Hong Kong Human Rights Monitor

Briefing Paper for the United Nations Human Rights Committee

(For Hearing on 19th and 20th October 1995 at the Palais de Nations, Geneva, Switzerland, in respect of the Fourth Periodic 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)

List of Issues

General Note

Article 1

Issues:

The Right to Freely Determine Political Status

Article 2

Issues:

Hong Kong Bill of Rights Ordinance (Cap 383)

-- Format and Drafting

-- Government review of constitutionality of legislations; Law Reform

-- Effective Remedy: Human Rights Commission; Comprehensive Human Rights Legislation; Legal Aid; Hong Kong Bill of Rights Ordinance (Cap 383) ss 6, 7; Tam Hing Yee v Wu Tai Wai (1991) 1 HKPLR 261

-- Exceptions and Reservations

Enjoyment of Rights Without Distinctions

-- Status of Permanent Resident: Immigration Ordinance (Cap 115) Sch 1

-- Classes of Deportees: Immigration Ordinance (Cap 115) s 20

-- Migrant Workers -- Filipino domestic workers vs PRC migrant workers

-- Hong Kong's Indian/Ethnic Minority -- Statelessness after 1997

-- Anti-discrimination Legislation

Article 3

Issues:

Extension of CEDAW

Implementation of Sex Discrimination Ordinance (Ord No 67 of 1995)

New Territories Indigenous Population -- Rent concessions, Small House Policy

Article 4

Issues:

Rule-making powers under the Emergency Regulations Ordinance (Cap 241)

Article 5

Issues:

None

Article 6

Issues:

Resumption of Sovereignty by PRC, a country Resumption practising death penalty; Second Optional Protocol

Use of Force by Security Forces

Article 7

Issues:

Prosecution policy under the Crimes (Torture) Ordinance (Cap 427)

Article 8

Issues:

None

Article 9

Issues:

Threat to Availability of Habeas Corpus

Court of Final Appeal Ordinance (Ord No 79 of 1995) -- Act of State

Detention of Illegal Immigrants as Witnesses -- Immigration Ordinance (Cap 115) s 32(4)

Vietnamese Asylum Seekers

Article 10

Issues:

Persons deprived of liberty other than in penal institutions

-- Vietnamese asylum seekers

-- Police custody; ICAC custody; Customs and Excise custody; Immigration Department custody

Article 11

Issues:

None

Article 12

Issues:

None

Article 13

Issues:

Deportation and Removal -- Limited Appeal

Hong Kong Bill of Rights Ordinance (Cap 383) ss 11, 12

Article 14

Issues:

Independence of the Judiciary

-- Public and Government Perception of Judiciary

-- Judicial Services Commission

-- Judicial Understanding of Human Rights

-- Court of Final Appeal Ordinance (Ord No 79 of 1995)

-- Basic Law Publicly Funded Legal Representation

-- Legal Aid; Duty Lawyer Service Rights and Obligations in a Suit at law

-- Director of Immigration Discretion under Immigration Ordinance (Cap 115) s 13

Article 15

Issues:

None

Article 16

Issues:

None

Article 17

Issues:

Interception of telecommunications

-- Telecommunications Ordinance (Cap 106) s 33

Seizure of medical records for tax investigation

Article 18

Issues:

None

Article 19

Issues:

Official Secrets

Seditious Publications

Control of Obscene and Indecent Articles Ordinance (Cap 390)

Access to Information

Article 20

Issues:

None

Article 21

Issues:

Public Order Ordinance (Cap 245)

Videotaping of Public Meetings and Processions by Police

Article 22

Issues:

Societies Ordinance (Cap 151)

Article 23

Issues:

Immigration from PRC for Family Reunion

Article 24

Issues:

Vietnamese Children

Children born in PRC of Hong Kong permanent resident

Article 25

Issues:

Letters Patent (1917 - 1993) Article VII(3)

Hong Kong Bill of Rights Ordinance (Cap 383) s 13

Functional Constituencies

Rural Elections

Access to Public Service

Preliminary Working Committee of the Preparatory Committee

Provisional Legislature

Article 26

Issues:

Anti-discrimination Legislations

Implementation of Disability Discrimination Ordinance (Ord No 86 of 1995)

Migrant Workers -- Filipino domestic workers vs PRC migrant workers

Status of Permanent Resident -- Immigration Ordinance (Cap 115) Sch 1

Classes of Deportees: Immigration Ordinance (Cap 115) s 20

Hong Kong Indian Minority -- Statelessness after 1997

Implementation of Sex Discrimination Ordinance (Ord No 67 of 1995)

New Territories Indigenous Population -- Rent concessions, Small House Policy

Rural Administration -- Village Representative Elections

Article 27

Issues:

Migrant Workers -- Filipino domestic workers vs PRC migrant workers

Hong Kong's Indian Minority -- Statelessness after 1997

New Territories Indigenous Population

Article 40

Issues:

Joint Declaration between UK and PRC of 1984

Submission of Reports under Article 40 by UK after 1997

Submission of Reports under Article 40 by PRC after 1997

Submission of Reports under Article 40 by Hong Kong after 1997

Development of International Law

First Optional Protocol

Issues:

Extension to Hong Kong of right to individual communication

Special Report Before 1st July 1997

Issues:

Feasibility

Discussion

Prepared by Paul Harris and P. Y. Lo

General Note

In November 1994, the Committee on Economic, Social and Cultural Rights considered the second periodic reports of the United Kingdom in respect of Hong Kong concerning the implementation of Articles 10 to 12 and Articles 13 to 15 of the ICESCR. Many of the principal subjects of concern identified by members of the Economic Committee in their concluding remarks, such as anti-discrimination legislation, Human Rights Commission, split families, treatment of Vietnamese asylum seekers, are discussed below in the context of civil and political rights. However, the Hong Kong Government response to nearly all of the suggestions and recommendations of the Economic Committee has been, in essence, to reject them or brush them aside. See Concluding Observations of the Committee on Economic, Social and Cultural Rights (UN Doc E/C.12/1994/19); and Comment by Andrew Byrnes [1] (Enclosure Number).

Article 1

1. The right of self-determination is elaborated in Article 1(1) as including the right of a people to freely determine their political status. In Article 1(3), State Parties to the ICCPR agreed to promote the realization of the right of self-determination, and to respect that right, in conformity with the Charter of the United Nations.

2. The population of Hong Kong arguably qualify as a people within the meaning of Article 1. Yet, they are not free at all.

3. Hong Kong was ruled by the United Kingdom as a colony from 1841. A Governor is appointed to administer Hong Kong as the representative of the Queen. The office of the Governor is not a titular or nominal one but one with gubernatorial power over the territory of Hong Kong.

4. Even with the recently fully elected Legislative Council, the Government of Hong Kong remains one led by the Executive branch, which is composed of the Governor in Council (ie the Governor acting in consultation with an appointed Executive Council) and the Government Secretariat, consisting of civil servants. Elected representatives have little say over policy apart from persuasion, blocking measures, and private member's bills (which are restricted in scope and often torpedoed by Government manoeuvres, eg the Human Rights and Equal Opportunities Commission Bill). Unless measures are taken to introduce democratic control over the Executive branch, Hong Kong will never be a democracy.

5. A more fundamental objection has consistently been the denial by the United Kingdom to Hong Kong people of participation, still less a free choice, in the process by which Hong Kong's political future is shaped. The talks leading to the signing of the Joint Declaration of 1984 between United Kingdom and the People's Republic of China were not open to the people of Hong Kong. The people of Hong Kong had no opportunity to amend or oppose the Joint Declaration. The Joint Declaration of 1984 was a fait accompli forced on the people of Hong Kong. Calls for a plebiscite have been made and have been dismissed by the Hong Kong Government as political gimmicking. Surveys have consistently shown a sizeable portion of those interviewed in favour of independence or a future political status other than that of being a Special Administrative Region of the People's Republic of China upon her resumption of sovereignty over Hong Kong on 1st July 1997. (eg Recent survey (July 1995) by Michael E. DeGolyer of Baptist University of Hong Kong showed 25% of the sample favoured independence if given a choice to re-write history and change the political status of Hong Kong.)

6. People are not fixtures attached to the land to be returned when the lease is terminated. We call on the Human Rights Committee to underline to the United Kingdom and Hong Kong Governments that this process of negotiated settlement and transition to PRC rule, particularly in relation to the absence of adequate consultation and/or participation by the population of Hong Kong, either by themselves or through their freely chosen representatives is inconsistent with the right to self-determination in Article 1.

Article 2

The Hong Kong Bill of Rights Ordinance (Cap 383)

1. The enactment of the Hong Kong Bill of Rights Ordinance (Cap 383) [2] in 1991 is a welcome step in the implementation of the United Kingdom's undertakings in Article 2 of the ICCPR. However, the format and contents of the Hong Kong Bill of Rights Ordinance still leave much to be desired.

2. The enactment verbatim of the text of the ICCPR failed to cater for specific situations which often arise in domestic contexts. An example is the protection against unreasonable search or seizure. Unlike its counterparts in Canada and New Zealand, there is no clear and specific provision in the Hong Kong Bill of Rights Ordinance (Cap 383) dealing with this topic. Therefore, lawyers involved in Bill of Rights litigation have to resort to Article 14 of the Hong Kong Bill of Rights (equivalent of Article 17 of the ICCPR), which does not cater for every situation of search and seizure. We ask the Human Rights Committee to draw attention to this inadequacy.

3. The United Kingdom undertakes to ensure that any person whose rights or freedoms as recognised in the ICCPR are violated shall have an effective remedy (Article 2(3)(a)). While violations of the articles of the Hong Kong Bill of Rights have been made justiciable, the effectiveness of the remedy can only be measured in the context of litigation, which in Hong Kong is the only avenue by which a legally binding remedy for human rights violation can be sought. The inadequacies in the approach of the courts are described in the enclosed briefing note by Andrew Byrnes [3].

4. A proposal for a comprehensive Human Rights Commission was stillborn as a result of active opposition on the part of the Hong Kong Government. A proposal for comprehensive human rights legislation to outlaw discrimination led to some piecemeal initiatives from the Hong Kong Government in sex and disability discrimination which were passed into law but have not yet been brought into force. We expect the Human Rights Committee to receive a full account of these two matters. We ask the Human Rights Committee to draw the attention of the Hong Kong Government to the fact that these laws even when implemented, fall short of full implementation of their obligations under the ICCPR.

5. Without a statutory Human Rights Commission, individual legal action against a violator of human rights has serious implications in time, effort and costs. The Hong Kong Government, despite many requests, has declined to adopt a policy of asking for no order for costs in a Bill of Rights challenge. Applications for legal aid in civil cases involving Bill of Rights issues (apart from immigration related cases) mostly failed on the merits test adopted by the Legal Aid Department in determining whether to grant legal aid. A discretion has now been vested on the Director of Legal Aid in these cases but such a discretion is rarely exercised in favour of the applicant and only after strenuous lobbying.

6. Even where a legal action is launched and the human rights violation alleged established, section 6 of the Hong Kong Bill of Rights Ordinance presents two more hurdles for the person concerned. The remedy must be one the court has power to grant or make in the proceedings concerned. It must also be one that the court considers appropriate and just in the circumstances. Up to now, the courts have not developed any doctrine whereby the violation of a human right recognised in the Hong Kong Bill of Rights would serve as an independent ground for the award of remedies which a court may make in the proceedings before it. The failure of the courts to do so can be illustrated in the context of applications for stay of proceedings. See R v William Hung (1993) 3 HKPLR 328 [4]. We ask the Human Rights Committee to underline the need for a State Party, and the particular responsibility of the judiciary in this regard, to grant effective remedies.

7. Despite the stated intention of the Hong Kong Government when introducing the Hong Kong Bill of Rights, section 7 of the Hong Kong Bill of Rights Ordinance [2] was interpreted as barring inter-citizen disputes from the operation of the Hong Kong Bill of Rights. See Tam Hing Yee v Wu Tai Wai (1991) 1 HKPLR 261 [5]. The Court of Appeal, in the same case, also considered that it was proper for a statutory provision to be repealed by operation of section 3(2) of the Hong Kong Bill of Rights Ordinance with respect to citizen-state disputes and not with respect to inter-citizen disputes. The effect of this judgment is that laws relating to civil litigation, family affairs, probate and administration of estates, and the regulation of inter-citizen matters are immune from challenge under the Hong Kong Bill of Rights. Further, as the Court of Appeal itself noted, is that the obligations under the ICCPR are not given effect to fully. The Hong Kong Government has rejected calls to introduce amending legislation and opposed private members' initiatives to bring about a situation in conformity with the ICCPR.

8. Sections 9 to 13 of the Hong Kong Bill of Rights Ordinance contain exceptions. These exceptions are said to reflect the reservations the United Kingdom had entered into for Hong Kong when she extended the ICCPR to Hong Kong. We wish to take issue with respect to sections 11 to 13 under the respective article of the ICCPR in question as to their propriety. We call for the withdrawal of a number of reservations later on in this document and hence the repeal of the corresponding exempting provision. We invite the Human Rights Committee to examine these reservations and to determine whether they are compatible with the object and purpose of the ICCPR; and to ask the United Kingdom Government for information on actions taken to review, reconsider or withdraw these reservations.

9. The Hong Kong Government did conduct reviews into pre-existing legislation to determine whether they were consistent with the Hong Kong Bill of Rights. However, once a provision has been identified as potentially inconsistent with the Hong Kong Bill of Rights, the response of the Hong Kong Government is mixed. For some provisions, amendments which are considered to be consistent with the Hong Kong Bill of Rights were introduced with little difficulty. For others, the decision was to allow the provision to stay on the statute book and let the citizen challenge it before the courts. The police in addition imposed a moratorium on the enforcement of a number of potentially inconsistent provisions thus effectively stifling any effort to remove the offending article through the courts. Further, some issues, such as interception of telecommunications, were referred to the Law Reform Commission for study, thus causing further and much greater delay in the removal of the offending article. We are of the view that this attitude is not consistent with the obligation of the United Kingdom and Hong Kong Governments under Article 2.

10. The compatibility of the Hong Kong Bill of Rights Ordinance with the Basic Law of the Hong Kong Special Administrative Region promulgated on 5th April 1990 ("the Basic Law") [6] has come under discussion recently. 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 ("HKSAR"), 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.

Enjoyment of Rights Without Distinction

11. The United Kingdom undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the ICCPR, without distinction of any kind.

12. Of the issues outlined, it is proposed to leave the topic of anti-discrimination legislation to discussion under Article 26.

13. Despite the undertaking under Article 2(1), a major reservation affecting almost every family in Hong Kong relates to immigration, including the issue of right to permanent residence in Hong Kong and the linked issue of nationality.

Racism in Immigration Law

14. Schedule 1 to the Immigration Ordinance (Cap 115) [7] sets out the categories of persons who are Hong Kong permanent residents. Hong Kong permanent residents enjoy the right of abode in Hong Kong under section 2A of the Immigration Ordinance. One of the classes of persons permitted permanent resident status are persons "wholly or mainly of Chinese race", who have been in the territory for 7 years. Persons not of Chinese race only qualify for permanent resident status if they held British Dependent Territory Citizenship (BDTC). Under the Hong Kong Bill of Rights, the right to participate in public life is guaranteed to permanent residents only. We call on the Human Rights Committee to note that this distinction constitutes a violation of Articles 2(1), 25 and 26 and to call on the United Kingdom and Hong Kong Governments to amend it.

Filipino Domestic Workers

15. A practical effect of the distinction on the ground of race in Schedule 1 of the Immigration Ordinance (Cap 115) involves Filipino domestic workers. They are only allowed into Hong Kong on fixed term 2 year contracts and never obtain indefinite right to remain however long they stay in Hong Kong, while migrant workers from the PRC obtain permanent residence status after 7 years of ordinary residence.

Deportees

16. Section 20 of the Immigration Ordinance (Cap 115) [8] sets out the powers of the Governor to make deportation orders. Three classes of people, namely (1) immigrants other than a British citizen or a United Kingdom belonger; (2) British citizens other than a resident British citizen and United Kingdom belonger other than a resident United Kingdom belonger; and (3) resident British citizens and resident United Kingdom belonger, are identified and provided with separate criteria and procedure leading to the making a deportation order. We are of the opinion that the distinction among these 3 classes on the ground of national origin or nationality with effect on the criteria and procedure used with regard to deportation is unjustified and we urge the Human Rights Committee to seek an explanation from the United Kingdom and Hong Kong Governments as to how this can be reconciled with Article 2(1) and to call on the two Governments to eliminate the discrimination involved.

Hong Kong's Indian/ Ethnic Minority

17. Members of Hong Kong's Indian Community face an uncertain future in terms of nationality during the changeover of sovereignty. Although most members of this community hold or are entitled to British Dependent Territory Citizenship (BDTC) under the British Nationality Act 1981 and Hong Kong (British Nationality) Order 1986, this entitlement will cease on 1st July 1997. It is uncertain whether members of this community may qualify for PRC nationality under the PRC Nationality Law, which is based on race generally. The United Kingdom so far is only ready to confer on eligible members of the community the status of British Nationals (Overseas), a status which does not provide for right of abode or entry to any place in the world; or of British Overseas Citizenship in order to reduce statelessness. As can be seen from the attached material [9], it is quite unclear what rights members of this community will have to a meaningful citizenship associated with Hong Kong after 1997, if any. The above comments apply also to other racial minorities in Hong Kong, such as Portuguese and Thais. We urge the Human Rights Committee to press for action from the United Kingdom Government in this respect in order to ensure that Hong Kong ethnic minorities have a meaningful and effective nationality after 1997.

Article 3

1. Despite the pledge by the Hong Kong Government to extend the Convention for the Elimination of Discrimination Against Women (CEDAW) in the light of overwhelming support for such action during a consultation exercise in 1993, the Hong Kong Government has yet to complete the process of extending the Convention to Hong Kong. In particular, no step has been taken to forward the matter to the Joint Liaison Group for consideration.

2. However, in the meantime, news came of the Hong Kong Government proposing to enter reservations to CEDAW in respect of Hong Kong for the issues of New Territories small house policy and rent concessions to New Territories indigenous villagers, thus seeking to preserve much criticized discriminatory practices. These reservations, which have no parallel in the United Kingdom's reservations to the ICCPR, represent regression in the United Kingdom's stance so far as extending international human rights standards to Hong Kong. We request the Human Rights Committee to ask the United Kingdom and Hong Kong Governments how these can be justified in view of existing obligations under the ICCPR.

3. Although the Sex Discrimination Ordinance (Ord No 67 of 1995) was passed as recently as 14th July 1995, there has been no date fixed for it to come into operation. While it is understandable that time is needed to set up the Equal Opportunities Commission to enforce the ordinance, concern has been raised about the projected schedule of implementation. We ask the Human Rights Committee to obtain a firm commitment from the Hong Kong Government on the programme for the Sex Discrimination Ordinance to come into operation.

4. The Sex Discrimination Ordinance deals with discrimination on the grounds of gender, marriage and pregnancy only. It is regrettable that this legislation, which was initiated by the Government in response to a proposal for comprehensive anti-discrimination legislation, does not contain provisions dealing with discrimination on the associated grounds of family responsibility, and sexuality. We ask the Human Rights Committee to ask the Hong Kong Government to clarify the position and to identify the steps it has taken pursuant to Articles 2(2) and 26 to provide remedies for other forms of discrimination.

5. Exceptions were made in the Sex Discrimination Ordinance in respect of New Territories land (in particular rent concessions) and on the small house policy. See sections 61, 62 and Schedule 5 Part 2 paragraph 2 [10]. Male descendants of New Territories indigenous villagers in 1898 when the British occupied the said territory are entitled to benefits under these two measures but not female descendants or wives. These provisions are not intended to be transitional and cannot be justified by sound policy considerations other than to perpetuate such discriminatory practices. Further, the Economic Committee considered that these provisions were inconsistent with similar non-discrimination guarantees in the ICESCR. We urge the Human Rights Committee to urge the Hong Kong Government to eliminate these underlying policies and repeal these provisions.

6. Further, the Sex Discrimination Ordinance is limited in the range of remedies available. Reinstatement of employment was not agreed to. And a ceiling of HK$150,000 was set for the amount of damages recoverable in litigation under the said ordinance. These limiting features are not present in the Disability Discrimination Ordinance (Ord No 86 of 1995) which was enacted a few weeks later. No justification for the difference in treatment between the two ordinances was offered and we urge the Human Rights Committee to ask the Hong Kong Government to introduce amendments to the Sex Discrimination Ordinance aiming to remove these restrictions to an effective remedy.

Article 4

1. The repeal by the Hong Kong Government of all regulations presently made under the Emergency Regulations Ordinance (Cap 241) is to be applauded.

2. However, the next step should be the examination of the rule-making powers currently present in the Emergency Regulations Ordinance under sections 2 and 4 [11]. There is much to be desired in terms of compatibility with Article 4.

3. The definition of the occasion for which section 2(1) can be invoked, namely "an occasion of emergency or public danger", is too lax compared with the corresponding term in Article 4(1), which is "public emergency which threatens the life of the nation". There is no provision in the ordinance requiring the Governor or Governor in Council to proclaim the existence of a public emergency before the rule-making powers can be invoked for derogation of human rights.

4. The sole criterion for rule-making, namely that of public interest, is too vague and imprecise. It cannot accord with the criterion set down in Article 4(1), in particular the requirement that such restrictions be provided by "law".

5. The rule-making power contained in section 2 includes the amending of any enactment, suspending the operation of any enactment, and applying of any enactment with or without modification. This general and sweeping power, when read with section 2(4) and 4, does not take into account Article 4(2) and may be used to derogate from the non-derogable obligations therein.

6. We urge the Human Rights Committee to request that the rule-making provisions of the Emergency Regulations Ordinance be amended to bring them into conformity with Article 4.

7. Article 18 of the Basic Law [6] provides that the Standing Committee of the National People's Congress may decide whether the HKSAR is in a state of emergency. The stipulated reason for doing so is described to be turmoil within the HKSAR which endangers national unity or security and is beyond the control of the government of the HKSAR. It is questionable whether this reason is compatible with the test under Article 4(1).

8. Article 18 of the Basic Law also states that whenever the Standing Committee of the National People's Congress decides that the HKSAR is in a state of emergency, the Central People's Government may issue an order applying "relevant national laws" in the HKSAR. It is questionable what these "relevant national laws" are and whether such laws involve derogation of the non-derogable rights set down in Article 4(2).

9. We urge the Human Rights Committee to seek clarification of the meaning of Article 18 of the Basic Law and whether it is consistent with Article 4.

Article 6

Death Penalty

1. Hong Kong has abolished the death penalty with the coming into operation of the Crimes (Amendment) Ordinance 1993. However, it is feared that the changeover of sovereignty may lead to the re-introduction of the death penalty since the PRC is a country still imposing and carrying out the death penalty for many crimes.

2. It is not known if the current legislation providing for life imprisonment as the maximum penalty for treason, piracy with violence and murder are required to be amended before they can continue as laws of the HKSAR in accordance with Article 8 of the Basic Law [6]. If so, there is a risk that such amendments may be used to re-introduce the death penalty.

3. In addition, as stated above in relation to Article 4, national laws may be imposed upon the HKSAR in a state of emergency by the Central People's Government. As it is not known what such national laws may be and with what modifications they may be applied, it is reasonable to assume that such national laws may involve the prescription of the death penalty for offences in view of its prevalence in the PRC.

4. We urge the Human Rights Committee in this context to state clearly its view as to whether the re-introduction of the death penalty in a territory after it has been abolished constitutes a violation of Article 6.

5. We ask the Human Rights Committee to call on the United Kingdom Government to accede to the Second Optional Protocol in respect of Hong Kong and set a deadline for doing so.

Use of Force by Security Forces

5. In recent months, there have been a number of incidents involving the use of firearms by the police resulting in the death of civilians. These include an incident where a South Korean tourist held hostage in a taxi was shot dead together with his captor when the taxi was ambushed in Shum Wan, Hong Kong Island. Another incident involved a police constable shooting an old man twice in the chest, when the latter was resisting eviction from a building at Hong Lok Street, Kowloon, causing his death.

6. We wish to express concern as to the adequacy of training in the security forces of Hong Kong, particularly on the reasonable and proportionate use of force and the handling of firearms.

Article 7

Prosecution Policy under the Crimes (Torture) Ordinance (Cap 427)

1. The enactment of the Crimes (Torture) Ordinance (Cap 427) in January 1993 implementing the provisions of the Torture Convention is welcome.

2. Paragraph 59 of Section B of the Fourth Periodic Report indicated that there was no reported case of torture.

3. We have come to know of incidents of improper means of obtaining confessions and of unjustified use of violence by public officials in Hong Kong which in our opinion come within the definition of torture under the Torture Convention.

4. An example is described in the judgment of R v Cheung Kin Tak & Ors (MA No 416 of 1994, unreported) enclosed [12]. In this case, six police officers were convicted of common assault or assault occasioning actual bodily harm for an incident on 17th February 1993. In our opinion, this case involved acts of public officials by which severe physical pain or suffering was intentionally inflicted on persons for the purpose of punishing him for an act he or a third person had committed. This was therefore a suitable case for a prosecution for the offence of torture.

5. Under Hong Kong law, a judge being satisfied on a voir dire that a statement of the accused is not voluntary by reason of violence inflicted upon him by police officers conducting the interview must exclude the evidence so obtained. This occurs fairly frequently in the Hong Kong courts. However, we have not known of any case in which the police officers involved have been prosecuted for torture.

6. We urge the Human Rights Committee to call on the Hong Kong Government to explain the prosecution policy in respect of the offence of torture; to provide information as to the number of cases where the Attorney General's consent to prosecution for torture was sought and whether the consent was granted; and to examine whether suitable cases of torture have been suppressed or dealt with differently by those in charge of investigating the public officials concerned.

7. We also urge the Human Rights Committee to explain in detail what safeguards are in place to prevent abuse of power by police interrogators and why the provisions of the English Police and Criminal Evidence Act 1984, which regulates police interrogation practices, has not been extended to Hong Kong, despite the recommendation to that effect of Hong Kong's own Law Reform Commission.

Article 9

Threat to Availability of Habeas Corpus

1. Challenges to detention are currently made through applications for a writ of habeas corpus. These applications are governed by English statutes such as made applicable to Hong Kong by the Application of English Laws Ordinance (Cap 88) [13].

2. The position of these English statutes upon changeover of sovereignty is uncertain since it is not known if they contravene the Basic Law or if they require amendments before becoming laws of the HKSAR. However, it is alarming to note that members of the Legal Sub-group of the Preliminary Working Committee of the Preparatory Committee for the HKSAR, an organization set up by the PRC to prepare for the resumption of sovereignty, have indicated that the Application of English Laws Ordinance will be repealed in 1997 since English legislation is said to be no longer needed.

3. We urge the Human Rights Committee to call on the United Kingdom and Hong Kong Governments to take initiatives to ensure that the writ of habeas corpus remains available after 1997 as a means to challenge the validity of detention.

Court of Final Appeal Ordinance (Ord No 79 of 1995) -- Acts of State

4. Section 4(2) of the newly enacted Court of Final Appeal Ordinance [14] provides that the Court of Final Appeal shall have no jurisdiction over acts of state such as defence and foreign affairs.

5. This provision, though in conformity with Article 19 of the Basic Law [6], has deprived the Court of Final Appeal the jurisdiction to determine, as previously under common law, the question whether an act said to be an act of state is in fact an act of state.

6. Further, the definition of "acts of state" in section 4(2) opens up a pandora's box of dangerous possibilities. It can include the detention of persons said to be "enemies of the state" or "subversives". All that is needed is a certificate from the Chief Executive.

7. We have issued the enclosed press statement [15] on the subject of the Court of Final Appeal.

8. We ask the Human Rights Committee to urge the United Kingdom and Hong Kong Governments to take appropriate steps to ensure that the jurisdiction of the Court of Final Appeal and the other courts fully satisfy Articles 9 and 14 of the ICCPR.

Detention of Illegal Immigrants as Prosecution Witnesses

9. Section 32(4) of the Immigration Ordinance (Cap 115) [16] provides that a person who is otherwise to be removed from Hong Kong may be detained for no more than 28 days on the authority of the Secretary of Security and for further periods of not exceeding 21 days by order of a court upon application by the Attorney General, for the purpose of his giving evidence at the trial of any offence or suspected offence.

10. The relevant passages on this topic in the Fourth Periodic Report are paragraphs 88 and 89 in Section B.

11. We are of the opinion that this provision authorises arbitrary detention and is contrary to Article 9. We call on the Human Rights Committee to condemn this provision as a violation of Article 9.

Vietnamese Asylum Seekers

12. A paper by Paul Harris on the basis by which Vietnamese Asylum Seekers are put under detention is enclosed [17].

Article 10

1. Article 10(1) covers all persons deprived of their liberty. Such persons are not restricted to persons in penal institutions.

2. Therefore, the Fourth Periodic Report is inadequate in its coverage of Article 10.

3. In particular, the Fourth Periodic Report does not deal with the conditions of detention of Vietnamese asylum seekers, persons detained in psychiatric institutions, and persons held in custody of the police, the Independent Commission Against Corruption, the Customs and Excise Service, and the Immigration Department. The enclosed paper by Paul Harris [17] also deals with the conditions of detention of Vietnamese asylum seekers. It is clear that the conditions of detention in which asylum seekers are held are inconsistent with Article 10.

4. We urge the Human Rights Committee to call on the Hong Kong Government to take immediate steps to remedy these breaches of Article 10 committed by the Hong Kong Government in relation to Vietnamese asylum seekers and to request a detailed statement of the steps it will take to end these abuses. We also request the Committee to ask for full information in relation to all of the above matters and to explain their absence from the Fourth Periodic Report.

Article 13

1. Section 20 of the Immigration Ordinance (Cap 115) [8] creates three classes of persons liable to deportation. We have dealt with this question in connection with Article 2. The Human Rights Committee has stated its position in para 10, last sentence of General Comment 15(27) [20] on discrimination between categories of aliens in the application of Article 13.

2. The criterion for the making of a deportation order stated in section 20(1)(b), (2)(b) and (4) (ie that the person's deportation is conducive to the public good), is too vague, and subjective, and is likely to lead to arbitrary expulsions.

3. The criterion for the making of a deportation order stated in section 20(3)(c) and (4) (ie that the case concerns the relations of Her Majesty's Government in the United Kingdom with another country), is not justifiable. The application of such a criterion is also likely to lead to arbitrary expulsions.

4. While those subject to deportation orders may apply for review by the Governor in Council under section 53 of the Immigration Ordinance [18], the independence and impartiality of the review authority is questionable since it is the Governor who is given the power under law to make the deportation order in the first place. We ask the Human Rights Committee to express a similar view.

5. Persons subject to removal orders, which have the same practical result of expulsion from Hong Kong as deportation orders, are not entitled to a review by the Governor in Council. They may appeal to an Immigration Tribunal on a number of narrowly defined grounds on the facts of the case under section 53A of the Immigration Ordinance [18]. It is questionable whether this limited avenue of review satisfies the requirement in Article 9 that a person should be allowed to submit the reasons against his expulsion. We ask the Human Rights Committee to express a similar view.

7. Although persons subject to deportation orders or removal orders may apply for judicial review, these proceedings are only able to examine the legality of the decision and cannot challenge the findings of fact. In this connection, it is difficult to see that the requirement in Article 9 that a person should be allowed to submit the reasons against his expulsion is satisfied. We ask the Human Rights Committee to express a similar view.

8. Section 11 and 12 of the Hong Kong Bill of Rights Ordinance (Cap 383) [2] contain excepting clauses to the operation of the Hong Kong Bill of Rights in immigration matters. These sections are said to reflect the reservations the United Kingdom entered in respect of Hong Kong.

Article 14

Independence of the Judiciary

1. Whether a person receives a fair hearing in the determination of a criminal charge against him, or of his rights and obligations in a suit at law depends significantly on the competence, independence, and impartiality of those who sit in judgment of him.

2. We wish to refer to para 19, Part II, Section A of the Fourth Periodic Report where the Judiciary was referred to as a government department and the Chief Justice, the head of a government department.

3. We are alarmed at this description which reveals a failure to appreciate the principle of the independence of the Judiciary; implies that the Chief Justice is responsible for the judgments of all the judges and magistrates; and seems to indicate an approved government policy towards the Judiciary. We urge the Human Rights Committee to call on the Hong Kong Government to explain this sentence; and to state clearly to the Hong Kong Government the proper position of the judiciary in a democratic government as a separate branch of power.

4. The selection of judges in Hong Kong goes through a body known as the Judicial Service Commission. The Attorney General participates in this body. The Bar Association has consistently voiced objections to this undue interference of the Executive in judicial appointments. We share the view of the Bar Association and ask the Human Rights Committee to endorse this view.

5. Paragraph 17 and Appendix 6 of Section B of the Fourth Periodic Report suggests that activities have been organised to educate judicial officers about human rights. Judgments like R v Town Planning Board ex p Kwan Kong Co Ltd (HCMP No 1675 of 1994, unreported) [20] where the learned judge most probably misunderstood the constitutional status and the purposive approach of interpretation appertaining the Hong Kong Bill of Rights Ordinance (Cap 383) leave much to be desired in terms of competence. Decisions like a magistrate refusing a request by journalists to inspect a minute and register about a case pursuant to law or a Deputy High Court Judge ordering the arraignment and sentence of a drug trafficker to be held in camera or the Court of Appeal upholding the decision of a High Court judge ordering that an application for judicial review of the conduct of criminal proceedings in the District Court be heard by the High Court in chambers also show a lack of understanding of the human rights issues involved. We ask the Human Rights Committee to inquire closely into current and future planned training for the Judiciary in this field.

6. We have dealt with the Court of Final Appeal Ordinance (Ord No 79 of 1995) [14] in connection with Article 9. We wish to refer to our press release [15] and the submission of the Bar Association (both enclosed) [21] in connection with the effect of this ordinance on the future independence of the judiciary.

8. Regrettably, the points made in the press release and the submission have not been acted upon by the Hong Kong Government and by the Legislative Council. But we consider these points pertinent to the Human Rights Committee's consideration of the future shape of Hong Kong's legal system. And we wish to highlight the following matters:

-- The selection and appointment of the Chief Justice and judges of the Court of Final Appeal, particularly the first appointments;

-- The composition of the Court of Final Appeal;

-- The jurisdiction of the Court of Final Appeal;

-- The role of the Chief Justice of the Court of Final Appeal as Head of the Judiciary and being charged with its administration;

-- The concern that because of the restriction on the number of overseas judges, the effect of appointments to the Court of Final Appeal from the lower echelons of the Judiciary may result in a reduced quality of justice; and

-- The concern that insecurity of judge's tenure in 1997 may unconsciously be influencing the decision-making of some judges in some matters.

We ask the Human Rights Committee to consider these points and to ask the United Kingdom and Hong Kong Governments about the steps to be taken to address these points and to ensure that the Court of Final Appeal so established satisfies Article 14.

9. In any event, we are doubtful of the independence of the judiciary after 1997 in view of the Article 158 of the Basic Law [6] which vests the power of interpretation of the Basic Law in the Standing Committee of the National People's Congress. This body has executive and legislative functions and in any event is not familiar with the legal system of Hong Kong, though it will be assisted by a Basic Law Committee formed for this purpose. We ask the Human Rights Committee to underline the importance of the independence of the judiciary after 1997 and to note that the United Kingdom and PRC Governments have agreed that the ICCPR continues to be in force and that the Basic Law should be in accordance with the ICCPR.

Legal Aid

10. Currently, publicly funded legal assistance is provided under the auspices of the Duty Lawyer Service and the Legal Aid Department.

11. The Duty Lawyer Service provides for legal representation at the magistrate's court level for a list of offences or for a number of other matters; and also free legal advice for citizens. This list of offences has been criticized for being not wide enough to cover all criminal offences.

12. Legal aid is available from the District Court level onwards in both civil and criminal cases. This is administered by a government department which is not presently supervised by any independent authority. The proposed statutory Legal Aid Services Council is not endowed with power to review the operations of the Legal Aid Department and is therefore for this reason alone unsatisfactory. We ask the Human Rights Committee to stress the importance of ensuring that decisions on legal aid, particularly in cases against the government, should be taken by a body independent of government and perceived to be so.

Rights and Obligations in a Suit at Law

13. Section 13 of the Immigration Ordinance [22] confers a discretion on the Director of Immigration to authorize a person who landed in Hong Kong unlawfully to remain in Hong Kong. Many an illegal immigrant has petitioned the Director of Immigration for the exercise of this discretion as a last ditch attempt to prevent expulsion. However, it is not known how the Director of Immigration exercise this discretion and no avenue of appeal is available from such an exercise, despite judicial opinions calling for the setting up of such a mechanism. See R v Director of Immigration ex p Chan Heung Mui & Ors (1993) 3 HKPLR 533 (per Godfrey J) [23]. The Economic Committee has indicated in its concluding observations that the Hong Kong Government failed to offer any compelling reason for its refusal to provide a statutory right of appeal in this respect but the Hong Kong Government has rejected such a finding and the related recommendation to review immigration policy. We ask the Human Rights Committee to confirm that the section 13 power is a process for the determination of an illegal immigrant's rights and obligations in Hong Kong and to call for the setting-up of such an appeal mechanism by the Hong Kong Government.

Article 17

Interception of Telecommunications

1. Section 33 of the Telecommunications Ordinance (Cap 106) [24] empowers the Governor to authorize the interception of telecommunications, including telephonic messages, where he deems it is in the public interest to do so.

2. It is certain that the present formula fails the test prescribed in the case of Malone v United Kingdom (1984) 7 EHRR 14 [25] and any authorization so made amounts to an arbitrary interference to the privacy interest of the person concerned. No action has been taken so far because of the secretive nature of the interception and the ensuing difficulty in coming up with sufficient evidence to mount a challenge.

3. We call on the Human Rights Committee to seek clarification from the Hong Kong Government as to why it has failed to repeal this provision in view of the clear caselaw; whether this provision is being relied on and under what circumstances.

Seizure of Medical Records for Tax Investigation

4. A doctor's clinic was searched on 30th November 1994 and all the patient cards stored in the clinic were seized by officials of the Inland Revenue Department for the purpose of an investigation of the doctor's tax liabilities. The propriety of the search and seizure has not been ruled upon by the High Court of Hong Kong since the application for judicial review by the doctor concerned was settled.

5. However, we consider that the Inland Revenue officials may have failed to take into account the privacy interest of the patients when they embarked on the said search and seizure, which amounts to an arbitrary interference in breach of Article 17. This proposition is made despite the provision for official secrecy in the Inland Revenue Ordinance (Cap 112).

Article 19

1. We have limited our discussion on Article 19 to a small number of topics in view of the more comprehensive review given by the Hong Kong Journalists Association and Article 19 on press freedom in 1992 and the supplementary annual reports.

Official Secrets Legislation

2. The Hong Kong Government is currently engaging in a consultation exercise with the PRC on official secrets legislations. The current position is that the Official Secrets Act 1989 is applicable to Hong Kong through imperial legislation. There is little indication of the likely result of the said exercise but we are concerned that it may not lead a liberalisation of the current position. We ask the Human Rights Committee to press the Hong Kong Government to indicate the timetable for completion of the exercise; the options for change now under consideration.

Seditious Publications

3. Sections 9 and 10 of the Crimes Ordinance (Cap 200) [26] provide for offences of sedition. Paragraph 229 of Section B of the Fourth Periodic Report states that these provisions are under review by reason of their being predicated on British sovereignty. We ask the Human Rights Committee to question the Hong Kong Government the extent of this review, particularly whether account will be taken of Article 19 when reforming these provisions which date back from 1938.

Control of Obscene and Indecent Articles

4. The means adopted by Hong Kong for the control of obscene and indecent articles have led to bizarre results, including the determination that a newspaper advertisement of an art gallery depicting a picture of Michelangelo's David was indecent; and that a photograph of the face of a badly burnt boy in Hong Kong for medical treatment was indecent. See the enclosed case of Eastern Express Publisher Ltd v Obscene Articles Tribunal [1995] 3 HKC 145 [27]. We accept that the control of obscene and indecent articles constitutes a legitimate objective to limit the freedom of expression but question the ways in which the regime established for this purpose is administered. As this aspect of censorship has been omitted from the Fourth Periodic Report, we believe the Human Rights Committee may wish the Hong Kong Government provide further information on this topic.

Access to Information

5. We support the initiative taken by a legislator in 1994 to enact access to information legislation for Hong Kong. We note the smooth operation of the administrative code for access of information and consider that the fears associated with giving the public a statutory right of access to information unfounded. On the other hand, we are concerned that the administrative framework is liable to change for policy or political reasons and thus cannot be relied upon the safeguard access to information. We ask the Human Rights Committee to call on the Hong Kong Government to ensure that there is a legally enforceable right of access to official information.

7. Members of public have a right to inspect the minute and register preserved in connection with a case before a magistrate under section 35A of the Magistrates Ordinance (Cap 227) provided that they satisfy the relevant authority that there is a good and sufficient reason for that inspection. We are aware that journalists had their requests for inspection turned down by a magistrate who gave no reason for his refusal. Such minute and register, to our knowledge, contain information which a journalist would be able to gather and report, subject to any reporting restrictions, if he were able to attend the hearing of the case in question. We are concerned that the magistrate might not have been drawn to Article 16 of the Hong Kong Bill of Rights [2] and in particular that the freedom of expression includes the freedom the seek and receive information. We ask the Human Rights Committee to express a similar view.

Article 21

1. The amendments to the Public Order Ordinance (Cap 245) made in July 1995 [28] are welcomed. However, we remain sceptical as to the necessity for the time limits, requirements and conditions in the amended legislation and their compatibility with Article 17. We believe the Human Rights Committee may wish to question the Hong Kong Government as to whether the amendments simply replace one set of restrictions with another set of restrictions.

2. We note with alarm the police practice of videotaping public meetings, processions and demonstrations at close range. Organizers of such events have consistently expressed concern over this practice and described it as intimidatory and oppressive. The police have been reported as explaining this practice as being for training purposes. We ask the Human Rights Committee to request the Hong Kong Government to clarify the purpose of such a practice; the necessity of such operations having regard to the practice of police forces in other liberal democracies (which is not to engage in such activities for training purposes); and the precise arrangements for the disposal of the video so taken.

Article 22

1. The registration system in the Societies Ordinance (Cap 151) has been replaced with a notification system. However, we are of the opinion that even this system has not been justified as necessary.

2. However, we are concerned that the Societies Officer remains a member of the police force and thus the retention of a surveillance role by the police encroaching on the freedom of association. We ask the Human Rights Committee to take note of our views.

Article 23

1. While the policy of the Hong Kong Government stated in paragraph 282 of Section B of the Fourth Periodic Report is not to separate families, the policy regarding immigration from the PRC for family reunion in fact causes separation. The case set out in paragraph 282 is an example of how a child born of parents one of which is a Hong Kong permanent resident but is found remaining in Hong Kong illegally is treated by the authorities. This case is also the one highlighted by the Economic Committee in its concluding observations as being incompatible with Article 10 of the ICESCR.

2. As we have said in relation to Article 13 at paragraph 8, section 11 of the Hong Kong Bill of Rights Ordinance (Cap 383) [2] bars all Bill of Rights challenges on immigration legislation relating to persons not having the right of abode in Hong Kong. See R v Director of Immigration ex p Wong King Lung (1993) 3 HKPLR 253 [29]. This case is one where the Hong Kong Bill of Rights equivalent of Article 23 was pleaded but to no avail. We repeat the same criticism as with Article 13 and urge the Human Rights Committee to call on the United Kingdom and Hong Kong

Governments to withdraw the reservation in question.

3. Another aspect of the policy regarding immigration from the PRC for family reunion is the reliance on the PRC authorities to issue one way exit permits for immigrants which is tantamount to a complete surrender of discretion to admit. Apparently the Hong Kong Court of Appeal did not accept the argument that this arrangement amounts to a delegation of discretion to a foreign country: Chan Tong Kit & Ors v Director of Immigration (CA No 163 of 1993, unreported) [30]. The efficacy of such reliance depends on the proper administration of the one way exit permit system by the PRC. Our understanding is that this system is inefficient, liable to corruption and fails to address the geographical distribution of applicants. In November 1994, the Economic Committee asked the Hong Kong Government to identify the criteria used in distributing one way exit permits. The Hong Kong Government, however, did not follow up to provide this information. In paragraph 5 of General Comment 19(39), it is said that the right to found a family implies, in principle, the possibility to live together. And the possibility of living together implies the adoption of appropriate measures, both at the internal level and as the case may be, in co-operation with other States, to ensure the unity or reunification of families, particularly when their members are separated for political, economic or similar reasons.ĄŻ[31] We believe that it is contrary to Article 23 for the Hong Kong Government to refuse to exercise discretion to entertain applications from lawful entrants using two way exit permits or passports. We invite the Human Rights Committee to express a similar view.

Article 24

1. The enclosed paper by Paul Harris [17] also deals with the issue of Vietnamese children in detention camps in Hong Kong. We wish to draw the Human Rights Committee's attention to the reservations entered in respect of the UN Convention on the Rights of the Child which in effect presents to the Human Rights Committee a bar or immunity from criticism ratione materiae. We urge the Human Rights Committee to call for the immediate improvement in the conditions of Vietnamese children described in the said paper and to criticize the United Kingdom and Hong Kong Governments over the lodging of reservations to the UN Convention on the Rights of the Child.

2. Our criticisms during the discussion on Article 23 about immigration from PRC for family reunion apply in relation to children born to parents one of whom is a Hong Kong permanent resident but currently living in the PRC.

Article 25

Letters Patent 1917 - 1993, Article VII(3)

1. The Letters Patent 1917 - 1993 [32] is one of the instruments of constitutional importance in Hong Kong. Article VII sets out the law-making powers of the Governor, by and with the advice of the Legislative Council.

2. Article VII(2) of the Letters Patent 1917 - 1993 provides for the making of laws governing elections to the Legislative Council. The scope of such laws is also spelt out. Different categories of members and different systems or methods of election for a category of members are provided for. Thus the legality of the 1995 Legislative Council elections with geographical constituencies, functional constituencies, and an election committee is established.

3. The setting up of functional constituencies with electors being identified by their association with professional groups or sectors of employment, in our opinion, offends the principle of equal suffrage under Article 25(b). The offence is compounded by the size of some of the functional constituencies, the smallest of which has only 39 electors, thus casting undue weight upon the electors therein and undermining the genuineness of the elections since such small constituencies are prone to corrupt practices.

4. As the case of Lee Miu Ling & Anor v Attorney General (HCMP No 1696 of 1994, unreported) [33] shows, the principles of equal and universal suffrage has not been observed in Hong Kong in the setting up of functional constituencies. But Article VII(3) of the Letters Patent 1917 - 1993 has immunised this reprehensible act from being challenged as restricting the rights and freedoms enjoyed by Hong Kong in a manner which is inconsistent with the ICCPR as applied to Hong Kong, through Article VII(5).

5. Article VII(3) represents a deliberate and callous act to prevent any judicial scrutiny of election law as to compliance of international human rights standards in a case in which it is clear that international guarantees are being violated. We urge the Human Rights Committee to call on the United Kingdom and Hong Kong Governments to ensure that Hong Kong people enjoy fully the rights guaranteed to them under Articles 1 and 25.

Hong Kong Bill of Rights Ordinance (Cap 383) s 13

6. Section 13 of the Hong Kong Bill of Rights Ordinance (Cap 383) [2] contains an excepting clause to the operation of the Hong Kong Bill of Rights towards the composition of the Executive and Legislative Councils. This section is said to reflect a reservation the United Kingdom entered in respect of Hong Kong.

7. In the Lee Miu Ling case, the learned judge considered that section 13 was to the extent that it related to the Legislative Council, a dead letter since the Legislative Council is now fully elected.

8. However, the objection to section 13 remains. This provision serves as an excuse to limit the extent of democracy in Hong Kong. We urge the Human Rights Committee to call on the United Kingdom and Hong Kong Governments to withdraw this reservation and then repeal section 13.

Functional Constituencies

9. The ills of functional constituencies are much described in the submissions in the Lee Miu Ling case. Although the learned judge took a relativist view on the role of functional constituencies in the political development of Hong Kong, we remain of the view that the concept of functional constituencies violates the principles of equal and universal suffrage and the Hong Kong Government's perception on the pace of political development is not a justifiable or reasonable restriction.

Rural Elections

10. Paragraphs 42 to 44 of Section B of the Fourth Periodic Report set out the rural electoral system in Hong Kong. Although the position in relation to sex discrimination has been dealt with by the Sex Discrimination Ordinance (Ord No 67 of 1995), there remains a distinction between indigenous and non-indigenous persons in the franchise. If the Hong Kong Government still regards rural matters of such importance as to justify a structure of representation separate from the District Board system, then it is an unreasonable restriction for participation to be limited only some of the residents of rural areas. We ask the Human Rights Committee to call on the Hong Kong Government to remedy discriminatory aspects of this system.

Access to Public Service

11. At the time of writing, the court hearing of the application for judicial review by expatriate civil servants on the constitutionality of the localization process in the civil service is underway. We shall provide further information once a ruling is delivered.

Preliminary Working Committee of the Preparatory Committee and Provisional Legislature

12. The transition from British to PRC rule has generated much debate and many anomalies. One of these anomalies is the Preliminary Working Committee of the Preparatory Committee set up by PRC authorities to do preliminary work for the resumption of sovereignty. We are concerned that the membership of this committee, who are all appointees, is not representative of the Hong Kong populace and as such may come in conflict with the principle underlined in Article 25(a). Although the setting up of this committee is an act of state by the PRC rather than the United Kingdom, we believe that the issue is of such importance as to ask the Human Rights Committee to express its concern.

13. The provisional legislature is a body suggested by the Political Sub-group of the said Preliminary Working Committee to be set up upon resumption of sovereignty by the PRC to carry out legislative functions. This proposal is considered necessary since the PRC regards the 1995 electoral arrangements for the Legislative Council as illegal and has declared that all legislators elected in 1995 will not be recognised as legislators of the HKSAR. Our understanding is that this provisional legislature will consist exclusively of appointees. Thus this implementation of this proposal will at least be in conflict with the principle underlined in Article 25(a) and with the rule of law in a fundamental way. Although the setting up of this committee is an act of state by the PRC rather than the United Kingdom, we believe that the issue is of such importance as to ask the Human Rights Committee to express its concern.

Article 26

1. We have dealt with the following matters in relation to the preceding articles:

ĄŻArticle 2 -- Status of Permanent Resident; Migrant Workers; Classes of Deportees; Hong Kong's Indian Minority

ĄŻArticle 3 -- Implementation of Sex Discrimination Ordinance; New Territories Indigenous Population

ĄŻArticle 25 -- Rural Elections

Anti-discrimination Legislation

2. The passage of the Sex Discrimination Ordinance (Ord No 67 of 1995) and the Disability Discrimination Ordinance (Ord No 86 of 1995) represents a piecemeal effort by the Hong Kong Government in response to an initiative by a legislator in 1994 for the enactment of comprehensive anti-discrimination legislation to be enforced by a statutory Human Rights Commission. This initiative has been thwarted by the Hong Kong Government using various means, including very heavy pressure on, and manipulation of legislators.

3. In addition to sex discrimination and disability discrimination, the comprehensive legislation proposed would have outlawed discrimination on the grounds of family responsibility, sexuality, age, race, religion, political conviction, trade union activities and spent conviction. The comprehensive legislation proposed would have required the courts of Hong Kong to interpret anti-discrimination legislation to give effect to Hong Kong's international obligation stipulated in international instruments. (Note: Hong Kong still has no race discrimination legislation 26 years after the ICERD was extended to the territory.)

4. Article 26 provides that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination. We express our deep regret at the Hong Kong Government's response to this initiative. This response is a dereliction from the obligation above under Article 26. We urge the Human Rights Committee to call on the Hong Kong Government to put in place legal protections relating to discrimination on the grounds of family responsibility, sexuality, age, race, religion, political conviction, trade union activities and spent conviction.

5. Having successfully opposed the enactment of comprehensive anti-discrimination legislation, the Hong Kong Government promised to conduct consultation exercises on public opinion about the other grounds of discrimination to determine the need for further legislation. We have heard that the Hong Kong Government is seeking to implement a two stage process with first a small scale information gathering exercise to be followed by a large scale public consultation. However, initially the Hong Kong Government failed to consult the relevant NGOs in the first such exercise, which is on sexuality. Further, it was discovered that the Hong Kong Government has devised a questionnaire for this exercise which is more likely to stir up prejudice and bigotry rather than to gather information. We ask the Human Rights Committee to obtain from the Hong Kong Government a timetable for the said consultation exercise in respect of each ground of discrimination and to seek an undertaking from the Hong Kong Government that NGOs shall be permitted to participate in the organization of such exercises.

Implementation of Disability Discrimination Ordinance

5. We express the same concern as those stated in relation to the Sex Discrimination Ordinance in paragraph 3 of the discussion under Article 3.

Article 27

1. We have dealt with the issues of Migrant Workers and Hong Kong's Indian/Ethnic Minority in relation to Article 2 respectively.

2. We have heard of an argument suggesting that the New Territories indigenous population, which is identified by descent from villagers of an established village in 1898, may qualify as a minority under Article 27. We are not convinced that the argument is sound by reference to cultural, religious and linguistic distinction from the rest of the Hong Kong population. We request the Human Rights Committee to ask the Hong Kong Government whether it takes the view that the New Territories indigenous population are a minority within the meaning of Article 27.

Article 40

1. The Joint Declaration between the United Kingdom and the People's Republic of China in 1984 on the future of Hong Kong contains the following provision under Annex I, Part XIII (JD156):

"The provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force."

2. Annex I to the Joint Declaration contains a statement of the basic policies of the PRC regarding Hong Kong. These basic policies have been stipulated in the Basic Law of the HKSAR with JD156 in Article 39 thereof [6]. Since this statement is made as part of an international agreement, it is reasonable to assume that by so doing, the PRC is fixed with an international obligation carry out this policy regarding Hong Kong.

3. The question then turns to the meaning or implications of JD156. Since this statement is one uttered by the PRC, then a likely meaning is that the PRC accepts or acknowledges the obligations of the United Kingdom presently as a State Party to the ICCPR with respect to Hong Kong and agrees to carry out such obligations. See also Article 153 of the Basic Law. We agree with the contention set out in paragraph 373 of Section B of the Fourth Periodic Report that the PRC will have to continue to fulfil the reporting obligation in order to meet JD156.

4. Since the ICCPR is a multilateral treaty and the obligations therein are for State Parties to implement (including Article 40), we are of the opinion that the logical way to carry into effect JD156 is for the PRC to accede to the ICCPR in accordance with Article 48 as a State Member of the United Nations but only in respect of Hong Kong. It appears that Article 50 is not applicable to the political structure of the PRC. We transmit this view for the consideration of the Human Rights Committee.

5. We are aware that the PRC is reluctant to accede to the ICCPR or in any event to carry out the obligation under Article 40. In the event that the PRC refuses to do so, we believe the United Kingdom may arguably be under a residual obligation as the former sovereign of Hong Kong to submit reports under Article 40 and we ask the Human Rights Committee to consider this option. This submission is made in the light of the fact that the obligations of the United Kingdom under the Joint Declaration did not terminate on 1st July 1997 but at least carry on until 1st January 2000.

6. We are also aware of the proposition by Dr Nihal Jayawickrama that Hong Kong succeeds from the United Kingdom the obligations of the ICCPR through implied state succession in human rights treaties [34]. We support this idea and ask the Human Rights Committee to give it its due consideration.

7. In any event, we urge the Human Rights Committee to state its views on any possible mechanisms for compliance with future reporting requirements.

First Optional Protocol

1. Unlike other British Dependent Territories, Hong Kong is not subject to any regional human rights treaty which provides for an individual complaint mechanism.

2. It is therefore imperative in our opinion, that the United Kingdom Government should accede to the First Optional Protocol for Hong Kong. We ask the Human Rights Committee to call on the United Kingdom Government to implement this suggestion and to set a deadline for doing so.

Special Report Before 1st July 1997

1. In any event, we call on the Human Rights Committee to ask for a special report from the United Kingdom on Hong Kong to be submitted before 1st July 1997.

2. This special report should focus the world's attention on the human rights conditions in Hong Kong before the changeover and will reflect upon any changes to such conditions after the changeover. Further, if all the methods suggested for continuing the submission of reports after 1997 turn out to be illusory or unworkable, this special report at least will present a last opportunity for the Human Rights Committee to examine and comment on matters pertaining to Hong Kong before the site for such debate shifts to the UN Human Rights Commission instead.

3. The contents of this special report may cover all issues arising out of the implementation of the ICCPR in Hong Kong or be confined to matters such as the continuing of the reporting obligation under Article 40 after the transfer of sovereignty and/or to major issues identified by the Human Rights Committee.

Dated 8th October, 1995.

_________________________                              ______________________

Paul Harris,                                                               P. Y. Lo,

Chairperson, Hong Kong                                         Member, Hong Kong

Human Rights Monitor                                            Human Rights Monitor

List of Enclosures

1. Committee on Economic, Social and Cultural Rights, Concluding Observations (UN Doc E/C.12/1994/19); and Andrew Byrnes, Will the Government put its money where its mouth is? The Verdict of the UN Committee on Economic, Social and Cultural Rights on Hong Kong Human Rights Record (1995) 25 HKLJ 156

2. Hong Kong Bill of Rights Ordinance (Cap 383)

3. Andrew Byrnes, Killing It Softly? The Hong Kong Courts and the Slow Demise of the Hong Kong Bill of Rights

4. R v William Hung (1993) 3 HKPLR 328

5. Tam Hing Yee v Wu Tai Wai (1991) 1 HKPLR 261

6. Basic Law of the Hong Kong Special Administrative Region

7. Immigration Ordinance (Cap 115) Schedule 1

8. Immigration Ordinance (Cap 115) section 20

9. Ravi Gidumal, The Plight of Hong Kong's Ethnic Minorities

10. Sex Discrimination Ordinance (Ord No 67 of 1995) sections 61, 62 and Schedule 5 Part 2 paragraph 2

11. Emergency Regulations Ordinance, sections 2, 4

12. R v Cheung Kin Tak & Ors (MA No 416 of 1994, unreported)

13. Application of English Laws Ordinance (Cap 88)

14. Court of Final Appeal Ordinance (Ord No 79 of 1995)

15. Hong Kong Human Rights Monitor, Statement on Court of Final Appeal Bill, Eastern Express (25/07/95)

16. Immigration Ordinance (Cap 115) section 32(4)

17. Paul Harris, The ICCPR and Vietnamese Migrants in Hong Kong

18. UN Human Rights Committee, General Comment 15(27)

19. Immigration Ordinance (Cap 115) sections 53, 53A

20. R v Town Planning Board ex p Kwan Kong Co Ltd (HCMP No 1675 of 1994, unreported)

21. Hong Kong Bar Association, Submission on Court of Final Appeal Bill

22. Immigration Ordinance (Cap 115) section 13

23. R v Director of Immigration ex p Chan Heung Mui & Ors (1993) 3 HKPLR 533

24. Telecommunications Ordinance (Cap 106) section 33

25. Malone v United Kingdom (1984) 7 EHRR 14

26. Crimes Ordinance (Cap 200) sections 9, 10

27. Eastern Express Publisher Ltd v Obscene Articles Tribunal [1995] 3 HKC 145

28. Public Order (Amendment) Ordinance 1995 (Ord No 77 of 1995)

29. R v Director of Immigration ex p Wong King Lung (1993) 3 HKPLR 253

30. Chan Tong Kit & Ors v Director of Immigration (CA No 163 of 1993, unreported)

31. UN Human Rights Committee, General Comment 19(39)

32. Letters Patent 1917 - 1993 & LN 406 of 1994

33. Lee Miu Ling & Anor v Attorney General (HCMP No 1696 of 1994, unreported)

34. Dr Nihal Jayawickrama, Human Rights in Hong Kong: The Continued Applicability of the International Covenants (1995) 25 HKLJ 171