22 March 2006
Human Rights Committee Urges Hong Kong to Boost Efforts to Ensure Freedoms of Press, Religious Expression
As Committee Concludes Review of Report, Representative Says Covenant Rights, Freedoms Would Become Cornerstone of Hong Kong's Success, Prosperity
NEW YORK, 21 March (UN Headquarters) -- United Nations human rights experts monitoring worldwide measures to protect and promote civil and political freedoms today encouraged officials from the Hong Kong Special Administrative Region-China to build on solid democratic progress by boosting their efforts to ensure freedoms of the press and religious expression, and to consider creating a national human rights institution and working towards universal suffrage.
Christine Chanet, expert from France, who summed up the Human Rights Committee's two day consideration of the Hong Kong Special Administrative Region (SAR)'s second periodic report on compliance with the International Covenant on Civil and Political Rights, praised the importance the delegation and Hong Kong civil society attached to the reporting process throughout the years. The Court of Final Appeal and the entire judiciary process were also very positive.
She said, however, that one thing that kept showing up was the issue of intimidation against the Legislative Council -- the body which enacted, amended or repealed laws, approved taxation and raised questions on the work of the SAR Government. Despite all the democratic elements in place, she felt there was a degree of risk in maintaining the somewhat delicate balance. She thought the draft on public security helped to maintain that balance, and it would be a shame to jeopardize the level of freedom prevailing in Hong Kong if the self-censorship was not preserved. She also hoped there would be no threats to freedom of the press.
In addition, when the Committee considered Hong Kong's first report in 1999, the delegation had said that referral of a basic law decision to the Standing Committee of the National People's Congress was only supposed to have been a one-time thing, on an exceptional basis, but that seemed not to have been the case. What was at stake was article 25 of the Covenant, on voting and standing for election, and Hong Kong's interpretation of the reservation.
The delegation had given the experts its opinion on the maintenance of the reservation -- that that was a way of protecting a given situation, in order not to go straight to universal suffrage, at least not 100 per cent. Committee members had expressed their dissent, and the delegation would find that in their concluding comments, she said.
Head of the Hong Kong SAR's delegation, Carrie Lam Cheng, Permanent Secretary for Home Affairs, Home Affairs Bureau, said that through the implementation of the Covenant as applied to Hong Kong and relevant provisions in the Basic Law, those rights and freedoms would now become the cornerstone of Hong Kong's success and prosperity.
Another member of the delegation said that for passage of domestic legislation, a simple majority was sufficient; a two-thirds majority was a special rule. It was certainly not true, as one expert had inferred, to say that the current composition of the Legislative Council made it difficult to enable liberal reforms.
The Committee will reconvene next in an open meeting on Monday, 27 March, to discuss its working methods.
The Human Rights Committee met today to conclude its consideration of the second periodic report on compliance with the Covenant by the Hong Kong Special Administrative Region-China (CCPR/CHKG/2005/2).
The delegation of China consisted of: Carrie Lam Cheng Yuet Ngor, Permanent Secretary for Home Affairs, Home Affairs Bureau; Robert Charles Allcock, Solicitor General, Department of Justice; Joseph Lai Yee Tak, Deputy Secretary for Constitutional Affairs, Constitutional Affairs Bureau; Linda So Ka Pik, Principal Assistant Secretary, Security Bureau; Charles Wong Sze Ping, Principal Assistant Secretary, Security Bureau; John Dean, Principal Assistant Secretary for Home Affairs, Home Affairs Bureau; Amy Yeung Wai Sum, Assistant Secretary for Home Affairs, Home Affairs Bureau; Cynthia Tong Man Kwong, Principal Information Officer, Home Affairs Bureau; Lai Yen Man, Government Counsel, Department of Justice; and Stella Chui Sze Man, Information Officer, Constitutional Affairs Bureau.
Responding to a number of comments and questions that had been posed by the Committee's experts yesterday, CARRIE LAM CHENG, Permanent Secretary for Home Affairs, Home Affairs Bureau, Hong Kong Special Administrative Region-China (Hong Kong SAR), said that her Government recognized the importance of the Committee's recommendations, as well as the importance of the Covenant.
And while the SAR authorities might not act on those recommendations immediately, the Committee should be assured that when the time was right and when conditions permitted, the SAR authorities would act in a manner that was consistent with their obligations. To that end, she recalled that the recent anti-discrimination legislation that she had highlighted in her opening statement yesterday had been a result of Government consultations following the Committee's recommendations in 1999.
To questions concerning the Standing Committee of the National People's Congress, particularly why that body took the initiative in reviewing certain legislation regarding elections, another member of the delegation said that at the time of the review, the SAR authorities had said that the decision had been taken because, among other reasons, it concerned the political structure of Hong Kong, and concerned the relationship between the central authorities and those of the Hong Kong SAR.
On the Congress decisions concerning universal suffrage for elections in 2007 and 2008, he said again said that when that decision had been handed down, it had been made public. Consultations had been carried out and, while there had been broad support for the changes in the laws governing suffrage, there were divergent views on the timing for universal suffrage -- some favoured 2007-2008, while others favoured 2012 or 2018. All views were made public, he added.
To concerns that all this meant that election processes were regressing, he said that since 1997, the SAR had been pursuing constitutional development towards universal suffrage. The SAR authorities were committed to pursuing constitutional development, and a top-level commission had been tasked to follow-up matters related to universal suffrage. Its work had begun last December, and it was personally chaired by the Chief Executive. He said that Hong Kong was unique in that while its democracy was developing, free speech, free expression and exercise of religion were guaranteed. The Hong King SAR would continue to pursue further democratic development.
Responding to additional questions from yesterday, another member of the delegation said that, today, there had been no need to assist the Standing Committee of the National People's Congress in relation to the rights under the Covenant, but should the occasion ever arise where the Standing Committee had to interpret those rights, there would be channels through which information would be passed to the Committee. In addition, there was the Basic Law Committee, which had six members from Hong Kong, most of whom were experienced lawyers. So, there was no doubt that the Covenant's rights would be fully respected.
Given experts' concerns about the extraordinary impact that an interpretation could have on human rights, he assured them that there was no reason to fear that the Covenant's rights would in any way be undermined by a flawed interpretation. At the international level, the Central People's Government had gone to great lengths to implement the Covenant, and as it applied to Hong Kong, it was firmly entrenched. So, any interpretation of the basic law would have to respect that fact. There was no basis for saying the Standing Committee could interpret the basic law in a way that was outside its powers.
Turning to questions about the Government's reservations to the Covenant's article 25 b, which concerned the right to vote and be elected, he briefly set out the reasons why the Hong Kong Government believed that the reservation was still in force.
To questions about sedition, he said that his Government's current policy and plans to provide protection would be consistent with the Covenant. When the Government last launched a set of proposals, it obtained an opinion from a leading human rights expert in the United Kingdom to ensure that the proposals were fully consistent with the Covenant and to be sure that the clauses would be fully interpreted and applied in a way that was entirely consistent with that instrument.
He said he agreed with the experts' comments that the current law on treason and sedition was perhaps unduly broad, and he had hoped to narrow down those offences in the new bill, but that had not been adopted.
On that topic, he said that, for passage of domestic legislation, a simple majority was sufficient; a two-thirds majority was a special rule. It was certainly not true, as one expert had inferred, to say that the current composition of the Legislative Council made it difficult to enable liberal reforms. The executive order signed by the Chief Executive last year had been an interim measure related only to covert surveillance. It had the purpose of preventing or detecting crime and not distinguishing between types of crime. For interception of communications, a warrant could only be issued for an offence that carried a maximum penalty of not fewer than seven years imprisonment. There was no express provision of unlawful intercepts in the executive order.
As to who ordered the search and seizure of journalistic materials last year, he said that that had been a judge of the Court of the First Instance, the highest Court of the First Instance. As to whether that type of raid had ever been done before, he said that law had been enacted in 1995, and as far as he was aware, it had rarely, if ever, been used before. In terms of the seriousness of the offence being investigated by the Independent Commission against Corruption, he said that was an extremely troubling scenario whereby the well-being or life of the person in a witness protection programme was at risk and the programme was being undermined. In the Court's judgement, the issuance of search warrants had clearly been justified.
On assistance provided to Hong Kong residents detained outside Hong Kong, one member of the delegation said that SAR authorities had a firm commitment to protect the legitimate interests of Hong Kong citizens wherever and whenever they were detained. They should be protected within the laws of the relevant jurisdiction. For detention procedures that took place in foreign countries, the SAR would express its concerns through Chinese diplomatic channels in those countries.
The SAR authorities would also follow closely the cases of its citizens detained on the mainland. Due to privacy reasons, she could not disclose particulars on the case of a detained academic mentioned yesterday by one of the experts, but she stressed that in all cases of requests for assistance from the families of detainees, the SAR would do its best to comply.
Clarifying her comments made yesterday regarding human trafficking, she reiterated that, over the years, reported cases of trafficking had been rare -- with only one reported in the past two years, in 2004. That said, Honk Kong was also a busy shipping and transport route, so the authorities were ever vigilant to the issue of human trafficking. As for assistance to victims of trafficking, she said that there was an established legal aid system in Hong Kong, so that all persons, whether they were citizens or not, were able to apply for that assistance. As for health care for such victims, such care was available for all those that had means to pay, but fees were reviewed on a case-by-case basis and could be waived in certain circumstances.
Turning to matters related to foreign domestic help, she said that no such workers could be forced to do work outside the parameters of their duties or forced into illegal activities. If that occurred, they could report the matter to the authorities. Employers found guilty of such practices could be imprisoned for up to one year and were subject to a health fine of some $25,000.
Turning to the Falun Gong, she said there was no requirement or system for registering religious organizations in Hong Kong. Falun Gong practitioners in Hong Kong were registered as an association or society, and she stressed that membership was not a matter for the Government. Therefore, there were no figures on how many Falun Gong practitioners there were in the SAR. She also said that immigration authorities did not bar anyone from entry into the SAR because of his or her beliefs. As to whether sedition was a cause to bar entry into the Region, she said that such matters were relevant for consideration, but that was just one among a number of routine issues that were examined in deciding whether to allow aliens into the territory.
On law enforcement matters, another delegate said that the SAR's police complaint system was thorough and on par with those in other parts of the developed world. The SAR's two-tier system included an initial review by the authorities, followed by consideration in the Independent Police Complaint Council, was a civilian body that closely monitored complaints and ensured that they were handled fairly and impartially. The Council could also bring in complainants or others involved in a particular case for interviews. It could also bring cases to the personal attention of the Chief Executive.
On protection for children and youth in the SAR, he said that the Prevention of Child Pornography Ordinance had been enacted in 2003 to protect children from all forms of exploitation, including pornography and sexual tourism, and had been elaborated in line with relevant Internal Labour Organization (ILO) conventions. Police and other authorities were vigorously rooting out offenders, and some 43 cases had been identified in the past three years.
Ms. LAM CHENG then said that the SAR Government was aware that the Committee favoured a national human rights mechanism, but the authorities felt that the Region already had an effective human rights ordinance, an independent judiciary accompanied by effective and comprehensive legal aid, and an active ombudsman, among other things. All of which provided a sound framework for the protection and promotion of human rights. The SAR authorities believed that this was preferable to setting up an entirely new body. Still, as in other matters, the SAR authorities would continue to consider the matter, although, it would be honest to say that at present, there were no discussions underway nor plans in any initial stage to set up such a commission.
On questions that had been raised yesterday on the Equal Opportunities Commission, she said that various internal reviews had been instigated to ensure the fairness of that mechanism. Indeed, the entire Commission had been replaced and the best way forward was to support the commission in its efforts to promote and protect human rights. The SAR authorities were aware that some non-governmental organization friends had charged that the Commission was not independent enough.
On police training, Ms. LAM CHENG said that the police force took a very serious view of domestic violence and was constantly improving procedures. In the past year, improvements had included a new system aimed at enhancing communication between the "front lines" on both sides during referral processes. Fourteen liaison groups had been set up in various districts for that purpose. In March 2005, a central database had been set up to make information available about people who had surfaced in previous domestic violence incidents. That would enable officers to make better informed decisions about appropriate modes of interventions.
She said that a fresh round of officer training launched in 2004 had included a new training package, focused mainly on raising sensitivity. Starting in the middle of 2005, the training modules included information about victim psychology and victim management to equip officers with the necessary communication skills and techniques.
To a question about collective bargaining, she said that Hong Kong strove to promote voluntary collective bargaining through an amenable and voluntary basis.
Regarding the comments about self-censorship, she said that Hong Kong was a free and open society. The best safeguards lay in the Government maintaining an environment that was conducive to the operation of a free press, but it looked to the media professionals to uphold and safeguard freedom of expression. The Government believed that was not an area where it should interfere.
Experts' Comments and Questions
MICHAEL O'FLAHERTY, expert from Ireland, said that the Basic Law Committee did not seem to engage the general public. He was surprised that a standing committee of such fundamental importance only had 50 per cent Hong Kong membership. Also, one advising on the constitutional membership of a territory must be made up of more than lawyers. On universal suffrage, he associated himself with the comments made yesterday by Sir Nigel Rodley (expert from the United Kingdom). He also recalled a prediction made several years ago that China would have universal suffrage by next year. His own concern was still not so much an interpretation of the specific provisions of the Covenant but of basic law, which impacted enjoyment of the Covenant in Hong Kong.
NISUKE ANDO, expert from Japan, said that the human rights situation of the Chinese people reflected the future human rights situation of humankind. The human rights situation in Hong Kong was very, very important, and in a sense, it reflected the human rights situation of all humankind. In the delegation's written reply, it had indicated that Hong Kong was neither a country of origin nor destination for human trafficking. While that might be true, trafficking for prostitution was often organized in syndicates. Could the delegation clarify?
The expert from the United States, RUTH WEDGWOOD, asked whether sedition was a bar to immigration entry. She was concerned that self-censorship was tutored or assisted, indirectly, from the mainland. On the Standing Committee of the National People's Congress, the whole idea of an independent tribunal was that it be independent, but over time, she thought that the role of the Standing Committee was "very troublesome". It might have been "the cost of Hong Kong's autonomy", but its use should be "extremely occasional, deferential and done with the understanding that it impugned the reputation for independence of the legal system of Hong Kong", she said.
One of the delegates replied that he did not think there was anything he could add to remove the concerns about the Standing Committee.
On prosecutions for human trafficking, another member of the delegation said that, on recorded cases in 2004, there was one related to the smuggling of 19 mainland residents using a container from Hong Kong to the United States. Those were all male, so the case was not related to prostitution, she said.
Another delegate confirmed that only half the Basic Law Committee members were from Hong Kong and half were from the mainland. That reflected the fact that the basic law was the national law. It was binding, not only on Hong Kong, but on China as a whole. On the representation of lawyers on that Committee, there were several legal issues pending.
Delegation's Response to Experts' Written Questions
On the power to deport persons from the SAR, a delegate said such power may be exercised only when the pubic interest was seriously at stake. To date, that power had not been exercised. She went on to say that the Hong Kong SAR could provide in-kind assistance to refugees covering different aspects, such as food, clothing and some medical supplies. Hospitals examined medical matters on a case-by-case basis and could waive fees under certain circumstances. Updating members on statistics, no objection had been made for 23 refugee children to take up their studies in Hong Kong.
On allegations of threats and of cases of vandalism against democratic legislators and allegations of poor police response to investigate and prosecute offenders, another member of the delegation said that Hong Kong was one of the safest cities in the world. He assured the Committee that his Government was committed to protecting the safety and property of every citizen, including legislators, media figures and ordinary citizens. The police acted swiftly to investigate allegations of all criminal activity. At the same time, such investigations must take place within the rule of law.
Ms. LAM CHENG then updated the Committee on the measures in place to protect foreign domestic workers. Provision of legal aid, in accordance with statutory requirements -- passing a "means" test and a "merit" test -- was extended to such persons.
IVAN SHEARER, expert from Australia, said there were some serious concerns, despite general progress. He said that since the Chief Executive had not exercised the power to expel any person on the grounds that he or she was an "undesirable immigrant", the limits of that power had not been tested. He also said that, although the delegation was not a party to the 1951 Refugee Convention, the principle of non-refuolement was now practically an internationally agreed standard and should be subscribed to by all States above and beyond their treaty obligations. He also expressed concerns about the application of the SAR's "one way" entry system, which had been criticized because it was applied to individuals rather than families and could often force the desperate to turn to people smugglers.
Sir NIGEL RODLEY, expert from the United Kingdom, asked for clarifications on the sense of the nature of the work of the two-tiered police complaint system. Were there statistics that the delegation could provide? He also asked for clarification about procedures that might lead to a referendum on certain legislative measures in the SAR.
HIPOLITO SOLARI YRIGOYEN, expert from Argentina, asked for more information on the allegations that some democratic legislators had been threatened with violence or vandalism of related property during the run up to elections in 2004. The delegation had provided "generic" answers, and the Committee would like to know the true position of the SAR on this matter. He also wanted more clarification on the treatment of foreign or migrant domestic workers. Were they discriminated against in any way? Were they treated fairly when they sought access to public services? What were the employment conditions for such workers? What were the rules governing eventual citizenship of migrant workers?
A member of the delegation said that there was no general requirement under the Covenant that a referendum mechanism be established. There was no requirement in the SAR's Basic Law either. Any suggestion, that matters concerning changes to electoral methods should be dealt with by referendum, was not consistent with the rules set out in the Basic Law.
Ms. LAM CHENG reiterated that despite decision by the Office of the United Nations High Commissioner for Refugees (UNHCR) to discontinue assistance to vulnerable asylum seekers, the SAR had always had a policy to provide basic support to such persons, in kind, not in cash, on a case-by-case basis.
Turning to deportation, a delegate said that existing mechanisms in Hong Kong had provided persons ample opportunities to make representation against deportation. All relevant circumstances, including the person's connection with Hong Kong and other countries, were taken into consideration. Most careful consideration was given to claims that a person might face the death penalty or torture. Any person facing deportation could launch an objection in writing, within 14 days. The deportee could initiate judicial proceedings against the Government for launching a deportation order, she said, providing the Committee with full details of the procedure.
Regarding the right of a one-way permit scheme, under basic law, mainland residents seeking to leave the mainland must apply for exit approval, she said. And, in accordance with mainland laws and regulations, those who wished to settle in Hong Kong must first apply. Although the scheme was implemented by the mainland authorities according to law, those authorities and the Hong Kong Government had constant liaison with regard to the scheme's operation, in order to better take into account the needs of the families and persons concerned and to implement the requests on the basis of a point system. Priority was given to spouses and children under the age of 18. Complaints procedures had been established to deal with alleged corruption and mishandling of cases, as had hotlines. The applications of underage children whose parents had moved to Hong Kong were process within one year. So various improvements had been implemented to facilitate the smoother operation of the scheme, she explained.
Another delegate explained in response to another question that both the removal order and deportation order merely required a person to leave Hong Kong, but that did not require the person to go to any other jurisdiction. The principles concerning torture were being worked out in Hong Kong, and the courts were developing jurisprudence on that subject.
In 2005, another delegate replied to another question, a total of 2,047 claims involving foreign domestic helpers had been handled by the Labour Department, and only 10 per cent of those had related to underpayment. Any employer who paid his employee less than the minimum wage was liable to conviction and/or fine. In order to increase the deterrent effect, the fine would be increased later this month. It was up to the authorities in Hong Kong to work with the relevant non-governmental organizations (NGOs) to continue to publicize the workers' rights and their channels for redress, he said.
A foreign domestic helper is required to leave Hong Kong at the end of his or her stay or two weeks after the termination of the contract, whichever is earlier, another delegate explained. The present arrangement is in place to eliminate unapproved work. The cost of the return flight to the home of domicile is totally borne by the employers. In the case of a wage dispute, the foreign worker has the same access to legal recourse as local workers, she said.
The Committee Chairperson and expert from France, CHRISTINE CHANET, expressed her appreciation for the seriousness with which the report was drafted and circulated and the degree of seriousness of the verbal replies. That had been one of the most positive aspects of the reporting. The importance that the delegation and civil society attached to the reporting process throughout the years had been very encouraging. The Court of Final Appeal and the entire judiciary process were also very positive.
She said, however, that something kept showing up, namely the issue of intimidation against the Legislative Council. Despite all the democratic elements in place, she felt there was some degree of risk in maintaining the somewhat delicate balance. She thought the draft on public security helped to maintain that balance, and it would be a shame to jeopardize the level of freedom prevailing in Hong Kong if the self-censorship was not preserved. She hoped there would be no threats to freedom of the press. The delegation had said it was not yet ready to take up threats by the police, that there was not yet an institutional readiness. She hoped it would soon be able to do so.
In addition, when the Committee considered Hong Kong's first report in 1999, the delegation had said that referral of a basic law decision to the Standing Committee of the National People's Congress was only supposed to have been a one-time thing, on an exceptional basis, but that seemed not to have been the case. What was at stake was article 25 of the Covenant, on voting and standing for election, and Hong Kong's interpretation of the reservation. The delegation had given the experts its opinion on the maintenance of the reservation -- that that was a way of protecting a given situation, in order not to go straight to universal suffrage, at least not 100 per cent. Committee members had expressed their dissent, and the delegation would find that in their concluding comments.
In closing, Ms. LAM CHENG thanked the Committee for the very constructive six hours in the Chamber. In the 18 months, immediately preceding her current job as Permanent Secretary for Home Affairs, she had headed up the Hong Kong's Economic and Trade Office in London. In the course of that work with the international business community, she had been told time and again that Hong Kong's unique strengths lay in the rule of law, its independent judiciary, freedom of speech, freedom of expression, a clean and efficient government, and level playing field.
She said that, through the implementation of the Covenant as applied to Hong Kong and relevant provisions in the Basic Law, those rights and freedoms would now become the cornerstone of Hong Kong's success and prosperity. She assured the Committee that to continue the successful implementation of "one country, two systems" and a "high degree of autonomy" for the benefit of the 7 million people in Hong Kong, the Central Government and the SAR Government would do their utmost to maintain and strengthen those rights and freedoms.
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