Legislative Council

Ref : CB2/PL/HA

Members Present :

Hon CHOY So-yuk (Chairman)
Hon Albert HO Chun-yan (Deputy Chairman)
Hon Cyd HO Sau-lan
Hon MA Fung-kwok
Hon Ambrose CHEUNG Wing-sum, JP
Hon Gary CHENG Kai-nam
Hon Jasper TSANG Yok-sing, JP
Hon Emily LAU Wai-hing, JP
Hon Andrew CHENG Kar-foo
Hon Timothy FOK Tsun-ting, JP

Members Absent :

Hon Edward HO Sing-tin, JP
Hon LEE Wing-tat
Hon James TO Kun-sun
Hon Christine LOH
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon Andrew WONG Wang-fat, JP
Hon LAU Wong-fat, GBS, JP
Hon LAW Chi-kwong, JP

Member Attending :

Hon LEE Cheuk-yan

Public Officers Attending :

Mr David H T LAN
Secretary for Home Affairs

Mr Leo KWAN
Deputy Secretary for Home Affairs (1)

Mr NG Hon-wah
Principal Assistant Secretary for Home Affairs (2)

Miss Helen TANG
Principal Assistant Secretary for Home Affairs (3)

Mr John DEAN
Principal Assistant Secretary for Home Affairs (7)

Miss Cathy CHU
Principal Assistant Secretary for Security (C)

Mr Philip CHAN
Principal Assistant Secretary for Security (E)

Mr John LEUNG
Principal Assistant Secretary for
Constitutional Affairs (6)

Mr Derek GOULD
Principal Assistant Secretary
for Education and Manpower

Mr Stephen WONG
Deputy Solicitor General

Mrs Susan CHONG
Chief Social Work Officer (Family and Child Welfare)

Clerk in Attendance :

Mrs Constance LI
Chief Assistant Secretary (2) 2

Staff in Attendance :

Miss Flora TAI
Senior Assistant Secretary (2) 2

I. Confirmation of minutes
[LC Paper No. CB(2)972/98-99]

The minutes of the joint meeting of the Panel on Public Service and Panel on Home Affairs held on 9 December 1998 [LC Paper No. CB(2)972/98-99] were confirmed.

II. Meeting with the Administration on the Report of the Hong Kong Administrative Region of the People's Republic of China (HKSAR) in the light of the International Covenant on Civil and Political Rights (ICCPR)

2. At the invitation of the Chairman, Secretary for Home Affairs (SHA) briefed members on the preparation of the HKSAR's Report on ICCPR. He informed the meeting that an outline of the topics to be covered in the Report was issued for public consultation between 10 March and 15 April 1998. The Home Affairs Bureau (HAB) also invited 28 non-governmental organizations (NGOs) to attend a consultation forum to gauge their views on the outline of the report. He said that HAB had co-ordinated the compilation of the Report based on the preparation criteria of the United Nations (UN). The views of concerned parties had been taken into account in the drafting of the Report. SHA informed members that HKSAR Government had forwarded the Report to the Chinese Permanent Mission to UN through the HKSAR Beijing Office for onward transmission to UN on 11 January 1999 without routing Central People's Government (CPG). The submission process had fully realized the "one country, two systems" principle as the Report was entirely prepared by HKSAR Government and CPG had made no amendment to the content.

3. SHA said that the Report discussed the progress of implementation of ICCPR in HKSAR since the submission of the regular report in 1995 and the Supplementary Report in 1996 by the United Kingdom on behalf of Hong Kong. The Report of HKSAR covered the period from 1 July 1997 to 30 June 1998. He said that Part I of the Report described the general profile of HKSAR and Part II gave specific information on the implementation of different provisions. It was a very comprehensive report covering a wide range of issues, and was the longest report submitted by Hong Kong on ICCPR so far. He stressed that HKSAR Government had adopted an objective and balanced approach in the compilation of the Report by including the controversial issues as well. The UN Committee had also commended HKSAR for the timely and efficient submission of the Report. In reply to the Chairman, SHA advised that the UN Committee had yet to fix the date of UN hearing on the Report and he undertook to inform the Panel when the date was known.

Admin

4. While acknowledging that HKSAR's report was comprehensive, some members disagreed with SHA that it presented a true picture of HKSAR regarding the implementation of ICCPR. Members had raised a number of questions on the content of the Report, and the gist of discussion is summarized in the following paragraphs.

Formation of the Provisional Legislative Council (PLC)

5. Ms Emily LAU commented that despite the considerable volume of the Report, the Report had failed to present a full picture of HKSAR in implementing ICCPR as far as political rights were concerned. She expressed dissatisfaction that the formation of PLC was described as if it was part of the political structure in Part I of the Report, without providing details on the controversy over its formation. SHA responded that Government had adopted an open and impartial attitude in reporting the implementation of ICCPR by HKSAR, and its report was the most comprehensive when compared to those prepared by other countries such as Italy, Austria and Holland. He noted there were different views on certain issues discussed in the Report, and he advised that NGOs could also forward their own reports to the UN Committee directly. Principal Assistant Secretary for Constitutional Affairs (PAS(CA)) added that paragraphs 455 - 457 of the Report did address the different opinions and the Administration's response regarding the legitimacy of PLC.

Functional constituencies system

6. Ms Emily LAU criticized the Report for not mentioning the fact that about one or two million people in Hong Kong had lost their right to vote, as a result of the reduction of the electorate for functional constituencies (FCs) in the 1998 Legislative Council (LegCo) election. PAS(CA) explained that the purpose of the FCs was more important than the sheer size of the electorate. The FC system in 1998 had served its purpose well by enabling representatives from the economic, financial and professional sectors to participate in the work of LegCo, and the system was accepted by the community. The Report had made it clear that the FC system was a transitional arrangement, as the Basic Law had provided that LegCo Members would ultimately be returned by universal suffrage. PAS(CA) also informed members that the United Kingdom had, in its Supplementary Report, indicated disagreement with the UN Committee that the concept of FCs was in contravention with certain provisions of ICCPR. He stressed that HKSAR might not necessarily agree with all the views of UN Committee, having regard to the needs, aspirations and unique circumstances of Hong Kong.

7. Ms Emily LAU reiterated that there was no "elected" member of Hong Kong people on the PLC throughout the year July 1997 to June 1998; the changes to the FC electorate of the 1998 LegCo had also unfairly deprived many people of the right to vote. She criticized strongly that these two important issues were omitted in the Report. In response, PAS(CA) referred members to paragraphs 458 - 464 of the Report which had set out in general the electoral mechanism for the 1998 LegCo election. He stressed that Government had no intention to conceal the electoral arrangements. He supplemented that UN Committee also welcomed views from the NGOs on these issues. In this connection, the Chairman remarked that PLC members were also elected from amongst Hong Kong people albeit under a different system.

8. Ms HO Sau-lan recalled that the UN Committee had on one occasion used "shameless" to describe the FC system, but the criticism was not addressed in the Report. Principal Assistant Secretary for Home Affairs (7) (PAS(HA)7) said that he could recall no such criticism in Committee's concluding observations. He asked Ms HO to provide the source of information. Ms HO agreed to forward the relevant extract of the UN Committee's report to the Administration.

(Post-meeting note : SHA has provided a response vide LC Paper No. CB(2)1211/98-99.)

Reservations and declarations under ICCPR

9. Ms Emily LAU queried that HKSAR Government had not fully complied with the previous recommendations of the UN Committee concerning the implementation of ICCPR. She considered that the UN Committee had the authority to interpret how ICCPR provisions should be implemented and their recommendations should be observed by HKSAR. The Chairman therefore invited Deputy Solicitor General (DSG) to give his views on whether HKSAR Government would need to comply with the views of UN Committee. DSG advised that HKSAR Government had the obligation to forward comprehensive and accurate reports on the implementation of ICCPR; HKSAR Government also respected the views of UN Committees by making its best efforts to comply with the provisions. However, the views of UN Committees were not legally binding, and each Administration should be in a better position to assess how to implement ICCPR provisions appropriate to its circumstances. DSG pointed out that save some reservations under ICCPR, HKSAR had complied with its provisions in consultation with other State Parties, LegCo and interested parties.

10. Ms Emily LAU commented that while UN Committee recommendations were not legally binding, their views should be taken as the standards for implementation of human rights treaties. In this regard, DSG informed members that HKSAR Government was reviewing the reservations and declarations made under ICCPR, and would definitely take into account views expressed by Ms Emily LAU.

11. Referring to the fact that not all LegCo Members would be returned by universal suffrage until after 2007, Ms Emily LAU queried how HKSAR Government could resolve such inconsistency with ICCPR. DSG responded that the policy bureaux and Department of Justice would carefully consider all relevant factors in reviewing the need for retaining the existing reservations and declarations under ICCPR. Ms Emily LAU further asked whether the reservation to Article 25 of ICCPR would remain as long as direct election was not held. DSG reiterated that Government could not give an immediate answer at the meeting as the review was not completed yet.

Restrictions on the Legislative Council

12. Mr Andrew CHENG held the view that the value of a report should be judged by its accuracy rather than its volume. He said that while HKSAR might have the thickest report comparing with other countries, HKSAR did not have an elected government and an elected legislature returned by universal suffrage as in many other countries. He stressed that the Report must adequately cover divergent views expressed over the controversial issues. Mr Andrew CHENG cited the example that restrictions had been imposed on the LegCo under the Basic Law with regard to the introduction of bills, the split voting system, and the passage of motions, bills or amendments to government bills by individual Members of LegCo. He was dissatisfied that the public debate on these controversial issues was not described in the Report. SHA clarified that his earlier reference to the reports of other countries was not for comparison of the size of reports, but rather to make it clear that Government had tried to prepare a report as detailed as possible. He added that HKSAR Government had followed the Basic Law which had set out the timetable for an elected legislature by universal suffrage.

13. PAS(HA)7 added that the Government had gauged public views on the outline of topics of the Report and had made its best efforts to address every single point which was put forward. However, Government had not received any questions concerning restriction of introduction of bills by individual LegCo Members and the split voting system in LegCo during public consultation. Deputy Chairman disagreed with PAS(HA)7's response, pointing out that Government should have taken a more proactive approach by incorporating the controversial views in the Report. He said that since issues relating to the desecration of national flag and national emblem and the prosecution policy of the Department of Justice were included in the Report, he saw no reason why the strong views against the restrictions on LegCo (Article 74 of the Basic Law) were not reflected in the Report. In this connection, Mr Andrew CHENG urged Government to provide such information in its Supplementary Report. SHA replied that Government would respond to these issues if raised by the UN Committee. PAS(HA)7 added that the report had addressed numerous controversial issues. However, none of the commentators who had submitted views on the Report had discussed the issues cited by Mr CHENG. He added that to the best of his recollection, Mr CHENG had not submitted any comments in this regard.

District organizations

14. Deputy Chairman said that Government's proposal to abolish the two Municipal Councils and the appointment of members by the Chief Executive to the Provisional District Boards and Provisional Municipal Councils (PMCs) had aroused much controversies within the community. These proposals were criticized as retrograde steps of democratic development. He therefore advised Government to provide a Supplementary Report and be prepared to respond to questions relating to these issues at the UN hearing. SHA clarified that these issues were not included in the Report because these proposals had not emerged at the time of finalizing the Report which covered the period up to 30 June 1998. However, HKSAR Government would provide a verbal or supplementary report on these issues depending on the timing of the UN hearing. He hoped that the UN hearing on HKSAR Report could be held as soon as possible.

15. Referring to paragraphs 471 and 472 in Part II of the Report relating to the functions of the two PMCs, Mr Ambrose CHEUNG was of the view that the Report had failed to present all the facts in a neutral manner. He considered that the Report had not pointed out that PMCs were elected bodies of public mandate with policy-making powers in food and environmental hygiene matters. The report also failed to highlight that PMCs were financially autonomous. PAS(CA) responded that it was not possible to include all details in the Report. Moreover, the proposal to abolish the two PMCs was not concluded at the time of finalizing the Report. He added that according to the feedback during the public consultation on the review of district organizations, the majority view was in support of the abolition of the two PMCs. In response to Mr Ambrose CHEUNG, Deputy Secretary for Home Affairs and PAS(HA)7 advised that the functions and powers of the PMCs had been adequately described in both Part I and Part II of the Report. PAS(HA)7 said that the text was based on the version provided by PMCs, but he agreed that a cross-reference to the relevant sections in the Report would facilitate readers in finding the information. Mr Ambrose CHEUNG did not accept the Administration's explanation. He reiterated that paragraphs 14 and 471 should not be placed in separate parts of the Report, and that Government had not sufficiently highlighted that the two municipal councils were at present the only elected bodies which had policy-making powers. He was of the view that the Report would mislead the UN Committee that the review of district organization aimed at strengthening public participation in public affairs, while the Consultation Document had already stated the Government's intention to resume the responsibilities for food safety and environmental hygiene. PAS(HA)7 said that the presentation of the issues was in accordance with the UN "Manual on Human Rights Reporting". The purpose of Part I was to present a factual description of the existing political/administrative structure, therefore the powers and functions of the PMCs were discussed in that part of the report. The purpose of Part II was to inform the Treaty Monitoring Body of development in the period covered by the report and to address concerns expressed by commentators, including the TMB itself; the review of the PMCs was therefore discussed in this part in relation to Article 25 of the Covenant. PAS(HA)7 said that the review was covered at some length, in the context of the legal and political framework within which the need for review had arisen. He therefore considered that UN was given a full picture of the issue and that the Administration would supplement as necessary at the UN hearing.

Exemption of the Chief Executive from the Prevention of Bribery Ordinance

16. Ms Emily LAU referred to Article 26 of ICCPR that "All persons are equal before the law" and Article 25 of the Basic Law that "All Hong Kong Residents shall be equal before the law". In this connection, she inquired why the Chief Executive was exempt from the provisions of the Prevention of Bribery Ordinance (Cap. 201), and whether Government would address the issue in a supplementary report. In response, DSG and PAS(CA) advised that Government was reviewing the reservations under ICCPR. PAS(CA) added that although the Ordinance was not strictly under the purview of Constitutional Affairs Bureau, the Bureau was currently examining the necessary amendments in connection with the election arrangements. He said that as a matter of principle, all persons are equal before the law. However, certain people might be given special treatment as required under the constitutional structure, and this should not be regarded as a contravention of ICCPR. He cited the Legislative Council (Powers and Privileges) Ordinance (Cap. 382) as an example. SHA added that exemption of Chief Executive from Cap. 201 was a legacy of history and not a deliberate act of HKSAR Government to confer certain privileges on the Chief Executive. Nevertheless, Government would welcome members' views on the subject. Ms LAU commented that Members of the LegCo would definitely follow up the issue in future.

Prosecution policy of the Department of Justice

17. Ms HO Sau-lan criticized that HKSAR Government had been very selective in deciding what was to be included in the Report. She said that while the Report described in detail the prosecution policy of the Department of Justice to defend Government's decision of not proceeding with prosecution in a recent criminal case allegedly involving a famous personality, there was no mention of the contrary but prominent views of the Hong Kong Bar Association on the case. Ms HO was dissatisfied with Government's reporting approach and urged Government to include criticisms in the Report. PAS(HA)7 responded that the report had frankly addressed the criticisms. The Government aimed to address every comment which was relevant to the provisions in ICCPR or capable of formulation in the Report. While there could be some minor omissions, PAS(HA)7 estimated that the Report had addressed at least 90% of the comments put forward. PAS(HA)7 further explained that similar comments had been summarized in the Report for succinctness. The Bar Association's views had been included in the Report which stated that some commentators had questioned the propriety of a decision by the Secretary for Justice not to proceed with the relevant prosecution. Ms HO maintained the view that Government had adopted a lop-sided approach in preparing the Report. In this connection, SHA said that the Report was a report prepared by HKSAR Government taking into consideration views expressed by the community. The submission of HKSAR's report did not preclude NGOs from forwarding their own views directly to the UN Committee if they had different views on certain issues. The UN "Manual on Human Rights Reporting" also specifically encouraged NGOs to submit their own reports directly to UN and to attend the hearings. Hong Kong NGOs had done this in the past and were expected to do the same after 1997.

Labour-related legislation

18. Mr LEE Cheuk-yan queried why the repeal of and amendments to three labour-related legislation by the PLC was not included in the Report. There was also no mention of the restrictions on the use of funds by trade unions, and the repeal of the provisions relating to the compulsory re-instatement order. PAS(HA)7 responded that these issues were more related to "the right to enjoy just and favourable conditions of work and the right to form trade unions" under the International Covenant on Economic, Social and Cultural Rights (ICESCR), and these would be covered in the report on ICESCR instead. He admitted that it was a difficult editorial decision but Government did not want to duplicate the information in both reports. Mr LEE Cheuk-yan was not convinced of the explanation, pointing out that Article 22 of ICCPR was on freedom of association, and that the Report did include some paragraphs on statutory protection against anti-union discrimination. He was therefore of the view that the omission was a deliberate act of Government.

(Post-meeting note : The Administration has subsequently advised that the ICESCR report was submitted to UN in early June 1999. Issues cited by Mr LEE were addressed in paragraphs 120 to 126 in relation to Article 8 of that Covenant.)

19. Mr LEE Cheuk-yan also asked whether paragraph 398 of the Report concerning section 17(1) of the Trade Unions Ordinance (Cap. 332) refer to or of the trade unions. PAS(HA)7 undertook to confirm in writing.

(Post-meeting note : The Administration has confirmed that is the correct term used in the Trade Unions Ordinance.)

Consistency with the Hong Kong Bills of Rights Ordinance (Cap. 383)

20. Ms HO Sau-lan noticed from the Report that some 41 amending ordinances and subsidiary legislation were enacted by 30 June 1997 to bring existing laws in line with the Hong Kong Bills of Rights Ordinance (BORO) which had come into operation in June 1991. Acknowledging that Government had conducted the law adaptation exercise in an expeditious manner, Ms HO expressed dissatisfaction that Government had not accorded similar priority to providing a list of legislation requiring amendments for compliance with BORO and a timetable for amending these ordinances. She remarked that Government was only paying lip service to the protection of human rights by not putting sufficient resources for implementation. PAS(HA)7 explained that Article 39 of the Basic Law required that the provisions of ICCPR, ICESCR and international labour conventions as applied to Hong Kong should be implemented through the laws of HKSAR. The provisions of BORO were essentially those of ICCPR and a review had been completed to ensure consistency of the existing legislation with BORO. In addition, Government had also ensured that all new legislative proposals were consistent with BORO since the enactment of BORO. It was therefore not necessary to conduct another systematic review for the same purpose. He further pointed out that the law adaptation exercise was different in that a programme for the review of the provisions of relevant legislation was necessary to ensure that these would be adapted to the new constitutional realities after the transfer of sovereignty.

21. Ms HO Sau-lan questioned whether the BORO implications were seriously assessed in legislative proposals. She was of the opinion that amendments made to the Public Order Ordinance (Cap. 245) in 1997, which imposed restrictions on public processions and demonstration, were in contravention of BORO. PAS(HA)7 responded that the Government was bound by Basic Law to ensure consistency with BORO in any legislative proposal. However, if there were disputes as to whether a particular law had contravened BORO, it would be for the court to decide.

Public meetings and processions

22. Mr LEE Cheuk-yan referred to paragraph 380 of the Report and said that he could not agree with the description that "the Police have not prohibited or objected to any public meetings or processions since the amendments (to the Public Order Ordinance) came into effect on 1 July 1997". He was of the view that the Police cordoning off of certain areas to prevent demonstration to be held near the venues of the reunification ceremony and the World Bank meeting were acts to prohibit public procession.

23. In response, SHA explained that Police had not prohibited these public processions but only to confine them to certain areas. He acknowledged that peaceful demonstration was very much a way of life in Hong Kong; on the average, about five demonstrations/public processions took place daily in Hong Kong. He said that it was not unusual in some cases that demonstrators were not satisfied with the restrictions on areas or routing imposed by the Police. SHA referred to one recent case in which the Police had considered refusing an application for public procession which involved more than a hundred vehicles staging a protest in Central during peak hours. Nonetheless, the Police and the demonstrators eventually reached an agreement and the public procession went on. SHA stressed that only rarely would people be prosecuted in these cases. Given such background, SHA considered that it was a matter of judgement as to what should be reflected on public meetings in the Report.

24. Mr LEE Cheuk-yan maintained the view that it was a misrepresentation of facts to say that the Police had not prohibited or objected to any public meetings or processions. In this connection, Principal Assistant Secretary for Security (E) clarified that the major change to the Public Order Ordinance in 1997 was the introduction of a "Notice of No Objection" system for the organization of public processions. Since the introduction of this system, and up to the time of drafting the Report, the Police had not prohibited or objected to any public meeting or process. He stressed that in any public meeting or procession, the Police had a duty to balance the demonstrators' right of expression and the interest of the community at large. The Police would also have to consider other factors such as the traffic arrangements and access by the public, while at the same time facilitating the public meeting or procession.

Analysis on implementation by HKSAR Government of recommendations of the UN Committee

25. Deputy Chairman expressed disappointment that the Report did not provide a summary analysis on the implementation of the recommendations previously made by the UN Committee, despite repeated requests by LegCo Members. Ms HO Sau-lan shared similar concerns. PAS(HA)7 explained that the response of HKSAR Government to the observations/recommendations made during previous hearings of the UN Committee was included in the text of the relevant sections in the Report. The UN "Manual on Human Rights Reporting" did not require a summary analysis in tabular form, so none was included in the Report. However, a summary analysis could be provided to members for easy reference.

(Post-meeting note : SHA has provided a summary table on the Administration's response to the UN Committee's Concluding Observations in relation to the fourth periodic report and the supplementary report by UN in respect of Hong Kong under ICCPR vide LC Paper No. CB(2)1243/98-99.)

III. Dates of future meetings and items for discussion

26. The Deputy Chairman suggested and members agreed to add the following two items to the list of discussion items for future meetings :

1. legislative and administrative measures to improve management and fire safety in private buildings; and

2. work of the Office of the Privacy Commissioner for Personal Data.

27. Members also agreed to schedule the next meeting for Monday, 8 February 1999 at 4:30 pm to discuss policy issues referred by the Complaints Division -

1. development and utilization of community centre facilities; and

2. village representative elections.

28. To follow up on the HKSAR's report on ICCPR, members agreed that a special meeting would be held on Saturday, 6 March 1999 at 9:00 am to meet deputations.

(Post-meeting note : Members agreed subsequently to defer the special meeting until September/October 1999 in order to allow more time for deputations to prepare submissions.)

29. There being no other business, the meeting ended at 10:50 am.

Legislative Council Secretariat
16 August 1999