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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General Note

List of Issues

Article 2

Article 3

Article 7

Article 9

Article 10

Article 13

Article 14

Article 17

Article 19

Article 21

Article 22

Article 23

Article 24

Article 25

Article 26

Article 40

ICCPR and the Basic Law

Discussion

Prepared by P. Y. Lo{1}


General Note


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.In paragraphs 13 to 16 of the Supplementary Report, the Hong Kong Government sets out the reasons for maintaining its opposition to the establishment of a Human Rights Commission in Hong Kong. We have examined and compared these reasons with the reasons proffered on the same topic in paragraphs 10 and 11 of the Fourth Periodic Report. We fail to find any difference between the two sets of reasons. Such a result suggests a failure by the Hong Kong Government to re-visit the issue seriously, despite consistent advice from the treaty bodies to this effect. Further, the perception of the Hong Kong Government that a Human Rights Commission would have "a wide-ranging but imprecise remit" underlines its fear that an independent human rights institution vested with investigatory and sanctioning powers would be out of step with government policy or become a watchdog criticising government policy. 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 sponsored by the Hon Liu Sing Lee, Legislative Councillor, 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. While the Hong Kong Government, in adopting this argument, was successful in persuading the President of the Legislative Council to prevent the proposed legislation from being introduced into the Legislative Council, 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. The Hong Kong Government thereafter failed in using the same argument in persuading the President of the Legislative Council to block the introduction of proposed legislation containing a similar provision. The current proposals would do no more than restore the position to that the Hong Kong Government intended the Hong Kong Bill of Rights Ordinance to have and which it told the Legislative Council it would have. 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. This request is made in view of the failure of the Hong Kong Government to challenge the patently incorrect decision of the Court of Appeal in Tam Hing Yee v Wu Tai Wai when it has been so assiduous in challenging other cases in which it considers the courts have incorrectly interpreted the Hong Kong Bill of Rights (all of which resulted in a more restrictive approach to the interpretation of the Hong Kong Bill of Rights).

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 [1]. 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. Such failure has the effect of diminishing the value of Court of Appeal judgments as precedents and harms the effort of all concerned in building up a solid foundation of local caselaw of general application in the field of human rights protection. See the report and commentary in the Bill of Rights Bulletin in the cases of R v Hui Kin Hong, Harry; R v Ming Pao Newspapers Ltd & Ors; and R v Cheung Ka Fai [2]. See also the case of Chim Shing Chung v Commissioner for Correctional Services (CA No 16 of 1996, unreported) [3] where Litton V-P accepted, without investigation and analysis of any kind, the suggestion that restrictions under the Prison Rules applied to prisoners in respect of their subscriptions of newspapers were "authorized by law for the preservation of custodial discipline" and hence Article 16 of the Hong Kong Bill of Rights, which protects the freedom of expression, was excepted from operation. See also press reports expressing concerns over possible undermining of human rights protection in Hong Kong by judicial incompetence [4].

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 note with dismay that Sir Ti Liang Yang has now declared his candidacy for the position of Chief Executive of the Hong Kong Special Administrative Region and that Mr Justice Liu is being seriously mooted as the successor of Sir Ti Liang Yang as Chief Justice. We urge the Committee to express its concern. See Statement by the Chief Justice, Sir Ti Liang Yang, on the Hong Kong Bill of Rights Ordinance, Statement of the Hong Kong Government in Response to the Statement of the Chief Justice on the Hong Kong Bill of Rights Ordinance, Press Release of the Hong Kong Human Rights Monitor on the Statement of the Chief Justice on the Hong Kong Bill of Rights Ordinance, and Benjamin Liu JA, "The Past, the Present and the Future of the Hong Kong Bill of Rights Ordinance" [5].

7.Sections 9 to 13 of the Hong Kong Bill of Rights Ordinance [1] 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. In relation to section 9, we consider it unacceptable for Litton V-P in Chim Shing Chung [3] to apply without thinking this exception to bar the application of the Hong Kong Bill of Rights in a case where it is not entirely clear that the measure taken was either authorizedby law or for the purpose of custodial discipline. In the previous briefing paper, we have called for the withdrawal of the reservations concerning immigration legislation, persons not having the right of abode and elections to the Executive and Legislative Councils; and also the repeal of the respective exception under the Hong Kong Bill of Rights Ordinance. We maintain our position with respect to these reservations and exceptions. We also call on the Committee to express its concern on the quality of judicial interpretation in Hong Kong on the remit of these exceptions, particularly in the absence of any reference to a substantive meaning to the word "law" in addition to its formal meaning. We also urge the Committee underline the need to interpret such exceptions narrowly to give citizens in Hong Kong the largest measure of human rights protection legally possible.

8.The compatibility of the Hong Kong Bill of Rights Ordinance [1] with the Basic Law [6] has come under debate recently. See enclosed translation of a press release by the Legal Sub-group of the Preliminary Working Committee of the Preparatory Committee of the Hong Kong Special Administrative Region ("the PWC"); a statement of the Hong Kong Bar Association; and press clippings as to the recommendations by the said Legal Sub-group to repeal certain provisions of the Hong Kong Bill of Rights Ordinance [7]. 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 enclose a copy of the Hong Kong Bar Association's views on the Status and Effect of the Hong Kong Bill of Rights Ordinance, with which we agree [8]. 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.

9.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 People's Republic of China, which have apparently been generated in response to misrepresentations made by the United Kingdom Government to the People's Republic of China Government in the past on the state of human rights protection in Hong Kong. See Nihal Jayarickrama, Will the Bill of Rights Survive the Transition? [9]

Enjoyment of Rights without Distinction

Status of Permanent Resident

10.The present qualifications for the status of permanent resident in Hong Kong are stipulated under Schedule 1 of the Immigration Ordinance (Cap 115). These qualifications are incompatible with those stipulated under Article 24 of the Basic Law [6]. It is expected that the Immigration Ordinance will be subject to amendment at a later stage to implement Article 24 of the Basic Law. On 10th August 1996, the Preparatory Committee adopted an opinion on the implementation of Article 24, 2nd paragraph of the Basic Law. 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 Hong Kong Special Administrative Region 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 People's Republic of China 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.

11.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.

12.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 United Kingdom and Hong Kong Governments to clarify these issues with the People's Republic of China Government.

Indian and Ethnic Minorities in Hong Kong

13.We understand from press reports that the number of persons who may become stateless after 1st July 1997 is estimated to be about 8,000. We urge the Committee to recommend action from the United Kingdom Government in this respect to ensure that Hong Kong's ethnic minorities have a meaningful, effective, and inheritable nationality after 1997. Such a plea has been endorsed by organizations such as the Advisory Commission of the Commonwealth Human Rights Initiative.

14.In March 1996, the British Prime Minister indicated that any member of the ethnic minority community, being solely a British national, who came under pressure to leave Hong Kong would be guaranteed admission to the United Kingdom. However, no indication was given that this assurance of the Prime Minister would be legislatively guaranteed. Moreover, we note that such an assurance by the British Prime Minister does not present a solution to the satisfaction of the right of children of the ethnic minority to acquire a nationality under Article 24(3) of the ICCPR.

Anti-discrimination Legislation

15.Paragraphs 17 to 19 of the Supplementary Report outline the so-called step-by-step approach adopted by the Hong Kong Government towards the elimination of discrimination in Hong Kong.

16.This step-by-step approach has been seriously criticised as a delaying tactic to resist the obvious need for anti-discrimination legislation in Hong Kong, which is logical in view of the latent opposition displayed by the Hong Kong Government towards comprehensive anti-discrimination legislation introduced by the Hon Anna Wu, Legislative Councillor, in 1995.

17.The studies of discrimination undertaken by the Hong Kong Government are fundamentally flawed in terms of approach and methodology since 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 bymeans of education. We cannot explain the difference in the decisions taken but to attribute it to an erroneously receptive attitude of the Hong Kong Government towards popular disapproval of homosexuality. Instead of underlining the extent of discrimination on the basis of such indication of disapproval of homosexuality, the Hong Kong Government utilized such sentiments as the basis for depriving the oppressed minority of homosexuals in Hong Kong the necessary protection to ensure respect of their human dignity.

18.The consultation exercise of the Hong Kong Government on racial discrimination again lacks genuineness. It seems similarly directed to finding that racial discrimination does not exist in Hong Kong, a conclusion that can only be reached by ignoring evidence of racial discriminatory incidents or by defining discrimination against foreign domestic helpers as class (rather than race or sex) discrimination or the recent upsurge of anti-Japanese sentiment over the Diaoyutai/Senkaku islands dispute as something other than racially based.

19.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

Extension of CEDAW

1.Despite the announcement of the Hong Kong Government to extend CEDAW to Hong Kong, CEDAW has yet to be extended. It is understood, however, that the United Kingdom and the People's Republic of China Governments agreed to the extension of CEDAW at the Joint Liaison Group level on 19th September 1996, apparently on the basis of reservations which are more extensive than those entered to the ICCPR and the ICESCR. We ask the Committee to confirm the contents of the said agreement with the United Kingdom Government.

Implementation of the Sex Discrimination Ordinance (Cap 480)

2.While it is gratifying to report that the Equal Opportunities Commission came into full operation on 20th September 1996 following the coming into operation of most of the provisions of the Sex Discrimination Ordinance (Cap 480), it is regrettable to indicate that the Equal Opportunities Commission is still unable to take up any complaints in employment-related sex discrimination since all provisions of the Sex Discrimination Ordinance relating to employment are not yet into operation. In paragraph 22 of the Supplementary Report, the Hong Kong Government explains the delay in the employment field is due to the need to produce codes of practice. We note that the Equal Opportunities Commission has consulted interested groups in relation to draft codes of practice and is now consulting the public. However, we do not consider that the need for clear and accessible codes of practice should compromise the urgent need of complainants to seek justice from the Equal Opportunities Commission and the District Court. Hence we find the reason for such a "step-by-step" arrangement to be unconvincing and urge the Committee to ask the Hong Kong Government to reconsider its position.

3.The Code of Practice on Employment under the Sex Discrimination Ordinance is published in a form for public consultation. We attach significance to this Code of Practice since compliance with it will be taken into account by the Equal Opportunities Commission in its investigation. We make the following observations:

The Code of Practice on Employment uses phrases such as "clear justification", "objectively justifiable grounds", "real justification" and "reasonable justification". These phrases are ambiguous and provide room for subjective and extraneous consideration by the employer. A much better formulation is one based upon "work-related grounds" (paras 3.2.2, 10.5.2, 12.12, 13.1.5).

The definition of "victimisation" should be tightened so that it is not victimisation if an employee is treated less favourably as a result of an allegation which is found to be false and not made in good faith (para 15.3).

Paragraph 10.6.7, which specifies a genuine occupational qualification based upon sex, relates to the need for a job to be held a man "because it is likely to involve the performance of duties outside Hong Kong in a place where the customs or laws are such that the duties could not be performed effectively by a woman". This formulation fails to make the necessary distinction between a custom which has the force of law and a custom which is a cultural practice or preference. Where the custom is of the latter variety, we consider it necessary for the employer to show with reasonable and sufficient evidence that the custom is such that a woman will be prevented from effectively carrying out the work-related duties required in that country; and that failure to observe such a cultural practice or preference would have serious and adverse effect on his business viability there.

New Territories Land (Exemption) Ordinance (Cap 452)

4.The New Territories Land (Exemption) Ordinance (Cap 452) exempts rural land in the New Territories for the purpose of entitlement in succession and any other land in the New Territories from the application of Part II of the New Territories Ordinance (Cap 97). In so doing, the New Territories Land (Exemption) Ordinance puts women on an equal footing with men in relation to intestate succession of land in the New Territories.

5.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].

6.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. Changes in the law which bring it clearly into conformity with the ICCPR and the international obligations binding on both governments should be welcomed, rather than trampled upon. We urge the Committee to recommend that this recommendation of the PWC should not be implemented.


Article 7

1.A number of transfer operations were mounted by the security forces in Vietnamese detention centres in Hong Kong. During one incident on 7th April 1994, 500 canisters of tear gas were fired on a crowd of Vietnamese asylum seekers within a confined space, causing injuries including burns to young children. Many commentators have considered this operation an act of torture on the Vietnamese asylum seekers concerned and have called for prosecution under the Crimes (Torture) Ordinance (Cap 472). The Hong Kong Government instead appointed two non-official Justices of the Peace to conduct an inquiry which found that there was excessive use of tear gas and widespread assaults by Correctional Service officers.

2.On 20th May 1995, another transfer operation allegedly resulted in the firing of 3,250 canisters of tear gas and the application of tear smoke into a detention centre whose occupants included children.


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.

2.Research undertaken by a lecturer of the University of Hong Kong 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.

3.The paper by that lecturer highlights the unsatisfactory features of the present police complaints system and the scrutiny of the operation of such a system by the Independent Police Complaints Council. The Hong Kong Human Rights Monitor produced in January 1996 a discussion paper proposing reforms to the police complaints system in Hong Kong [10].

4.In July 1996, the Hong Kong Government unveiled a Bill to put the Independent Police Complaints Council on a statutory basis. The Hong Kong Human Rights Monitor responded to this initiative by issuing a press release [10] indicating that the reforms proposed by the Hong Kong Government 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.

Indefinite Detention of Serious Juvenile Offenders

5.The Security Branch has indicated that currently there are 24 people incarcerated in Hong Kong at Her Majesty's pleasure (ie being given an open-ended custodial sentence) for a serious offence committed while they were under the age of 18. The length of their detention is subject to a discretion exercised by the Governor. We are of the view, in line with European Court of Human Rights authority, that such open-ended sentences coupled with a discretion vested in the executive authorities as to release or substitution of a fixed term constitutes arbitrary detention. We urge the Committee to question the Hong Kong Government as to the measures being considered to replace this form of sentence and to comment on the compatibility of such a form of sentence with Article 9(1) of the ICCPR.

Availability of Habeas Corpus

6.It is now understood that the Hong Kong Government plans to introduce amendments to the Supreme Court Ordinance (Cap 4) to incorporate provisions of the Habeas Corpus Acts presently made applicable to Hong Kong by the Application of English Laws Ordinance (Cap 88). We ask the Committee to seek details of such amendments from the Hong Kong Government and to urge the Hong Kong Government to ensure that writs of habeas corpus are available to every detainee in Hong Kong after 1st July 1997.

Vietnamese Asylum Seekers -- Immigration (Amendment) Ordinance 1996

7.In March 1996, the Judicial Committee of the Privy Council (Hong Kong's highest court) held that the lengthy and continuing detention for repatriation of a number of Vietnamese asylum-seekers, who would in fact be treated as non-nationals by the Vietnamese Government under its stated policy, and not accepted back, was illegal, as the legal purpose of the detention could not be carried out. The Hong Kong Government responded by introducing a Bill to prevent other asylum-seekers in similar situations from challenging the legality of their detention under this route. The Hong Kong Human Rights Monitor produced a position paper setting out our arguments in opposition to this Bill, which we considered to be a threatened violation of Articles 2(1), 7, 9(1), 9(4) and 26 of the ICCPR. The Hong Kong Government subsequently modified its proposals. They were then passed into law in a confusing and ambiguous form which awaits further interpretation in the courts. Reference is made to this Ordinance by the Hong Kong Government in paragraph 30 of the Supplementary Report.

8.There is an indication that the assertion by the Hong Kong Government about Vietnamese policy in paragraph 30 of the Supplementary Report is contradicted by Vietnamese state practice. See the enclosed press report [11].

9.In a separate development, the Hong Kong Government reportedly refused to release to lawyers the names of 173 Vietnamese asylum seekers the legality of whose detention was thrown into doubt.


Article 10

Penal Institutions: Custodial Discipline and Exception to the Hong Kong Bill of Rights Ordinance (Cap 383)

1.We refer to the above case of Chim Shing Chung [3] in relation to the less than rigorous interpretation adopted by the Hong Kong Court of Appeal in relation to an exception reproducing a reservation adopted by the United Kingdom upon the extension of the ICCPR to Hong Kong. We repeat our criticisms above under Article 2 -- Human Rights Protection and Hong Kong Bill of Rights Ordinance (Cap 383).

Vietnamese Asylum Seekers

2.Despite the recommendations of the Committee, the Committee Against Torture, and the Committee on the Elimination of Racial Discrimination, the Hong Kong Government has undertaken no improvement to the living conditions of Vietnamese asylum seekers in closed camps in Hong Kong.

3.The description of the living conditions of Vietnamese asylum seekers in Hong Kong under paragraph 26 of the Supplementary Report is not different from that contained in a document entitled "living conditions of Vietnamese migrant Detention Centres in Hong Kong" which was made available to the Committee in October 1995. For a recent complaints about the conditions of detention of Vietnamese asylum seekers, see the enclosed press report [12].

4.Following riots in May 1996, the Hong Kong Government is now constructing secured isolation units within the Whitehead Detention Centre to house so-called "trouble-makers". This is tantamount to building a prison within a detention centre to house persons who have not been convicted of any criminal offence. We do not find this measure acceptable as a matter of propriety and decency, or in accordance with the dignity of the human person. We ask the Committee to condemn such a move.

5.We ask the Committee to reiterate in strong terms the recommendation for immediate improvement to the conditions of the Vietnamese asylum seekers detention camps in Hong Kong.


Article 13

1.The Hong Kong Human Rights Monitor carried out a review of immigration law and practice regarding persons without the right of abode in Hong Kong. The results of the review were published in September 1996.

2.In this review, we called for the publication of immigration rules and the expansion of the present appeal system. We note that the realization of our proposals will be a major step for Hong Kong to implement the recommendations of the Committee in General Comments 15(27) (The Position of Aliens under the Covenant) and in particular, paragraphs 9 and 10 thereof.

3.We ask the Committee to endorse the recommendations of our immigration law review.


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. These matters are aptly summarised in the enclosed article by Dr Nihal Jayarickrama [13], which describes the Judiciary 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. In two of the cases mentioned in Dr Jayarickrama's article, the injustice was identified and remedied but 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 District Judge, Judge Caird, complained to members of the prosecutions division of the Attorney General's Chambers that two other District Judges (including the Chief District Judge) indicated to him that the New Zealand authorities believed the defendant in the case to be guilty of the offences charged. Judge Caird's complaints, which were understood as pressure put upon him by other judges in order to influence his judgment in the case before him, were recorded and later on become available to the press. The Acting Chief Justice inquired into the allegations and concluded that in fact no pressure was put on Judge Caird but rather Judge Caird had allowed social conversations to become "magnified in his mind" and to assume a significance they did not have'. On the same day as these conclusions were announced, Judge Caird discharged himself from hearing the case on health grounds. Following submissions from the defence, the Governor ordered a tribunal of inquiry be set up pursuant to the Letters Patent "to investigate whether Judge Caird should be removed from office for misbehaviour, in that he made false allegations". These terms of inquiry were immediately criticised as pre-judging the issue and too narrow, since the probity of the two other judges named by Judge Caird was not made the subject of inquiry.

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.

5.We make this plea in view of the enclosed report [14] that President Jiang Zemin of the People's Republic of China apparently disagreed with the suggestion that Hong Kong's success could be attributed to an independent judiciary.

6.We repeat our submissions made under Article 2 of the ICCPR concerning the approach of judges in Hong Kong with respect to the Hong Kong Bill of Rights, and to human rights protection in general. There is a genuine worry amongst practitioners that judges in Hong Kong may not be in a position in due course to be the guardians of the Basic Law [6], the constitution of the Hong Kong Special Administrative Region, through proper interpretation of its provisions. We ask the Committee to question the Hong Kong Government on the details of any training or continuing education the Judiciary has in promoting a better understanding (if not ensuring an initial understanding) of the Basic Law amongst judicial officers in Hong Kong.


Article 17

1.Paragraph 54 to 56 of the Supplementary Report outlines the recommendations of the Sub-committee of the Law Reform Commission on the Law on Privacy. We agree with the Sub-committee that surveillance and interception of communications must be put under proper regulation. We further believe that such regulation must satisfy international human rights standards adumbrated in caselaw such as the Malone case decided by the European Court of Human Rights. Section 33 of the Telecommunications Ordinance (Cap 106), which empowers the Governor to authorize public officers to intercept telecommunications on the sole pre-condition of public interest, lacks the minimum safeguards for it to be consistent with international human rights standards. Further, there is no recourse for any person who suspects that a wiretap has been set up to intercept his telecommunications to confirm or clarify such suspicion. We therefore urge the Committee to recommend to the Hong Kong Government that section 33 of the Telecommunications Ordinance (Cap 106) should be repealed and a statutory mechanism with an independent and impartial regulatory authority be put in place in respect of interception of telecommunications carried out by investigative authorities of the Hong Kong Government.

2.Protection of the privacy of a person must be balanced with the freedom of the press to investigate into public scandals or misdeeds. We understand that the Hong Kong Journalists Association will be make submissions to the Committee in relation to the striking of a proper balance between these two competing human rights interests. We would simply on this matter share the concern of the Hong Kong Journalists Association on the Sub-committee's recommendation for the introduction of criminal sanctions against intentional surveillance and interception, which we believe to be an improper option. We ask the Committee to confirm the importance of these concerns.

3.A case in point on this balancing exercise between the protection of the privacy of a person and the public interest in access to information is the recent decision by the Judiciary to treat charge sheets as "privileged information" and withhold them from public access so as to protect the privacy of the accused. This decision means that only lawyers representing one of the parties and individual defendants may have access to the full charge sheet. Members of the press may have access to one with identity card numbers and addresses deleted only if they are already aware of the case and can name the defendant. While the decision was taken in the spirit of the Personal Data (Privacy) Ordinance (81 of 1995), the statutory body responsible for the implementation of this Ordinance, the Privacy Commission, was not consulted. When asked by the press, the Deputy Privacy Commissioner considered that nothing in the legislation could justify the action of the Judiciary.


Article 19

1.Paragraphs 52 and 53 of the Supplementary Report outlines the proposals of the United Kingdom to localize the British Official Secrets Acts in Hong Kong and to adapt the provisions relating to treason and seditious publication in the Crimes Ordinance (Cap 200) to implement Article 23 of the Basic Law [6], which requires the Hong Kong Special Administrative Region to enact laws inter alia "to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets". We are concerned that there appears to little progress in the discussions between the United Kingdom and the People's Republic of China Governments in this regard. We are additionally concerned that the proposals of the United Kingdom Government have not been made public for consultation and discussion.

2.In view of the crucial importance these matters have on human rights protection in Hong Kong and of the recent indications from People's Republic of China officials that the taking of a stand by the media on an issue (such as criticism of policies of the Central People's Government) would entail the media organization in question liable to criminal sanction if such an act is capable of being construed as "action" or "advocacy" [15], we ask the Committee to ask the United Kingdom Government to disclose the details of its proposals to localize the Official Secrets Acts in Hong Kong and to adapt the Crimes Ordinance (Cap 200) for the purpose of implementing Article 23 of the Basic Law and response of the People's Republic of China on them. In the event that the United Kingdom Government is unable to produce such details, we urge the Committee to request the United Kingdom and the People's Republic of China Governments to provide follow-up information on this issue for the consideration of the Committee.

3.We have discussed the case of Chim Shing Chung [3] on the general questions of judicial understanding of human rights protection and the interpretation of exception provisions to the Hong Kong Bill of Rights above. The subject matter of this case impinged upon the human right of a prisoner to receive information. We are concerned that the courts in the consideration of this case failed to adopt a rigorous approach in considering the validity of authority of censorship in the light of the Hong Kong Bill of Rights. Such censorship power should only be justified on the basis of cogent evidence showing a legitimate object prescribed under Article 16(2) of the Hong Kong Bill of Rights and the necessity, in terms of rational connection, minimum impairment, and proportionality, in imposing the restriction.

4.We note that the case of Ming Pao [2] concerns the validity of a provision of the Prevention of Bribery Ordinance (Cap 201) prohibiting disclosure of investigations by the Hong Kong Independent Commission Against Corruption. Here, the appellate courts have failed to clearly articulate and apply a test for scrutinising the permissibility of restrictions on permitted rights that adequately reflects the international law that government must justify restrictions, preferring instead essentially to accept legislative or executive assertions that measures are "necessary".

5.We note that the PWC had recommended that certain amending Ordinances, including the Television (Amendment) Ordinance 1993 (22 of 1993), the amendments to the Telecommunications Ordinance (Cap 106) in Ordinance No 22 of 1993, and the amendments to the Broadcasting Authority Ordinance (Cap 391) in Ordinance No 22 of 1993 [32], should not be adopted as laws of the Hong Kong Special Administrative Region by operation of Article 160 of the Basic Law [6]; and that the provisions of the Television Ordinance (Cap 52), Telecommunications Ordinance (Cap 106) and the Broadcasting Authority Ordinance (Cap 391) affected by the above amendments be adopted as the laws of the Hong Kong Special Administrative Region [7]. We are of the view that these amendments were not enacted solely for the purpose of complying with the provisions of the Hong Kong Bill of Rights but also as a response to opinions in the community for a more liberal environment in broadcasting and a more rational, impartial and elaborate system of regulation of material to be broadcast. Further, we are of the view that the system of regulation as established by the amendments does not diminish or render ineffective the ability of the Hong Kong Government to restrict the broadcasting of materials with certain content. Rather we believe that this system of regulation is fair, open, and acceptable to the broadcasters and the public. We ask the Committee to indicate its concern that such developments in liberalising and rationalising the law must not be rolled back and that this recommendation of the PWC should not be implemented for the above reasons.


Article 21

1.We note that the PWC recommended that the amendments to Public Order Ordinance (Cap 245) as contained in the Public Order (Amendment) Ordinance 1995 (77 of 1995) should not be adopted as laws of the Hong Kong Special Administrative Region by operation of Article 160 of the Basic Law [6]; and that the provisions of the Public Order Ordinance (Cap 245) affected by the above amendments be adopted as the laws of the Hong Kong Special Administrative Region [7].

2.We further note that the provisions affected by this amending Ordinance are draconian provisions not in step with the conditions of the Hong Kong community. We are of the view that the amending Ordinance was not enacted solely for the purpose of complying with the provisions of the Hong Kong Bill of Rights but also as a response to opinions in the community for a more liberal regime in the regulation of public meetings and public processions. Further, we are of the view that the system of regulation as established by the amendments does not diminish or render ineffective the ability of the Hong Kong Government to control demonstrations or public protests. Rather we believe that this system of regulation is relatively fair and open, and is acceptable to the public. We ask the Committee to indicate its concern that such developments in liberalising and rationalising the law must not be rolled back and that this recommendation of the PWC should not be implemented for the above reasons.


Article 22

1.We note that the PWC recommended that the amendments to Societies Ordinance (Cap 151) as contained in the Societies (Amendment) Ordinance 1995 (75 of 1992) should not be adopted as laws of the Hong Kong Special Administrative Region by operation of Article 160 of the Basic Law [6]; and that the provisions of the Societies Ordinance (Cap 151) affected by the above amendments be adopted as the laws of the Hong Kong Special Administrative Region [7].

2.We further note that the provisions affected by this amending Ordinance are draconian provisions not in step with the conditions of the Hong Kong community. We are of the view that the amending Ordinance was not enacted solely for the purpose of complying with the provisions of the Hong Kong Bill of Rights but also as a response to opinions in the community for a more liberal and convenient regime in the regulation of the various forms of associations, societies and organizations in Hong Kong. Further, we are of the view that the system of notification as established by the amendments does not diminish or render ineffective the ability of the Hong Kong Government to control unlawful societies. Rather we believe that this system of regulation is relatively fair and open, and is acceptable to the public. We ask the Committee to indicate its concern that such developments in liberalising and rationalising the law must not be rolled back and that this recommendation of the PWC should not be implemented for the above reasons.


Article 23

1.On 10th May 1996, a riot broke out in a detention centre during a transfer operation. Seven Vietnamese children (aged three to 15) were then separated from their parents and detained at Victoria Prison, a holding centre normally for Vietnamese asylum-seekers pending repatriation. It was not known if the children were held separate from adults. One of the children, a girl of three, was separated from her parents for 18 days before being re-united with them. These separations were clearly in violation of Articles 23 of the ICCPR. An investigation into the matter apparently revealed that two Correctional Services officers withheld complaints by parents from higher authorities. We ask the Committee to closely question the Hong Kong Government on the measures taken to prevent such incidents from happening again.


Article 24

1.The UNHCR has recently withdrawn the provision of secondary education in the detention centres, causing concerns as to the adequate guarantee of the right to education and training under Articles 22 and 28 of the Convention on Rights of the Child, as well as Article 5(e)(v) of the Convention for the Elimination of All Forms of Racial Discrimination. The Hong Kong Government has refused to request funds from the Legislative Council to provide secondary education in the detention centres, despite indication of willingness by Legislative Councillors to approve such a request; a proposal to remedy the situation put personally to the Governor of Hong Kong was not taken up; the Governor of Hong Kong did not demur when it was suggested that pressuring parents to return to Vietnam by depriving their children of education was visiting the sins of the parents on their children.

2.We have mentioned under Article 2 above the unresolved question on the status of children of returning residents after 1st July 1997.

3.According to the British Nationality Act 1981, children one of whose parents is a British Dependent Territory Citizen having a connection with Hong Kong may acquire the British Dependent Territory Citizenship of that parent by way of descent. On average, the Hong Kong Government receives about 3,000 such applications a year from children of British Dependent Territory Citizens born in the People's Republic of China.

4.The Hong Kong Government has indicated that it will not entertain applications by such children after 1st July 1997 since the category of British Dependent Territory Citizens having a connection with Hong Kong will cease to exist after that date.

5.We are concerned that this arrangement may have the effect of depriving children of British Dependent Territory Citizens having a connection with Hong Kong the status of British Dependent Territory Citizenship by descent, a status which they acquired at birth, merely by reason of the fact that their parents lodged their applications for registration after 1st July 1997 even though they were born before that date. As the British Dependent Territory Citizenship is a pre-requisite for the status of British National (Overseas) and paragraph 85 of the Initial Report indicates that applications for registration of children as British National (Overseas) can still be made after 1st July 1997 but before 30th September 1997, we regard this arrangement as unduly harsh. We ask the Committee to raise our concerns and indicate to the United Kingdom Government that such an arrangement has the effect of depriving children of their entitlement to British nationality status and should be modified.


Article 25

Functional Constituencies

1.We note with regret that the case of Lee Miu Ling & Anor v Attorney General, which challenged the constitutional validity of the functional constituency system in Hong Kong's electoral law, suffered further defeats before the Court of Appeal and the Judicial Committee of the Privy Council on the grounds that the Letters Patent 1917-1993, the constitutional document setting out the composition of the Legislative Council was amended to immunize any electoral law delimiting the functional constituency system from any legal challenge on the basis of inconsistency with the ICCPR. An attempt to persuade the appellate courts to read Article VII(3) of the Letters Patent, which provides for constituencies on the basis of different descriptions, in accordance with treaty obligations and Article VII(5), which requires laws to be made in accordance with the provisions of the ICCPR as applied to Hong Kong, failed.

2.We also note that at the Court of Appeal, Bokhary JA said in obiter that a restriction to the exercise of a right under Article 21 of the Hong Kong Bill of Rights (equivalent of Article 25 of the ICCPR) would be reasonable unless any reasonable person would condemn it. We consider that Bokhary JA thereby wrongly lowered the standard required for the State to justify a restriction to the exercise of a right under Article 25 of the ICCPR and acted contrary to international jurisprudence, which requires a proportionality test. We note that General Comment 25(57) of the Committee on Article 25 of the ICCPR indicates that any restriction to the exercise of the rights protected by Article 25 must be reasonable and objective. We ask the Committee to indicate the content of the test of reasonableness required under Article 25 of the ICCPR.

3.We ask the Committee to maintain its recommendation on this issue set out in its Concluding Observations to the Fourth Periodic Report.

Access to Public Service

4.The localization policy of the Hong Kong Government was recently the subject of litigation at the High Court in Re Association of Expatriate Civil Servants of Hong Kong & Ors (1995) 5 HKPLR 490. A number of measures taken to implement the localization were subject to challenge by reason of their alleged incompatibility with Article 21 of the Hong Kong Bill of Rights.

5.Keith J held that 5 of the decisions complained of were contrary to Article 21(c) of the Hong Kong Bill of Rights as amounting to either an unreasonable restriction or a distinction prohibited by Article 1 of the Hong Kong Bill of Rights (in the present case, namely national or social origin).

6.On the other hand, Keith J held that 3 of the decisions complained of constituted a prima facie infringement of Article 21(c) of the Hong Kong Bill of Rights but were justifiable departures from the fundamental human right in question. Keith J held that these measures satisfied the test of rationality by reason of, inter alia, the need of the Hong Kong Government to maintain good industrial relations with local officers. This ruling was commented to be questionable since the Court appeared to have invoked "the doctrine of margin of appreciation" originated from the supra-national context of the European Court of Human Rights and applied it in the municipal and domestic context of Hong Kong. Further, good industrial relations and the corollary need to placate opposition to a government policy may not be objective and legitimate grounds of justification. These decisions are now the subject of an appeal. We ask the Committee again to indicate the content of the test of reasonableness under Article 21 of the ICCPR.

7.The litigation described above proceeded under the background of the Hong Kong Government's scheme of determining whether a new recruit to the civil service should be offered overseas conditions of service, which have increased benefits in terms of housing, passage and leave. This process of determination of a person's status is governed by Civil Service Regulation 115. We consider that the conditions under which overseas conditions of service are offered have the effect of excluding persons of genuine need in terms of housing and extra leave on the basis of race or national origin since persons who are habitually resident in Macau, China or Taiwan are predominantly ethnic Chinese. Hence it sanctions discrimination and creates two classes of employees based, in practice and to a large extent, on race. The criteria under Civil Service Regulations 115 have been adopted in tertiary institutions in Hong Kong regarding terms of employment. We ask the Committee to comment on the compatibility of these criteria with Article 21(c).

Service on the Selection Committee

8.Recently, a civil service union, the Senior Non-expatriate Officers Association, challenged by way of judicial review the decision of the Secretary for the Civil Service to impose a ban on directorate officers from serving on the Selection Committee, a body established for the recommendation of the first Chief Executive of the Hong Kong Special Administrative Region and the election of the Provisional Legislature. This challenge was based upon an alleged violation of the right to participate in public affairs enshrined in Article 21(a) of the Hong Kong Bill of Rights, in that directorate officers, who are identified on the basis of income, are the subject of the ban whether or not there is a rational connection between their duties and functions as civil servants on the one hand, and any actual or perceived conflict of interest arising out of their participation in the Selection Committee on the other hand, such as to jeopardize their impartiality, efficiency and integrity as civil servants. The judicial review undertaken by this civil service union was dismissed.

9.We consider that the trial judge under-estimated the importance of the right to participate in public affairs as pleaded by the applicant. Further, the trial judge failed to construe the requirements of the test of reasonableness as including an element of minimal impairment, since by considering directorate officers as a discrete unit within the civil service, the trial judge had placed little or no emphasis on the varieties of duties and functions exercised by any one of the officers in question. We ask the Committee again to indicate the content of the test of reasonableness under Article 21 of the ICCPR.

Boundary and Election Commission Ordinance (Cap 432)

10.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.

11.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.

12.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

13.The composition of the Selection Committee is provided by the Decision of the National People's Congress of 4th April 1990 [6]. It 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 Hong Kong Special Administrative Region and to elect the Provisional Legislature.

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

15.Hong Kong permanent residents therefore have no entitlement to be a member of the Selection Committee. Members of the Selection Committee cannot be considered as freely chosen representatives of Hong Kong citizens since they are not returned through an electoral process that is in conformity with Article 25(b) of the ICCPR. Nor are they accountable to the Hong Kong population through the electoral process adopted since their electors are not themselves freely chosen representatives of the Hong Kong population.

16.Further, the composition of the Selection Committee indicates that it is returned by a system of functional constituencies, which is in violation of Article 25(b) of the ICCPR.

17.Although the formation of the Selection Committee may be an act of state by the People's Republic of China rather than the United Kingdom, we believe that the issue is of such importance as to ask the Committee to express its concern.

Provisional Legislature

18.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 [16]. 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.

19.The establishment and operation of the Provisional Legislature is subject of much criticism in Hong Kong. The Hong Kong Bar Association passed a resolution during its Extraordinary General Meeting on 2nd September 1996 stating that it "does not support the establishment of a Provisional Legislature". The following are the major criticisms against the establishment of the Provisional Legislature:

The Preparatory Committee for the Hong Kong Special Administrative Region did not have the power to establish the Provisional Legislature.

There is no provision in the Basic Law [6] or the Decision of the National People's Congress of 4th April 1990 on the Formation of the First Government and First Legislative Council of the Hong Kong Special Administrative Region [6] for the establishment and operation of a provisional legislature. Hence the establishment and operation of a provisional legislature amounts to a contravention of the Basic Law and the National People's Congress Decision.

The Decision of the National People's Congress of 4th April 1990 on the Formation of the First Government and First Legislative Council of the Hong Kong Special Administrative Region makes provision for the composition and method of formation of the First Legislative Council of the Hong Kong Special Administrative Region. Hence any effort to establish a first legislative body for the Hong Kong Special Administrative Region, whether provisional in name or otherwise, must follow the above provisions of the National People's Congress Decision. The Decision of the Preparatory Committee for the Hong Kong Special Administrative Region on 26th March 1996 is therefore invalid since it seeks to establish a legislative body for the Hong Kong Special Administrative Region whose composition and method of formation are not in accordance with the National People's Congress Decision.

Since the Provisional Legislature is to come into operation after the appointment of the first Chief Executive of the Hong Kong Special Administrative Region, it is envisaged that it will be examining and approving laws before 1st July 1997, when Hong Kong will still be under British administration with a Legislative Council duly constituted according to law. Hence any attempt in law-making by the Provisional Legislature would be a usurpation of the authority of the Legislative Council of Hong Kong, even though such purported laws would only come into operation on 1st July 1997.

See in general, Yash Ghai, Back to Basics: The Provisional Legislature and the Basic Law [17].

20.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 Article 25(a) of the ICCPR since the membership of such a Provisional Legislature cannot fairly be described as freely chosen representatives of the Hong Kong population. This is because members of the Selection Committee are not freely chosen representatives of the Hong Kong population, in view of their election by the Preparatory Committee for the Hong Kong Special Administrative Region, a body of appointees.

21.Further, the establishment and operation of a Provisional Legislature having effect upon the territory of Hong Kong before 1st July 1997 constitutes a violation of Article 25(b) of the ICCPR since the method of formation of the Provisional Legislature is not by way of equal and universal suffrage.

22.Although the establishment of the Provisional Legislature may be an act of state by the People's Republic of China rather than the United Kingdom, we believe that the issue is of such importance as to ask the Committee to express its concern.


Article 26

1.We have considered the issues of anti-discrimination legislation and the Indian/ethnic minorities in Hong Kong under Article 2 of the ICCPR. We have also considered the issue of the implementation of the Sex Discrimination Ordinance (Cap 480) under Article 3 of the ICCPR.

Implementation of the Disability Discrimination Ordinance (Cap 487)

2.While it is gratifying to report that the Equal Opportunities Commission came into full operation on 20th September 1996 following the coming into operation of most of the provisions of the Disability Discrimination Ordinance (Cap 487), it is regrettable to indicate that the Equal Opportunities Commission is still unable to take up any complaints in employment-related disability discrimination since all provisions of the Disability Discrimination Ordinance relating to employment are not yet into operation. The Hong Kong Government has indicated that the delay in the employment field is due to the need to produce codes of practice. We note that the Equal Opportunities Commission has consulted interested groups in relation to draft codes of practice and is now consulting the public. However, we do not consider that the need for clear and accessible codes of practice should compromise the urgent need of complainants to seek justice from the Equal Opportunities Commission and the District Court. Hence we find the reason for such a "step-by-step" arrangement to be unconvincing and urge the Committee to ask the Hong Kong Government to reconsider its position.

Migrant Workers

3.There are different categories of foreign workers in Hong Kong. A person who enters Hong Kong for employment is subject to the condition of stay that he shall only take such employment or establish or join in such business as may be approved by the Director of Immigration.

4.Professionals and others with technical expertise or administrative and managerial skills are allowed into Hong Kong with few restrictions or conditions; the Director of Immigration is concerned with ascertaining the existence of a bona fide employment relationship. Such persons may extend their limit of stay in Hong Kong and can in time apply for change of status to that of resident (ie not subject to any condition of stay). They are also at liberty to sponsor their family members toenter and reside in Hong Kong as dependents.

5.Others, such as foreign domestic helpers and imported skilled workers, are subject to a more restrictive policy regime.

Foreign Domestic Helpers

6.The importation of foreign domestic helpers is regulated by a policy administered by the Immigration Department since 1983. Persons subject to this policy are those who are not residents of Macau, China or Taiwan and are employed to perform domestic duties for an employer in Hong Kong. A standard two year employment contract applies to every foreign domestic helper. A description of the policy and its administration is set out in a report by the Commissioner for Administrative Complaints. We ask the Committee to bear in mind in considering this topic the provisions of the ILO Convention Concerning Migration for Employment (No 97) (Revised 1949), which was extended to Hong Kong by the United Kingdom, a member of the ILO, and in particular, Articles 2 and 6 thereof.

7.Although a foreign domestic helper is permitted to enter into a new employment contract with the same or a new employer upon completion of an employment contract, her visa application will be processed in the same way as an application for an initial entry visa. Multiple re-entry visas are not contemplated under the policy to be issued to foreign domestic helpers who are able to work in Hong Kong for an extended period, since they are expected to take home leave before starting their new contracts, even where the contracts are with the same employer. Therefore, it can be said that the policy does not contemplate and entertain the event where a foreign domestic helper applies for change of status to that of a resident on the basis of a period of ordinary residence in Hong Kong as a foreign domestic helper under the standard employment contract. We ask the Committee to require the Hong Kong Government to justify the rationale of this policy, which imposes an unwarranted restriction specifically upon foreign domestic helpers amongst foreign workers in Hong Kong.

8.Unlike professional migrant workers, foreign domestic helpers are not permitted under immigration policy to sponsor family members to enter and reside in Hong Kong as their dependents. The Economic Committee recognised this issue (being a discriminatory practice) as a matter of concern in its Concluding Observations in December 1994 and made a recommendation that the Hong Kong Government should review the employment conditions of foreign domestic helpers to provide the full enjoyment of the rights under the ICESCR. We regret to report that the Hong Kong Government has so far failed to conduct the review recommended and ask the Committee to adopt a similar recommendation and call on the Hong Kong Government to explain this failure.

9.We are disappointed to inform the Committee that on the pretext of "controlling illegal immigration", the Hong Kong Government started to implement or preparations to implement, the following administrative measures since December 1995:

All foreign domestic helpers who are applying for an identity card, or are replacing an old one, will receive an identity card with a special "W" prefix. Such an identity card will, it is suggested, distinguish them from the general population and enable their immigration status to be easily ascertained.

It is proposed that all foreign domestic helpers will be required to surrender their identity cards to the Immigration Department for cancellation on their departure at the end of their contracts.

We consider that these measures have the effect of distinguishing and stigmatising foreign domestic helpers within the Hong Kong society as a high risk group so far as overstaying is concerned. We ask the Committee to call on the Hong Kong Government to justify the need to impose such measures.

Immigration from the People's Republic of China for Family Reunion

10.The immigration policy with respect to family reunion from the People's Republic of China compares unfavourably with the immigration policy with respect to family reunion from other countries, such as Indonesia or Thailand, where applications can be approved by the Hong Kong Immigration Department in a matter of months. We believe that in these circumstances, the maintenance of the immigration policy with respect to family reunion from the People's Republic of China amounts to a violation of Articles 2 and 26 of the ICCPR, ie maintaining a distinction in the enjoyment of family rights and perpetrating discrimination on the basis of national origin.


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.On the other hand, it was reported that the People's Republic of China had decided to exclude the ICCPR and the ICESCR from the list of international treaties which she would agree to apply to Hong Kong after 1st July 1997 [18]. This signal appeared to be in conflict with that expressed by the authorities of the People's Republic of China to a visiting delegation of the Bar Council of the Hong Kong Bar Association, which stated that the continued application of the ICCPR and the ICESCR had been secured under the Joint Declaration between the United Kingdom and the People's Republic of China and set down under Article 39 of the Basic Law [6]. However, it was further stated that the reporting obligation would not be applicable to Hong Kong since the People's Republic of China is not a State Party to both the ICCPR and the ICESCR.

3.We note that representatives of the People's Republic of China will attend the hearing of the Committee on 23rd October 1996 as observers. We urge the Committee to make formal or informal inquiries with these representatives of the People's Republic of China as to the true position of the People's Republic of China on the continued application of the reporting obligation under the ICCPR.

4.We remain of the view as stated in our previous briefing paper that the statement of the basic policy of the People's Republic of China in Annex I of the Joint Declaration that "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" indicates that the People's Republic of China 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. 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 United Kingdom and the People's Republic of China to exercise their best efforts to bring about a situation which would enable the People's Republic of China 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 United Kingdom and People's Republic of China 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" by virtue of the following factors: factual/"stately" attributes (permanent population, distinct territory, and effective government); the international recognition extended to it as an autonomous entity; a substantiated claim to "international legitimacy" (by adherence to international norms -- rule of law, democratic principles, protection of universally recognised human rights and fundamental freedoms); an international legal entitlement (right to self-determination); membership in the "international civil society" (international organizations and associations); as well as sui generis qualities. See Roda Mushkat, Hong Kong as an International Legal Person, (1992) 6(1) Emory International Law Review 105 [20]. This theory may provide support for the proposition of Dr Nihal Jayarickrama that Hong Kong succeeds from the United Kingdom the obligations of the ICCPR through implied state succession in human rights treaties [21]. In the event that both the United Kingdom and People's Republic of China 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.We note the suggestion from the House Committee of the Legislative Council that the United Kingdom Government should be asked to submit a report in respect of Hong Kong after this Supplementary Report to submit "a concluding report as at 30th June 1997 to review the implementation of the ICCPR in Hong Kong after one and a half centuries of colonial rule". While we doubt the connection between the ICCPR, which came into operation in 1976, with one and half centuries of colonial rule of the United Kingdom over Hong Kong, we consider this request for a report from the United Kingdom Government, either generally or on a specific topic, such as the preparation being done for the transfer of sovereignty by the United Kingdom and the People's Republic of China 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. Provided that the requested report, or a part of the requested report, such as the core documents, is submitted by the United Kingdom before 30th June 1997, it can be argued that the obligation borne upon by the United Kingdom does not cease until the termination of the whole reporting exercise before the Committee. Provided that the Committee maintains requests for follow-up information, it can be argued that the United Kingdom would be obliged to come before the Committee to respond to those requests. We ask the Committee to consider these arguments if the United Kingdom and People's Republic of China 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 United Kingdom and People's Republic of China 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

1.In a paper entitled "Rights and Freedoms under the Basic Law" [22], Professor Yash Ghai of the University of Hong Kong discussed the provisions of the Basic Law [6] which protects human rights, both "civil and political" and "economic and social".

Article 39

2.Article 39 of the Basic Law [6] provides: "The provisions of the International Covenant on Civil and Political Rights ... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region". The enactment of the Hong Kong Bill of Rights Ordinance (Cap 383) [1] is a method of implementing the provisions of the ICCPR as applied to Hong Kong. Hence it cannot be said that the Hong Kong Bill of Rights Ordinance, being a piece of ordinary legislation enacted by the Governor, by and with the consent and advice of the Legislative Council, is a superior law. Rather it is complementary to Article 39 of the Basic Law and provides a specific mechanism for the protection of the civil and political rights in the ICCPR as applied to Hong Kong.

3.Article 39 of the Basic Law further states: "The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article." Hence consistency with the ICCPR as applied to Hong Kong will, under Article 39 of the Basic Law, be the standard on which restrictions to the rights and freedoms of Hong Kong residents is measured. Judges therefore are expected to judicially review legislation and administrative practices to see if they are consistent with Article 39 of the Basic Law.

4.For a discussion on Article 39 of the Basic Law, see Yash Ghai, Compatibility of the Bill of Rights and the Basic Law [23]. For a discussion on the interpretations of Article 39 of the Basic Law by People's Republic of China officials and the effect of such interpretations on the Hong Kong Bill of Rights Ordinance, see Ann Jordan, The Bill of Rights Ordinance and Article 39 of the Basic Law of the Hong Kong Special Administrative Region [24].

Article 40

5.Article 40 of the Basic Law [6] provides for the protection of lawful traditional rights and interests of the indigenous inhabitants of the "New Territories"'. It is not known what these "lawful traditional rights and interests" are, though Article 122 of the Basic Law may indicate a related interest, namely the advantageous rent concession applied to certain land in the New Territories so long as the property is held by a lessee descended through the male line from a person who was in 1898 a resident of an established village in Hong Kong or by one of his lawful successors in the male line.

6.One of the controversies related to the interpretation and implementation of Article 40 of the Basic Law is the legality of the New Territories Land (Exemption) Ordinance (Cap 452), which has been discussed above. It has been suggested that since the protection in Article 40 of the Basic Law applies to "lawful" traditional rights and interests, a custom that provides for intestate succession to property in favour of male descendants is not entitled to protection since such a custom is not a lawful one, as it violates Article 25 of the Basic Law (which provides that all Hong Kong residents shall be equal before the law) and Article 39 of the Basic Law (which implements the ICCPR, including the equal right of men and women to enjoy human rights). In view of Article 122, which renders constitutional a discriminatory treatment in rent collection in respect of land held by indigenous New Territories residents, the validity of this contention is doubtful.

Article 18 -- National Laws

7.Article 18 of the Basic Law [6] provides that national laws of the People's Republic of China shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to the Basic Law. The Laws listed in Annex III shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Hong Kong Special Administrative Region as specified by the Basic Law.

8.The PWC recommended that Annex III be amended to add, inter alia, the Regulations of the People's Republic of China concerning Consular Privileges and Immunities. In conjunction with this, the PWC recommended that International Organizations and Diplomatic Privileges Ordinance (Cap 190); the Administration of Estates by Consular Officers Ordinance (Cap 191); the Consular Relations Ordinance (Cap 259); and the Consular Conventions Ordinance (Cap 267) should not be adopted as laws of the Hong Kong Special Administrative Region by operation of Article 160 of the Basic Law.

9.We are of the view that so long as there is local legislation which is consistent with the treaty obligations and provisions of the relevant National Law, it is not necessary for there to be amendment to Annex III to apply additional National Laws to the Hong Kong Special Administrative Region. Further, local legislation is often required in a common law legal system to provide for the application of international obligations in Hong Kong. Moreover, local legislation is preferable in view of the different drafting conventions between Hong Kong and the People's Republic of China, which may present difficulties and create inconsistencies in interpretation.

Article 18 -- State of Emergency

10.The Committee considered as a matter of principal concern that Article 18 of the Basic Law [6] on the definition of a state of emergency appears not to correspond with Article 4 of the ICCPR.

11.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. In our view, such "relevant national laws" may include the Martial Law of the People's Republic of China adopted on 1st March 1996, which empowers the organization implementing martial law during the period of martial law to adopt measures for the following purposes: prohibiting or restriction meetings, processions, demonstrations, public speeches or other public gatherings; prohibiting strikes; imposing news restrictions; imposing communications, post and telecommunications restrictions; imposing immigration restrictions; and prohibiting any action opposing martial law. Curfews may be imposed in state of martial law. This is also provision for the authorised use of arms and other weapons.

Article 19

12.The Committee considered as a matter of principal concern that the jurisdiction of the Court of Final Appeal will not extend to reviewing undefined "acts of state" by the executive. Specific provision is made in Article 19 of the Basic Law [6] to indicate that the courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs. A certificate from the Chief Executive shall be binding on the courts in relation to questions of fact concerning acts of state.

13.A People's Republic of China 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

14.We have mentioned the provision in Article 23 of the Basic Law [6] on the prohibition of treason, secession, sedition, subversion against Central People's Government, and theft of state secrets under Article 19 of the ICCPR above.

15.Article 23 of the Basic Law 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

16.Article 160 of the Basic Law [6] 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."

17.Officials of the People's Republic of China 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 People's Republic of China will resume the exercise of sovereignty over Hong Kong with effect from 1st July 1997. The operative effect of these words are unknown.

18.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. We have already addressed the validity of the recommendation in respect of the International Organizations and Diplomatic Privileges Ordinance (Cap 190), Administration of Estates by Consular Officers Ordinance (Cap 191), Consular Relations Ordinance (Cap 259), Consular Conventions Ordinance (Cap 267), Boundary and Election Commission Ordinance (Cap 432), New Territories Land (Exemption) Ordinance (Cap 452), Societies (Amendment) Ordinance 1992 (75 of 1992), Television (Amendment) Ordinance 1993 (22 of 1993) and Public Order (Amendment) Ordinance 1995 (77 of 1995).

19.In relation to the other Ordinances and provisions recommended for non-adoption, we make the following general observations:

20.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 People's Republic of China 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.

Dated 10th October 1996.

__________________________

P. Y. Lo, Member, Hong Kong

Human Rights Monitor


List of Enclosures

FOOTNOTES




1996 (c) Hong Kong Human Rights Monitor

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