Human Rights Committee Takes up Report of Hong Kong Special Administrative Region of China

HR/CT/676
21 March 2006

Delegation Outlines Steps Taken to Address Discrimination, Curb Domestic Violence, Foster Tolerance

NEW YORK, 20 March (UN Headquarters) -- Highlighting steady progress on constitutional development, as well as processes under way to consider, enact or revamp legislation aimed at combating discrimination against ethnic minorities, curbing domestic violence and tackling discrimination against gays and lesbians, a delegation from the Hong Kong Special Administrative Region-China (Hong Kong SAR) today updated the United Nations Human Rights Committee on its efforts to promote and protect fundamental human rights.

Introducing the Hong Kong SAR's second periodic report on compliance with the International Covenant on Civil and Political Rights, Carrie Lam Cheng, Permanent Secretary for Home Affairs, Home Affairs Bureau, said that although during consideration of the first periodic report, Hong Kong's delegation had stated that legislation against racial discrimination was not considered appropriate at the time, the Government had raised public awareness instead.

A culture of mutual understanding, respect and tolerance had been fostered. In order to legislate against discrimination, the Government had issued a consultation paper in 2004, she said. The process of consultation had ended in February, and had attracted 240 written submissions. At the moment, the drafting of a bill was being finalized. It would be introduced to the Legislative Council before the end of its current session. Education efforts would be steered by the Committee on the Promotion of Racial Harmony.

She went on to say that in May 2005, a Gender Identity and Sexual Orientation Unit had been established in the Home Affairs Bureau, which sought to actively promote equal opportunities for gays, lesbians and transgender persons.

As in the case of racial harmony, she hoped it would bring about cultural acceptance and mutual respect.

She said the Government had intensified its work in tackling domestic violence and child abuse. The work included preventive measures such as community education and public awareness, support services for victims and specialized services and crisis intervention around the clock. The Government was also reviewing the Domestic Violence Ordinance to strengthen the protection of victims of domestic violence. As usual, the Government would work in partnership with non-governmental organizations in that regard, she added.

She said the Constitutional Development Task Force had proposed a package for the electoral arrangements for 2007 and 2008. For the election of the Executive, it proposed to double the Electoral Council Membership to 1,600. Over 400 of the members would have been elected directly or indirectly by over 3 million voters. However, the package did not have the required two-thirds majority support of all the members of the Legislative Council. The elections would, therefore, be held on the basis of existing arrangements. The Chief Executive had initiated a discussion for formulating a road map for universal suffrage.

When the experts took the floor to ask questions and make comments, several expressed concern that progress towards ensuring fundamental freedoms in the SAR might be eroded by laws and actions by the region's authorities that could chill freedom of expression, interfere with the right to privacy, or hinder free assembly or association.

Among other things, they questioned the Chinese delegation about reports of allegedly increasing self-censorship by the media in the wake of the so-called "patriotism campaign" of April 2004, criticism from mainland officials and threats against journalists and media figures.

One expert was troubled by reports that pro-democracy newspapers operating in the SAR had been boycotted by major property owners, thus denying them critical advertising space, and that in April 2004, the Independent Commission against Corruption had raided the premises of seven news agencies and the homes of their associated journalists. She also echoed the sentiments of others who were concerned about freedom of association and religion, particularly regarding the activities of mainland-based free trade unions and the Falun Gong.

The Human Rights Committee will meet again tomorrow morning at 10 a.m. to continue its consideration of the second periodic report of Hong Kong SAR.

Background

The Human Rights Committee met today to continue with the first reading of its draft general comment on article 14 of the International Covenant on Civil and Political Rights, and to begin its consideration of the second periodic report on compliance with the Covenant by the Hong Kong Special Administrative Region-China (CCPR/CHKG/2005/2).

Experts' Consideration of Draft Comment

WALTER KALIN, expert from Switzerland and the Committee's Rapporteur on the consideration of its general comment on article 14 of the Covenant, which deals with "the right of equality before courts and tribunals and to a fair trial", began the discussion with an update of status of the draft since the Committee's last meeting and introduced a conference room paper containing new proposals and additions (CCPR/C/GC/32/CRP.1). Overall, this was effort to codify the Committee's "case law", on article 14, with a paragraph-by-paragraph description of the article and references to similar tenets within the Covenant.

The text contained the proposed structure of the general comment, which would open with general remarks and then highlight the Committee's observations on criminal charges and suit at law; fair public hearings; independent and impartial tribunals and the presumption of innocence. When the other experts took up Mr. Kalin's text, their concerns first touched on his latest suggestions on language pertaining to the availability or absence of legal assistance, and whether a State party "may be" or "should be" "encouraged" to provide legal aid or assistance for persons that did not have the means to do so.

The Committee Chair, CHRISTINE CHANET, expert from France, reminded the Committee that States would be violating the Covenant if no system were in place to provide such assistance, so perhaps the Committee's language commenting on that part of article 14 might be clearer, particularly since that assistance should always be provided in constitutional cases. Mr. Kalin agreed that the line in question could be revised to read "'encouraged' to provide free legal access ...".

On other language in Mr. Kalin's new text, the experts suggested that certain passages on "competence, independence and impartiality" of judiciaries not be repeated and that the right to be tried by such judiciaries be reaffirmed as an absolute right. The Committee expressed the need for the comment to have strong language on the competency of all judges, particularly on the protection of judges from political influence, as well as perhaps contain some mention of "traditional" or customary law judges. The experts also called for more explicit language to be included in their comment on the right of judges faced with dismissal to some form of defence.

On other matters, one expert suggested language on "judges receiving salaries commensurate with their responsibilities and functions", to which Mr. Kalin agreed but suggested that "salaries" be changed to "remuneration", since, in many States, judicial salaries were low, but, for instance, judges received free housing or transportation. Several speakers also suggested language that might distinguish military and civilian court proceedings and the respective obligations of State parties in either case. The Committee intends to return to its draft comment next Wednesday, and will pick up its discussions on matters pertaining to military and civilian justice under the article.

Consideration of Report of Hong Kong, China

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.

ZHANG YISHAN, Deputy Permanent Representative of China, said the Basic Law of the Hong Kong Special Administrative Region-China (Hong Kong SAR) stipulated that the relevant provisions of the Covenant remained valid after 1997 and were to be implemented there. China was not a party of the Covenant. However, the initial report on the implementation of the Covenant in the Hong Kong SAR had been transmitted in July 1999. That report had been considered. In January 2005, the Government of China had transmitted the second periodic report of Hong Kong SAR. It had been prepared by the Hong Kong SAR administration itself.

Introducing the second periodic report, CARRIE LAM CHENG, Permanent Secretary for Home Affairs, Home Affairs Bureau, said the Hong Kong SAR was fully committed to the protection of human rights. The submission of the report and the subsequent follow-up process would be a valuable opportunity for the promotion of dialogue between the Government and the international community. The report had been prepared within Hong Kong SAR in consultations with legislators, non-governmental organizations (NGOs) and others. Although issues and facts might not always be seen in the same lights, she welcomed representatives of NGOs. It was the divergence of views and freedom of expression that made Hong Kong SAR the "civil society we are proud of". The questions submitted had provided an opportunity for updating developments in key areas since submission of the second report.

Regarding ethnic minorities, she said that during consideration of the first periodic report, Hong Kong SAR's representative had stated that legislation against racial discrimination was not considered appropriate at the time. The Government had raised public awareness instead. A culture of mutual understanding, respect and tolerance had been fostered. The Government had issued a consultation paper in 2004, and the process of consultation had ended in February 2005, attracting 240 written submissions. At the moment, the drafting of a bill was being finalized. It would be introduced to the Legislative Council before the end of its current session. Education efforts would be steered by the Committee on the Promotion of Racial Harmony.

Regarding discrimination on the grounds of sexual orientation, she said Hong Kong's approach had been one of seeking to balance a vision to take the lead ahead of popular consensus and caution to build greater community understanding and support. However, legislative proposals required the majority support of legislators who could not ignore public opinion. In light of the difficulties posed by deeply held traditional values and beliefs, a Sexual Minorities Forum had been set up in 2004 to provide a formal channel of communication between the Government and persons of different sexual orientation. In May 2005, a Gender Identity and Sexual Orientation Unit had been established in the Home Affairs Bureau, which sought to actively promote equal opportunities for gays, lesbians and transgender persons. As in the case of racial harmony, she hoped it would bring about cultural acceptance and mutual respect.

Addressing the issue of electoral arrangements for selecting the Chief Executive in 2007 and for forming the Legislative Council in 2008, she said the electoral system would be determined in accordance with the Basic Law. Upon ratification of the Covenant, the British Government had entered a reservation regarding the establishment of an elected Executive or Legislative Council in Hong Kong. After reunification, that reservation continued to apply to the Hong Kong SAR. Notwithstanding the reservation, both the Central Authorities and the SAR Government were fully committed to promoting constitutional development in accordance with the Basic Law.

Since 1997, steady progress on constitutional development had been made, she said. The first-term Chief Executive had been elected by a Selection Committee of 400 representatives, mostly elected, from different sectors of the Hong Kong community. For the second-term Chief Executive election, the size of the Election Committee had been doubled to 800. The Basic Law provided for a steady increase in the number of seats in the Legislative Council. The Constitutional Development Task Force had proposed a package for the electoral arrangements for 2007 and 2008. For the election of the Executive, it proposed to double the Electoral Council membership to 1,600. Over 400 of the members would have been elected directly or indirectly by over 3 million voters. However, the package did not have the required two-thirds majority support of all the members of the Legislative Council. The elections would, therefore, be held on the basis of existing arrangements. The Chief Executive had initiated a discussion for formulating a road map for universal suffrage.

She said the Government had intensified its work in tackling domestic violence and child abuse. The work included preventive measures such as community education and public awareness programmes, support services for victims and specialized services and crisis intervention around the clock. The Government was also reviewing the Domestic Violence Ordinance to strengthen protection for victims of domestic violence. As usual, the Government would work in partnership with NGOs in that regard.

In conclusion, she said, human rights and freedoms were guaranteed constitutionally by the Basic Law in Hong Kong SAR. The rule of law and an independent judiciary, also guaranteed by the Basic Law, provided the fundamental basis for human rights protection in Hong Kong.

Delegation's Response to Committee's Written Questions

Before the delegation responded, Chairperson CHANET said that the replies had only reached the Committee last Friday, and had only been provided in one language. And while that was useful, it would be necessary to sum up the answers today for all the Committee members.

A member of Chinese delegation then went on to answer the Committee's initial question as to whether there were inconsistencies in the decisions made by the Standing Committee of the National People's Congress and the region's obligations under the Covenant, particularly pertaining to upcoming elections in 2007 and 2008. Measures for selecting the Legislative Council would be discussed with a view to holding elections to that body by universal suffrage. The National People's Congress was consistent with the Covenant. As to whether interpretation of the Standing Committee's decisions could undermine rights to fair trials under the Covenant, another delegate assured the Committee that that was not the case, and the rights overall were not affected by the Congress' decisions.

Turning next to measures to establish a national human rights mechanism in the SAR, Ms. LAM CHENG listed the various institutions that were involved in overseeing fundamental rights in the region. She said that the fact that there was not a single agency to address the matters did not mean that the SAR was not pressing ahead with efforts to increase transparency of its institutions to, among other things, involve the public in the human rights decisions as much as possible and boost the promotion and protection of human rights in action.

Another delegate added that there was no move to reintroduce the National Security Bill, which had been withdrawn in 2003. Turning to the issue of violence against women, Ms. LAM CHENG Said the SAR was making great strides to address domestic violence and violent acts committed against men, as well as women. Indeed, the SAR was studying long-term policies that would address violent behaviour or acts committed by or against ex-girlfriends or ex-boyfriends. The SAR authorities had also moved quickly, with the help of NGOs in the region, to create a pilot programme to address domestic violence.

On matters related to SAR residents detained in mainland China, a delegate said that under a new agreement, mainland police would notify the SAR's authorities of any of its citizens detained. Hong Kong authorities would do the same if a mainland resident was detained in the region. Upon receiving such notification, the SAR authorities would immediately notify respective families and relatives. Taking up trafficking in persons, the delegate said that Hong Kong was not a point of origin or destination for human trafficking. Authorities remained vigilant, however, and one case had been discovered and prosecuted in 2004. The SAR also made sure that health and psychological services were available for the victims of trafficking.

On the Telecommunications Ordinance, Post Office Ordinance, and the Interception of Communications Ordinance, a member of the delegation assured the Committee that an omnibus bill under consideration would strike the needed balance to achieve the objective of SAR's security concerns and the right to privacy. He said that the bill, when enacted, would provide a course of action for any persons who believed that audio or covert surveillance had been intrusive.

In response to question 9, Ms. LAM CHENG said freedom of expression and press freedom were fundamental rights guaranteed to the citizens of Hong Kong in the Basic Law. She invited Committee members to come to Hong Kong to experience the "vibrant and diverse media". There was no shortage of critical remarks about events happening in Hong Kong and around the world.

Another delegate said there had been incidents where radio hosts had been threatened. Any allegation of threat had been taken seriously by the Government, which would not tolerate any act of intimidation, and the Police Force had taken every possible step to bring the perpetrators to justice. In one occasion, the perpetrators had been arrested. It turned out that the threat was debt related. The radio hosts had not been affected by the threats, as proved by the fact that the hosts were now active in the local political scene.

Regarding question 10, related to a reported raid against the premises of seven news agencies and their journalists' homes by the Independent Commissions against Corruption, he said search warrants had been obtained for the raid according to the law which had considerable protection for journalists. The case involved divulging the identity of a witness under the witness protection programme, which threatened the safety of the witness and hampered the prosecution. The decision of issuing a warrant had been appealed. In first instance, it was held that the search warrant had not been legal. A second appeal held that the warrant had been issued properly. At no stage had it been suggested that the existence of the legislation had been inconsistent with the Covenant.

Ms. LAM CHENG said that the answer to question 11, regarding academic freedom for Hong Kong residence on the mainland, had been partly covered in the answer to question 6. Hong Kong residents travelling outside Hong Kong were supposed to abide by the rules in the country they were travelling through. That applied also to mainland China. Academia enjoyed the same degree of freedom in expression as others, enshrined in the Basic Law.

Another delegate answered question 12, relating to the existing law on treason and sedition. He said legislation had been proposed to narrow the acts described under the law to acts perpetrated during times of war or invasion. If the bill were to be enacted, the offences of sedition would have been repealed. However, because of opposition, the bill had been withdrawn.

Addressing questions 13 and 14 on the Societies Ordinance and the Public Order Ordinance, a delegate said that societies could operate as long as they abided by the law. There was a right of organization, in compliance with the Covenant as applied to Hong Kong. The rights of peaceful assembly and peaceful organization were, however, not absolute rights, but subject to restrictions described by law. In January 2006, there were some 20,000 registered societies.

He said the people in Hong Kong also had the right to assemble and demonstrate as guaranteed in the Basic Law. The Government's policy was to strike a balance between protecting individual rights to assembly and the public interest of the community at large. Of some 18,000 public meetings and demonstrations, only 10 events had been prohibited because of concerns for public order.

Another delegate said that the Ordinance provided for an advance notification system. That notification system had been challenged and the Court of Final Appeal, emphasizing that the freedom of assembly was a fundamental right and that a generous interpretation should be given to that right, had upheld the process as being consistent with the Covenant.

Regarding question 15, on restrictions on Falun Gong practitioners, including the use of public facilities, Ms. LAM CHENG said Falun Gong followers had the same rights as other civilians. Recently, they had submitted an application for the use of public facilities, which had been approved. They were not restricted in the legitimate use of Hong Kong public facilities.

Another delegate assured members that nobody would be barred from entering Hong Kong because of his or her religious beliefs. Recently, Falun Gong followers had sued the Government in that regard, but that case had not been heard by the courts yet, and could, therefore, not be commented on.

Ms. LAM CHENG said she was somewhat perplexed by the suggestion in question 16 regarding the absence of an institutional framework for union recognition and collective bargaining. A legislative framework, the Trade Union Ordinance, did indeed exist, and statistics were given in the written reply. Legislation was being introduced to protect employees engaged in trade union activities. She did not understand the relevance of the question on bargaining in regard to the Covenant. The authorities' approach was to promote voluntary collective bargaining between employers and employees.

Experts' Comments and Questions

Opening the Committee's first round of comments, MICHAEL O'FLAHERTY, expert from Ireland, said that even though the report was 18 months late, he had been pleased to hear that it had been compiled with input from civil society actors and that the information had been widely disseminated in the region. He nevertheless had a few concerns, including on matters regarding the manner in which the SAR's Basic Law -- or constitution -- had been referred to the Standing Committee three times.

And while such submission had initially been described as a singular case, he wondered, if it was becoming common practice, what impact did the Standing Committee's reinterpretation of the Basic Law have on human rights in the SAR. How was the Standing Committee informed about fundamental rights, particularly those guaranteed by the Covenant? Was that Committee actually vetting human rights in Hong Kong? On the Committee's strong recommendation in 1999 to establish a national human rights institution, he said that, while he was pleased to hear that the SAR was "open" to talks on such institutions, he had been disturbed that the delegation had said that Hong Kong was "not ready" at present to move forward on the matter.

Finally, he was also troubled by some elements in the National Security Bill, even though it had been withdrawn. The SAR had an obligation to produce some kind of bill. When consultations on that legislation began, could the delegation ensure the Committee that civil society would be included the in discussions? Would the drafting exercise last longer than the three months it had taken to elaborate the now defunct bill?

ROMAN WIERUSZEWSKI, expert from Poland, said that, although the Committee had not raised the issue of gender discrimination in its written questions, the experts were aware from reports of NGOs and other United Nations treaty bodies that there were still serious problems in that area. Could the delegation provide information on the issue? On domestic violence, he wondered why the SAR's legislation on that important matter took so long to get enacted. And while he had been pleased to see that efforts were getting under way, he wondered what was being done to educate law enforcement officials in the area of domestic violence. He went on to ask what was being done to ensure communication with mainland authorities in cases where citizens from one area were detained within the borders of the other.

HIPOLITO SOLARI-YRIGOYEN, expert from Argentina, said that, while the delegation had assured the Committee that Hong Kong was not a major route for trafficking, the experts had nevertheless received information that it was indeed a problem, particularly because of the influx of foreign domestic workers, who, unfortunately, fell into the hands of traffickers. Did the SAR's authorities conduct broad investigations into allegations of trafficking?

He added that perhaps the authorities could establish a minimum wage or social security protections so that such foreign domestic workers did not fall into the hands of traffickers. He assured the delegation that the experts were not "pointing the finger" at them on the issue of trafficking; indeed, it was a problem for many countries and needed to be addressed in a forthright and comprehensive manner.

On mattes related to persons from the mainland being detained in the SAR or vice versa, NISUKE ANDO, expert from Japan, recounted a personal incident in which an acquaintance had been arrested and held in the SAR. Had the mainland officials been informed? Had his family been informed? He also asked if there were any plans to boost legislation regarding freedom of expression in the SAR. As for the Falun Gong, he wondered if that group asked to be recognized as a religious organization under Hong Kong law, would SAR authorities place some restrictions on approving that status? If so, what would they be? He also asked for clarification of legislation governing collective bargaining in the SAR, as well as those rules and regulations on the operation in the SAR of labour unions that also had offices on the mainland.

RUTH WEGDWOOD, expert from the United States, noted, in general, that replies to a number of questions, such as those on treason and sedition and electronic surveillance, were along the following lines: the Government was working on it, but the Legislative Council had not acted on it or had refused it. If the legislative body had been elected democratically, the Committee could exercise a degree of patience. Here, however, that was not the case.

On electronic surveillance, she said there had been no legislative change in nine years. As there was now a new executive order, she asked if the order made any distinction in the type of crimes for which electronic surveillance was warranted. Also, was there any provision for minimizing any parts of the conversation? If there was an interception regarding illegal narcotics, for instance, would the interception be suspended or destroyed if private life was addressed? Furthermore, was there an exclusionary rule for interceptions found to been undertaken illegally?

Regarding the question about possible self-censorship, she said she would not be surprised to discover that, given the political situation, some of the self-censorship might relate to the central Government expressing informal displeasure on such as Falun Gong. Was the Region making any proactive intervention with the Chinese authorities to argue that even informal transmission of displeasure was against the principle of free expression? There were also reports that pro-democracy newspapers were boycotted by big developers and advertisers.

Although she agreed that the identity of witnesses in the protective witness programme should be protected, she noted that raiding seven offices and their journalists' homes was rather tough. She asked if the offices had been raided before and who had ordered the raids.

On academic freedom, she said that, although Hong Kong was an autonomous region and not a country, there was a duty of diplomatic protection of its citizens under "customary" human rights law. There was a proactive duty of protection, whether it concerned mainland China or another country. On treason and sedition, she noted that the old common law tradition on which the definition was based was pretty "illiberal". As for the refusal of entry of Falun Gong visitors, she asked whether sedition as defined under the old British Law was seen as a sufficient basis for refusing entry and what the specific basis for that refusal was.

Addressing the issue of collective bargaining, she noted the delegation's reply that such bargaining might be confrontational. Collective bargaining, however, introduced a democratic element on the work floor. She wondered if there might be some subconscious objection to collective bargaining precisely because of the introduction of a democratic voice.

ABDELFATTAH AMOR, expert from Tunisia, noted that the report had been prepared professionally and in good faith. He asked clarification on a lack of consistency between paragraphs 103 and 73 of the report. Paragraph 103 acknowledged that the obligations under the Covenant were applicable immediately. Paragraph 73, however, stated that the authorities were acting in good faith under the Covenant when deciding when and how the obligations were to be implemented. He also asked to what degree -- in the opinion of the delegation -- the decisions and findings and observations of the Committee were binding.

Regarding the issue of freedom of movement he noted that, according to paragraph 201 of the report, cross-border taxes had been set up, and asked what those taxes involved.

Addressing the issue of religious freedom, he asked if there were any estimates about the number of Falun Gong followers and why that religion had not been registered. What was religion according to the Hong Kong authorities? Also, was there a cross-border movement of Falun Gong followers between Hong Kong SAR and mainland China?

Sir NIGEL RODLEY, expert from the United Kingdom, also had questions about the Standing Committee of the National People's Congress, particularly regarding that body's reinterpretation of the SAR's Basic Law. On national human rights machinery, he was concerned that no move had been made to establish an independent body to hear complaints about police procedure. The Committee had made a recommendation in that respect in 1999, and he wondered, if the Committee were to reiterate its suggestion, would it be seriously considered by the SAR authorities?

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