Memorandum Prepared for the Human Rights Committee on the Fourth Periodic Report

Memorandum Prepared for the Human Rights Committee on the Fourth Periodic Report by the United Kingdom of Great Britain and Northern Ireland in Respect of Hong Kong under the International Covenant on Civil and Political Rights

Lawyers Committee for Human Rights

A Report of the Lawyers Committee for Human Rights
October 1995

Table of Contents

The Fourth Periodic Report by the United Kingdom of Great Britain and Northern Ireland in respect of Hong Kong, dated as at the end of June 1995, is particularly significant because it is the last periodic report on Hong Kong before July 1, 1997, when Britain's sovereignty over Hong Kong is scheduled to revert to the People's Republic of China. The report is noteworthy for its scope and attention to detail, as well as for its account of the commendable progress that has been made in a number of areas since the Third Periodic Report. For example, the death penalty has been abolished in Hong Kong, amendments to bring various existing laws into line with the provisions of the ICCPR have been passed, new legislation to prohibit discrimination on the basis of disability and of sex has been enacted, and a wide-ranging campaign to educate the populace about human rights has been carried out. However, many areas of concern remain, both in the implementation of the ICCPR in Hong Kong as well as in the scope and tenor of the Fourth Periodic Report. This submission attempts to highlight some of these areas.

Article 2

The report describes how the Hong Kong government set up a committee to review the workings of the Independent Commission Against Corruption (ICAC), an agency established by law to investigate suspected cases of corruption or related offenses and given wide powers of investigation and detention, some of which have been prone to abuse. In its deliberations, the review committee specifically sought, among other things, to "increase [ICAC's] accountability and transparency in the exercise of [its] powers, and to ensure that these powers are compatible with the BORO [Bill of Rights Ordinance]." (Fourth Periodic Report, Section B, Paragraph 20).

While the review committee recommended that the ICAC stay away from matters of ordinary police jurisdiction, it unfortunately refused to recommend any change in provisions requiring an assumption that unexplained funds held by civil servants are ill-gotten. The review committee also declined to make its own workings more accountable and transparent by opening its meetings to the public, and refused to include in its official report a dissenting view written by a member of the ICAC Review Committee who disagreed with some of the key conclusions and recommendations of the majority. The review committee's conclusions and recommendations as they relate to freedom of the press will be discussed at greater length in the section on Article 19 below.

The report notes that the Hong Kong government has concluded that the establishment of an independent Human Rights Commission "was not the best way forward in the particular circumstances of Hong Kong." (Fourth Periodic Report, Section B, Paragraph 20) The Lawyers Committee regrets this decision, and continues to believe that such a commission, endowed with statutory powers, would have performed an important function, especially in monitoring the Hong Kong government's review of legislation to ensure its conformity with the Bill of Rights Ordinance and in expanding the access of citizens to the courts (see discussion of Articles 14 and 19 below).

Article 3

The Lawyers Committee applauds the decision of the Hong Kong government to seek the extension of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to Hong Kong, and urges that this matter be completed as expeditiously as possible. The report properly notes that consultation with the Chinese government will be necessary; however, since China has already ratified CEDAW, its extension to Hong Kong should not present any insurmountable obstacles.

The enactment of the Sex Discrimination Ordinance in June 1995 represents a step forward in the implementation of the ICCPR with respect to the equal rights of men and women. However, the ordinance is riddled with exceptions and delays in implementation, and existing discrimination against women now enshrined in other legal provisions has yet to be rooted out. These issues will be discussed in greater detail in the section on equality and non-discrimination under Article 26 below.

Article 9

The report discusses at length the situation with respect to Vietnamese asylum seekers in Hong Kong, including status determination procedures, housing arrangements, legal assistance, and the implementation of the repatriation programs, both voluntary and forced (Section B, Paragraphs 96-118). The report does not note, however, that currently only one nationality the Vietnamese may claim asylum under Hong Kong's Immigration Ordinance. The Lawyers Committee believes that the right to seek asylum in Hong Kong should be extended to all refugees, regardless of nationality, and that the UK government should take prompt measures to extend to Hong Kong the UN Convention and Protocol relating to the Status of Refugees.

Article 12

The report discusses the right of a person to leave Hong Kong, the issuance of appropriate travel documents to all who are eligible for them, and the right of all permanent residents of Hong Kong to enter and stay in Hong Kong unconditionally. Rather disingenuously, the report declares that "[n]o British passport holders have had their passports withdrawn," and "[a]ny long-term resident of Hong Kong who cannot obtain a travel document from any other Government will be issued a Hong Kong travel document." (Fourth Periodic Report, Section B, Paragraphs 150, 151) What the report fails to point out is the fact that Hong Kong residents who hold British passports do so as "British Dependent Territories Citizens" (BDTC) or "British Overseas Citizens"; their BDTC or "British National Overseas" (BNO) passports do not entitle them to live in Britain, and present them with greater travel restrictions than full British passports. In 1990, the UK government agreed to allocate 50,000 full British passports to Hong Kong heads of household meeting certain eligibility requirements. However, this scheme falls far short of fully addressing the issue of the right of abode in Britain for British subjects in Hong Kong.

The problem is particularly acute for Hong Kong's minority groups, primarily those of Indian and Pakistani descent. As holders of BDTC or BNO passports, they do not have the right of abode in Britain and are not entitled to full British nationality. However, under Chinese nationality law, they will not be recognized as Chinese nationals either. In effect, such persons will become stateless after the transfer of sovereignty. Furthermore, while at present such permanent residents of Hong Kong may be able to leave and return to Hong Kong at will, their ability to do so after 1997 is by no means guaranteed, since it will be subject to certain ambiguous conditions, including a "continuous domicile" test, specified in Article 24 of the Basic Law of Hong Kong.

There have been periodic attempts to persuade Britain to face up to its moral and legal obligations to its subjects in Hong Kong, including a recent statement by Chris Patten, the colony's Governor, that the holders of BDTC or BNO passports in Hong Kong should have the right to live in Britain after Hong Kong reverts to China in 1997. However, the UK government has so far refused to reconsider the matter. The citizens of Hong Kong, unlike the British subjects in most other former colonies, were never given the opportunity to decide on Hong Kong's colonial status and political future. It seems only fair that Britain should at least make it possible for those who wish to remain British subjects to do so, with their full rights of British nationality restored to them, including the right of abode in the United Kingdom.

Article 14

The report notes that the right of access to the legal system in Hong Kong has been improved by expanding an already comprehensive system of legal aid (Section A, Part III). However, the Lawyers Committee believes that there is still much room for improvement. For example, the establishment of an independent non- governmental authority to oversee the administration of the Legal Aid Department would minimize any potential conflict of interest and enhance the ability of people with low incomes to bring cases alleging infringement of their civil and political rights. In the same vein, the rule that the loser pays all costs should not apply to cases brought under the Bill of Rights Ordinance.

The report sets forth the measures that have been taken to establish a Court of Final Appeal (CFA) in Hong Kong, in order to ensure the continued availability of judicial review by a higher tribunal upon the transfer of sovereignty on July 1, 1997 (Section B, Paragraphs 189-192). The Lawyers Committee is troubled by certain aspects of the June 9, 1995 agreement between Britain and China to establish the CFA, and of the legislation that was eventually enacted in July 1995. Specifically, by limiting the number of foreign judges on the court to one out of five, instead of allowing the CFA the freedom to invite judges from other common law jurisdictions as it deems necessary, the agreement and now the ordinance have deprived the court of the flexibility and discretionary power implicit in the Sino-British Joint Declaration and in Article 82 of the Basic Law of Hong Kong. Delaying the actual establishment of the CFA until after June 30, 1997, is also extremely unfortunate, since the court is denied the opportunity to gain credibility and experience prior to the changeover in sovereignty, and to build a body of precedents and interpretation grounded in the pre-existing common law tradition that would help provide continuity and stability to the legal system in Hong Kong.

Furthermore, the Lawyers Committee is particularly troubled by the ambiguous restrictions that have been placed on the jurisdiction of the CFA. By specifically exempting, in Clause 4(2) of the CFA Ordinance, "acts of state such as defence and foreign affairs" from the jurisdiction of the CFA, without at the same time making it equally clear that "acts of state" is a term of art to be interpreted according to common law precepts and tradition, the ordinance would appear to allow for an unjustifiably expansive interpretation. This possibility is made all the more disturbing by the ambiguities of Article 158 of the Basic Law, which governs the interpretation of the Basic Law particularly as it relates to the relationship between the central authorities in China and the Special Administrative Region of Hong Kong.

Finally, the June 9 agreement specifies that "the team designate of the Hong Kong Special Administrative Region shall, with the British side (including relevant Hong Kong Government Departments) participating in the process and providing its assistance, be responsible for the preparation for the establishment of the Court of Final Appeal." This formulation raises concerns about possible interference by the executive branch with the future independence of the Hong Kong judiciary.

The June 9 agreement and the CFA ordinance raise troubling questions about the future of the rule of law as well as the continued competence, independence and impartiality of the judiciary in Hong Kong after 1997. These issues would in turn have serious implications for the rights and liberties that the people of Hong Kong currently enjoy.

Article 19

The report enumerates the action taken in respect of various ordinances in order to bring them into line with the right to freedom of the press and of expression under BORO (Section B, Paragraphs 213-238). Although these changes are by and large welcome, the list looks far more impressive than is warranted by the record. Many of these changes do not go far enough: for example, the Emergency Regulations Ordinance still contains wide-ranging and ill-defined powers, and fails to provide a clear legal definition of what constitutes a "state of emergency"; while the Defamation Ordinance continues to make libel a criminal offense punishable by imprisonment. Other reforms affect areas that are not crucial to the protection of freedom of expression. Moreover, since August 1992, when the Hong Kong government undertook to review laws that may be incompatible with rights under Article 19 of the ICCPR, officials have time and again missed their deadlines for the review and amendment of legislation, raising serious questions as to whether review and amendment of those laws posing the greatest threat to freedom of expression will be completed by 1997.

Of particular concern are several security-related laws that present serious threats to freedom of expression and of the press in Hong Kong, but as to which the government has so far announced no plans for amendments. These include: the 1989 Official Secrets Act, a British statute applied to Hong Kong; the Crimes Ordinance, as it relates to treason and sedition; the Telecommunication Ordinance and the Post Office Ordinance, as they relate to the interception of telecommunications and mail, and to the mailing of seditious publications; and the Prevention of Bribery Ordinance as it relates to unauthorized reporting about anti-corruption cases.

The 1989 Official Secrets Act prohibits the unauthorized disclosure of classified government information; it does not provide for any public interest or prior publication defenses. While it will automatically lapse upon China's resumption of sovereignty in 1997, the issue of official secrets continues to be of great concern because Article 23 of the Basic Law, Hong Kong's future Constitution, requires the Hong Kong Special Administrative Region to enact laws prohibiting, among other things, the theft of state secrets a phrase without meaning in the context of Hong Kong law. Furthermore, there appears to be no clear legal definition of what constitutes "state secrets"; the term appears to be applied arbitrarily by Chinese authorities. A painful illustration of this was the October 1993 arrest in Beijing of Xi Yang, a journalist for the Hong Kong newspaper Ming Pao, and his subsequent conviction under provisions of China's State Security Law for "probing into and stealing state financial secrets" apparently reporting on Chinese official plans to sell gold and raise interest rates. Mr. Xi is currently serving a 12-year jail sentence in China.

The concern with the Crimes Ordinance, as it relates to treason and sedition, is with its overly broad provisions for the prosecution of publications of an allegedly treasonable or seditious nature. Unfortunately, however, the Hong Kong government's review of these provisions appears to be limited only to amending references in the ordinance to the Queen and the UK government (Section B, Paragraph 229).

The Telecommunications Ordinance and the Post Office Ordinance continue to include provisions that give the government wide powers to intercept and censor telecommunications and mail. The latter ordinance also includes a prohibition on the mailing of seditious publications, which also raises the question of what constitutes sedition, and whether the offense of sedition should continue to exist in a free and open society. The Prevention of Bribery Ordinance (POBO) was part of a wide-ranging review of the powers of the ICAC by the ICAC Review Committee. Section 30 of POBO, which has been the subject of much controversy, bars the disclosure, without lawful authority or reasonable excuse, of an ongoing investigation by the ICAC until an arrest has been made in the case. The Hong Kong Journalists Association has consistently argued that Section 30 should be rescinded or replaced with a less all-embracing provision, in order to protect freedom of expression. However, the majority of the ICAC review committee recommended that Section 30 be retained as is. The lone dissenting view on this issue was held by Christine Loh, a member of the Legislative Council (Legco), who recommended that the press provisions of Section 30 be abolished or circumscribed.

The status of Section 30 was thrown into doubt when a magistrate ruled earlier this year that the provision was inconsistent with Article 16 of the Hong Kong BORO (which mirrors Article 19 of the ICCPR), at the end of a trial involving the publisher and several journalists from the Ming Pao newspaper. The defendants had been charged with disclosing details of an investigation into possible corrupt behavior in the conduct of a land auction. The magistrate held that the defendants had no case to answer, since Section 30 had been repealed by the BORO. The government appealed, and in July 1995 the Court of Appeal held for the government, remanding the case to the magistrate court for trial. The Lawyers Committee supports the efforts of Christine Loh and others to amend Section 30 of the POBO in order to remove the restrictive press provisions.

Much of the concern among journalists and others over these issues of freedom of expression and of the press can be traced to uncertainty about the "China factor," and in particular to unease over Article 23 of the Basic Law, which poses perhaps the greatest constitutional danger to such freedoms after 1997. Article 23 stipulates that the Special Administrative Region shall enact laws to prohibit any acts of treason, secession, sedition, subversion against the government in Beijing, or theft of state secrets. To a greater or lesser degree, these are some of the very areas affected by the ordinances discussed above. The Hong Kong government's uneven rate of progress in carrying out the review and amendments of existing legislation not to mention introducing new legislation to safeguard rights under the BORO appears to reflect the degree of sensitivity of particular issues to the Chinese authorities.

One area in which new legislation is urgently needed is that of ensuring and enhancing public access to information. As the report notes (Section B, Paragraphs 242-244), the Hong Kong government chose to adopt an administrative code on public access to government information rather than adopt legislation proposed by a member of the Legislative Council that would have enshrined such access. While the code has no doubt helped to bring more transparency and accountability into the government, on the other hand it is non-binding, does not apply as yet to all government branches and departments, and does not apply to information held by public agencies. The Lawyers Committee supports efforts to enact legislation that would enshrine the right to freedom of information.

Article 25

The report describes, among other things, the measures taken by the Hong Kong government to enable the public to take part in the conduct of public affairs and to vote. The results can be seen in the success of the recently concluded elections to various elective bodies, in particular the hotly contested Legislative Council elections. In this context, it is all the more regrettable that China has adamantly refused to acknowledge the validity of these elections, and instead has pledged to dismantle the newly-elected Legislative Council promptly upon resuming sovereignty over Hong Kong. It is also regrettable, in view of the recent legislative elections, that Governor Patten has threatened to use his power of veto to block legislative initiatives that he considers contrary to Hong Kong's best interests. (See Appendix A).

Article 26

Significant progress has been made in Hong Kong to ensure equal protection and non-discrimination under the law for its citizens. Recently enacted legislation prohibits discrimination on the basis of disability and of sex. However, these ordinances have been saddled with multiple exceptions and delays in implementation, and existing discrimination against women now enshrined in other legal provisions has yet to be rooted out. For example, while legislation was passed in 1994 to eliminate discrimination against indigenous women with respect to the inheritance of land and real estate in the New Territories (Section B, Paragraph 356), the New Territories Small House Policy continues to restrict to male indigenous villagers the right to build a small house on their own agricultural land (Section B, Paragraph 358).

More troubling still is the Hong Kong government's rejection of a comprehensive Equal Opportunities Bill introduced by Legislative Councillor Anna Wu in July 1994. In its original form, the bill would have created a human rights and equal opportunities commission, and provided comprehensive legislation to prohibit discrimination by the government and private persons on the grounds of sex, disability, age, family responsibility, sexual orientation, race, religious or political conviction, trade union activities and spent conviction. To facilitate passage of the government-sponsored bills against discrimination on the basis of sex and of disability, Ms. Wu agreed to restructure her bill into three parts while dropping the sex and disability provisions. Thereafter, for over a year the Bills Committee of Legco met weekly to discuss the reformulated Equal Opportunities Bills, receiving submissions from a wide variety of business and grassroots organizations as well as from individuals. However, the government chose not to participate in these Bills Committee meetings, instead waiting until after the deadline for the submission of amendments had passed before circulating, among selected Legco members (but not including Ms. Wu), a long list of criticisms of the three bills. The government's tactics appeared calculated to prevent passage of the bills rather than to raise principled objections to their content, and raise questions as to the sincerity of the government's avowed support for equal opportunities for all.

Article 40

It would be impossible to overstate the importance of ensuring that periodic reports on Hong Kong under Article 40 of the ICCPR continue to be presented to the UN Human Rights Committee. It is therefore most disappointing to note that the question of how the reporting obligations will be carried out after 1997 remains unresolved.

The Lawyers Committee for Human Rights joins human rights advocates in Hong Kong in urging China to accede to the ICCPR before June 30, 1997 and to assume full obligations thereunder, or at least to assume the obligation of making periodic reports on Hong Kong to the UN Human Rights Committee. The Lawyers Committee also urges the UNHRC to consider alternative mechanisms for maintaining the periodic reporting, such as by inviting the government of the future Hong Kong Special Administrative Region, with China's acquiescence, to prepare and present the periodic reports directly to the UNHRC.

Conclusion

The Lawyers Committee urges the UK and Hong Kong governments to seek the extension of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the UN Convention and Protocol relating to the Status of Refugees to Hong Kong. Furthermore, the Lawyers Committee calls on the UK government to restore full nationality rights, include the right of abode in Britain, to all British subjects in Hong Kong.

With respect to the ongoing project of reviewing, amending and introducing legislation in Hong Kong to ensure compliance with the Bill of Rights Ordinance, the Lawyers Committee urges the Hong Kong government to complete this project as expeditiously as possible, a process that should not be deflected by any attempts by the Chinese government to assert sovereign authority before July 1, 1997.

Finally, the Lawyers Committee urges China to accede to the ICCPR before June 30, 1997 and to assume full obligations thereunder, or at least to assume the obligation of making periodic reports on Hong Kong to the UN Human Rights Committee.

Appendix A: FINANCIAL TIMES, October 12, 1995. Back.