LegCo Paper No. CB(2) 289/96-97
[These minutes have been seen
by the Administration]
Ref: CB2/PL/HA

LegCo Panel on Home Affairs

Minutes of Meeting with the Administration on the Supplementary Report on Hong Kong under the ICCPR held on Friday, 21 June 1996 at 8:30 a.m. in Conference Room A of the Legislative Council Building

Members Present :
    Hon Emily LAU Wai-hing (Chairman)
    Hon LEE Wing-tat
    Hon James TO Kun-sun
    Hon Albert HO Chun-yan
    Dr Hon LAW Chi-kwong
    Hon Bruce LIU Sing-lee
    Hon NGAN Kam-chuen
    Dr Hon John TSE Wing-ling
Members Absent :
    Hon LO Suk-ching (Deputy Chairman) *
    Hon Allen LEE Peng-fei, CBE, JP *
    Hon LAU Wong-fat, OBE, JP *
    Hon Andrew CHENG Kar-foo *
    Hon CHEUNG Hon-chung *
    Hon CHOY Kan-pui, JP *
    Hon Ambrose LAU Hon-chuen, JP*
    Hon Mrs Elizabeth WONG CHIEN Chi-lien, OBE, ISO, JP *
    Hon Zachary WONG Wai-yin *
    Hon Christine LOH Kung-wai#
    Hon LEE Cheuk-yan#
Public Officers Attending:
    Mr Jeremy CROFT
    Principal Assistant Secretary for Home Affairs
    Ms Ingrid HO Poi-yan
    Principal Assistant Secretary for Security
    Mr Gordon LEUNG
    Principal Assistant Secretary for Security
    Mr Philip CHAN Kwan-yee
    Principal Assistant Secretary for Security
    Mr Patrick HO Chung-kei
    Principal Assistant Secretary for Constitutional Affairs
By Invitation :
Amnesty International, Hong Kong Section

I. Election of chairman of the meeting

1. Due to a clash of meetings, Mr HO Chun-yan recommended and Ms Emily LAU Wai-hing agreed to chair the meeting.

II. Meeting with the Administration and deputations

2. A summary of the main views of non-governmental organisation (NGOs) and members on the issues of concern and a note on electoral matters and the binding effects of the United Nations Humans Rights Committee's (UNHRC's) views provided by Mr Stephen LAM, Assistant Legal Adviser were tabled at the meeting.

Electoral matters

3. Mr Stephen LAM referred members to the case of LEE Miu Ling & Anor v AG [1996] 1 HKC124 and pointed out that the United Kingdom (UK) Government had amended Article VII (3) of the Letters Patent to permit people of a particular group to be given a voting entitlement in addition to a geographical constituency vote. As regards the binding effect of the reports of the UNHRC, Mr LAM pointed out that since the UNHRC was not a judicial body, its binding power was rather low.

4. Mr Jeremy CROFT said the Administration understood that the UNHRC's recommendations were not binding. While the Committee's views were taken very seriously, it was the view of the UK Government and the Hong Kong (HK) Administration that the electoral system in HK conformed to the ICCPR. The Chairman referred to para. 19 of the Concluding Observations of UNHRC which pointed out that the present electoral system in respect of elections to the Legislative Council (LegCo) was not in conformity with the Covenant and invited members to comment on the conflicting views.

5. Dr LAW Chi-kwong asked Mr Stephen LAM to clarify what criteria would be used by the courts to identify those people who were sensible and fair-minded. Mr LAM replied that "sensible and fair-minded" was an objective criterion which the courts would accept as a concept and it was equivalent to a reasonable person. Responding to Dr LAW's comments that it was the courts' subjective view that it was an objective criterion, Mr LAM indicated that it represented the views of a reasonable person. Mr LAW Yuk-kai added that the deprivation of human rights could be done through different measures such as legislation, administrative procedures or law enforcement, and the UK Government had amended Article VII (3) of the Letters Patent to make the present electoral system in HK in respect of elections to the LegCo legitimate thus attaining the objective of depriving human rights of HK people. He also warned that the Basic Law was vulnerable in that amendments could be made through legislation of the sovereign state. In response, Mr Patrick HO said that the record voter turnout for the 1995 LegCo elections reflected broad community support of our electoral system. The Administration maintained the view that the electoral system in HK, of which functional constituencies formed a part, was open and fair and was consistent with the Covenant as applied to HK. Mr Albert HO Chun-yan opined the fundamental question was the status of the ICCPR as viewed by the State Parties to the Covenant. He therefore asked the Administration to explain the criteria used by the UK Government to determine whether to accept UNHRC's recommendations. He further enquired about the UK Government's policy on ICCPR and asked whether the rejection of the recommendations constituted a violation of ICCPR. He was worried about similar tracks might be followed by the sovereign state after the hand-over in 1997. The Chairman made similar observations that UK accepted selectively the recommendations of UNHRC. In reply, Mr Jeremy CROFT referred to the views of Mr Stephen LAM that the recommendations of UNHRC were not binding and reiterated that it was the view of the UK and HK Governments that the electoral system in HK conformed with their obligations in respect of the Covenant. The different views held would be discussed with the UNHRC in the forthcoming hearing. As regards the concerns and queries of Mr Albert HO Chun-yan, Mr Jeremy CROFT pointed out that it was not a case of applying criteria. The UK and HK Governments would examine both the observations of UNHRC and their own arguments, and if they believed that their own arguments were valid and correct, and were applying the Covenant in a proper manner, they would say so. However, if they felt that the Committee's recommendations were justified, then it was incumbent upon them to change their positions. Mr HO Chun-yan observed that the request for a Supplementary Report reflected that UNHRC was not satisfied with the UK's fourth periodic report and expected improvements in the Supplementary Report. He opined that since UNHRC was the foremost authority on human rights, not honouring its recommendations might mean violation of ICCPR, and asked whether the Administration agreed with his interpretation. In reply, Mr CROFT maintained that the UK and HK Governments held the view that the electoral system in HK was in conformity with their obligations under the Covenant. Mr HO Chun-yan pointed out that there were other areas on which the Governments had different views, and asked what the justifications were. Mr CROFT again reiterated their stance. He added that the UK and HK Governments reflected their views to the Committee through the Supplementary Report and the UNHRC would have the chance to make further comments.

6. Mr James TO Kun-sun expressed his concern about the attitude taken by the UK and HK Governments towards the recommendations of UNHRC. He understood that the interpretations of UNHRC on the Covenant had universal application and asked whether the Governments meant to repudiate the authority of UNHRC. In reply, Mr Jeremy CROFT considered that the UNHRC's recommendations were open to discussion and to different views. Mr James TO followed up by asking whether a mechanism existed for UNHRC to require a State Party to the Covenant to comply with the recommendations, such as through a resolution by other State Parties to the Covenant. Mr Stephen LAM referred to Articles 41 and 42 of ICCPR that a State Party might complain against another State Party on incidents of violation of human rights. Then UNHRC might, with the prior consent of the State Parties concerned, appoint an ad hoc Conciliation Commission to investigate the complaint and to report to UNHRC. Upon completion of the investigation, UNHRC might encourage and request the relevant parties to comply with the recommendations. Ms Robyn KILPATRICK pointed out that although UNHRC's recommendations were not binding in nature, as the foremost authority on human rights, it tried to put a moral obligation on State Parties to the Covenant. She was disappointed that the UK and HK Governments had not accepted the recommendations and observed that lobbying by HK people and the LegCo would be the main way of forcing compliance. Mr James TO asked the Administration whether the UK Government had accepted Article 41 of ICCPR so that other State Parties might submit a complaint and thus a Conciliation Commission might be formed. He further opined that UNHRC might express strong views to reprimand the UK and HK Governments for not implementing the recommendations, and in so doing, international pressure might be created. Upon Mr CROFT's confirmation that the UK Government had accepted Article 41 of ICCPR, Mr James TO suggested that complaints might be lodged with UNHRC against manipulation of human rights in Hong Kong. The Chairman recommended a discussion on the issue later and requested the Administration to respond to written representations from NGOs. Mr CROFT replied that he had nothing to add to the Supplementary Report. Mr James TO commented that at the international level, the UK Government submitted a written response at the request of UNHRC, and wondered why the Administration did not respond in writing to members' concerns and views at the local level. It was also out of line with the Administration's normal practice of responding to Members' requests. Mr CROFT said that the Administration was not asked to submit their views in writing at the last meeting. The Chairman recalled that at the meeting the Administration was asked to respond both verbally and in writing. The clerk added that the Administration was reminded to provide a written response but the request was rejected because they said that they could not do so within three working days.Adm

Submission of reports to UN after 1997

7. The Chairman requested the Administration to respond to the issue concerning the continued submission of reports in respect of Hong Kong after 1 July 1997 under Article 40 of the Covenant, and to members' proposal regarding a concluding report to UN on 30 June 1997 by the UK Government. In reply, Mr CROFT said that the UK Government would submit a further report to the UN if requested by the UNHRC. Mr James TO asked whether the UK Government would take a proactive role to report to UN and what UK had done in similar situations at the time of retreating from its colonies. Mr CROFT said that he did not know the positions of other colonies. The reporting obligation rested with the UK Government and it would submit a report in whatever form requested by the UNHRC. Mr James TO understood that the UK Government would tend to take a passive role in reporting to UN. Referring to members' concerns and requests, he presumed that HK Government had conveyed them to the UK Government, and inquired whether UK Government had made a negative reply on them or whether HK Government would follow the matters up with UK. Mr CROFT said that the UK Government might respond to requests from members. The Chairman added that perhaps UK would consider the concerns and requests representing the LegCo as a whole, and commented that it was a matter of grave concern to learn that the Chinese Government was not going to report to UNHRC after 1997. She inquired what should be done to urge the Chinese Government to cooperate and what role NGOs would play. In reply, Mr CROFT stated that the matters were under discussion at the highest level of the two Governments. Mr James TO observed that based on Mr CROFT's reply, the UK Government had decided to take a passive attitude and had shown no real effort in this regard and therefore suggested that the Panel should move a motion to regret UK's decision. Mr CROFT replied that the UK Government would respond to requests from the LegCo and to requests from UNHRC to submit a report. He stressed that under the Joint Declaration, the Chinese Government was bound to submit reports to the UNHRC and it would be inappropriate for the UK Government to make alternative arrangements for NGOs to submit reports should the Chinese Government fail to do so. Dr LAW Chi-kwong suggested that the Panel's concerns and requests be endorsed by the LegCo and that they should be conveyed to UK direct or via HK Government.

Bills of Rights Ordinance (BORO)

8. Mr CROFT said the UK and HK Governments' position was clearly stated in paragraph 39 of the Supplementary Report. It was not a new position because it was conveyed to Members early this year. There had been no retreat from the position that the BORO was wholly consistent with the Joint Declaration and the Basic Law in giving effect in HK to the provisions of the ICCPR as applied to HK. Mr James TO said that the Supplementary Report missed out an important point that the suggestions of Preliminiary Working Committee would seriously weaken the Bill of Rights. Mr CROFT replied that it would be difficult to comment on the PWC's suggestions to reinstate laws amended for consistency with the BORO because the details of the proposed changes were not available. Mr James TO argued that the UK Government had urged the Chinese Government not to follow those suggestions. Mr CROFT said that there was no case to make any amendments as the existing laws were consistent with the BORO, the Joint Declaration, the Basic Law and obligations under the Covenant as applied to Hong Kong. Mr James TO requested and Mr CROFT agreed to include the last sentence in the speaking notes for the hearing of UNHRC and to advise the Panel of the date of the hearing.Adm

Sex Discrimination Ordinance (SDO) and Disability Discrimination Ordinance (DDO)

9. Dr John TSE Wing-ling was disappointed about the slow progress of implementing SDO and DDO, and would tend to support Mr LEE Cheuk-yan's motion to make the provisions of SDO and DDO effective immediately. Mr Bruce LIU Sing-lee requested the Administration to indicate the earliest possible date for implementing SDO and DDO and for making the Equal Opportunities Commission (EOC) operational. Mr CROFT said that he would submit a written reply on the time-frames and the progress of the codes of practice under EOC. Mr James TO asked when the preparation of the codes of practice commenced and also asked the Administration to give concrete examples of catastrophes envisaged if SDO and DDO were implemented without the codes of practice . In reply, Mr CROFT said that the preparation of the codes of practice began more than a month ago and would check and report on the exact time of commencement. He said that the codes of practice were necessary to provide guidance to employers and would also help the community to understand the Ordinances better. Dr John TSE referred to a meeting in January 1996 during which Mr Michael SUEN, Secretary for Home Affairs, said that the preparatory work for the codes of practice had already started at that time but now Mr CROFT told them that the work had just commenced. He was very dissatisfied with Mr SUEN's statement and the little progress regarding EOC though 66 million dollars was granted for the project and pointed out that members felt being cheated by the Administration. Dr LAW Chi-kwong said that he met Mr SUEN sometime in October 1995 who said that the Administration would commence the preparatory work for EOC soon. Dr LAW opined that through its failure to implement the SDO and DDO, the Administration did not fulfil its obligations under the Covenant. Mr James TO requested the Panel to include the slow progress of implementing EOC, SDO and DOO in the report to UNHRC. The Chairman asked the Administration to convey to Mr SUEN the Panel's dissatisfaction with the slow progress in implementing the Ordinances. Mr Bruce LIU Sing-lee asked the Administration to set a firm deadline for implementing the Ordinances, or members might choose to vote for Mr LEE's motion. Responding to an earlier question from Mr James TO, Mr CROFT confirmed that the EOC could operate without the codes of practice. Mr LAW Yuk-kai pointed out that the UK Government had been a Cosignatory of the Convention on Racial Discrimination for twenty years, and still there was no legislation to eliminate racial discrimination. Mr CROFT said that the Administration intended to conduct a study and public consultation on racial discrimination and was working on the 14th Report which would be discussed in Spring 1997.Adm

Human Rights Commission

10. Regarding the establishment of a Human Rights Commission (HRC) in HK, Mr James TO understood that the Administration turned down the suggestion after consultation with the Chinese Government, and asked whether the Administration would reopen dialogue with the Chinese Government to seek their views. Mr CROFT replied that the UK and HK Governments alone had decided that a HRC was not the best way forward in Hong Kong's circumstances and the decision did not involve the Chinese Government. Mr James TO pointed out that different views were put forward in the last report. Members agreed that a HRC should be established in HK.

Investigation of complaints against the Police

11. On the investigation of complaints against the Police, Mr LAW Yuk-kai asked whether the suggestion to have civilian investigators in Complaints Against the Police Office (CAPO) investigation was acceptable to the Administration. Mr Philip CHAN said that the Administration maintained that most complaints involved criminal investigations which would best be handled by the Police, and confirmed that Independent Police Complaints Council (IPCC) was advised of the Administration's position. Mr James TO recommended and the Chairman agreed that the report should include the Administration's position on insisting that CAPO investigations should be conducted by the Police even though IPCC maintained their recommendations to have civilian investigators in CAPO investigations.

Freedom of expression

12. On freedom of expression, the Chairman drew members' attention to the grave concerns in the submission by Human Rights Watch/Asia on ICCPR quoting incidents of intimidation of local and foreign journalists in China, and other relevant incidents in Hong Kong and in PRC. In response, Mr CROFT said that he shared the concerns and the Administration was committed to amend laws so that freedom of expression would be protected. The UK and HK Governments would continue to make representations to PRC in respect of incidents related to freedom of expression and seek clarification on Article 23 of the Basic Law. Responding to the Chairman's complaint about the lack of development in this respect, Mr CROFT said that some fifteen Ordinances had been amended since the Administration started to review the relevant legislation in 1992. The important security related laws were now under discussion in the Joint Liaison Group.

Ethnic minorities

13. Mr James TO proposed to include in the report UK's rejection of members' suggestion to issue to individual members of non-Chinese ethnic minorities a letter assuring UK's guaranteed admission to those who came under pressure to leave HK. The Chairman agreed that it should be included in the report. She then asked the Administration to inform members of the progress of a study on ethnic minorities. In reply, Ms Ingrid HO indicated that the study was not completed yet but the result would be available soon. Should members like to be briefed on the result, the Administration would be happy to do so at the LegCo Panel on Security on 8 July 1996. She admitted that some difficulties were encountered in the updating exercise, such as verifying the nationality of individual members. On the suggestion by Mr James TO to have voluntary registration, Ms Ingrid HO said that it would be considered together with the information from the study. The Chairman asked ASG(2) to explore the possibility of having another House Committee meeting on 12 July 1996 to discuss the Panel's recommendations.ASG(2)

Provisional Legislature

14. The Chairman suggested and members agreed to include in the report the motion debated in the LegCo on 13 March 1996 regarding the objection to the Provisional Legislature.

Legal Aid

15. Dr LAW Chi-kwong queried why the proposal that legal aid should be made independent was not included in the Supplementary Report. Mr CROFT said that the Supplementary Report aimed at responding to the recommendations of UNHRC and the proposal was not in the recommendations.

Concluding report

16. Mr Bruce LIU Sing-lee supported Mr James TO's suggestion that a concluding report should be submitted by the UK Government on human rights in HK as at 30 June 1997. Mr CROFT said that UK Government would provide such a report if the UNHRC made a request. Dr John TSE commented that the UK Government did not take an active role in reporting and discussing the issues with UN. Responding to Mr LAW Yuk-kai's question on the UK Government's responsibilities to HK beyond 1997, Mr CROFT said that the UK Government would take all steps to ensure that the Joint Declaration was honoured and would use its influence in the international community to this end. This was an absolute commitment which would continue even when the UK Government was no longer the sovereign state of HK. Responding to the Chairman's question on how UK Government would assist UNHRC, Mr CROFT said that UK Government would focus on the Joint Declaration and expected that ICCPR would be enforced after 1997. The Chairman suggested and members agreed that the report would request UNHRC to ask the UK Government to submit a concluding report and to conduct a hearing in respect of the report.

17. Mr James TO suggested and members agreed that the Panel requested HK Government to take a proactive role in submitting a concluding report on human right issues at 30 June 1997 and urged UNHRC to request the UK Government to do the same.

18. The meeting ended at 10:40 a.m.
LegCo Secretariat
30 October 1996

* other commitments
# away from Hong Kong

Last Updated on 19 Aug, 1998