Hong Kong Human Rights Monitor

Briefing Paper for the United Nations Human Rights Committee

(For Hearing on 23rd October 1996 at the Palais des Nations, Geneva, Switzerland, in respect of the Supplementary Report submitted by the United Kingdom of Great Britain and Northern Ireland in respect of Hong Kong under Article 40 of the International Covenant on Civil and Political Rights)

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Executive Summary

Article 2

Human Rights Protection in Hong Kong and Hong Kong Bill of Rights Ordinance (Cap 383)

1.The Hong Kong Government has been reluctant to adopt and, in certain cases, has been actively opposing measures designed to enhance human rights protection in Hong Kong.

2.There is no difference between the Hong Kong Government's reasons for opposing the establishment of a Human Rights Commission in paragraphs 13 to 16 of the Supplementary Report and the reasons for the same stance in paragraphs 10 and 11 of the Fourth Periodic Report. We urge the Committee to maintain its recommendation that the Hong Kong Government should reconsider its decision on the establishment and competence of a Human Rights Commission.

3.In early 1996, the Hong Kong Government decided to oppose proposed legislation which would have the effect of applying the Hong Kong Bill of Rights to inter-citizen relationships. The Hong Kong Government based its opposition on the demand on revenue such legislation would have on the legal aid system in Hong Kong. Such an argument was inconsistent with the rationale behind making legal aid more readily available in cases involving the Hong Kong Bill of Rights Ordinance [1] as described in paragraph 16 of the Supplementary Report. We ask the Committee to question closely the Hong Kong Government the motives behind its stance against the extension of the protection of the Hong Kong Bill of Rights to inter-citizen relationships and to urge the Hong Kong Government to reverse its position on this issue.

4.The protection of human rights in Hong Kong requires judges in Hong Kong to interpret and apply the Hong Kong Bill of Rights in a purposive and generous manner in order to realize the purpose of the Hong Kong Bill of Rights Ordinance. However, the Court of Appeal in Hong Kong has, in a number of cases, demonstrated its inability to present a rigorous and principled analysis of the human rights issues involved in cases before it.

5.We urge the Committee to express its views on the importance of judicial understanding of human rights in the protection of human rights in Hong Kong. We urge the Committee to underline the requirement for the State, upon proof of a prima facie breach of human rights guaranteed under the Hong Kong Bill of Rights, to justify by way of cogent evidence the reasonableness of the restriction in question. We further urge the Committee to underline the requirement that such justifiable restrictions must be those which have a rational connection with the issue under consideration, which amount to minimal impairment to the human right at risk, and which is proportional to the demands of the issue under consideration.

6.To make matters worse, the Chief Justice of Hong Kong, Sir Ti Liang Yang, and a Justice of Appeal, Mr Justice Liu, were reported to have expressed adverse views on the effect of the Hong Kong Bill of Rights on the Hong Kong legal system. We consider these views to be unfounded both in law and practice. Further, we are concerned about the misunderstanding of basic principles underpinning the Hong Kong legal system and the rule of law as revealed by these statements. The lack of sincerity and commitment in the higher echelons of the Hong Kong Judiciary towards the protection of human rights in Hong Kong is also evident from these statements. We urge the Committee to express its concern.

7.The compatibility of the Hong Kong Bill of Rights Ordinance [1] with the Basic Law [6] has come under debate recently. The Legal Sub-group of the Preliminary Working Committee of the Preparatory Committee of the HKSAR ("the PWC") had recommended that certain provisions of the Hong Kong Bill of Rights Ordinance should not be adopted as laws of the HKSAR by operation of Article 160 of the Basic Law. The Preparatory Committee of the HKSAR is now studying these recommendations with a view to their adoption. Since Article 39 of the Basic Law provides that the ICCPR as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region, we are of the view that the Hong Kong Bill of Rights Ordinance, which was enacted as an ordinary ordinance, is one of the laws envisaged under Article 39 and hence does not contravene the Basic Law. We ask the Committee to express concern as to the implications of the PWC's recommendations, which, if accepted and implemented by the Preparatory Committee, will reduce the effectiveness of domestic legislation in protecting human rights and remedying human rights violations.

8.One reason for the lacklustre approach of the Hong Kong Government towards human rights protection is suggested to be the need to placate objections from the authorities of the PRC, which have apparently been generated in response to misrepresentations made by the UK Government to the PRC Government in the past on the state of human rights protection in Hong Kong.

Enjoyment of Rights without Distinction

Status of Permanent Resident

9.On 10th August 1996, the Preparatory Committee adopted an opinion on the implementation of Article 24, 2nd paragraph of the Basic Law, which sets out the categories of persons who are entitled to be permanent residents of the HKSAR. In relation to persons who are presently Hong Kong permanent residents and have since emigrated to another country and thereby obtained the nationality of that country, the Preparatory Committee's position is that such persons should upon their return to the HKSAR after 1st July 1997 decide whether to declare their foreign nationality. If they decide to declare their foreign nationality, they would lose their permanent resident status. If they decide not to declare their foreign nationality, they would be considered as PRC nationals and would not be entitled to consular protection by their country of nationality. Those who return as foreign nationals before 30th June 1997 will have their permanent resident status preserved.

10.Since the status of permanent resident is the key to the enjoyment of many fundamental rights and freedoms guaranteed under the Basic Law, including the right to vote and the right not to be deported, expelled or removed from Hong Kong, we consider the imposition of an arbitrary cut-off date of 30th June 1997 for returning residents to be in Hong Kong to be disproportionate to the consequence of such failure, namely the deprivation of the accrued status of permanent resident. Questions have been raised as to whether children of these returning residents can decide which nationality to take.

11.The opinion of the Preparatory Committee also contains a view that those who entered Hong Kong illegally but were permitted to remain by virtue of an exercise of a discretion vested in the Director of Immigration will not be considered as being "ordinarily resident" in Hong Kong for the purpose of Article 24, 2nd paragraph of the Basic Law. On this basis, such persons, even though they cannot be prosecuted for illegally remaining in Hong Kong in respect of their present stay, will never attain the status of permanent resident through continuous and lengthy residence. We consider this view to be insensitive and wrong in principle since a favourable application of the Director of Immigration's discretion legitimizes the subject person's stay in Hong Kong and is reserved for exceptional cases on humanitarian grounds. We ask the Committee to require the UK and Hong Kong Governments to clarify these issues with the PRC Government.

Anti-discrimination Legislation

12.The studies of discrimination undertaken by the Hong Kong Government are fundamentally flawed in terms of approach and methodology because the decision as to whether legislation is needed to outlaw the discrimination in question is not based solely on principle but also on the results of consultation, which, in addition to evaluating the extent of the discrimination in question, includes asking the public whether legislation is needed to outlaw the discrimination in question. This is illustrated by the decisions taken by the Hong Kong Government consequential to the studies of discrimination: that discrimination on the grounds of family status should be outlawed by legislation; and that discrimination on the grounds of sexual orientation should not be outlawed by legislation but be tackled by means of education. The current consultation exercise of the Hong Kong Government on racial discrimination is not genuine as it appears to be directed to finding that racial discrimination does not exist in Hong Kong.

13.We consider the reasons proffered by the Hong Kong Government for not enacting or sponsoring comprehensive anti-discrimination legislation are at least unconvincing if not downright wrong. We urge the Committee to maintain its recommendation for the adoption of comprehensive anti-discrimination legislation.

Article 3

New Territories Land (Exemption) Ordinance (Cap 452)

1.The New Territories Land (Exemption) Ordinance (Cap 452) has the effect of putting women on an equal footing with men in relation to intestate succession of land in the New Territories.

2.The PWC had recommended that the New Territories Land (Exemption) Ordinance (Cap 452) be not adopted as part of the laws of the Hong Kong Special Administrative Region by operation of Article 160 of the Basic Law [6].

3.We note that the equal right of men and women to the enjoyment of human rights is a fundamental norm in international human rights jurisprudence which has itself become customary international law. We urge the Committee to recommend that this recommendation of the PWC should not be implemented.

Article 9

Complaints Against Police Office and Independent Police Complaints Council

1.Complaints against police brutality are common in Hong Kong. Such complaints relate to interrogation practices and treatment during custody. Research has confirmed that allegations of assault or other impropriety in relation to police interrogations are extremely common in Hong Kong and are frequently accepted by the courts, leading to many cases being dismissed.

2.In July 1996, the Hong Kong Government unveiled a Bill to put the Independent Police Complaints Council on a statutory basis. However, the reforms proposed are inadequate. We consider that at a minimum, the Hong Kong Government should introduce a civilian head of the Complaints Against Police Office, empower the Independent Police Complaints Council to undertake the investigation of serious cases, and implement the proposal for a lay observer scheme in police stations in Hong Kong. We urge the Committee to reiterate its previous views and endorse our proposals.

Article 14

Independence of the Judiciary

1.The public image of the Hong Kong Judiciary and in the administration of justice in general has been harmed by a number of recent errors and failures. It has been described as "crumbling under the weight of its own ignorance and impropriety".

2.Ignorance of the law and practice indicates immediate need for remedy. Coupled with improper judicial temperament, such ignorance sows the seeds of injustice. While the injustice can be identified and remedied, that is usually done at the expense of costs and efforts which should not have been spent in the first place if a judicial officer of suitable ability and temperament presided. We urge the Committee to remind the Hong Kong Government of the importance of recruiting judicial officers on the bases of ability, knowledge, and temperament.

3.For justice to be done and seen to be done, judicial officers must not only be above the dispute before them, but also be the subject of no political, monetary or filial pressure, influence or conflict of interest. Where an allegation is made of the application of such pressures, a full and open inquiry ought to be held so that the doubt befallen on the integrity of the Judiciary can be removed. This apparently has not been done in the case of R v Aaron Patrick Nattrass, in which the presiding judge complained of himself being subject to political pressure from a foreign government and then had the propriety of such behaviour being the subject of a tribunal of inquiry with a view to his removal.

4.We urge the Committee to underline the importance of judicial probity to the maintenance of the independence of the judiciary, particularly in the case of Hong Kong, which is to undergo a change in sovereignty. We also urge the Committee to call on the Hong Kong Government that any inquiry set up to investigate alleged misconduct of judicial officers or alleged incapacity of them to serve, should be open, fair and independent, so that the confidence of the public in the administration of justice can be preserved.

Article 25

Boundary and Election Commission Ordinance (Cap 432)

1.The Boundary and Election Commission Ordinance (Cap 432) establishes the Boundary and Election Commission in Hong Kong, which is to, inter alia, review the boundaries of geographical constituencies for elections to the District Boards, municipal councils and the Legislative Council; and be responsible for the conduct and supervision of elections in Hong Kong.

2.The PWC had recommended that the Boundary and Election Commission Ordinance (Cap 432) should not be adopted as part of the laws of the Hong Kong Special Administrative Region by operation of Article 160 of the Basic Law [6]. The Hong Kong Government failed to mention this PWC recommendation in the Supplementary Report.

3.We consider that the Boundary and Election Commission is the kind of independent electoral authority stated under General Comment 25(57) to be established to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the ICCPR. We urge the Committee to underline the importance of the role of an independent body such as the Boundary and Election Commission in establishing fair electoral arrangements and recommend that this recommendation of the PWC should not be adopted.

Composition of the Selection Committee

4.The Selection Committee is a committee of 400 persons composed of Hong Kong residents belonging to different sectors and strata of the community. The functions of the Selection Committee are to recommend the first Chief Executive of the HKSAR and to elect the Provisional Legislature.

5.The membership of the Selection Committee is to be elected by the Preparatory Committee for the HKSAR, a body of 150 persons sixty odd percent of which are from Hong Kong and the rest from the PRC and all of which appointed by the National People's Congress of the PRC.

6.The composition and method of formation of the Selection Committee violates Articles 25(a) and (b) of the ICCPR.

Provisional Legislature

7.On 26th March 1996, the Preparatory Committee for the Hong Kong Special Administrative Region adopted a resolution establishing a Provisional Legislature of 60 members which to be elected by members of the Selection Committee. The Provisional Legislature is expected to be constituted and come into operation after the appointment of the first Chief Executive of the Hong Kong Special Administrative Region.

8.The establishment and operation of the Provisional Legislature is subject of much criticism in Hong Kong.

9.In any event, the establishment and operation of a Provisional Legislature having effect upon the territory of Hong Kong before 1st July 1997 constitutes a violation of Articles 25(a) and (b) of the ICCPR.

Article 40

1.Paragraphs 3 to 7 of the Supplementary Report do not report any progress in resolving the issue of the continued application of the reporting obligation under Article 40 of the ICCPR with respect to Hong Kong.

2.Officials of the PRC reportedly stated that the reporting obligation would not be applicable to Hong Kong since the PRC is not a State Party to both the ICCPR. We urge the Committee to make formal or informal inquiries with the observers from the PRC as to the true position of the PRC on the continued application of the reporting obligation under the ICCPR.

4.The statement of the basic policy of the PRC in Annex I of the Joint Declaration that "the provisions of the International Covenant on Civil and Political Rights ... as applied to Hong Kong shall remain in force" indicates that the PRC accepts or acknowledges the obligations of the UK presently as a State Party to the ICCPR with respect to Hong Kong and agrees to carry out such obligations. Accordingly, we support the conclusion of the statement of the Chairperson of the Committee dated 20th October 1995 that the Joint Declaration forms the basis for the continuation of the reporting obligation under the ICCPR with respect to Hong Kong.

5.We note the suggestion by Andrew Byrnes that the Joint Declaration can be interpreted to found an obligation on both the UK and the PRC to exercise their best efforts to bring about a situation which would enable the PRC to submit reports to the two treaty committees and to have those reports considered in the normal way. See Andrew Byrnes, Hong Kong and the Continuation of International Obligations Relating to Human Rights after 1997 [19]. We urge the Committee to consider this interpretation of the Joint Declaration and to urge both the UK and PRC Governments to consider such an interpretation. We also urge the Committee to assist the two Governments in the process of achieving the above solution.

6.We note the suggestion by Professor Roda Mushkat of the University of Hong Kong that Hong Kong, by itself, possesses an "international legal personality" This theory may provide support for the proposition of Dr Nihal Jayarickrama that Hong Kong succeeds from the UK the obligations of the ICCPR through implied state succession in human rights treaties [21]. In the event that both the UK and PRC Governments were unable to reach a consensus on the modalities for the continued application of the reporting obligation under the ICCPR, we urge the Committee, in conjunction with the Committee on Economic, Social and Cultural Rights, to designate, on the basis of the above development in international law, Hong Kong as the successor of the reporting obligation under the ICCPR and the ICESCR and to invite the governing authority of Hong Kong to submit periodic reports in accordance with Article 40 of the ICCPR and Article 16 of the ICESCR.

7.A request for a report from the UK Government, either generally or on a specific topic, such as the preparation being done for the transfer of sovereignty by the UK and the PRC and the implications of such preparation upon the protection of civil and political rights of Hong Kong, may be a way for the Committee to continue to review the human rights situation in Hong Kong after 1st July 1997. We ask the Committee to consider these arguments if the UK and PRC Governments fail to resolve their differences on the interpretation of the Joint Declaration to the effect that reports will continue to be submitted to the Committee after 1st July 1997 in respect of Hong Kong.

8.In the event that the UK and PRC Governments fail to resolve their differences on the interpretation of the Joint Declaration to the effect that reports will continue to be submitted to the Committee after 1st July 1997 in respect of Hong Kong, we ask the Committee to consider indicating its willingness to receive reports from NGOs in Hong Kong and conduct annual hearings on the human rights situation in Hong Kong until the competent governmental authority of Hong Kong submits reports to the Committee with a periodicity provided under the ICCPR or as directed or requested by the Committee.

9.We ask the Committee to co-ordinate with the Committee on Economic, Social and Cultural Rights in its efforts to ensure the continuation of the reporting obligation or exercise after the transfer of sovereignty on 1st July 1997.


ICCPR and the Basic Law

Article 18 -- State of Emergency

1.There has been no clarification of what are the "relevant national laws" that may be made applicable to the Hong Kong Special Administrative Region in the event of a state of emergency.

Article 19

2.A PRC official recently indicated that the courts of the Hong Kong Special Administrative Region may not have jurisdiction to try officers of the People's Liberation Army garrison in Hong Kong who committed crimes in Hong Kong. At present, there is no restriction over the jurisdiction of the Hong Kong courts to try officers of the British garrison in criminal cases. Article 14 of the Basic Law [6] provides that members of the garrison shall abide by the laws of the Hong Kong Special Administrative Region. A criminal offence committed by a member of the garrison cannot be described as an act of state. Hence this statement of the said official had been widely criticised as contrary to the Basic Law.

Article 23

3.Article 23 of the Basic Law, in addition to making provisions for the prohibition of treason, secession, sedition, subversion against Central People's Government, and theft of state secrets, also makes provisions for the prohibition of foreign political organizations or bodies from conducting political activities in the Hong Kong Special Administrative Region and the prohibition of political organizations or bodies of the Hong Kong Special Administration from establishing ties with foreign political organizations or bodies. The interpretation of the words "political organizations", "political activities" and "establishing ties" by the courts of the Hong Kong Special Administrative Region will be crucial to the future enjoyment of Article 22 of the ICCPR.

Article 160

4.Article 160 of the Basic Law provides: "Upon the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong shall be adopted as laws of the Region except for those which the Standing Committee of the National People's Congress declares to be in contravention of this Law."

5.PRC officials have indicated that the following laws will not be adopted:

The same officials have also accepted that only those laws previously in force in Hong Kong contravening the Basic Law will be the subject of non-adoption. However, with the exception of type (b), we cannot pinpoint any provision in the Basic Law touching upon these issues, except the words in the Preamble which state that Hong Kong has been part of the territory of China since ancient times and that the Joint Declaration affirmed that the Government of the PRC will resume the exercise of sovereignty over Hong Kong with effect from 1st July 1997. The operative effect of these words are unknown.

6.The PWC had recommended that 26 Ordinances in the Laws of Hong Kong and 12 provisions within different Ordinances in the Laws of Hong Kong should not be adopted as part of the laws of the Hong Kong Special Administrative Region.

7.We make the following observations in respect of the recommendations of the PWC:

Article 160 is not a self-perpetuating provision supplying rationale for contravention of the Basic Law. One has to pinpoint other provisions of the Basic Law to found a basis for contraventions.

Many of the statutes identified are redundant and need to be removed from the statute book. However, any perceived undesirability of their continued existence of such statutes beyond 1st July 1997 does not qualify as a reason for their non-adoption. One has to look for a specific provision of the Basic Law which they contravene. Where there is none, a suitable Revision of Statutes Ordinance by the Legislature of the Hong Kong Special Administrative Region will suffice.

Some of the statutes identified may be adopted, through suitable amendments, for similar application by the Hong Kong Special Administrative Region. It is more proper for such laws to be dealt with by the Legislature of the Hong Kong Special Administrative Region rather than through the operation of the Article 160, since the National People's Congress Standing Committee is empowered only to make a declaration under this Article and not to make amendments.

The National People's Congress Standing Committee is empowered to make a declaration only in respect of laws not adopted as laws of the Hong Kong Special Administrative Region and not in addition to make a declaration in respect of laws to be adopted as laws of the Hong Kong Special Administrative Region. In any event, provisions which had been repealed ceased to be laws previously in force in Hong Kong.

The effect on non-adoption of any particular statute will not be the revival of the provisions that the non-adopted statute had replaced. This is neither provided for under Article 160 of the Basic Law nor under other statutes or the common law.

8.We invite the Committee to question the Hong Kong Government as to its understanding of the above provisions of the Basic Law and to enter into communication with the representatives of the PRC attending as observers as to their understanding of the above provisions of the Basic Law. We also invite the Committee to state its views on these provisions of the Basic Law.



1996 (c) Hong Kong Human Rights Monitor

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