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Submission to International Commission of Jurists - Mission to Hong Kong

International Commission of Jurists
c/o Des Voeux Chambers
10F, Bank of East Asia Building
10 Des Voeux Road Central
Hong Kong

26 June 1991

Dear Sirs

SUBMISSION TO INTERNATIONAL COMMISSION OF JURISTS MISSION TO HONG KONG: JUNE 1991

We thank you for inviting us to present our views on the rights to self-determination of the people of Hong Kong in the context of the transfer of sovereignty to China in 1997. We believe that international human rights experts such as yourselves have an important contribution to make in the debate over Hong Kong's future.

We present below our views on the issues of self-determination and the protection of the human rights of the people of Hong Kong. Our view is that the continuing enjoyment of human rights by Hong Kong people is dependent primarily on the integrity of the political and legal system as a whole. While the enactment of a particular measure such as the Bill of Rights Ordinance (BRO) is valuable, much depends on the interpretation of such measures in practice. It is the fundamental belief of the Hong Kong Democratic Foundation that the best guarantee of human rights in Hong Kong is a fully democratic government elected through universal suffrage,

Accordingly, we present our views under the following heads:

1. Political system
2. Legs system
3. Bill of Rights

1. POLITICAL SYSTEM

1. 1 E1ectora1 reform

In January of this year the Foundation invited the Electrical Society to Hong Kong to perform their own independent review of the territory's electoral and political system. Their report, which is attached for your reference, makes 51 recommendations for improvement. You may refer to the report itself for full discussion of the points raised; however the following are among the more important commens:

* Progress towards a single, universal suffrage (ERS ptS). The Basic Law (Article 68) envisages that ultimately Legco is to be fully elected by universal suffrage. However no timetable is set for this ultimate step and the Basic Law provides that 50% of Legco will be elected through functional constituencies until at least 2007. The Foundation believes that a gradua1 progress towards full democracy is more likely to be successful in Hong Kong's unique circumstances, and that functional constituencies have an important part to play during the transition period. However the pace of democratisation outlined in the Basic Law is unacceptably slow.

* Reform of the functional constituencies (ERS pts 6-16). The report is critical of the present procedures for conducting funetione1 constituency elections, noting the potential for manipulation, These points are of particular importance in view of the fact that from 1995 onwards 50% of the legislature is to come from the functional constituencies, and the Chief Executive of the post-1997 Special Administrative Region (SAR) Government it to be chosen by an electoral college of functional constituencies.

* The appointment of an independent Election Commissioner (ERS pt 21).

* Freedom to campaign (ERS pts 33-39, etc)

1.2 Lack of separation of the legislative and executive functions

Hong Kong's present system of Government, essentially a consultative colonial administration, is executive-led. The Executive Council (Exco), consisting of the Governor, the most senior civil servants and a number of appointed members, makes policy decisions and supervises the drafting of legislation. Such legislation is then submitted to Legco for review and approval; However all members of Exco are also members of Legco, while other Legco members are appointed and the remainder - until September 1991 - are elected through functional constituencies. There is thus no real separation of the executive from the legislature.

This executive-led consultative system has worked reasonably well under the generally benevolent administration of the British. However, the continuation of this system of after 1997 would give cause for concern. The relationship between Exco and Legco after 1997 is not yet clear; this relationship urgently needs further study. However the Foundation be1ieves that progress must be made to a legislative-led system, with the legislature 100% elected through universal suffrage.

1.3 Hong Kong's autonomy

Paragraph 3(2) of the Joint Declaration provides "a high degree of autonomy" for the Hong Kong SAR, except in foreign affairs and defence. At the same time the PRC government has a right to be "consulted" on matters of importance.

These principles are reasonable. However there are problems in the interpretation: the PRC government understands "consultation" to mean something akin to a right of veto and has been pressing for executive involvement in such matters as the proposed new airport, the level of reserves to be in place in 1997 and sales by the Housing Authority of its residential properly. The Foundation believes that these infringements on Hong Kong’s high degree of autonomy must be resisted with firmness. At the same time, constructive relations with the PRC should be built on all possible levels.

In negotiations with the PRC over Hong Kong's future, the territory is represented primarily by teams from Britain. Yet after l997 Hong Kong wil1 have to negotiate with the central PRC government itself, and this process should start sooner than 1997. Hong Kong should begin to represent itself in negotiations over its future, in order to establish and strengthen the principle of maintaining the territory's autonomy.

2. LEGAL SYSTEM

2.1 Confidence in the legal system

The integrity of the Hong Kong legal system, and hence the ability of that system to protect human right, is ultimately dependent on the confidence of the people in that system. This confidence has been weakened recently by a series of instances of corruption and mismanagement in the Legal Department and the judiciary. The Foundation believes that these problems should be addressed by a review of the Legal Department, including the replacement of the current Attorney General.

2.2 Court of Final Appeal

The establishment of a new Court of Final Appeal in Hong Kong, to act in place of the UK Privy Council after 1997, has been delayed and is now unlikely to take place before 1994. The Foundation believes that the Court of Final Appeal must be established as soon as possible in order that experience of its working and precedents should be built up before 1997.

2.3 Localisation of the judiciary

Despite the stated government policy of increasing the proportion of local Chinese in the judiciary, little progress has been made. The reason given is the shortage of qualified local candidates. However, after 1997 the Court of Final Appeal, and much of the judiciary, will be predominantly staffed by locals. Britain has made this mistake before with its other colonies: localisation has to progress faster in order to establish adequate numbers of local magistrates and judges with experience before 1997.

2.4 Independence of the judiciary

The Hong Kong judiciary has enjoyed a relatively high degree of independence from the executive, This is a legacy of which Britain can be proud. However there have been instances recently of interference by the executive in the judiciary, for example, magistrates contracts not being renewed, and alterations in the composition of the Judicial Services Commission (JCS). In 1990 the Attorney General, a member of Exco, was made a member of the JSC, together with two non-legal members and the former unanimity of decision was abolished in favour of the right of veto by two members The Foundation believes that in the context of the imminent transfer of sovereignty maintaining the independence of Hong Kong's judiciary is of the highest importance.

2.5 Death pena1ty

Convicted criminals are sentenced to death from time to time by Hong Kong's courts but the sentence is always commuted. A substantial majority of the general public in Hong Kong appear to be in favour of retaining and even applying the detach penalty. However the Foundation believes that there is a need for caution in this matter because of the liberality with which the PRC authorities execute those convicted by its courts.

If the death penalty is retained on Hong Kong’s statute books it is likely to be applied, perhaps frequently, after 1997. There is a traditional Chinese belief in the efficiacy of the death penalty as deterrent. The saying is, "Kill one; deter a hundred". The BOR offers little protection against the abuse of the death penalty.

3. BILL OF RIGHTS

3. 1 The present human rights position

Hong Kong's human rights record is better then that of most other countries in the Asia-Pacific region. However compared with the European democracies, for example, there are some major deficiencies. As described above Hong Kong is not a democracy and is not to fully become one in the forseeable future; there is the mandatory imprisonment of illegal immigrants; the powers granted to the police and the Independent Commission Against Corruption; the proscription of homosexuality; sexual and racial discrimination. A United Nations report released in May 1991 gave Hong Kong only a middle ranking among the 160 countries surveyed, its people enjoying only 26 of 40 identify freedoms.

These human rights shortcomings are associated not only with traditional Chinese attitudes but with the British colonial administration. The pursuit of administrative convenience has led the Hong Kong government to put off the recognition of certain important human rights. The enactment of the BRO is a belated attempt to put matters to rights before the transfer of sovereignty.

A further factor which is likely to impede progress towards fuller recognition of human rights in Hong Kong is the rising crime rate, resulting in public support for stronger measures to contain crime. Much of the more serious crime appears to be associated with elements from the PRC; to combat such crime effectively cooperation with the PRC authorities is needed.

3.2 China's attitude to the Bill of Rights

The belated enactment of the BRO, l5 years after the International Convention on Civil and Political Rights (ICCPR) came Into forcer, is understandably seen as an affront. by the PRC, The inference is that Britain did not implement the BRO until this late stage so as not to inconvenience itself, and is now doing go in order to protect Hong Kong people against the PRC, PRC officials have stated that they consider the BRO to breach the Joint Declaration and Basic Law - notwithstanding that the Basic Law envisages legislation to enforce the ICCER in Hong Kong - and will review the BRO after 1997.

The Foundation believes that the BRO is of little value without acceptance by the PRC. Therefore every effort must be made to liaise with PRC officials on the issue of human rights in Hong Kong in order to allay their concerns.

3.3 The non-paramountcy of the BRO

The BRO is not paramount and may be amended and rendered subordinate to other legislation. It is therefore by no means a guarantee of the freedoms of the Hong Kong people. Some reinforcement of the provisions of the BRO may be provided by the Basic Law and Joint Declaration, both of which address human rights. This issue needs further studs.

3.4 Exemptions from the BRO

A number of Ordinances, concerning immigration. the powers of the police and the ICAC, and other security matters, are to be exempt from the provisions of the BRO for a period of a year. The fact that exemptions have been made sets a bad precedent for the future. The reason given for the exemptions is that time is needed to ascertain whether the Ordinances concerned are in conflict with the BRO, and if so, to amend them appropriately. However it is doubtful whether a year will suffice for this purpose, and there is therefore a danger that the exemption period will be prolonged. The Foundation believes that it is imperative that the exemptions persist for as short a period as possible.

3.5 Weaknesses of the BRO

It is the Foundation’s belief a BRO is a necessary part of the constitution that will carry Hong Kong into the post-l997 era. However there are a number of 'weaknesses in the present BRO, some of which it is hoped can be rectified before 1997:

* the lack of a Human Rights Commission, which could give rulings and decide disputes quickly and efficiently;

* the lack of recognition in the BRO of the special need to protect the rights of women, particularly in relation to inheritance traditions in New Territories communities:

* the lack of guidance in the BRO on the interopretation of public authorities - a list of such authorities should be attached .to the BRO;

* the lack of protection for the BRO against changes after 1977.

The introduction of the BRO is likely to lead to initial confusion. Any judicial decision can be challenged under the BRO - particularly in the absence of a Human Right Commission - and so court proceedings, already subject to delay, are likely to be further slowed. Morever, many areas of interpersonal relations, which were previously only rarely taken to court, are now open to litigation under the BRO, The Foundation believes that this is a price worth paying for the protection that a functioning BRO will give to human rights in Hong Kong after 1997. However the effort and patience that will be needed during the next few years as the legal system adapts to accommodate the BRO should not be underestimated.

3.6 Data protection

Certain government officials, for example Inland Revenue Department officers, are bound by secrecy provisions in the relevant legislation. However, there is no general data protection legislation in Hong Kong Government data files are in many cases readily accessible by unauthorised officials and the files of individual citizens are readily identifiable through their ID card number. This makes for administrative convenience, but under a less benevolent regime such information could be put to improper use.

The Foundation believes that the feasability of introducing data protection legislation in Hong Kong, possibly via the BRO, should be considered.

The mission of the ICJ to Hong King is timely, coming as it does immediately after the enactment of the BRO and prior to the territory's first partial direct elections in September. The Foundation believers that the continuing invoIvement of international organisations such as the ICJ in reviewing Hong Kong's affairs is beneficial to the territory. We hope that you will continue to monitor development to in Hong Kong and make recommendations and further visits as appropriate. If we can be of assistance to you at any time, please let us know.

Yours faithfully,

Patrick Shiu, Chairman
The Hon Chan Ying Lun, Vice Chairman and Legislative Councillor
The Hon Leong Che Hung, Legislative Councillor
The Hon Jimmy McGregor, Legislative Councillor