the court and equality before the law. In all these respects the "interpretation" was utterly antithetical to the rule of law.

Reputable Mainland scholars have called for the Standing Committee's power of legislative interpretation to be abolished as not compatible with a proper legal system. This "interpretation" by a non-judicial body was thus not only a breach to the guarantee in the Joint Declaration that the common law judicial system would be maintained but a retrograde step in terms of development of law in Mainland China. Even worse, the Standing Committee's interpretation invoked retrospectivity, which is utterly alien to the common law tradition, to which Hong Kong is entitled under the Basic Law.

The SAR Government has refused to rule out future "interpretations" in other cases or even when there is not yet a case before the court. If it is regularly used, the rule of law in Hong Kong will have effectively ended.

We urge the Committee to express as a matter of serious concern to the HKSAR Government that the course of action taken by the HKSAR Government in seeking an interpretation from the NPCSC on provisions of the Basic Law, has, by reason of the reliance of Mainland laws which are not laws of the HKSAR and the by-passing of the procedural safeguards set out in Arts 158 and 159 of the Basic Law, undermined the guarantee in the Basic Law for the maintenance of a separate legal system for the HKSAR. The route taken by the HKSAR Government was not provided for in the Basic Law.

Legal Immunity of Persons and Organizations Close to the Central Authorities

The SAR Government's submission states that everyone is equal before the law. This used to be the case. But there seems to be de facto immunity to Hong Kong laws for people and organizations close to the Beijing authorities. This of course contravenes Article 14(1) of the ICCPR49.

The new situation became apparent when Secretary for Justice Elsie Leung decided without valid justification not to prosecute Sing Tao Holdings Chair Sally Aw Sian for an alleged fraud. Three senior staff of the Hong Kong Standard newspaper, owned by Ms. Aw's company, were charged with conspiring, with Ms. Aw, to defraud advertisers by falsely inflating circulation figures. This was a massive fraud over many years, found to have begun before any of the three employees had taken up their posts with the company. All three employees were tried, convicted, and sentenced to prison -- Ms. Aw, their boss, was not prosecuted.

Apart from being the chair of the holding company, Ms. Aw is also a member of the Chinese People's Political Consultative Conference and a family friend of Chief Executive Tung Chee-hwa. In her statement of explanation to the Legislative Council, the Secretary for Justice cited "public policy" as a ground for not prosecuting Ms. Aw in addition to claiming lack of evidence despite the existence of a video-taped confession by Ms. Aw to Hong Kong's Independent Commission Against Corruption. According to Leung, "public policy" considerations leading to the decision not to prosecute Ms. Aw included the fact that she was the employer of a large number of employees and her prosecution might lead to the collapse of her media enterprise which was experiencing financial difficulties. This decision led to a motion of no-confidence in Ms. Leung in the Legislative Council, which was defeated with the assistance of the indirectly elected members although the great majority of directly elected Members voted against Ms. Leung.

A further instance of the new inequality was the Department of Justice's decision not to prosecute New China News Agency (usually called by its Mandarin name "Xinhua") or any of its staff for breach of the Data Protection (Privacy) Ordinance. Xinhua failed within the 40-day statutory limit to respond to Legislative Councillor Emily Lau's request for information about whether the Agency kept a file on her. The Chief Executive said that the offence was merely "technical." The SAR Government's decision not to prosecute Xinhua breached Article 2 and Article17 of the ICCPR50. In its report, the Government said that "public policy" was again involved in its decision not to prosecute. Your Committee should clarify with the Government how "public policy" was involved in the decision.

Close examination of the legal status of Xinhua reveals that it is an unincorporated body which had no legal personality of its own. That means Xinhua itself cannot be prosecuted as the law stands.

Legal Aid and the Duty Lawyer Scheme

Article 14 of the ICCPR requires equality of all persons before the courts51, which means that poor people must be provided with legal representation in order to assert their legal rights. There are two main Government bodies, Legal Aid (LAD) and Duty Lawyer Service (DLS), offering legal aid services. Both of them lack independence from the Executive.

The Government's tight funding control over DLS necessitates DLS lawyers' being assigned very large caseloads, resulting in their having little time to prepare for each case. The Government generally only funds DLS representation of defendants accused of crimes on a schedule of offences approved by the Executive's office. This schedule excludes many immigration offences.

The LAD is subject to an array of institutional controls by the Government over its policies and decisions, particularly in cases where Government decisions or actions are challenged. Thus, the Government effectively decides which cases come before the court and which cases do not. This is against Article 14 and requires institutional remedy. Human Rights Monitor expresses its deep concern over the lack of independence from the Government of both the DLS and the LAD.

We ask your Committee to urge the Government to establish an independent Legal Aid Department and give Duty Lawyer Service more resources and greater autonomy.

Invasion of Telecommunications Privacy

The Government's active invasion of private persons' privacy remains unsettling. As paragraph 315 of the Government's submission describes, Telecommunication Ordinance 1963 section 33 ("Power of Governor to prohibit transmission of messages, etc.")52 enables the Government to block, monitor, and even disclose telecommunication messages without the consent of the sender or the receiver. The Government's monitoring power covers telephone conversations, fax messages, e-mails, data sent through wire or wireless means, and pager messages. In other words, it practically covers all means of telecommunications. This power can be invoked on the broad and vague ground of "public interest" and is not subject to scrutiny by an independent supervisory body. The Government is not required by the law to disclose monitoring to the sender or receiver, as required in some other jurisdictions. Organizations and individuals will not usually be able to detect that their communications are being monitored. Legal action to challenge wrongful interception is therefore virtually impossible. This situation cannot be redressed unless the law is amended or there is a court judgment striking down the Telecommunications Ordinance as unconstitutional for violation of the right to privacy enshrined in the ICCPR.

The Government even refuses to disclose statistics on the number of telephones it monitors when requested by Legislative Councillors. The excuse provided by the Government is that disclosure of such statistics would jeopardize detection and prevention of serious crimes. Such a reason may perhaps be an argument for not disclosing details of individual monitoring cases to the public, but is wholly illogical as a justification for not providing general statistical data.

The Interception of Communications Ordinance was enacted before the Re-unification and assented to by the then Governor under British rule. The Ordinance will not take effect until a date to determined the Chief Executive. This Ordinance replaces the current warrant system - which is administered exclusively by the Government on the broad and vague ground of "public interest" - by an impartial court warrant system against interception of telecommunications. The Government has repeatedly refused to give any clear indication of a time-table for bringing this law into effect.

The Post Office Ordinance provides for interception of postal communication on a similarly vague basis, rendering the SAR Government effectively unchecked and the right to privacy in postal communication entirely at the mercy of the Government. No legislation has been enacted to redress the existing interception regime.

Before a court challenge is mounted, the Government should appoint a date for the Interception of Communications Ordinance to take effect and amend the Post Office Ordinance as soon as possible.

Chapter 7

Freedoms of Expression, Opinion, Thought, Conscience, and Religion

(Articles 18, 19, 20, 21 and 22)

A critical and vulnerable right after the Re-unification is freedom of expression, especially of expression with strong political content. Although the erosion of this right since the Handover has not been as severe as the erosion of democracy and the rule of law, there have nevertheless been serious attacks on Freedom of expression. Display of Taiwanese flags and posters of controversial political leaders, and muti1ation of national and regional flags -- have all been subjected to censorship, restriction and prohibition. Existing laws have been inconsistently cited to justify selective removal of Taiwanese flags on display, and legislation has been enacted since the Re-unification to prohibit expression of political dissent by peaceful desecration of national or SAR flags or emblems.

The reason behind these violations of freedoms, coached in the language of upholding the "one country principle," was the SAR Government's misguided equation of China's sovereignty over Hong Kong with the need to eradicate any symbols which the Mainland might see as politically objectionable, to restrict certain forms of expression of political dissent associated with the concept of sovereignty, and to exclude "unwelcome visitors."

Display of Taiwanese Flags Prohibited

"Sensitive" Taiwanese flags have been systematically removed from public places since the Handover without lawful authority. On 10 October 1997, Taiwanese flags were displayed at several spots on Hong Kong Island. Upon the order of the Chief Executive, plainclothes policemen removed them within hours. The "One Country Principle" cited by Tung was very alarming, as if it was itself a law providing for the removal of those flags. Other government officials either failed to provide a legal basis, or cited inconsistent legal provisions to justify the act after its commission. In 1998 nothing changed. Taiwanese flags were displayed on footbridges and at roadsides to commemorate the Double Tenth, anniversary of the 1911 revolution which overthrew China's last imperial dynasty and the National Day recognized by the Nationalist Government in Taiwan. Other banners and sign boards on display on government land and property or in public places nearby, which according to these officials' justification were also unlawful, were left untouched. Even though they could cite statutory provisions to justify their acts, the government officials' selective enforcement of the law showed that the reason for their actions was wholly political.

The Government is empowered to use the Government Land Ordinance to remove objects displayed on Government land without prior approval. If this power were exercised uniformly all banners and boards on display without permission (and there are very many of them in Hong Kong) would have to be removed at the same time to avoid selective enforcement of the law. In fact only Taiwan flags are removed. Government departments have no more power than granted by the law and there is no discrete legal power providing for the removal of flags on public display. An order by the Chief Executive to the police does not make flag removal lawful. The flag removal orders indicate that Tung considers it acceptable to use the police for political ends outside the law.

A poll conducted by the University of Hong Kong Social Sciences Research Centre showed that 65.5% of respondents opposed the Government's ban on flying the Taiwan national flag or Kuomintang flag.

In general, the police seem hostile to the expression of political messages. Government authorities appear to consider the public display of flags, banners and posters as having the potential to lead to a breach of peace. According to the Police General Orders, sensitive posters and flags that may lead to serious breaches of peace should be removed in the hours of darkness if possible. The Orders provide no safeguard against indiscriminate removal in the case of a remote chance that the expression concerned would lead to a breach of peace. The internal rules in the Police General Orders and Procedure Manual only outline ways and means to restrict and discourage the display of political posters and banners. The rules do not indicate that the police are responsible for protecting the freedom of expression, and do not set out guidelines by which the police should protect people's expression of opinions in a medium of their choice, whether such opinions are welcome by or repugnant to the majority of the population or the Government authorities. We urge your Committee to persuade the Government to stop using the police force as a political tool, and to advise the police to be more tolerant of the expression of views, for the effective implementation of Article 19(2)53.

Unnecessary and Restrictive Flags Ordinances

Article 18 of the Basic Law prevents the application of national laws to Hong Kong except those relating to defence, foreign affairs or other matters outside the limits of the autonomy of the Region as listed in Annex III to the Basic Law and applied to Hong Kong in accordance with certain procedures. The designation of the National Flag and Emblem is not within the limits of Hong Kong's autonomy, and their designation therefore could lawfully done in accordance with the Basic Law by adding the relevant provisions of the national laws to Annex III. The Law of the People's Republic of China on the National Flag ("the Mainland Flag Law") and the Law of the People's Republic of China on the National Emblem were added to the Annex on 1 July 1999. To make their provisions law in Hong Kong, the SAR Government enacted the National Flag and National Emblem Ordinance (Cap. 2401) and the Regional Flag and Regional Emblem Ordinance on 1 July 1997. Section 7 of each of these Ordinances prohibits intentional desecration of the Flags and Emblems in public. Their violations are offences punishable by fines or imprisonment up to three years. However these offences do not exist in the Mainland Flag Law. They are taken from the Mainland Crimes Law, which was deliberately not applied to Hong Kong under the system created by the Joint Declaration and the Basic Law.

As described in paragraphs 364 to 370 of the Government's report, two young civil rights activists were convicted of defacing the SAR and Chinese national flags and bound over to be of good behaviour for 12 months. Magistrate Tong Man in a judgment full of patriotic catchwords said that the flags were "sacred" and the act of desecration was itself likely to cause a breach of peace. The Court of Appeal quashed the convictions in March 1999 and declared the provisions outlawing such flag desecration unconstitutional as they were unnecessary restrictions of freedom of expression. The Government is currently appealing to the Court of Final Appeal to have the Court of Appeal's judgment reversed. It has asked the Court to refer the matter to the Standing Committee although it has not explained the legal basis for doing so.

Article 19 of the ICCPR provides that "Everyone shall have the right to freedom of expression °K through any media of his choice." It is wrong to follow the Mainland's policy of criminalising expression through flag or emblem desecration. The Ordinances are legislative encroachments on the freedom of expression.

In the US, flag burning is seen as a form of lawful expression, and judicial scrutiny has resulted in regulatory statutes being declared unconstitutional, for breaching the freedom of expression. In Hong Kong before the Handover it was lawful to desecrate the Union Jack, the Chinese Flag or any other flag, and flag desecration had been performed in demonstrations and performances for over three decades without problems. There is no evidence that these acts led to breaches of the peace. If they had, then those participating in a breach of the peace could have been dealt with by existing common law and statutory offences governing conduct in public places. Thus these Ordinances are absolutely unnecessary. We urge your Committee to condemn the enactment of these oppressive laws.

Politically Motivated Censorship

The director of the Hong Kong and Macau Office Mr. Lu Ping warned Hong Kong journalists in August 1996: "After 1997, it will not be possible for you to advocate two Chinas, or one China and one Taiwan, or Hong Kong independence, or Taiwan independence, or Tibet independence. The press will not be allowed to do so. It is a different issue from press freedom."

One of the first legislative encroachments on human rights by the then incoming administration under Tung Chee-hwa was the toughening up of the Society Ordinance and Public Order Ordinance by adding "national security" as a ground to prohibit public gatherings and ban legal registration of societies (all societies are required by the Societies Ordinance to be registered with the police). Tung's guidelines issued by the post-Handover Government to the police on the application of the Public Order Ordinance state that the Commissioner of Police would take into consideration, among other things, whether or not the declared purpose of the notified public meeting or procession was to advocate separation from the People's Republic of China including "advocacy of the independence of Taiwan or Tibet."

These retrograde amendments to the Ordinances, and the propaganda before, during, and after their enactment have apparently terrified many sectors in the community, and turned political discussions related to the independence of Tibet and Taiwan into taboo subjects.

The film distribution industry has been criticized for distributing three films on Tibet and a movie which was critical of the Chinese legal system. The industry denied the charge. A distributor contracted to distribute the movie "The Red Corner," did so, but only after consulting the Chinese Cultural Ministry.

Documentaries on the possible independence of Xinjiang and Tibet have been either banned or abridged by different television stations54. Scenes and sound tracks of demonstrations in support of Tibet's independence have not been broadcast in television news.

The Radio Television Hong Kong (RTHK) was a government agency. Under an agreement between RTHK and the colonial government, independence was guaranteed to RTHK despite its status as a government body. Originally there was a plan to let RTHK become an independent corporation like the BBC. But in 1994 the Government reversed its position after China strongly opposed the plan in the Sino-British Joint Liaison Group (JLG).

The RTHK has been under repeated severe attacks by pro-Beijing politicians. In March 1998, a member of the provisional legislature, Mr. Wong Siu-yee, attacked RTHK's independence. He criticised RTHK for not toeing the government line and for allowing its journalists to criticise China and Chief Executive Tung Chee-hwa "from dawn to dusk." This was followed by another attack by Mr Xu Simin, a Hong Kong delegate to the Chinese People's Political Consultative Congress who criticised the HKSAR government for spending public money to enable RTHK to attack China and Tung. The reply of the Chief Executive to these accusations was "slowly, slowly", apparently intimating that RTHK was and should be treated like a government department. Local outcry to this answer subsequently prompted the Acting Chief Executive, Ms Anson Chan, to state publicly that criticism of the SAR Government should take place in Hong Kong, and not in Beijing, in order to avoid the impression of inviting intervention from Beijing on domestic affairs.

Mr. Tung's reaction and his subsequent silence contradicted reassurances by the Secretary for Broadcasting, Culture and Sport on 27 November 1997 that RTHK's editorial independence would not be reviewed. The local press has since reported that in a meeting between Mr. Tung and the Information Secretary for Technology and Broadcasting designate (a newly created post to handle broadcasting matters), there were discussions on how to "cure" RTHK. These reports have not been responded to by either Mr. Tung or his Policy Secretary.

In August 1999, RTHK was criticised for allowing Cheng An-kuo, Taiwan's de facto envoy in Hong Kong, to suggest on a radio talk show that the People's Republic of China and the Republic of China on Taiwan are two separate states. Tsang Hin-chin, a member of the National People's Congress Standing Committee, said that as a government-funded broadcaster, RTHK should consider "basic principles." He threatened to "express his views to the Standing Committee meeting in August 1999." This was despite RTHK's clear and fair position that discussing and debating a live issue in the media does not constitute an act of advocacy. Tsang further threatened that if the public media did not practice self-censorship, laws enforcing Article 2355 of the Basic Law would soon have to be drafted. Such a threat, standing on its own, is a strong challenge to the editorial autonomy and freedom of the press. There is serious worry among rights conscious people in the community that the Government may soon introduce oppressive laws to enforce Article 23 of the Basic Law.

In response to a question by Hong Kong journalists, Vice Premier Qian Qichen said that officials of the Taiwanese authorities in Hong Kong should not promote the "two states theory." In Hong Kong's sensitive environment, his comment has intensified pressure on the Hong Kong media. Similar comments have been made by the Information Coordinator and by the Chief Executive himself.

Taiwanese President Lee Teng-Hui's new book Voice of Taiwan has proposed splitting China into several autonomous regions including Taiwan, Tibet, Xinjiang and Inner Mongolia. This proposal is unacceptable to the Beijing government. In July 1999, the Mass Transit Railway (MTR) removed an advertisement for Lee's book from a train station before the relevant contract expired. When questioned, MTR's spokeswoman said that the advertisement was removed by mistake. But MTR did not put up the poster again, claiming that advertising space was over-booked. The MTR only arranged to compensate the publisher for breaking the advertisement contract. It refused to acknowledge that the incident was politically motivated.

Given Hong Kong's political atmosphere, perhaps it was not surprising that MTR exercised self-censorship in order not to offend Beijing and thereby damage its own commercial interest. Unchecked, such a social environment will rapidly erode free expression.

We urge your Committee to make its view on this issue clear to the Government for the effective implementation of Article 19(2).

Immigration Barrier to Political and Academic Discussions

Hong Kong Human Rights Monitor is concerned about the Director of Immigration's refusal in April 1999 to permit Wang Dan and other overseas Chinese dissidents to enter Hong Kong for "operational reasons" according to "existing policies". As a result, these dissidents could not attend a seminar organized by the group Hong Kong Alliance in Support of the Patriotic Pro-Democracy Movement in China to commemorate the 10th Anniversary of the June 4th Massacre.

The Government denied that the refusal was based on political reasons. Yet the public has absolutely no idea what these "operational reasons" and "existing policies" are, and the suggestion that they are other than political is scarcely credible. Some of the dissidents had been allowed to visit Hong Kong before the Re-unification. Information Co-ordinator Stephen Lam Sui-lung even said that all "government decisions are being taken in the long-term interest of Hong Kong and for ensuring success of the 'one country two systems policy'."

The explanation advanced by the HKSAR Government only strengthened the popular belief that the Government is actively applying the Mainland's well-known policy of excluding Mainland dissidents from all parts of the People's Republic of China. This is achieved by a policy of selection as to who can come to Hong Kong on the ground of political opinion. This restricts the freedom of speech in Hong Kong in relation to the development of democracy in China.

Human Rights Monitor has repeatedly urged the Hong Kong Government to publish its immigration policies and to turn them into formal rules thereby giving the public and the Legislative Council the chance to know, discuss and amend these policies. The publication of such policies as immigration rules is essential to protect the rights of Hong Kong people, their families and other visitors. Otherwise, not only will the people and visitors not know how to defend their interests, even lawyers and human rights workers will not be able to advise their clients as to their rights. The Government is left to exercise its unlimited discretion arbitrarily. Human Rights Monitor calls on the Secretary for Security and the Immigration Department to explain what exactly are the "existing policies" and "operational reasons".

In accordance with section 53 of the Immigration Ordinance, any person aggrieved by a decision, act or omission of any public officer taken, done or made in the exercise or performance of any powers, functions or duties under the Ordinance may by notice in writing lodged with the Chief Secretary within the time prescribed in subsection (2) object to that decision, act or omission. But visa applicants cannot effectively apply for a statutory review of relevant decisions if they do not even know the "operational considerations" and "existing policies." The Government has regrettably also failed to inform the applicants of the channel for appeal, and has intentionally refused to redress the situation.

Human Rights Monitor calls on your Committee to urge the Government not to use immigration control to obstruct academic or political discussion in Hong Kong, and to set out its immigration policies in published immigration rules so that suspicions of political manipulation are dispelled.

Immigration Barrier to Religious Freedom

The Pope abandoned his announced intention to visit Hong Kong as a result of the Chinese Government and the SAR Government's refusal to admit him. As a previous Pope had visited Hong Kong under British colonial rule, in 1970, this refusal was a serious blow to religious freedom in Hong Kong as guaranteed in the ICCPR and the "established basic policies of the People's Republic of China" set out in the Sino-British Joint Declaration.

The Established Basic Policies provide that " religious organisations and believers may maintain their relations with religious organisations elsewhere".

Permission to enter Hong Kong is within the jurisdiction of the Director of Immigration. Policies respecting entry are determined by the SAR Government. In view of this and of the previous 1970 visit it was reasonable for Hong Kong's large (two hundred fifty thousand) Catholic community to assume that papal visits would still be permitted after the transfer of sovereignty.

The Pope is the leader of one of the world's largest religious denominations, which has hundreds of thousands of adherents in Hong Kong. The local Catholic community's wish for the Pope to visit the territory is entirely legitimate.

The obvious reason for banning the proposed Papal visit is the Vatican's continuing recognition of Taiwan. It seems very doubtful whether in the Central People's Government's own terms this can be described as a foreign affairs matter in which the Central People's Government is entitled to intervene.

Article 22(1) of the Basic Law provides: "No department of the Central People's Government and no province, autonomous region, or municipality directly under the Central Government may interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this Law." Even if the Pope's visit is an issue of foreign affairs over which the Central Authorities have jurisdiction, it is also an issue of religious freedom in and independence of immigration decisions of Hong Kong. The Central Authorities should refrain from taking any decisions in such areas.

Were it lawful for the Central Authorities to make a decision on the Pope's visit to Hong Kong, they were obliged to make a decision for the full realization of religious freedom in Hong Kong as guaranteed in Article 33 of the Basic Law. This should have been done without intervening in immigration decisions of Hong Kong to the detriment of its autonomy.

We call on your Committee to urge the Central and SAR Governments to reconsider their respective roles and positions on the thwarted Papal visit.

Pillar of Shame

As the major providers of cultural facilities, the Provisional Urban Council and Provisional Regional Council have a responsibility to respect freedom of expression and to ensure pluralism and diversity in artistic expression, without regard for the political content of the art. Unfortunately, the Councils' treatment of the Pillar of Shame, a sculpture commemorating the Tiananmen Square massacre of 1989, reveals that Councils' decisions regarding the public display of art have been motivated by political considerations.

The Government claims in its report that the decision of the Provisional Urban Council to deny an application for the display of the Pillar of Shame for three months in Kowloon or Chater Garden during 1997 was purely benign. "The Provisional Urban Council reached its decisions having considered all relevant factors including the fact that the dates applied for clashed with events sponsored by other applicants that the Council had already approved. The Council was also concerned that the presence of the sculpture and related display boards would inconvenience park users and would be inconsistent with the primary use of the parks."56 The Government fails to report, however, the relevant discussion in the Provisional Urban Council.

When the Provisional Urban Council voted again in 1998 to reject an application to put the Pillar of Shame on permanent display, the councillors were more explicit about the political factors behind their decision-making. Ip Kwok-chung of the pro-Beijing Democratic Alliance for the Betterment of Hong Kong stated that "the council should not agree to display objects which were controversial." Another councillor said Hong Kong should not get involved with the Tiananmen Square massacre since "[t]his incident happened in Beijing and we don't need to focus so much on events happening in Beijing as we are under °•one country, two systems.'"57

In 1998, the Government announced that it would be abolishing the urban and municipal councils. The cultural promotion functions exercised by these elected bodies would be assumed by a newly-created Culture and Heritage Commission to be appointed by the Chief Executive. Apart from the erosion of democratic institutions in Hong Kong, Human Rights Monitor is also concerned that given the appointment of the Commission by the Chief Executive, and the lack of public input in selection of the Commission members, the body will simply be an organ for "cultural indoctrination."58 Moreover, since the Commission may be merely an advisory body, it appears that the non-elected Government would retain the power to make decisions relating to art and culture, a power that had been previously enjoyed by a popularly-elected body59.

Human Rights Monitor requests your Committee to call upon the Government to respect freedom of expression and to ensure that all relevant government and public bodies authorized to make decisions about the public's access to art remain free of political bias and refrain from exercising political censorship.

Chapter 8

Right of Peaceful Assembly; Freedoms of Association & Trade Union

(Articles 21 and 22)

Both the 1992 amendment to the Societies Ordinance and the 1995 amendment to the Public Order Ordinance - which liberalized laws for the enhancement of civil rights - were partially repealed in 1997 by the Standing Committee of the Chinese National People's Congress (hereafter referred to as the "Standing Committee") to the detriment of basic rights. The requirement of registration for societies - which had been discarded by the colonial government in 1992 - was re-introduced on the day of Re-unification by the SAR Government in the new Societies Ordinance. An application for registration of a society may now be refused by the police on the new ground of "national security."

Similarly, the Public Order Ordinance was rolled back on 1 July 1997 to require police approval for public gatherings, and "national security" was been introduced as a ground to prohibit public gatherings.

Labour legislation on the right to free trade unions were rolled back by the SAR Government shortly after the Re-unification.

Rolling Back of Societies Ordinance

The Societies Ordinance is probably the single most important statute in Hong Kong laws governing the formation, operation, and dissolution of NGOs. It is therefore central to the freedom of association in Hong Kong. It governs, among other things, how societies may get lawful status in Hong Kong.

The Societies Ordinance was first enacted in 1949. Before then, societies in the colony had not been required to register. The Ordinance's aim was political groups at the time of the Communist takeover in China. Since its inception the Ordinance has attempted to regulate political and other ordinary societies together with loosely structured criminal groups known as triad societies, subjecting them to similar if not exactly the same control regime. Although gradually some differentiation, mostly on penalties, between triad and ordinary groups was made in the Ordinance after many amendments, the common treatment of such fundamentally different groups in one law is still a real threat to the freedom of lawful association. We fundamentally oppose this approach. Societies operate freely without any need to register or notify any authorities in the United Kingdom and the United States.

The Societies Ordinance in its earliest version provided for a registration system. In 1992, a notification system was introduced to bring the Societies Ordinance in line with the Bill of Rights Ordinance. The power to prohibit any society from having connection with any political group outside Hong Kong was abolished, evoking criticism by Mainland China.

Article 23 of the Basic Law requires the enactment of laws in Hong Kong "to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies." It is unfortunate that Re-unification and the taking effect of the Basic Law have led to the rolling back of the Societies Ordinance.

In Spring 1997 the Standing Committee of the National People's Congress resolved to repeal the 1992 "major amendments" to the Ordinance, and on the day of Re-unification the Hong Kong SAR Government rolled back the Ordinance by re-installing the registration system. The 1997 amendments provide that if the Societies Officer (who is the Commissioner of Police) "reasonably believes" that the prohibition of a society "is necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others," he may make a recommendation to the Secretary for Security, who may ban the society concerned.

Article 22(2) of the ICCPR provides: "No restrictions may be placed on the exercise of [the right of free association] other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others." The purpose of this article was not to provide convenient excuses for governmental authorities to restrict the freedoms and rights of their people, but to prevent any government measure for restricting rights from going beyond the permissible limits defined by the ICCPR and related international jurisprudence.

Legitimate restrictions of rights are not simply required to be within the scope of the grounds of restriction set out in the ICCPR; these restrictions must also be limited to those necessary to meet sufficiently important social exigencies to justify their imposition. It is the authorities' duty to prove that there are grave social needs and legitimate aims. Restrictions must have rational connections to those needs and aims, be commensurate to them, and cause minimal impairment to the rights. Such restrictions can only be prescribed or imposed by law, which must be clear and unambiguous enough that people know how they are affected and are able to predict the consequences of their own decisions and acts. Falling short of any of such requirements, a restriction is unlawful. Simple incorporation of the ICCPR grounds into domestic laws will exaggerate the permissible scope of restriction and is a misuse of the Covenant.

Article 5 of the ICCPR states clearly that "nothing in this Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant," and that "there shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing. on the pretext that the present Covenant recognizes them to a lesser extent." Unfortunately, SAR administration is doing exactly this - by misusing the ICCPR.

The 1997 amendments purport to incorporate the requirement of necessity; but what is required is the "reasonable belief" by the security authorities, not any other people, of its necessity. The very purpose of having common objective standards in the ICCPR was defeated by incorporating this subjective requirement. The United Nations Human Rights Committee has stressed the need for objective universal standards of implementation of the ICCPR (to the extent that it even rejects the doctrine of margin of appreciation allowed by the European Court of Human Rights) to ensure that the meaning of "necessity" in the ICCPR is not left open entirely to a national or municipal court, not to mention the subjective judgment of the state or municipal security authorities. The subjective concept of "necessity" in the 1997 amendments makes it too ambiguous a law to satisfy the ICCPR requirement of clear prescription in legislation.

Another important aspect of the ICCPR's requirement of necessity is that there must be cogent evidence to prove that there is a problem serious enough to justify a restriction of rights. The necessity for expansion of the grounds of prohibition to "national security" and "the protection of the rights and freedoms of others" in the 1997 amendments has not been demonstrated. From the enactment of the 1992 amendments up to the last day of British rule, the NGO community did not pose any problems to Hong Kong which justified the tightening of the leash on societies. Even the then existing grounds did not need to be invoked. No NGO has ever been prohibited or refused notification by the colonial authorities in the last decade of British rule. Had there been any problem, the grounds of public order and public safety would have been enough to handle it. This evidence suggest that the Societies Ordinance could, in respect of groups other than triad societies, be liberalized without negative consequences. The problem is excessive power of control rather than inadequate regulatory provisions.

The use of the term "national security" is particularly objectionable because this concept has frequently been used in China to delegitimize the right of expression and to persecute those with legitimate demands like democracy and human rights. Its inclusion raises fears of extension of such Mainland Chinese practices to Hong Kong, especially in the light of Article 23 of the Basic Law.

The consensus of international jurists as enumerated in the Siracusa Principles is that national security "cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order." It may be invoked "to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force." Its inclusion in the Societies Ordinance and the Public Order Ordinance is therefore unwarranted, as it is difficult to suggest that a society or a demonstration in Hong Kong will threaten the existence of China. If there is any local and isolated threat to law and order, it can be dealt with under the heads of public order and public safety.

The Johannesburg Principles, which are concerned more with the freedom of expression, also stress the significance of violence in relation to justifying restrictions on the ground of national security. The Principles state that the freedom of expression may be restricted as a threat to national security only if a government can demonstrate that the expression is intended to incite violence, that such violence is likely to be incited, and that there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

However, the ground of "national security" was introduced without any qualification with regard to the requirement of violence or force, despite local and international criticisms. A concession was made by the Chief Executive in respect of the definition of "national security" in that it was defined as "safeguarding of the territorial integrity and the independence of the People's Republic of China" while linking its meaning to that in the ICCPR. It is difficult to understand how the HKSAR's omission of the requirement of force can be reconciled with the ICCPR's definition of "national security". It may be that a court would be prepared to impute the requirement of force in light of the wording of the definition in the 1997 amendments, but this is far from certain. The Government's refusal to include the requirement of force in the ground of national security has already set a bad precedent for other legislation under Article 23 of the Basic Law.

Another serious consequence of including the "national security" ground is that it fundamentally alters the role of the police force. The police are now required to judge whether a society is a threat to the territorial integrity and the independence of the People's Republic of China rather than to regulate on the grounds of public order and public safety, with which they are familiar and which involve no political role. As far as Human Rights Monitor knows, the "security of Hong Kong" ground in the 1992 legislation was ignored in practice. The recent withholding of the registration of a group called "Forget Not June 4th" and the associated police inquiry into the group's operation indicate that such inaction is no longer the norm. (See next Section)

The police are empowered by the 1997 amendments to conduct political censorship of societies when they apply for registration or exemption. They are also empowered to monitor the activities of societies at all times, prohibiting them if required. It should be noted that except for these changes, the provisions in the last pre-Handover Ordinance remain unchanged and the authorities inherit all the powers in the last pre-Handover Ordinance, including, among others, the power to inquire, enter, search, and seize. The Societies Officer has the power to require information reasonably required for the performance of his functions under the Societies Ordinance. Once his functions include such political monitoring, it may be "reasonable" for the police to require extensive information of societies critical of Mainland China or groups having "politically controversial" members. Societies, especially opposition political parties, will be under serious threat if the authorities decide to be "proactive". The current police inquiry into Forget Not June 4th's operations highlights that things are different under Chinese rule - the power is a very real one and the police are now ready to use it to enforce political censorship.

Not only do vulnerable groups oppose this new ground, apparently many police officers find it difficult to be entrusted with associated duties. According to a news report, a spokesman of an association of police officers voiced his reluctance to take up the responsibility to decide whether to prohibit a public gatherings on the ground of national security as a front line officer, reasoning that such issues should only be decided by senior management.

Restricting Foreign Connections

One of the new grounds of prohibition introduced by the 1997 amendments is: being "a political body" having "connection with a foreign political organization or a political organization of Taiwan." "Political body" means a political party or an organization purporting to be one, or an organization whose principal function is to promote or prepare a candidate for an election. "Foreign political organization" includes foreign political party or government and its political subdivision or agent. "Connections" refer to all direct or indirect financial support or sponsorship from, affiliation to, participation in, decision making by, or having policy determined by, foreign political groups.

As the restriction covers not just election contributions, it has a serious effect on political parties, especially in a territory without full democracy. A political party may be deterred from many legitimate activities, including, say, endorsing a declaration drafted by foreign parties sharing similar platforms, or engaging in joint projects funded by a better off foreign partner for comparative studies to improve social services. Moreover, as the police are empowered to monitor the activities and finances of political parties, an authoritarian government could starve an opposition party by contacting donors to "verify" donation information. All societies should have the right to pursuit their objects by political as well as non-political means free from unnecessary restrictions.

Societies which do not directly take part in elections are not directly caught by these changes. However, this broadly couched restriction may still have a chilling effect on civil society in Hong Kong. Societies with foreign connections may be discouraged from fielding candidates in elections or trying to have elected representatives of their own to promote causes neglected by main-stream political parties. This restriction also gives the police excuses to inquire into the expenditures, incomes, and sources of incomes, not only of political parties, but also of all societies. The previous offence, introduced by the colonial government, of failure in providing information which the Societies Officer "may reasonably require for the performance of his functions under [the] Ordinance" was expressly extended to cover such financial and related information. It may well be that the police are limited by the fact that it is unreasonable to request information on finance from a group which is not involved in elections. That still leaves societies unfamiliar with the law and without legal assistance facing difficulty in resisting a request for such information.

This new restriction has no basis in the ICCPR. It cannot be argued that it is based on "public order" or even "national security". Unless substantially narrowed and qualified, foreign connections alone cannot be said to endanger "public order" or "national security".

Policing of Societies Tightened

Control of existing societies has been tightened up after Re-unification.

Societies lawfully established by notification to the Police are now required to provide the police with a proper office address and proof that the landlords agreed to the societies' use of the premises. Human Rights Monitor is unaware of any such request for proof by the police under the previous notification system. Those societies which have refused to, or are unable to, provide a proper office address will not be listed as societies, or will have their registration effectively struck down. Human Rights Monitor has documented at least one unlisted society. That society used its post box address as its office address before the Re-unification for notification purpose, and this practice was never challenged by the police until the transfer of sovereignty.

Under the Ordinance as amended by the 1997 amendments, the founders of a local society were required to register with the Societies Officer within a month of its establishment in writing of its name, objects, addresses of its principal place of business and premises it occupied, and names of office-bearers of the society. Recently, the police have begun to use the registration system re-introduced by the Ordinance as amended to discriminate on the unlawful ground of political opinion against "Forget Not June 4th", a pro-democracy association. The society, with a stated goal, among others, of "ending one-party dictatorship of the Communist Party in China," submitted in January 1999 papers for registration purposes to the police Licensing Office. However, the police continue, as of mid-September 1999, to withhold the registration of Forget Not June 4th. Organizers of the group have been approached by the police informally to see if they could change the group's name and drop the goal of "ending one-party dictatorship of the Communist Party in China." They refused to do so, but instead submitted papers for the registration of another group, the June 4th Committee, with the same goals and office-bearers, etc., except with a different name and without the goal of "ending one-party dictatorship of the Communist Party in China". The June 4th Committee's application was readily approved in March 1999, despite its similar nature to that of Forget Not June 4th.

Relying on an old power in the Societies Ordinance to inquire, which survived the Re-unification, the police demanded Forget Not June 4th to disclose its constitution, organizational structure, whether membership fees are charged, a list of all members and office-bearers, sources of income, whether it is connected to any other Hong Kong or foreign organizations, and the means by which it achieves its goals. In the letter of inquiry, the police reminded its founders that non-disclosure of the solicited information within the time limit specified in the letter would constitute an offence punishable by a maximum penalty of HK$ 20,000.

By the 16 August 1999 deadline, Forget Not June 4th had submitted all solicited data except its membership list and information as to whether or not it was connected to any Hong Kong or foreign organizations. The organization's spokesman explained that surrendering a full membership list to the police would betray the privacy of individual members, and that the questions about connection to other organizations are too vague and therefore unanswerable. So far, founders and officer bearers of Forget Not June 4 have not been prosecuted for their failure to supply the requested information.

Human Rights Monitor believes that the delay in the registration and the police inquiry into Forget Not June 4th have violated the founders' freedom of association and constitute discrimination on the ground of political opinion. Forget Not June 4th has been singled out and targeted because of its objective to end one-party rule in China and perhaps also for its potentially provocative name. Most if not all other groups, including the June 4th Committee, have been able to register without being asked to supply extensive data. The police has thus voluntarily allowed itself to degenerate into a means of political control. The goal of Forget Not June 4th to end one-party rule in China is perfectly legal and legitimate and conforms to Articles 25 of the ICCPR on people's right to participate in public affairs.

Human Rights Monitor urges your Committee to express its concern about the politicization of the police, to stop police interference with the freedom of association, and to work for the repeal of all legal provisions which threaten the freedom of association. We also urge your Committee to issue as soon as possible a General Comment on freedom of association with a liberal interpretation of the freedom to guide various authorities to respect the democratic space for non-governmental organizations.

Right to Form Trade Unions

Article 22 of the ICCPR and Article 22 of the ICESCR address rights relating to the formation of and participation in trade unions. The SAR Government's obligation to respect the right to organize trade unions also arises from the PRC's recognition of the applicability to Hong Kong of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87) (hereinafter "Convention No. 87") and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) (hereinafter "Convention No. 98"). Article 39 of the Basic Law provides for the continued application of the ILO Conventions to Hong Kong.

Prior to the Handover, a number of laws had been enacted to implement the rights guaranteed in the ILO Conventions to which Hong Kong is bound. After 1 July 1997, however, the Provisional Legislative Council quickly annulled these laws, resulting in a dramatic roll-back of labour rights. In November 1998, the Committee on Freedom of Association of the International Labour Organisation (hereinafter "ILO Committee") issued its report on allegations by the Hong Kong Confederation of Trade Unions (HKCTU) that the SAR Government had violated Conventions No. 87 and 9860. The ILO Committee held that the Government had breached these conventions by repealing or amending legislation that had provided for the rights guaranteed therein61. The ILO Committee therefore recommended repeals of offending provisions in the Employment and Labour Relations (Miscellaneous Amendments) Ordinance, 1997 (hereinafter "ELRO"), which amended the Trade Union (Amendment) (No. 2) Ordinance, 1997 (hereinafter "Trade Unions Ordinance").

Article 22 of the ICCPR provides for the right of everyone "to form and join the trade unions for the protection of his interests." Article 3 of Convention No. 87 further elaborates the right of trade unions to include "elect their representatives in full freedom" without any interference or restrictions from public authorities.

As amended by ELRO, Section 17(2) of the Trade Unions Ordinance (Cap. 332) requires that unless approved by the Government an officer of a trade union "is or has been engaged or employed in a trade, industry or occupation with which the trade union is directly concerned."62 Section 17(6) further provides that "Any person who is an officer of a registered trade union in contravention of this section shall be guilty of an offence and shall be liable on summary conviction to a fine of $1000 and to imprisonment for 6 months." The ILO Committee found that such restrictions were contrary to Convention No. 87 and stated

"The determination of conditions of eligibility of union office is a matter that should be left to the discretion of union by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right by trade union organizations."63

Accordingly, it requested the government to repeal the occupational requirement for trade union offices. To date, the Government has not taken any measures to implement the recommendations of the ILO.

Human Rights Monitor requests your Committee to urge the Government to respect the right to form unions as provided for in Article 22 of the ICCPR, Article 8 of the ICESCR and Article 3 of Convention No. 87 and to repeal Sections 2 and 6 of the Trade Union (Amendment) (No. 2) Ordinance, 1997.

Right to Protection from Anti-union Discrimination

Inherent in the right to join trade unions, as provided for in Article 22 of the ICCPR and Article 22 of the ICESCR, is the right to protection from dismissals or other retaliatory measures motivated by anti-union discrimination. Article 1 of Convention No. 98 explicitly states that "[w]orkers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment [including protections against] acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities."

The Government claims that the Employment Ordinance protects employees from anti-union discrimination in two ways. First, employers who engage in anti-union discrimination may be subject to a criminal prosecution and a fine of up to HK$ 100,000. Second, employees who are subject to dismissal due to their union activities may seek remedies such as reinstatement, re-engagement, terminal payments or compensation.64

While prosecution for anti-union discrimination by employers is theoretically possible under Section 21B of the Employment Ordinance, in practice, no prosecution has ever been successful. The reason for this has been explained by the Government itself. In its Review of Industrial Relations System in Hong Kong, 1993, the Education and Manpower Branch conceded that "although the Government has from time to time received complaints from employees against their employers for anti-union discrimination, there has yet to be a successful prosecution case. Past experience has shown that it is difficult to prove such violations, as often other reasons are used as cover-up for the hidden discriminatory motive."65 According to the Hong Kong Confederation of Trade Unions ("HKCTU"), there have only been two attempted prosecutions to date, one involving the dismissals by the New Bright Plastics Factory in 1988, and another involving a dismissed unionist at Wellcome Co. Ltd in 199466. Moreover, HKCTU asserts that given the difficulties of establishing the employer's intent to discriminate against union participants, the Government is frequently reluctant to initiate prosecutions67.

The Government fails to provide effective remedies for individuals who are subject to anti-union discrimination. According to Sections 32M and 32N of the Employment Ordinance, if a court or a Labour Tribunal determines that an employer has not shown a valid reason for a dismissal, it may issue an order for reinstatement or re-engagement. However, Section 32N(3) requires that the employer and employee must first express their mutual consent to such an order. As noted by the ILO Committee, "it is difficult to envisage that the requirement of prior mutual consent contained therein will be easily forthcoming if the true reason for dismissal is based on anti-union motives."68

It is noteworthy that, in countries such as the United Kingdom where an order for reinstatement or re-engagement is available as a remedy, the court issuing such an order may consider such factors as the complainant's wish to be reinstated or the feasibility of the employer's compliance with the order69. However, these countries do not permit the employer to block the award of appropriate remedies such as reinstatement or re-engagement by simply withholding consent. Accordingly, the ILO Committee also urged the SAR Government to amend the Employment Ordinance so as to provide for "the possibility of the right to reinstatement which would not be conditional upon the prior mutual consent of both the employer and the employee concerned."70

Even in cases where the Labour Tribunal has not issued an order for reinstatement or re-engagement, the Government states the employee may at least be able to claim compensation of up to HK$ 150,000. However, the ILO Committee has noted that compensation alone is an inadequate remedy. "In the Committee's view, it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker's trade union membership or activities."71

Finally, the Employment Ordinance does not offer any remedies for individuals who have subject to other forms of anti-union discrimination, aside from dismissal. The ILO Committee "remind[ed] the Government that protection against acts of anti-union discrimination should cover not only dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker." The ILO Committee urged the Government to amend the Employment Ordinance so as to provide for protection against all acts of anti-union discrimination72.

The paucity of effective legal protection against anti-union discrimination has resulted in increasing boldness by employers in taking actions against individuals who engage in union activities.

Human Rights Monitor requests your Committee to urge the Government to respect the right to join unions, as provided for in Article 22 of the ICCPR, Article 8 of the ICESCR and the right to protection against anti-union discrimination as set forth in Article 1 of Convention No. 98. Specifically, the Government should provide effective protections against and remedies for anti-union discrimination, including 1) undertaking vigorous prosecution of employers who take retaliatory measures against their employees motivated by anti-union discrimination; 2) amending Section 32N of the Employment Ordinance to include the possibility of the right to reinstatement without the prior mutual consent of both the employer and the employee; and 3) amending the Employment Ordinance to provide remedies for a full range of anti-union discriminatory measures.

Right of Trade Unions to Function Freely

Integral to the right to form unions is the autonomy of its decision-making on the use of union funds.

As amended by ELRO, Section 33(1)(j) of the Trade Unions Ordinance requires that any contribution or donation to foreign trade unions and organizations must be subject to the prior approval of the Chief Executive. Section 34 of the Trade Unions Ordinance further prohibits the use of union funds for any political purpose, aside from the elections for the functional constituencies73.

The ILO Committee found that these restrictions violated the freedom of association. It reiterated that "provisions which give the authorities the right to restrict the freedom of a trade union to administer and utilize its funds as it wishes for normal and lawful trade union purposes are incompatible with the principles of freedom of association."74 With regard to the blanket prohibition on spending for political purposes, the ILO Committee noted that "provisions imposing a general prohibition on political activities by trade unions for the promotion of their specific objectives are contrary to the principles of freedom of association provided that trade unions do not engage in political activities in an abusive manner and go beyond their true functions by promoting essentially political interests. The [ILO] Committee considers that it would be difficult, if not impossible, for unions to engage in political activities in practice in the face of a legislatively imposed ban on the use of union funds for any political purpose."75

Human Rights Monitor requests your Committee to urge the Government to respect the right of unions to function freely as provided for in Article 8 of the Covenant and to repeal Sections 33(1)(j) and 34 of the Trade Unions Ordinance.

Chapter 9

Rights of Minorities and Equal Opportunities

(Articles 2, 3 and 27)

The UN Human Rights Committee in its 1995 Concluding Observations recommended that "comprehensive anti-discrimination legislation aiming at eliminating all remaining discrimination prohibited under the Covenant be adopted." The Hong Kong Government, however, has so far rejected the call to enact such legislation. In particular, the Government has refused to enact legislation to protect against discrimination in Hong Kong based on race, sexual orientation, or age.

There was also little progress in the implementation by the Hong Kong Government of recommendations by other United Nations human rights treaty bodies. The recommendation by the UN Economic Social and Cultural Rights Committee that the two-weeks rule for migrant domestic workers be abolished was ignored76. The SAR Government has, in fact, proposed to amend the law to exclude them from some of the maternity protection.

Failure to Combat Racial Discrimination

The Hong Kong Government has offered several unfounded excuses not to legislate to prohibit racial discrimination in Hong Kong. The first one is that the Government considers a "step by step approach" is a better alternative to legislation for equal opportunities.

Thirty years after the International Convention on the Elimination of All Forms of Racial Discrimination came into force in Hong Kong, there is still no law protecting people against racial discrimination. This fact casts serious doubt as to whether the Government wants to take any °•step' at all.

The second excuse was that consultation was necessary in deciding which step to take next.

On 19 February 1997, the Hong Kong Government published a consultation document on the issue of race discrimination, on which it invited public comment77. The Government's stated objective was "to establish whether racial discrimination exists in Hong Kong and, if so, its nature, extent and possible options for addressing such problems as may be found to exist." The Government purportedly relied on the results of the consultation exercise in deciding not to enact legislation to prohibit race discrimination.

The Government's Race Consultation document was flawed. First, the consultation exercise, though purportedly a treaty-compliant measure, was in essence a denial of the treaty obligation to legislate to prohibit discrimination by private actors and a refusal to adopt the recommendations on this issue by various treaty bodies, including those by the UN Committee on the Elimination of All Forms of Racial Discrimination (UN Race Committee). It appeared to be a measure to appease the UN Race Committee on the eve of its consideration of the Government's report.

Secondly, the consultation exercise was an effort to employ a "majority" voice to drown out the voice of ethnic minorities. It is fundamentally wrong to let the majority decide whether the rights of minorities should be protected by legislation or not.

Thirdly, although the Government conceded that racial discrimination does exist, to the extent that the survey disclosed racial discrimination, such discrimination was ignored, downplayed or attributed to factors other than racial discrimination, such as economic or class discrimination (e.g., discrimination against migrant domestic workers).

Last year, in response to public pressure and pressure from the Home Affairs Panel of the Legislative Council, the Home Affairs Bureau of the Government again used consultation to delay efforts to legislate. The Bureau embarked on a series of district consultations. As expected, the overall assessment was that racial discrimination was not serious and there was no need for legislation.

One of the staff members of Human Rights Monitor attended one of these district consultations, together with a social worker from the Yang Memorial Methodist Social Service. Said social worker had wanted to attend the district consultation in her district but was repeatedly put off by the Home Affairs Bureau until it was too late. The district consultation was held on 10 November 1998 in the Wan Chai District. One of the first things that was noticeable was that most people there knew each other, and as it later turned out, they were part of the Wan Chai District Committee. Only one Korean businessman seemed impartial. Vocal members in Wan Chai who formed the Movement Against Discrimination were deliberately not invited.

The comments made at that meeting were disgraceful. Two members said that they belonged to an Incorporated Owner's Committee in a building and said that most of the time complaints did not constitute discrimination. It was just that sometimes the Filipinos were too noisy, so it was more a case of dislike of their attitude. The only foreigner on the panel, the Korean man, said he felt that there was no discrimination since he employed Nepalese as well as Filipinos in his company at the same rate as the local Chinese, so there was no problem at all. When the Chairperson of the consultation was asked where the representation of minorities was at this meeting, she replied that there was the staff member from Human Rights Monitor as well as the social worker from the Yang Memorial Methodist Social Service. This was ludicrous, as these two people were present only because of their insistent demands to be allowed to attend in the face of obstruction. It was not until the then Deputy Secretary for Home Affairs was confronted that they were allowed to join in.

Human Rights Monitor has learnt that in at least one other districts apart from Wan Chai, a government official was told to invite individuals who were likely to be favourable to the government stance to attend the consultation.

Human Rights Monitor considers it wrong in principle for the Government to rest its decision whether or not to legislate against racial discrimination on consultation results, especially those from disingenuous consultations. A pilot survey in 1998 by Human Rights Monitor found that 68% of 123 minority respondents personally experienced or witnessed racial discrimination in Hong Kong; 80% believed that legislation prohibiting racial discrimination would be helpful to Hong Kong; and 76% supported legislation prohibiting racial discrimination in Hong Kong78.

The third excuse was that the Government prefers education as a solution. The Government sees such education as incompatible with legislation.

Human Rights Monitor agrees that education is important but we do not see education and legislation as mutually exclusive. In fact, the universities and the EOC can confirm from their experience in organizing educational activities that equal opportunities legislation arouse interests in these subjects.

We do not find the Government sincere in educating our school children about racial or other equalities. Materials in school syllabus are not specific and adequate to justify the claim that such education is being provided to school children. At the same time, we have seen the Government fanning discrimination in its handling of the right of abode issue.

The fourth excuse by the Government, which was particularly objectionable to us, was that equal opportunities legislation prohibiting racial discrimination would in fact lead to racial disharmony. No existing equal opportunities legislation has ever led to disruption in social harmony. Similar predictions by the Government in respect to equal opportunities legislation on sex, disability and family status have been proven wrong.

The SAR Government does not simply oppose legislation outlawing racial discrimination. It goes so far as to refuse to promote the Code of Practice Against Discrimination in Employment on the Ground of Racial Discrimination, a non-legally binding document drafted and published by the Home Affairs Bureau79.

In a meeting with the then Deputy Secretary for Home Affairs Mr. Peter Lo in late Oct 1998, Human Rights Monitor proposed that Government funded schools, social services and other agencies should adopt and adhere to the Code. Human Rights Monitor also proposed that the Government require all government contractors to adopt the Code.

On the same occasion Human Rights Monitor also proposed that the various Government- owned railway companies should demonstrate their commitment to non-discrimination policy by adopting the Code and promoting themselves as equal opportunity organizations, and that the Government should take advantage of its position as substantial shareholder in a number of major Hong Kong companies like the Hong Kong Bank to persuade those companies to adopt the Code and become equal opportunity employers.

However, the Government refused to adopt any of these proposals.

Human Rights Monitor fails to see the point of the Home Affairs Bureau issuing the Code of Practice to the private sector when its Deputy Secretary does not deem it necessary to require schools and other government- funded agencies to adhere to it. This refusal smacks of hypocrisy as the Government has for years confidently claimed that schools were an integral part of human rights education in Hong Kong but in fact does not even try to make educational institutions non-discriminatory on the ground of race. In our view there is a lack of commitment by the Government to combat racial discrimination either by legislation or by education.

The Government's lack of commitment to end racial discrimination and the inadequacy in pure government advice without statutory buttresses could be shown by the Government's reaction to race based pricing by several bars in Hong Kong. In 1998, there were press reports of bars in Hong Kong charging customers differently according to their race80. Four of the six bars in Wan Chai district was reported to offer free entrance to Whites while Chinese and Indian customers were charged. The other two bars demanded higher entry charges for persons with darker skin colour. Perhaps because of the high publicity of the cases, the Home Affairs Bureau wrote to the bars, sent them copies of the leaflet "Equal Opportunities: Race" and copies of the Code of Practice mentioned above.

The Bureau wrote, "we are seeking to achieve [the elimination of racial discrimination] through a combination of public education and self-regulation. We are taking this approach in the belief that self-regulation is generally preferable to coercion." The letter continued, "I am sure that - as an enterprise serving a multi-ethnic, cosmopolitan clientele - you . . . will share our rejection of racial discrimination."81

The Bureau's message did not seem to get across. Two weeks after the letter was sent, the newspaper South China Morning Post reported that the bars continued to charge customers differently according to their race82.

In two meetings of the Legislative Council Panel on Home Affairs, Peter Lo, reiterating those excuses, and added in blatant racist tones that the Government viewed such discriminatory pricing as pure business decisions. He told the Panel that the Government should not intervene because this might be construed as government intervention into business decision. He said racial discrimination was not serious in Hong Kong and a responsible government should not only care for a small minority's interests83.

Human Rights Monitor deplores his justification of racial discriminatory practices as business decisions. We are concerned that the Bureau responsible for human rights policy did nothing to tell the bars that their pricing was wrong and should be stopped and that the Bureau did not carry out its duty to "intervene" for fear of criticism by persons who do not understand equal opportunities. We have seriously doubts about the government's commitment to its obligations under the ICCPR and other treaties relating to protection of rights of minorities.

Human Rights Monitor requests your Committee to urge the Government to (1) enact legislation against racial discrimination; and (2) require the adoption of the Code by government contractors, government owned business and government funded bodies.

Sexual Orientation Discrimination in Hong Kong

Pursuant to ICCPR arts 2(1), 2(2), 2(3) & 26, Hong Kong is bound to enact and enforce legislation to prohibit discrimination based on sexuality. The Government has failed to enact such legislation, and stands in breach of the ICCPR.

In 1996, the Hong Kong Government released a "consultation document" on sexual orientation, and invited public comment84. The consultation document was based on a survey conducted by the Hong Kong Home Affairs Branch in October 1995. The survey and responses, as summarized in the consultation document, purported to take a snapshot of public attitudes on sexual orientation. The consultation document concluded that the "average" Hong Kong person does not accept homosexuals or homosexuality, and that Hong Kong people can hardly tolerate homosexuals. In fact, the "survey found that public acceptance of homosexuality and bisexuality is low".

If the statements contained in the consultation document accurately reflected the views of Hong Kong people, there is a great urgency to protect gays and lesbians in Hong Kong. Legislation is needed to safeguard the rights of unpopular sexual minorities.

The Hong Kong Government conceded that sexuality discrimination exists in Hong Kong. The Government noted that Hong Kong people generally find it acceptable to discriminate against homosexuals in many circumstances, including employment, accommodation, and provisions of services.

The Government proposed a solution to the sexuality discrimination problem. The solution was "civic education". The Government contended that it could best remedy sexuality discrimination by strengthening the public's concept of "equal opportunities for all" through civic education, rather than by enacting legislation.

Though the Government has written and distributed pamphlets regarding sexuality discrimination, and taken other steps (e.g. drafting another non-binding "Code of Practice"), sexuality discrimination still exists in Hong Kong. The Hong Kong Government must enact legislation to combat sexuality discrimination.

Human Rights Monitor requests your Committee to urge the Government to enact legislation to prohibit discrimination on sexual orientation, in compliance with articles 2(1), 2(2), 2(3) & 26 of the ICCPR.

Two-week Rule for Foreign Domestic Workers

In its review of the third periodic report in 1996, the UN Economic Social and Cultural Rights Committee expressed disappointment over the Government's failure to rescind the "two-week rule" imposed upon foreign domestic workers85. The rule requires foreign domestic workers to find employment or to leave Hong Kong within two weeks of the termination of their employment contract.

This rule clearly places foreign domestic workers in an extremely vulnerable position vis-a-vis their employers. The possibility of removal or deportation from Hong Kong following a dismissal effectively prevents workers from reporting violations of minimum wage laws, sexual harassment, the denial of statutory rest days and holidays, or the infringement of other rights in the Covenant.

Furthermore, the Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (ILO Convention No. 143)86 provides in Article 8(1) that "[o]n condition that he has resided legally in the territory for the purpose of employment, the migrant worker shall not be regarded as in an illegal or irregular situation by the mere fact of the loss of his employment, which shall not in itself imply the withdrawal of his authorisation of residence or, as the case may be, work permit. China has not yet ratified ILO Convention No. 143.

Human Rights Monitor requests your Committee to urge the Government to rescind the two-week rule for foreign domestic workers. Your Committee should also call upon the Chinese Government to ratify ILO Convention No. 143 and to extend its application to Hong Kong immediately.

Denial of Maternity Protection to Foreign Domestic Workers

In June 1999, the Labour Department introduced a proposal that would "allow some flexible arrangements in the maternity provisions in respect of live-in [domestic workers] to the effect that a pregnant live-in [domestic worker] and her employer may mutually agree to terminate their employment contract whereby the employer will have to pay the [domestic worker] a specified amount"87 as detailed in an Annex to the proposal. The amount of severance pay would depend on the length of time that the domestic worker had been employed. Once the employer paid the severance pay, he would no longer be liable for a claim of compensation for unlawful dismissal or for criminal penalties under the Employment Ordinance. The "flexible arrangements" proposed are in fact an exemption from the protection of pregnant employees.

As numerous migrants rights groups have pointed out, it is unlikely that a termination of an employment contract would be "mutually agreed upon" given the unequal power relationship between the employer and the domestic worker. The proposal also does not specify the format of such an agreement, whether it needs to be in writing or simply oral. If approved, the Labour Department's proposal would be easily abused by employers, who will be permitted under the Employment Ordinance to arbitrarily terminate pregnant domestic workers. Furthermore, since live-in domestic workers are disproportionately foreign workers, the denial of maternity protections would violate the Government's obligations under Article 2(3) to "guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, [or] national or social origin."

The Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (ILO Convention No. 143) provides in Article 10 that Governments should "declare and pursue a national policy designed to promote and to guarantee, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, of social security, of trade union and cultural rights and of individual and collective freedoms for persons who as migrant workers or as members of their families are lawfully within its territory." China has not yet ratified ILO Convention No. 143.

The proposal also violates the relevant provisions in the International Covenant on Economic Social and Cultural Rights, the Convention on the Elimination of all Forms of Discrimination Against Women and the Convention on the Elimination of all Forms of Racial Discrimination.

Human Rights Monitor requests your Committee to urge the Government to extend the full and equal application of maternity protections in the Employment Ordinance to live-in domestic workers. Your Committee should also call upon the Chinese Government to ratify ILO Convention No. 143 and to extend its application to Hong Kong immediately.


  1. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. Entry into force 23 March 1976, in accordance with Article 49 of the Covenant.

  2. Annex II.

  3. The Basic Law, Article 23.

  4. The District Boards were elected apart from the 27 ex-officio District Board members who chaired the New Territories rural committees. The Urban and Regional Councils were wholly elected. As to the Legislative Council see page 3.

  5. These extra appointed seats included 96 ones in Provisional District Boards, 11 ones in Provisional Urban Council and 9 to Provisional Regional Councils.

  6. Annex II.

  7. It operated in Shenzhen when Hong Kong was under British rule.

  8. For more information please consult Human Rights Monitor's Report on 1998 Legislative Council Elections (Dec 1998). See http://hkhrm.org.hk/english/reports/eng_elerpt.html.

  9. More examples can be found in "Voting by corporations", Section 9 of Human Rights Monitor's Report on 1998 Legislative Council Elections. See http://hkhrm.org.hk/english/reports/eng_elerpt.html#9.

  10. HKSAR Government 1998 ICCPR Report, at para. 21 - 22 and the Government's 1998 ICESCR Report, at para. 33-34. See also the "Country Profile" in Part I in both reports.

  11. Article 18 of the Basic Law:
    "(1) The laws in force in the Hong Kong Special Administrative Region shall be this Law, the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region. National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law. The laws listed therein shall be applied locally by way of promulgation or legislation by the Region.
    (2) The Standing Committee of the National People's Congress may add to or delete from the list of laws in Annex III after consulting its Committee for the Basic Law of the Hong Kong Special Administrative Region and the government of the Region. Laws listed in Annex III to this Law shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law.
    (3) In the event that the Standing Committee of the National People's Congress decides to declare a state of war or, by reason of turmoil within the Hong Kong Special Administrative Region which endangers national unity or security and is beyond the control of the government of the Region, decides that the Region is in a state of emergency, the Central People's Government may issue an order applying the relevant national laws in the Region."

  12. Article 19(2): "The courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained."

  13. Article 22(1) of the Basic Law provides, "No department of the Central People's Government and no province, autonomous region, or municipality directly under the Central Government may interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this Law."

  14. Article 19(3) of the Basic Law provides, "The courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs. The courts of the Region shall obtain a certificate from the Chief Executive on questions of fact concerning acts of state such as defence and foreign affairs whenever such questions arise in the adjudication of cases. This certificate shall be binding on the courts. Before issuing such a certificate, the Chief Executive shall obtain a certifying document from the Central People's Government."

  15. Hong Kong Government, An Introduction to Hong Kong Bill of Rights Ordinance, (Government Printer, Hong Kong: 1992), p.1.

  16. Tam Hing Yee v Wu Tai Wai (1991) 1 Hong Kong Public Law Review 261.

  17. "Each State Party to the present Covenant undertakes: To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity [.]"

  18. See General Comment 10.

  19. Gren Manuel, "A new watchdog in the jungle." South China Morning Post (27 December 1998).

  20. "National institutions for the promotion and protection of human rights," United Nations General Assembly Resolution No. 134, U.N. Doc. A/RES/48/ 134 (20 December 1993), Annex.

  21. Section 7(1) of the Ombudsman Ordinance states that "The Ombudsman may investigate any action taken by or on behalf of (a) an organization set out in Part I of Schedule 1 in the exercise of its administrative functions; or (b) an organization set out in Part II of Schedule 1 in the exercise of its administrative functions in relation to the Code on Access to Information published by the Government."

  22. Home Affairs Department, Justice of the Peace Consultation Paper (1999)

  23. See Disability Discrimination Ordinance (Cap 487), Sex Discrimination Ordinance (Cap 480), Family Status Discrimination Ordinance (Cap 527) and Personal Data (Privacy) Ordinance (Cap 486).

  24. Section 1 of the Hong Kong Emergency Regulations Ordinance, (Cap. 241).

  25. "In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin."

  26. "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form or art, or through any other media of his choice."

  27. For example, Article 8 of the Basic Law provides that "The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region." Article 8 does not refer to Chinese national law.

  28. The substantiated rate (including substantiated cases and substantiated other than reported cases) was 2.5% in 1994, 2.9% in 1995, 2.2% in 1996 and 2.8% in 1997.

  29. The proportion of withdrawn and not pursuable cases was 65.2% in 1994, 61.2% in 1995, 57.6% in 1996 and 47.7% in 1997.

  30. The inflated substantiated rate was 14.1% in 1994, 14.8% in 1995, 13.0% in 1996 and 12.8% in 1997.

  31. See footnote 28 above.

  32. The corresponding rate in the District Court in 1997 was 23%.

  33. Section 15 of the Coroners Ordinance (Cap. 504) provides,
    "(1) Where a person dies whilst in official custody, a coroner shall as soon as practicable hold an inquest into the death.
    (2) A coroner shall hold an inquest under this section with a jury selected in accordance with section 23.
    (3) Where a person dies-
    (a) whilst in the custody of a police officer; or
    (b) during the course of a police officer's discharge of his duty,
    a coroner may request the Commissioner of Police to take such measures as are necessary to ensure that the investigation into the death is conducted independently and impartially."

  34. Police Force Ordinance, Section 10 provides that the "duties of the police force shall be to take lawful measures for ... assisting coroners to discharge their duties and exercise their powers under the Coroners Ordinance." See also Sections 13 and 15 of the Coroners Ordinance.

  35. Letter from the CSD to the Justice of the Peace concerned, 28 January 1997.

  36. "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

  37. Inquest Report, INK 60/97, Re Tseung Siu-ming. Deceased aged 14.

  38. Adopted by General Assembly resolution 45/113 of 14 December 1990

  39. Articles 2, 10, 11, and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 and entered into force on 26 June 1987.

  40. Adopted by General Assembly resolution 43/173 of 9 December 1988

  41. "Subject to subsection (8), any person aggrieved by a decision, act or omission of any public officer taken, done or made in the exercise or performance of any powers, functions or duties under this Ordinance may by notice in writing lodged with the Chief Secretary within the time prescribed in subsection (2) object to that decision, act or omission."

  42. "An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority."

  43. Deportation is not to be confused with removal. Under the Immigration Ordinance, removal is the term used in most cases to describe the expulsion of persons who have entered Hong Kong unlawfully or who are in the territory in breach of conditions of stay. Deportation is the expulsion of persons who, whilst not having the right of abode in Hong Kong, have not landed unlawfully or are not necessarily in breach of any conditions of stay. A deportation order may forbid the return of the person deported at any time: see s. 20(7) Immigration Ordinance.

  44. Human Rights Monitor learned from officials of the British Consulate in Hong Kong that although China has been warned about the wording used in the drafts were too wide, such wide wording have been adopted in the Basic Law.

  45. Article 24: "The permanent residents of the Hong Kong Special Administrative Region shall be:
    (1) Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;
    (2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;
    (3) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);..."

  46. In the case of children born out of wedlock, there were amendments providing for the recognition the claim of permanent resident status by only those children born to a natural mother who was a Hong Kong permanent resident at the time of birth. Such a weird reading of Article 24(3) of the Basic Law as if the Article had provided that "some persons" rather than "persons" has not been accepted by the High Court, the Court of Appeal and the Court of Final Appeal. The SAR Government has not resurrected such amendments in its re-interpretation exercise probably because these amendments were utterly illogical. The Government has also attempted to make these and other amendments retrospective, a common feature found in other amendments to civil rights laws which have been rolled back. The retrospectivity in the amendments to the Immigration Ordinance has been struck down as unconstitutional for its breach of Article 15(1) of the ICCPR on retrospective criminalisation and therefore the breach of Article 39 of the Basic Law. They were struck down in spite of the guarantee by the SAR Government that it would not prosecute persons affected by the amendments for having entered or staying in Hong Kong "unlawfully".

  47. Director of Immigration v. Cheung Lai Wah, Final Appeal no. 16 of 1998. See http://www.info.gov.hk/basic_law/english/facv_14_16_98a.htm.

  48. "The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region."

  49. "All persons shall be equal before the courts and tribunals..."

  50. Article 2(3)(a): "Each State Party to the present Covenant undertakes: To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity [.]"


  51. Article 17(1): "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation."
  52. "All persons shall be equal before the courts and tribunals..."

  53. "Whenever he considers that the public interest so requires, the Governor [now the Chief Executive], or any public officer authorized in that behalf by the Governor either generally or for any particular occasion, may order that any message or any class of messages brought for transmission by telecommunication shall not be transmitted or that any message or any class of messages brought for transmission, or transmitted or received or being transmitted, by telecommunication shall be intercepted or detained or disclosed to the Government or to the public officer specified in the order."

  54. "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."

  55. The Hong Kong Journalist Association has documented reports of television station cutting back "to just one episode its original plan to broadcast a six-part series on Tibet." It was reported in the same report that some observers saw "the broadcasting of even a single episode, which included excerpts from an interview with the Dalai Lama, as positive." See Hong Kong Journalist Association and Article XIX, Freedom of Expression Report 1999.

  56. "The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies."

  57. HKSAR Government Report, at para. 604.

  58. Genevieve Ku, "Urbco votes down Pillar of Shame park home," South China Morning Post (3 June 1998).

  59. Jimmy Cheung, "Fear of cultural indoctrination in new policy," South China Morning Post (27 March 1999).

  60. Tung Chee-hwa was selected by a group of 400 people hand-picked by the Chinese authorities. The Hong Kong people had practically no say in his selection.

  61. International Labour Organisation, Committee on Freedom of Association, "Case No. 1942: Complaint against the Government of China/Hong Kong Special Administrative Region presented by the Hong Kong Confederation of Trade Unions (HKCTU)" (November 1998)(hereinafter "ILO Committee Report") http://www.ilo.org/public/english/20gb/docs/gb273/gb-6-1.htm#Case No. 1942. Although the ILO Committee Report addressed at length the government's violations of Convention No. 98, the right to collective bargaining is not explicitly within the ICESCR and will not be discussed here.

  62. On 26 June 1997 the Hong Kong Legislative Council passed three Ordinances: 1) Employees' Right to Representation, Consultation and Collective Bargaining Ordinance, 1997; 2) Employment (Amendment) (No. 4) Ordinance, 1997; and 3) Trade Union (Amendment) (No. 2) Ordinance, 1997. In September 1997, the HKSAR Executive Council resolved to repeal the first two Ordinances and to amend the third. On 29 October 1997, the Provisional Legislative Council approved the Employment and Labour Relations (Miscellaneous Amendments) Ordinance, 1997 (hereinafter "ELRO").

  63. The full text of Section 17(2) of the Trade Unions Ordinance reads as follows: "No person shall, without the consent in writing of the Registrar, be an officer of a registered trade union unless he is ordinarily resident in Hong Kong and is or has been engaged or employed in a trade, industry or occupation with which the trade union is directly concerned." The occupational requirement for trade union officers had been removed by the Trade Union (Amendment) (No. 2) Ordinance, 1997 but was re-introduced by ELRO.

  64. ILO Judgment at para. 63.

  65. HKSAR Government ICCPR Report 1999, at para. 391 - 392. HKSAR Government ICESCR Report 1999, at para. 128 - 129.

  66. ILO Committee Report, at para. 243.

  67. ILO Committee Report, at para. 243.

  68. Interview with Lee Cheuk Yan, Chair, Hong Kong Confederation of Trade Unions, on 12 July 1999.

  69. ILO Committee Report, at para. 266.

  70. See Sections 113 - 115 of the Employment Rights Act of 1996.

  71. ILO Committee Report, at para. 267.

  72. ILO Committee Report, at para. 266.

  73. ILO Committee Report, at para. 267.

  74. Restrictions on the use of union funds had been removed by the Trade Union (Amendment) (No. 2) Ordinance, 1997 but were re-introduced by ELRO.

  75. ILO Committee Report, at para. 264.

  76. ILO Committee Report, at para. 264.

  77. UN Doc. E/C.12/1994/19. Adopted at the 53rd meeting (eleventh session), held on 7 December 1994.

  78. Home Affairs Bureau, Equal Opportunities: A study on Discrimination on the Ground of Race -- a Consultation Paper (February 1997).

  79. Hong Kong Human Rights Monitor, Survey Results on Racial Discrimination in Hong Kong (October 1998). See: http://hkhrm.org.hk/english/reports/survey.html.

  80. See: http://www.info.gov.hk/hab/top_issue/race_e.htm.

  81. Alison Smith, "Race dictates entry fee in bars," South China Morning Post (1 June 1998).

  82. Gren Manuel, "Bar still put price on skin colour," South China Morning Post (26 July 1998).

  83. Ibid.

  84. "Discriminatory pricing in Wan Chai Bars," Hong Kong Economic Journal (28 July 1998).

  85. Hong Kong Government, Equal Opportunities: A study on Discrimination on the Ground of Sexual Orientation -- a Consultation Paper (1996).

  86. UN Doc. E/C.12/1994/19. Adopted at the 53rd meeting (eleventh session), held on 7 December 1994.

  87. See: http://ilolex.ilo.ch:1567/public/english/docs/convdisp.htm.

  88. Labour Department, Report of the Applicability of the Employment Ordinance to Live-in Domestic Helpers (June 1999).


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1999 (c) Hong Kong Human Rights Monitor