Special meeting of the Home Affairs Panel of the Legislative Council
On Thursday, 23 September 1999
Response to NGOs' comments on the report of the Hong Kong Special Administrative
Region of the People's Republic of China in the light of the International
Covenant on Civil and Political Rights (ICCPR)
This paper attempts to respond to the comments that reached the
Home Affairs Bureau by 13 September, namely those submitted by the Hong
Kong Journalists Association, the Hong Kong Christian Institute, 'Justice'
and the Equal Opportunities Commission. It does not cover the submission
by the joint submission by 16 NGOs which we obtained late, with difficulty
and which, in any case, was a direct submission to the UN Human Rights
Committee, not to the Panel. With the exception of the issue of right
of abode - which we have elected to address under the heading of the Rule
of Law - the paper addresses contributors' comments in relation to the
Article to which they relate.
2. We have attempted to address contributors' comments comprehensively.
But, where we have thought it appropriate, we have elected to refer the
Panel to the relevant sections of our report rather than repeat them in
this paper. If there are any instances where we may have missed or
misunderstood a particular point, we will do our best to rectify the error
in the meeting. We have confined our response to matters covered
in our report under the ICCPR. So we have not, for example, addressed
the Christian Institute's comments about the 1997 labour laws, which we
have discussed in paragraphs 122 to 125 of our ICESCR report in relation
to Article 8 of that Covenant. But we will gladly respond to any
questions that Members may wish to raise about that issue.
Part 1: General Profile
Rule of law
3. The Panel will be familiar with the issues - discussed in paragraphs
230 to 239 of the report - in respect of Article 12 of the Covenant - in
relation to the right of abode. In paragraphs 234 to 238, we discussed
the then ongoing test cases of Cheung Lai-wah and Chan Kam-nga, indicating
that the Court of Final Appeal would hear these in January 1999.
The Court delivered its judgement on 29 January. Among the several
matters that it covered, the judgement gave rise to two questions of particular
- first, the Court held that - under Article 24(2)(3) of the
Basic Law - Mainland persons were eligible for the right of abode if either
of their parents was a permanent resident at the time of their birth and
- importantly - if either parent acquired permanent resident status after
- secondly, the Court held that Mainland residents who had the
right of abode in Hong Kong under Article 24(2)(3) of the Basic Law were
not bound by the requirement under Article 22(4) of the Basic Law to obtain
from the Mainland authorities permission to enter Hong Kong for settlement.
We have elected to address this issue ahead of all others as it impinges
on the fundamental question of the rule of law: the bedrock on which all
human rights are founded.
4. After thoroughly reviewing the Court's decisions, we came to
the view that the Court's understanding of Articles 22(4) and 24(2)(3)
of the Basic Law might not truly accord with the legislative intent of
those provisions. Our own understanding of that intent derived from
a careful analysis of the documents relating to these articles and drafting
history of the immigration laws that they affect. A practical - and
disturbing - consequence of the judgement was the extension of the right
of abode to a very large number of people: both in terms of absolute numbers
and, more importantly, in terms of Hong Kong's physical capacity to absorb
additional permanent population.
5. We carefully considered all options for resolving this problem,
including seeking an amendment of the relevant provisions of the Basic
Law and seeking an interpretation of those provisions. Both are lawful
and constitutional options under the Basic Law. The power to amend
the Basic Law is vested in the National People's Congress (NPC) of the
People's Republic of China. The power of interpreting it is vested
in the NPC's Standing Committee (NPCSC). We decided to seek an interpretation
on the principle that there is a fundamental difference between an interpretation
and an amendment. An interpretation is based on the true legislative
intent of a provision. An amendment changes that legislative intent.
Thus, in seeking an interpretation, we sought to clarify the true legislative
intent of the relevant provisions, not to change that intent. The
decision received the support of the Legislative Council in the Motion
Debate held on 19 May 1999. And independent opinion polls demonstrated
that 60% of respondents also supported it.
6. Article 48(2) of the Basic Law confers on the Chief Executive
(CE) the constitutional responsibility for the implementation of the Basic
Law. In view if the problems encountered in implementing the Basic
Law in respect of Articles 22(4) and 24(2)(3) - and in the light of the
exceptional circumstances discussed in paragraph 4 above - the CE asked
the State Council to request the NPCSC to interpret the two articles in
accordance with the legislative intent of the provisions. The NPCSC
announced its interpretation on 26 June. The interpretation made
two things clear -
- first, under Article 24(2)(3) of the Basic Law, Mainland residents
are eligible for right of abode only if, at the time of their birth, at
least one of their parents belongs to the category listed in Article 24(2)(1)
or Article 24(2)(2) of the Basic Law. That is to say, generally speaking,
he or she had been born in Hong Kong or had ordinarily resided in Hong
Kong for seven years;
- secondly, the requirement under Article 22(4) of the Basic
Law that Mainland residents must apply for approval from the Mainland authorities
for entry into the HKSAR does apply to Mainland residents born of Hong
Kong permanent residents.
7. The organisations that have responded to the Panel's invitation
say that - by seeking an interpretation by the NPCSC - a non-judicial body
- we have in some way undermined the rule of law. We understand why
they should consider that this is so. But we profoundly disagree
with their assessment, which, as we aim to show, is based on misapprehensions
of the facts, of our intentions, and of the legal position. We have
repeatedly affirmed - in the report and in other contexts - that the rule
of law is the fundamental basis for the protection of human rights.
We are firmly of the view that the actions we took were entirely consistent
with the rule of law and we wish to assure the Panel that we remain, as
we always have been, wholly committed to the maintenance of the rule of
the law and to the principles on which it is based.
8. It has also been asserted that the interpretation has removed
the CFA's power of final adjudication and undermines judicial independence.
But the NPCSC's interpretation did no such thing. Indeed, it made
it abundantly clear that the CFA decision in regard to the cases in hand
was and remains final. The Court's adjudication was not overturned.
And the rights of the litigants were not affected. Thus, the interpretation
does not interfere with the independence of Hong Kong courts in deciding
cases in accordance with the law. Rather, as in certain civil law
jurisdictions, it provides the Courts with an authoritative legislative
statement of what the relevant lawmaking body (in this case, the National
People's Congress) intended when it framed a particular law or provision
within a law. It is then incumbent on the Courts - in accordance
with the rule of law - to determine cases in accordance with that statement.
9. The concern has also been expressed that the decision to seek
an interpretation bodes ill for the rule of law as it indicates that Government
may seek such interpretations whenever a CFA decision is not to its liking.
However, as our analysis in paragraphs 3 to 6 makes clear, the decision
to seek an interpretation was taken in accordance with the law and was
necessary in order to clarify the legislative intent of Articles 22(4)
and 22 (2)(3) of the Basic Law and to address an objective problem of crisis
proportions. The CE submitted his report to the State Council under
BL43 and BL48(2). The report set out the problems he had encountered
in the implementation of the Basic Law and requested assistance for seeking
the NPCSC's interpretation to resolve the problems. The CE has pledged
that he will do so only in exceptional circumstances.
Legitimacy of the Provisional Legislative Council
10. The Hong Kong Christian Institute has called into question
the legitimacy of the Provisional Legislative Council. We have addressed
this issue in paragraphs 455 to 457 of the report to which we will only
add that - since the report was finalised, the CFA has also confirmed the
constitutional validity of the PLC's establishment.
Article 2: equal enjoyment of the rights recognised in the Covenant
The Hong Kong Bill of Rights Ordinance (BORO)
11. 'Justice' has raised three points in relation to the explanation
of our position in paragraphs 9 to 18 of the report. These are -
- interpretation of paragraph 17 of the report: with the greatest
respect, we cannot follow Justice's rather hyperbolic sentence. All
that we were saying in paragraph 17 was that the decision in Tam v Wu -
that, as its drafters claimed, the 1997 Amendment Ordinance was intended
to repeal - was increasingly academic in practical terms. That Ordinance
was therefore substantively redundant;
- legal uncertainty: the uncertainties are analysed in paragraph 16
of the report. 'Justice' considers that they could readily have been
disposed of by the Courts. But the uncertainties were very real and,
as we have also argued, the Ordinance was, in any case, substantively redundant;
- effect of Article 39 of the Basic Law: 'Justice' calls on Government
to state its understanding of the effect of Article 39 in relation to actions
as between non-Government actors. We consider this to be a matter
for the Courts to decide in the determination of specific cases.
Human Rights Commission
12. Some contributors have reiterated calls for a Human
Rights Commission. Paragraphs 21 and 22 of the report explain our
position - with which the Panel is well acquainted - to the Human Rights
Committee. We have nothing to add to what we have said there.
Complaints against the Police
13. Contributors say that the developments described in
paragraph 51 of the report do not address the concern that the investigation
of complaints against the Police remains in the charge of the Police.
Our objections to placing the investigation of such complaints in the hands
of non-Police personnel are based on practical considerations. One
is that - in addition to its investigative role - Complaints Against the
Police Office (CAPO) has a 'prophylactic' function in relation to incidents
or practices that could give rise to complaints. That is, it analyses
and monitors the trend of complaints and identifies problems or defects
in Police administrative procedures and operational methods. Non-Police
personnel cannot fulfil this role effectively because they do not have
adequate knowledge or experience of Police work. An additional consideration
is that, because it remains staffed by Police officers, CAPO can more readily
and effectively liaise with Police formations with a view to preventing
the behaviour that engenders complaints and ensuring accountability at
the supervisory level. We also believe that non-Police personnel
would not be able to investigate complaints as efficiently and effectively
as CAPO does because -
- complaints against the Police often involve alleged breaches of
criminal law or of Police discipline or procedures. Non-Police personnel
would not have the necessary expertise, knowledge and skills to investigate
matters of that nature; and
- most complaints involve allegations of criminal offences and, on
average, 34.8% of the complaints relate to cases that are sub-judice at
the time they are made. In the circumstances, it would be inappropriate
for non-Police personnel to undertake the investigations.
Adaptation of laws
14. 'Justice' says that the report omits the reasons for opposition
to the amendment to section 66 of the Interpretation of Clauses Ordinance
(Cap 1). We thought - and still do - that paragraph 29 of the report
(Part 1) captured the essence of the objections in stating that commentators
considered that the amendment had compromised the principle of equality
before the law, which is one of the key principles underlying the Rule
of Law. Nevertheless, we have always recognised that there may be
instances where arguments adduced by our commentators may suffer from over-compression.
If that has been the case here, the Committee will have the opportunity
to consider the full text of the argument when 'Justice' makes its own
submission. This is entirely consistent with the practices in the
UN Manual on Human Rights Reporting which encourages NGOs to submit their
own reports to the treaty monitoring bodies. We, too, have encouraged
them to do so and take this opportunity to reiterate that encouragement.
15. The aim of the adaptation of laws exercise is merely to ensure
that Hong Kong's laws are consistent with the Basic Law and with Hong Kong's
status as a Special Administrative Region of the People's Republic of China.
Where any inconsistencies are discovered in the course of the exercise,
the next step is to ensure the proper adaptation of the laws in question.
The adaptation of section 66 of the Interpretation of Clauses Ordinance
(Cap 1) was such a case. It did no more than preserve and adapt a
principle that applies in nearly all common law jurisdictions concerning
the binding effect of legislation. The view that (the adapted) section
66 is inconsistent with the Basic Law is misconceived.
Article 3: Equal rights of men and women
Convention on the Elimination of All Forms of Discrimination against
16. Contributors have urged us to act on the recommendation of
the United Nations Committee on the Elimination of Discrimination against
Women that we establish a 'central mechanism on women'. We are studying
all the Committee's recommendations in detail, including that concerning
Sex Discrimination Ordinance (SDO)
17. The EOC has proposed amendments to the SDO and the Disability
Discrimination Ordinance. We are examining the proposals in detail
and have asked the EOC to provide further information. However, some
of the proposals have wide policy and legal implications and we will need
more time to examine them.
Equal rights in education
18. Commentators have expressed concern about the recent reports
regarding possible discrimination in the Secondary School Places Allocation
(SSPA) System. The system was designed in accordance with a number
of educational principles with a view to the overall interests of our students.
It was not intended to be discriminatory and the suggestion that it may
be so in practice is of concern to us too. We are studying the EOC's
'Formal Investigation Report' in detail and will review the SSPA System
in the light of its recommendations Meanwhile, we wish to assure the Panel
that the Government's policy is. that there is no preference for students
of either sex in receiving education. All subject syllabuses recommended
for use in schools by the Education Department (ED) have never been, and
are in no way meant to be, gender specific.
19. Concern has also been expressed about the fact that two subjects
- Design and Technology and Home Economics - appear in practice to be streamed
by gender. To the extent that this is so, the phenomenon is not a
result of Government policy. Rather, it is a practice of individual
schools, influenced by traditional thinking. Government regularly
reminds schools that male and female students should have equal access
to these - and, indeed, all - subjects.
EOC to be subject to the jurisdiction of the Ombudsman
20. We note that the EOC has said that it wishes to be subject
to the Ombudsman's jurisdiction. We have no objection to this.
But the EOC is an independent statutory body and we will suggest to the
Ombudsman that she discuss this with the Commission direct1 .
Article 4: Emergency Regulations
21. We note that Justice is unconvinced by our assurance - in
paragraph 91 of the report - that, in an emergency, the provisions of Article
18 of the Basic Law would have to be read with those in Article 39, so
that any regulations would necessarily be consistent with the provisions
of the Covenant. We also note that the Hong Kong Journalists Association
considers that there should be legislative checks on the ability of the
Executive to proclaim an emergency. We abide by the statement in
paragraph 91 of the report and consider that the present mechanism offers
the right balance for dealing with emergency situations. Regulations
that could be made in emergencies under the Emergency Regulations Ordinance
will have to be consistent with Article 4 of the ICCPR. Such regulations
would be subsidiary legislation and therefore subject to vetting by the
Article 7: No torture or inhuman treatment and no experimentation
22. Some 13 overstayers complained to the Legislative Council
about their treatment by Immigration staff during their detention on 30
and 31 March this year. The Immigration Department, the Police and
the Correctional Services Department have investigated the complaint.
Their findings - endorsed by the Secretary for Security - were submitted
to the Legislative Council on 5 August. Of the 13, two declined to
be interviewed; three indicated during interview that they had no complaint
to make; and one indicated that his case was minor and that he did not
wish to pursue it. The remaining seven made statements of complaint.
23. The departments found the complaints unsubstantiated with
the exception that, for one of the two days the complainants were detained,
toothpaste and toothbrushes were not available at the Mau Tau Kok Detention
Centre. This was due to a sudden increase in the number of
detainees. Measures have been taken to ensure that, in future, such
daily necessities will be replenished fully and in a timely fashion.
24. The complaint that has evoked the greatest concern is that
the detainees were subjected to a strip search. This was the case:
as a matter of established procedures all detainees are subject to a strip
search on arrival at the detention centre to ensure that they are not carrying
concealed weapons. The search is an essential measure for the safety
of inmates and staff.
Article 12: Liberty of movement
25. Contributors have raised several issues under this head.
These are addressed in the following paragraphs.
26. Right of abode test cases and referral to the NPCSC: these
issues are discussed in paragraphs 1 to 12 above in relation to the Rule
27. Removal of legal aid applicants: on 21 July 1999, the Director
of Immigration exercised his power under the Immigration Ordinance to remove
two illegal immigrants after they had applied for legal aid to establish
their claim - under Article 24(2)(3) of the Basic Law - to have the right
of abode. 'Justice' has adduced the case as an infringement of the
principle that persons who have the right of abode in Hong Kong cannot
be deported or removed from Hong Kong. They were removed in accordance
with normal practices 2 after the Police arrested them on 17 July 1999.
Persons who enter Hong Kong illegally commit an offence and are subject
to removal under the Immigration Ordinance. Mainland residents who
claim right of abode under Article 24(2)(3) must apply for a Certificate
of Entitlement in Mainland China.
28. The Immigration Tribunal: 'Justice' considers it unsatisfactory
that an administrative - rather than a judicial - body determines a person's
legal rights in the context of immigration. There is also concern
that the Tribunal's decisions are only subject to judicial review on (as
is claimed) narrow grounds. The Tribunal has always exercised its
jurisdiction independently of the Administration. It functions judicially
in the determination of appeals and its composition is similar to that
of many magistrates' court in the United Kingdom. The Tribunal's
adjudicators are as qualified to conduct proceedings as are lay magistrates
in the UK. And an appeal must be allowed if either one of the adjudicators
determining the appeal considers that it should be allowed. The grounds
upon which the Tribunal's decisions are subject to judicial review are
the same as those of other judicial and public administrative bodies.
Article 17: Protection of privacy, family, home, correspondence,
honour and reputation
29. The consultation paper issued by the LRC's sub-committee on
privacy is discussed in paragraph 31 below in relation to Article 19 of
Interception of Communications Ordinance
30. The HKJA regrets the absence of a timetable for the repeal
of section 33 of this Ordinance and for the introduction of new legislation
on the interception of communications. As we indicate in paragraph
317 of the report, it is important that any new legislation strikes a proper
balance between the rights to privacy and freedom of expression and the
need to ensure the effectiveness of the law enforcement agencies in carrying
out their duties. This is particularly important in the investigation
and detection of serious crime. Our caution and the pace of progress
reflect the complexity and difficulty of achieving that balance.
Meanwhile, we can assure the Panel that the matter is actively in progress.
Article 19: Freedom of opinion and expression
Law Reform Commission's (LRC's) proposal for a Press Council for the
Protection of Privacy
31. Concerns have been expressed about this proposal which some
contributors have seen as a potential threat to press freedom.
The proposal appears in a consultation paper issued by the LRC's Privacy
Sub-committee, which is not part of the Government. The preamble
to the paper makes it clear that it does not represent the final views
of either the sub-committee or the LRC. The Government has an open
mind towards the recommendations in the paper. We encourage members
of the public and the press to forward their views to the LRC. The
LRC will publish its report and final recommendations after considering
views received. The Government will carefully examine the LRC's final
recommendations before taking a view.
Code on Access to Information
32. The Hong Kong Journalists Association (HKJA) states that,
in late 1997, we tried to rig Government's response to a survey that the
Association conducted on the working of the Code. In support of its
claim, it cites a memo issued by the Home Affairs Bureau, alleging that
the memo incited departments to accord the reporter special treatment.
As we explained repeatedly at the time (to the Association, to the press
in general and to the Panel), the memo was issued in response to requests
from departments for advice on how to handle a reporter's requests for
a range of voluminous - and unrelated - documents. The gist of the
advice given was that the requests should be handled as provided for in
the Code: that is, requests should normally be met - promptly and in full
- as a matter of normal practice. They should only be rejected in
accordance with the provisions for that purpose in the Code. At no
stage did the writer suggest that the requestor be given any special treatment.
33. We do not agree with the conclusions that the HKJA has drawn
from its surveys. But we do not find it necessary to dwell on the
subject. Suffice it to say that after the surveys, the Government
met the Association to discuss what improvements could be made to our press
arrangements. In fact, during the period from 1 July 1997 onwards,
the Government has become more open and transparent. Senior officers
have been appearing more frequently on live television and radio broadcasts
to explain Government policies and respond to questions and comments.
The Government spokesman holds weekly briefing sessions for the media.
More press conferences have been conducted. All Government bureaux
and departments have their own websites, which are freely accessible by
members of the public. All Government press releases are instantly
uploaded on the Internet. Policy and consultation papers and major
speeches by Government officials are uploaded the same day. And the
Chief Executive's Office makes a point of answering press enquiries on
a same day basis unless that is impracticable.
Freedom of information legislation
34. The HKJA has called for legislation to "set out principles
on maximum disclosure of documents and information, minimal exceptions
and an effective appeal mechanism". These things are provided
in the present Code in that -
- it makes clear that disclosure is in the public interest and that,
therefore, departments may refuse requests for access only if the public
interest in disclosure is outweighed by any harm or prejudice that would
- it clearly prescribes the exceptions (categories of information
that departments may refuse to disclose). Those exceptions were framed
with regard to freedom to information legislation overseas and after consulting
interested parties, including the Legislative Council and the HKJA; and
- a person aggrieved by a department's response may ask for the case
to be reviewed by a more senior officer and ultimately, may complain to
The Ombudsman, who has statutory investigative powers.
35. That the Code is effective is demonstrated by the fact that,
during the period 1 July 1997 to 31 August 1999, 89% of the 4,125 requests
under the Code were met in full. This compares with 83% of the 2,538
requests during the period 1 March 1995 to 30 June 1997. That the
Code has served its purpose is also evidenced by the fact that - while
18 complaints have been lodged with the Ombudsman during the 66 months
since the Code's introduction (1 March 1995) - the Ombudsman has not found
any case where a request under it was unjustifiably refused.
Radio Television Hong Kong (RTHK)
36. Commentators - particularly the HKJA - have expressed concerns
about RTHK's continued editorial independence. These concerns first
surfaced in response to remarks made by a member of the Chinese People's
Political Consultative Conference. More recently, it returned to
prominence following our response to an interview in which a representative
of Taiwan spoke about the so-called "state-to-state theory". The
concerns focused on our comment that it was inappropriate for the spokesman
to put forward these views publicly in Hong Kong. As we have explained
in other contexts, our comment related entirely to the representative himself
and related entirely to his purely special status as a representative of
Taiwan. It did not relate in any way to any other person and in no
way impinges on the freedom of speech enjoyed by the people of Hong Kong,
which is protected by the Basic Law.
37. We can assure the Panel that it is the Government's policy
to maintain and uphold the editorial independence of all broadcasters in
Hong Kong. RTHK, like other broadcasters, has always enjoyed editorial
independence, including the arrangements for invitation of guests to its
programmes. We will continue to ensure that this remains the case.
Article 23 of the Basic Law
38. Concerns have been expressed about the nature and possible
effects of the provisions on secession and subversion in Article 23 of
the Basic Law. Those concerns relate particularly to the possible
implications for the freedom of expression. The HKJA has questioned
the continued non-implementation of the Crimes (Amendment) (No.2) Ordinance
passed by the former Legislative Council in 1997.
39. As we have explained in paragraph 358 of the report, we have
deferred the commencement of the 1997 Ordinance because it does not fully
meet the requirements of the Basic Law. Our examination of the BL23
involves complex issues that require the most careful study. As we
have stated in the report, our eventual proposals will be subject to extensive
public consultation and will address the concerns regarding the freedom
of expression. And, by virtue of Article 39 of the Basic Law, they
will need to be consistent with the provisions of the Covenant as applied
to Hong Kong.
Official Secrets Ordinance
40. The HKJA has repeated the call for the inclusion of defences
on the grounds of public interest and prior disclosure. As we have
stated in paragraph 360 of the report, we do to consider that to be necessary.
The Ordinance seeks to protect clearly and narrowly defined areas of information
against damaging disclosure that would cause or be likely to cause substantial
harm to the public interest. This is necessary for the protection
of Hong Kong's security and, we believe, consistent with the restrictions
in Article 19.3 of the ICCPR.
Desecration of flags
41. Concerns have again been expressed that the provisions of
the National Flag and National Emblem Ordinance and the Regional Flag and
Regional Emblem Ordinance infringe the freedom of expression.
42. As we have stated in paragraph 367of the report, the purpose
of these provisions is to protect the national and regional flags as symbols
of the People's Republic of China and the HKSAR. There are similar
provisions in the laws of other jurisdictions. We remain of the view
that the two ordinances are consistent with the Basic Law and with the
ICCPR as applied to Hong Kong. However, the case discussed in paragraphs
368 to 370 of the report is currently before the Court of Final Appeal.
The matter is therefore sub-judice and it would be inappropriate for us
to comment extensively on the issues involved. The submissions of
the Secretary for Justice will be advanced through counsel in open court
at the hearing of the appeal.
Refusal of entry visas for overseas Chinese
43. In May this year, 11 overseas Chinese persons unsuccessfully
applied for visas to enter Hong Kong in order to participate in a seminar
commemorating the 80th anniversary of the 'May 4th Movement' in China.
Contributors have said that the decision to refuse them entry violates
the freedoms of thought and of exchange of thought.
44. There was no such violation. The applicants and the
Hong Kong residents who invited them to attend the seminar had - and continue
to have - complete freedom to discuss any subject of their choosing through
the numerous electronic options available to them, such as the Internet
and video conferencing. Neither the Covenant nor any other human
rights treaty either explicitly or implicitly confers a right of entry
of non-residents into any territory other than their own. It follows
that the freedoms of opinion and expression cannot entail an obligation
on parties to admit non-residents to their territories for any purpose
whatsoever. If they did, that would extend the scope of the freedom
of movement beyond the scope conferred under Article 12 of the Covenant.
There is nothing in the wording of either Article 12 or Article 19 to suggest
that this is the case.
Article 22:Freedom of peaceful assembly and association
The Societies Ordinance and the Public Order Ordinance
45. Contributors have reiterated concerns that the 1997 amendments
to these Ordinances have compromised the freedoms of assembly and association.
In particular, 'Justice' expresses doubts as to whether the new ground
of national security for banning a society is consistent with the standard
of "prescribed by law" under Article 22. They have also questioned
the proportionality of the Police response to some of the public demonstrations
over the past two years. These points are addressed in the following
46. Freedom of assembly: as we have said in paragraph 380 of the
report, peaceful demonstrations also remain very much a way of life here,
as witness the some 4,300 demonstrations held between 1 July 1997 and 31
August 1999. So far, the Police have objected to just one public
meeting and two processions on the grounds of public safety and order.
In each case, they have withdrawn their objections when the applicants
have revised their proposed routes, venues or scale of participation.
Most public meetings and processions were peaceful and orderly and have
resulted in only 16 people being prosecuted of whom 15 were convicted.
We therefore see no evidence in support of the concerns regarding the freedom
47. Police response: pace the concerns cited in paragraph 45 above,
the Police have continued to exercise maximum restraint in the handling
of demonstrations. They use force only when absolutely necessary,
and then only the minimum necessary. They have the statutory duties
to preserve public order and safety and to regulate public processions
and assemblies. In regulating public processions, the Police seek
to strike a balance between the rights of participants to express their
views freely and the need to ensure that no danger or inconvenience is
caused to others. Establishing designated demonstration areas is
a reasonable measure to ensure this.
48. Concept of "national security": the introduction of this concept
into the law was necessary because Hong Kong is a stone's throw from the
Mainland, with close economic, social and political links. As stated
in paragraph 379 of the report, the term was formulated for consistency
with Article 21 of the Covenant. Clear administrative guidelines
have been issued to the Commissioner of Police on the application of the
concept in the context of the Public Order Ordinance.
49. Freedom of association: in paragraph 389 of the report, we
indicated that there was no evidence to support the view that the amendments
to the Societies Ordinance had unduly restricted the freedom of association.
As we pointed out there, 883 societies were formed between 1 July 1997
and 30 June 1998. The trend has been vigorously sustained with a
further 1,373 societies being formed between 1 July 1998 and 31 August
1999. Throughout the two periods, the Commissioner of Police has
not objected to any applications for the formation of societies.
Nor has the Secretary for Security made orders prohibiting the operation
of any society.
Article 23: The family
50. In paragraph 241 of the report, we expressed the view that
neither the law (the Immigration No. 3 Ordinance) nor our policies created
split families. If families did live apart, it was because they had
chosen to do so. Hong Kong permanent residents had the right to leave
Hong Kong and to join families in the Mainland. 'Justice' cites this
statement in support of its view that "the HKSAR Government displays scant
and discriminatory regard towards the protection of the family as the natural
and fundamental group unit of society."
51. We cannot, of course, accept that view. As we state
in paragraph 417, Mainland China is our principal source of immigration
for permanent settlement. Some 90% of all such immigrants come to
Hong Kong for the purposes of family reunion. That remains the case
and, over the years, we have gradually increased the daily quota for such
migration to the present 150 a day: over 54,000 a year. In the circumstances
- and in view of the obvious constraints on population growth in what remains
one of the most crowded places on Earth - the assertion that we pay scant
regard to the protection of the family is patently absurd.
52. The view to which 'Justice ' has taken exception is not ours
alone. For example, Justice Chan, CJHC, in his judgement given on
the "Chan Kam Nga Vs D of Immigration" case on 20 May 1998 said -
"¡Kthe permanent resident may be split from his children and family.
But it would be a split of his own choice. He had chosen to leave his children
and family in Mainland China and come to stay in Hong Kong for seven years
in the first place¡K The situation would be similar to a person who
has gone abroad to work or to further his studies and has subsequently
acquired citizenship in another foreign country. With respect, I
do not see the anomaly."
With equal respect, neither do we. We continue to the utmost that
is practical within our resources - and the capacity of our socio-economic
infrastructure - to promote and support family reunion.
53. 'Population policy': the concern has been expressed that the
recently announced policy of encouraging talented persons from Mainland
China to work in Hong Kong is potentially prejudicial to those wishing
to enter Hong Kong for family reunion. As such, it is said, the policy
is inconsistent with our obligations under Article 23 of the Covenant.
54. These misgivings are unfounded. The proposal is to permit
the entry of Mainland residents with skills and talents not readily available
in Hong Kong to work here. Essentially, their position will be the
same as that of expatriates from other countries. That is, they will
be here to work, not to settle. They will have to meet stringent
skills and qualification requirements before their application for entry
into Hong Kong is approved. They will have to renew their work visas
at staggered intervals (the same that apply to 'expatriates') and will
only acquire the right of abode if they complete seven years of ordinary
residence here. They will not be counted against the 150 daily quota
of persons entering for permanent settlement.
55. The position of those waiting to enter Hong Kong for family
reunion is completely different and will remain as it is now. That
is, they will - as now - continue to comprise persons who are eligible
for the right of abode under the provisions of Article 24 of the Basic
Law and who therefore have the right of abode from the outset. As
now, their skills or lack of them will in no way impinge on their eligibility.
Thus, like contributors' other concerns, the allegation that the new policy
is inconsistent with the requirements of Article 23 is without foundation.
New arrivals from China
56. 'Justice' suggests that 'Government propaganda' has exacerbated
prejudices against new arrivals from the Mainland. This is not the
case and there has been no 'propaganda'. On the contrary, we have
been doing a great deal to help the new arrivals to integrate into the
community: see paragraphs 422 to 425 of the report.
Article 25: Right to participate in public life
57. Contributors have expressed concern about the pace of development
towards universal suffrage, the functional constituency system, the composition
of the Election Committee and the method for selecting the Chief Executive.
They have also said that the electoral system - particularly the functional
constituencies - imposes structural obstacles to the equal participation
of women. And there is concern that the reintroduction of appointment
to the district councils and the abolition of the Municipal Councils have
made the system less representative. These concerns are addressed
in the following paragraphs.
58. The pace of democratic development: the Basic Law prescribes
the blueprint for the development of representative government in Hong
Kong. It provides for a steady increase in the number of Legislative
Councillors to be returned by geographical constituencies: 20 in the first
term (which started in 1998), 24 in the second term (due to start in 2000)
and 30 in the third term (due to start in 2004). The ultimate aim
is the election of all 60 Councillors by universal suffrage. The
Basic Law also prescribes a mechanism for a decision to be taken on whether
the method for the formation of the Legislative Council and the procedure
of Legislative Council for voting on bills and motions should be amended
after the year 2007. Whether the conditions are ripe for electing
the entire Legislative Council by universal suffrage immediately after
2007 should be decided by the whole community after informed discussions.
59. The Legislative Council: the election of the first term Legislative
Council in May 1998 was held in accordance with the provisions of the Basic
Law. The record number of voters and candidates ensured the election
of a credible and representative Legislative Council. The results
of the election demonstrated that the List Voting system adopted in the
geographical constituency elections ensures that parties will win seats
in proportion to the actual level of support that they enjoy in each constituency.
60. The Election Committee and the method for selecting the Chief
Executive: Annex I of the Basic Law provides that the Chief Executive shall
be elected by a broadly representative Election Committee in accordance
with the Basic Law. The Basic Law also provides that the ultimate
aim is the selection of the Chief Executive by universal suffrage upon
nomination by a broadly representative nominating committee in accordance
with democratic procedures. It also provides a mechanism for a decision
to be taken on whether the method for selecting the Chief Executive should
be amended after 2007.
61. Functional constituencies: these constituencies have been
part of Hong Kong's electoral system since 1985, when elections to the
Legislative Council were first held. Their purpose is to provide
a representative voice for various sectors in the territory that have significantly
contributed to the community. Before 1985, all Legislative Council
Members were appointed. By convention, a number of appointees came
from sectors of the community that were substantial and important.
Representatives of the sectors made use of their specialist or professional
knowledge to contribute to the work of the legislature. When elections
to the Legislative Council were introduced in 1985, the community agreed
that an appropriate way to enable these sectors to continue their contribution
would be through the functional constituencies. This has proved to
be an effective arrangement for ensuring a representative Legislative Council
by allowing different sectors that have made significant contribution to
our community to have a voice in the legislature.
62. The Provisional Municipal Councils: the proposal to dissolve
the Provisional Municipal Councils after the terms of office of their members
expire is not a roll back in democracy. Indeed, it will enhance the
Legislative Council's role in monitoring Government's policies and the
use of public funds for municipal services. The District Boards (to
be renamed 'District Councils') will also have an enhanced role in the
monitoring of Government services at the district level. We also
believe that the Government's assumption of direct responsibility for food
safety and environmental hygiene will improve co-ordination in policy formulation
and the delivery of services. It will enable us better to respond
to food safety crises and major environmental hygiene incidents.
This view received the support of the Legislative Council when, on 10 March
1999, it voted the District Councils Bill into law.
63. Appointments to the District Councils: in late 1997, we conducted
a review of the structure and functions of our district organisations.
During the public consultation period, many respondents indicated support
for an appropriate number of members to be appointed to the District Councils.
Appointed membership will enable suitable persons interested in district
affairs to serve on the relevant District Councils. Experience has
shown that appointed members can bring a wider spread of expertise and
experience to the Districts they serve. Again, the Legislative Council
endorsed this view in March this year, when it voted the District Councils
Bill into law.
64. Participation of women in the political process: women and
men enjoy the same right to vote and to stand for election. That
right is guaranteed in the Basic Law. A person's sex is not a criterion
- either direct or indirect - for qualification as an elector or a candidate
in any election. There are no structural obstacles to women's participation
65. 'Justice' has said that the report fails to mention allegedly
discriminatory practices in the election of village representatives.
We assume that the 'omission' referred to concerns the issues in the two
cases - currently under appeal - of the Pat Heung and Po Toi O elections.
The report does not address those issues because the applications for judicial
review that brought them to light were made well outside the report's cut-off
date (30 June 1998). As the Panel is aware, the Government has appealed
against the decision of the Court of First Instance. The matter is
currently sub judice.
66. 'Justice' also questions the practical value of the model
rules and minimises the sanction of non-recognition by Government of any
village representatives not elected in accordance with those rules.
At the time of writing the report, we said (in paragraph 72) that 96% of
all villages had adopted the model rules. Now, all of them do.
Thus, Justices's point is somewhat academic. Additionally, non-recognition
of a village representative is not - as Justice implies - a toothless sanction.
On the contrary, it debars such a representative from election to either
a rural committee or to the Heung Yee Kuk.
67. In the longer term, the Government intends to bring the village
representative elections within the framework of the law. We expect
this to provide further safeguards for equal participation in the electoral
process. A Government working group is studying the issues with a
view to formulating concrete proposals for the achievement of this aim.
Government advisory boards and committees
68. The HKJA has called on Government to further open its advisory
bodies to the public, starting with those that deal with transport, broadcasting,
education, environment and town planning. In general, we encourage
all advisory bodies to open up their meetings as far as practicable.
But some bodies - particularly those dealing with the matters on the HKJA
'wish list' - handle information that is classified, commercially sensitive
and/or involves personal data. Some bodies are consulted at the initial
stage of policy formulation and disclosure of the information before them
- that may derive from incomplete analyses, research or statistics - would
be premature. Clearly, therefore, it would be inappropriate for those
bodies to open their meetings to the public.
69. Nevertheless, bodies whose meetings are not open recognise
the need for greater transparency and accountability in an increasingly
open society. To that end, they have introduced a range of transparency
measures as such issuing press releases, holding press briefings, and making
agendas and relevant papers available to the public. We will continue to
liaise closely with these bodies to monitor the need for further moves
towards greater transparency.
Article 26: Right to equal protection before the law
70. Commentators have called for specific legislation against
discrimination on the grounds of age, race and sexual orientation.
Our position remains as explained in paragraphs 497 to 505 of the report.
As we have said there, our minds are not closed and we shall keep the situation
in view. But, pending any significant change of circumstances that
might indicate a need for legislation, we will persist with our efforts
to raise public consciousness of the issues and, through continuing educational
initiatives, gradually to foster a culture of mutual understanding, respect
Prosecution policy of the Department of Justice
71. Contributors have reiterated concerns about the decision of
the Secretary for Justice not to proceed with prosecution in a criminal
case allegedly involving a well-known personality. They have called
for prosecution decisions to be made in accordance with established guidelines.
72. As we have explained in paragraphs 508 to 512 of the report,
prosecution decisions are indeed made in accordance with long-established
guidelines and criteria. The reason for not prosecuting the person
in question was that there was insufficient evidence. That ground
alone was sufficient to dispose of the matter. Public interest considerations
were only taken into account because of representations submitted by counsel
for the person concerned. There was a combination of public interest
factors that, taken together, were totally exceptional. It is unfair
to single out any one factor and draw wild conclusions from it. Research
into the practices in 11 leading common law jurisdictions has established
that prosecution agencies in other jurisdictions may take similar considerations
into account when deciding whether or not to prosecute.
Article 40: Submission of reports
73. 'Justice' has called on Government to submit updated material
to the Human Rights Committee and to make that material available to Hong
Kong NGOs attending the hearing. Had time permitted, we would have
provided a short updating report on developments since 30 June 1998.
But notice of the hearing was received too late to enable us to do that.
In any case, the Committee has not asked us to do so. But we agree
that the Committee should be apprised of at least the most significant
developments and we will try to do so in our opening statement. A
paragraph-by-paragraph update would be impractical: that would take up
all the time available for the hearing. But we will advise the Committee
that we are ready to answer any questions that they may raise. Those
questions are likely, we believe, to draw on the submissions of the NGOs.
Additionally, we will adapt and expand the present paper to cover any submissions
that are not presented today or that arrive too late for inclusion here.
We will table the resulting paper at the hearing and will give NGOs present
in Geneva copies of that and our opening statement immediately before the
hearing begins. They will have ample time to digest these over the
weekend between the two parts of the hearing.
Reservations and declarations
74. Contributors have called on us to withdraw our reservations
against the Covenant. We are reviewing the reservations and declarations
in the light of the current constitutional, legal, social and economic
situation. We have not concluded the exercise. But we will
need to retain at least some reservations, either in their present or in
modified form. And we have no intention of withdrawing the reservation
against Article 25(b).
Home Affairs Bureau
21 September 1999
1. Similarly, neither we nor the Privacy Commissioner for Personal Data ("PC") object to the PC being subject to the Ombudsman's jurisdiction, provided that this does not overlap with the existing avenue of appeal to the Administrative Appeals Tribunal. Again, the PC is an independent authority and we shall suggest to the Ombudsman that she discuss this with the PC direct.
2. The normal practice is that, after illegal immigrants are arrested; arrangements will be made for their removal. Once the necessary procedures are completed, the removal is carried out independently of whether there will be court hearing on an application for injunction against the removal.