LegCo Panel on Home Affairs

Action

I. Meeting with deputations

(LegCo Paper No. CB(2) 1572/95-96 and papers tabled at the meeting).

Amnesty International Hong Kong Section (AIHK)

At the request of the Chairman, Ms Robyn KILPATRICK and Ms Harriet SAMUELS highlighted the main points of their submissions.

2. In response to Ms Emily LAU Wai-hing’s request to clarify AIHK’s comments on the Council’s position in relation to effective reporting procedures, Ms KILPATRICK opined that Human Rights Committee of United Nations (UNHRC) should take a proactive approach to United Kingdom(UK) and People Republic of China(PRC) to find a way that reporting would be ensured after 1997. In this connection, the Council as a legislature by election, should make representations to UNHRC to urge it, to establish a satisfactory way of reporting on human right issues after 1997.

3. Ms LAU further inquired whether it would be feasible for non-government organization (NGOs) to file reports to UN in the event that PRC refused to report on Hong Kong’s behalf nor allowed the Special Administrative Region of Hong Kong (HKSAR) to report direct to UN after 1997. Ms KILPATRICK said that UNHRC welcomed reports from NGOs and that Amnesty International (AI) would continue to report on human rights issues to UNHRC in future. She reassured that NGOs were well positioned to file reports to UN.

4. Regarding the procedures and practices in UN, Ms LAU asked whether the UN would accept reports from NGOs or hold hearings based on NGO reports without the official reports from Government. Ms KILPATRICK pointed out that supplementary hearings would be held for existing and future debates and NGOs, such as LegCo, could submit their views to UN. AI would also make the best use of such an opportunity.

5. Mr LIU Sing-lee was not sure whether there were rules governing the hearings in the event that a sovereign state did not submit a report, and inquired if an NGO such as LegCo could submit reports to UN and request UNHRC to take action. Ms KILPRATRICK agreed to make enquiry on those issues and to check whether any precedent cases existed. The Chairman added that as the LegCo would make representations to UNHRC in October, member of the delegation could clarify these matters with UNHRC.

6. In response to Dr John TSE Wing-ling’s request for comments on the Equal Opportunities Commission (EOC) Ms KILPATRICK stated that having only been established recently, the EOC should be given a chance to show their performance and she hoped EOC would take a proactive approach in fighting against discrimination and in promoting the concept of equal opportunities.

7. Dr TSE inquired whether similar commissions in other countries played roles different from that of the EOC in Hong Kong. Ms KILPATRICK stated that commissions of similar nature carried out different roles in different places and it seemed EOC in Hong Kong adopted the UK model.

8. Mr James TO Kun-sun recognised that laws and regulations in Hong Kong were changing from now to 30 June 1997 and asked members and NGOs whether they would support a proposal for the UK to submit a concluding report to take stock of the implementation of the ICCPR in Hong Kong as at 30 June 1997. Ms KILPATRICK said that AIHK would support the proposal. She also considered it advisable for the Hong Kong Government to change its attitude and to speed up the process of bringing its laws up to international human rights standards. UK submitted a series of reports which received strong criticisms from UN, and even the supplementary report did not answer the concerns of NGOs satisfactorily.

9. Ms LAU supported Mr TO’s suggestion but she noted that it had to be subject to UK’s agreement and UNHRC’s willingness to accept it. As far as she knew, UNHRC would conduct hearings with the country submitting the reports. However, in the present situation, there would be a change in sovereignty from UK to PRC after 1997, and this might present a problem to UNHRC. Nevertheless, she opined it would be worthwhile to raise all those matters with UNHRC and to ask UK to submit a comprehensive report to UNHRC.

10. On the issue of EOC, Ms LAU expressed concerns about the delay in preparing the Codes of Practice and asked whether AIHK agreed that Sex Discrimination Ordinance and the Disability Discrimination Ordinance should have been implemented last year without the Codes of Practice. Ms SAMUELS shared Ms LAU’s opinion that those Ordinances should have been made effective as soon as they were passed and remarked that the Codes of Practice were not essential. She opined that it was insulting to assume that people of Hong Kong did not understand those Ordinances and maintained that there was no good reason to delay their implementation.

11. In response, Mr Jeremy CROFT said that the Ordinances would have an impact on the daily lives of everyone in the community. Both the EOC and the public had to go through a learning process in respect of the application of the Ordinances. The Codes of Practice being developed would provide clear guidelines for the public.

12. The Chairman reiterated that those Ordinances should come into effect immediately as the community was well aware of what discrimination was even without the Codes of Practice. However, Mr CROFT maintained the Administration’s position by stating that only with the aid of the Codes of Practice, the public would know what the Ordinances were about and how those Ordinances would be implemented.

13. Mr LEE Cheuk-yan elaborated on his motion and pointed out that those Ordinances had been discussed among the public for about three years though they were only enacted last year. Therefore the community had received sufficient education and understood the spirit of them. Moreover, the Administration should understand that it was most of the members’ intention to implement those Ordinances immediately so that victims of discrimination could have remedy as soon as possible. Mr LEE argued a learning process for EOC was not really necessary as the Chairperson of EOC, the workers groups and the women’s groups were all ready for those Ordinances, leaving only of some employers who might need some time to adjust. He further pointed out the General Chamber of Commerce prepared a Code of Practice on discrimination for its members a year ago and for small businesses, there was a grace period of three years. As to the time-frame of his motion, Mr LEE said that it would be tabled on 26 June 1996 and the effective date was set at 29 July 1996 in consideration of the time needed by the Administration and EOC. He complained that EOC was established about six months later than what the Administration had agreed and no legal advisor was made available to the EOC since its establishment. He urged the Administration to provide legal advisors to EOC.

[Post-meeting note: Mr LEE’s motion was ruled out of order and was not proceeded with.]

14. Regarding Bill of Right Ordinance (BORO), Miss LAU stated that the Panel supported the views of AIHK, and invited members’ attention to paragraph 40 of the Supplementary Report which presented a change of stance of the UK Government that the amendment of BORO be left to be considered by the Government of the HKSAR, which contradicted what she perceived in previous paragraphs of the same report, that there was no need to amend the legislation. Miss LAU asked AIHK what impressions they had on this paragraph and whether they supported the change of stance of UK Government on that issue. In response, Ms SAMUELS stressed that AIHK supported the present form of BORO and did not agree that BORO be repealed or amended by the present or any future Government because that would constitute a breach of the ICCPR. Miss LAU suggested that the Panel should take up the matter with the Administration.

15. Mr LEE supported Miss LAU’s suggestion to discuss the matter with the Administration and pointed out that the Supplementary Report did not stress that by restoring the six Ordinances to their original form would violate Article 39 of the Basic Law and would breach the ICCPR. Therefore, the Supplementary Report should not leave the restoration of the six Ordinances to the Government of HKSAR because HKSAR Government should not be asked to act against the Basic Law. Mr LEE opined that it was a matter of presentation of the key issues that led to the apparent contradiction among paragraphs.

16. The Chairman asked the Administration to explain why its position was expressed in that manner which caused a lot of concerns, and why there was a retreat from the previous stance. Mr CROFT said that the Administration would be glad to respond in the next meeting and reiterated that there was no change in the Administration’s position in this regard and that the present BORO was consistent with the Joint Declaration and the Basic Law.

Adm

17. In response to Mr LIU’s request on AIHK’s position regarding the limit on damages of $150,000 in connection with the Sex Discrimination Ordinance, Ms SAMUELS replied that the limit should be eliminated and AIHK did not recommend an artificial limit. The amount of compensation should be decided by courts in relation to the actual loss involved.

18. In response to Dr TSE’s inquiry about AIHK’s stance about the Provisional Legislature (PL), Ms KILPATRICK explained that AIHK had a restricted mandate which did not allow to go into details of PL but as member of PL were not elected by universal suffrage AIHK was opposed to it.

Meeting with Hong Kong Human Rights Monitor

19. Mr LAW Yuk-kai apologized for not having made a written submission and agreed to send one in as soon as he could. Mr LAW complained about the tardiness of the Administration in releasing the Report which seemed that public involvement was not encouraged. He understood UN was very concern about the public participation in ICCPR.

20. Mr LAW pointed out that in the Supplementary Report, the investigation of complaints against Police was dealt with lightly, and his comments were summarized as follows:

1. Comments of the public about the complaint mechanism were not included;
2. The statements provided by relatives and/or friends of the victims were underrated;
3. The complaint mechanism was not independent of the Police itself; and
4. Members of Independent Police Complaints Council (IPCC) were not involved in the investigations process.

He urged the LegCo Panel to follow up on those issues.

21. On the issue of the Human Rights Commission, Mr LAW opined that under BORO, all cases would end up in courts which were costly and time-consuming. Moreover, there was limited information on human rights available to the public rendering the monitor of human rights extremely difficult. He hoped that an effective and non-legal mechanism be established to settle human rights disputes.

22. On EOC, Mr LAW shared the views of AIHK and hoped that restrictions in the Ordinances on discrimination against sex and disability should be removed either voluntarily by the Administration or by members of the LegCo. He also pointed out that the rights of disadvantage groups in Hong Kong should be protected and asked the Administration to do more on that issue.

23. In January this year, representatives of Human Right Monitor met with the Governor of Hong Kong to discuss the secondary education for Vietnamese children in detention camps and the Governor hinted that the Legislative Council might not endorse funding requests for that purpose. Mr LAW said that children should be provided with secondary education as the Convention on Rights of Children was introduced in Hong Kong in 1994 and the rights to receive secondary education was backed by other international agreements. He asked members to deal with that issue urgently while the stance of the Administration was softening.

24. As for facilities in the detention camps, Mr LAW pointed out that as toilets and showers were not partitioned, there was no privacy for those living there. During violence, children found nowhere to shelter. In short, the descriptions in the report about the facilities in the camps were far from the real situation. Regarding Vietnamese migrants in Hong Kong, Mr LAW observed that from recent incidents in camps, the attitude of the Administration tended to discriminate against the migrants as criminals and urged the Administration to review its attitude and behaviour. Moreover, requests for legal aid services by Vietnamese migrants were delayed unnecessarily. Mr LAW asked the Panel members to look into those issues.

25. Mr LAW observed that the Administration displayed an attitude of blatant disregard for international convenants. The UNHRC pointed out that the present electoral system in Hong Kong in respect of election to the Legislative Council was not in conformity with Articles 2.1, 25(b) and 26 of the Convenant. However, the Administration paid little attention to the serious suggestions made. He also invited members’ attention to the contradictory positions of UK Government and Hong Kong Administration about the comments on the electoral system as stated in paragraphs 34 and 35, that by allowing the territory’s economic and professional sectors to reflect their importance in the community through the functional constituencies was a form of discrimination among different classes of voters.

26. Regarding ethnic minorities, Mr LAW remarked that the statement to give them the right of abode in UK was just a promise of the Conservative Party without details, which would probably not be honoured when another party came into power, and therefore that statement was unacceptable. He opined that all people in Hong Kong should be given the right of abode in UK when facing difficulties, and criticized that the UK Government treated people of Hong Kong discriminatorily by comparing the treatment of the people of Gibraltar who were given right of abode in UK when Gilbraltar was returned to Spain. Again, he asked members of the Panel to reflect those issues concerning discrimination to UNHRC.

27. Concerning freedom of expression, Mr LAW argued that public interest was not an effective defence for the Public Order Ordinance, particularly when allegation about the theft of state secrets was involved. He asked Panel members to put more pressure on those issues. Mr LAW was not satisfied with the present discussions behind closed doors between the UK and Chinese Governments on laws about acts of treason, secession, sedition, subversion against the Central People’s Government or theft of state secrets, and opined that information on the discussions, such as proposals by the UK Government, should be made known to the public, as those laws might affect freedom of expression and the lives of Hong Kong people under HKSAR.

28. Mr LAW raised his concerns that the amendments of existing laws, particularly those related to privacy, might infringe the freedom of expression, and that the recommendations of the subcommittee of the Hong Kong Law Reform Commission might be cast-aside. To protect the interests of the public, he urged members that some of the recommendations governing public organizations and government bodies be enacted into laws after scrutiny.

29. Mr LAW noted that a recent report about the independence of Radio Television Hong Kong (RTHK) brought about repercussions and worries of its future among its staff and the public. He asked the Administration to protect RTHK from the influence of the future SAR Government on its operations.

30. In conclusion, Mr LAW made the following suggestions:

1. He urged the Panel to follow up on the various issues, to provide further details and to present the Panel’s views to UNHRC, particularly those regarding the implementation of ICCPR, reporting procedures and responsibilities of UK after 1997;
2. He asked the Panel to follow up on the establishment of a Human Rights Commission in Hong Kong and to clarify with the Administration about the restoration of the six Ordinances as suggested by Legal Affairs Sub-group of the Preliminary Working Committee;
3. He recommended the Panel to attain an independent jurisdiction and the power of interpretation of all laws in Hong Kong by the Court of Final Appeal;
4. He proposed an independent mechanism be established to closely monitor the operations and complaints of the Police so as to protect the public interests; and
5. Finally, he requested the Panel to look into the issues on the right of abode for the people of Hong Kong.

31. Mr LIU supported Mr LAW’s recommendation to the Panel to present its views of the report to UNHRC. As to the restoration of the six Ordinances, Mr LIU said that the Association for Democracy and Peoples’ Livelihood (ADPL) did not agree to the decision made by National People’s Congress on the restoration of six Ordinances after 1997, and pointed out that it should be decided by the HKSAR Government.. The Chairman added that paragraph 40 was not clearly written as it was well known that the six Ordinances were amended so as to fall in line with the ICCPR and Article 39 of the Basic Law. Restoration of the six Ordinances would mean violation of the Convenant and the Basic Law. Paragraph 40 seemed to reflect a softened stance about BORO and brought about worries and concerns. The Chairman agreed that the Administration should explain this paragraph and the Panel should bring members’ concerns to UNHRC’s attention.

32. Mr James TO said that the UK Government did not assert that the restoration of those six Ordinances would violate Article 39 of Basic Law and that the act might invite the Chinese Government to go against the Joint Declaration. By doing so, HKSAR might follow the foot steps on other issues. He therefore suggested the Panel to convey a strong protest to the UK Government over the matter.

33. Mr LEE Cheuk-yan said that he would protest to the U K Government during his visit to UK in the week commencing 17 June 1996. On the electoral issue, Mr LEE pointed out that Article 68 of the Basic Law stated that the ultimate aim was the election of all the members of the Legislative Council by universal suffrage. However, Annex II of the Basic Law provided that the composition of the Legislative Council would contain only half of the members by geographical constituencies through direct elections by 2007. Therefore that it would be a long and difficult process with many limitations before the ultimate aim of universal suffrage could be achieved. He considered that the process reflected the unwillingness of the Chinese Government to meet that aim.

34. Ms LAU welcomed Mr LEE’s protest to UK Government in the following week and suggested that the LegCo should send a delegation to UK to join the debate in the House of Commons to reflect our views. She explained that the present panel meeting was held so urgently because the release of the Supplementary Report by the HK Government did not allow ample time for all parties, and commented that members of the Council would endorse funding requests for secondary education to children of Vietnamese migrants. Then she referred to the UNHRC’s comments on the electoral system in Hong Kong and the scope and effect of the UK Government’s reservation to Article 25(b) of the ICCPR. In view of the disagreement between UK Government and UN on the recommendations, Ms LAU requested that legal advice be sought on whether the reservation clause was still valid and whether the decision made by UNHRC was binding. She also invited Mr LAW to comment on the issue.

[Post-meeting note: ALA4 submitted a written response to the Panel at a meeting on 21 June 1996.]

ALA4

35. In response, Mr LAW told the Panel that UNHRC was reckoned as an independent standard setter of human rights and the foremost authority in interpreting the ICCPR. He opined that British courts were notorious in human rights matters and would not safeguard human rights issues. Mr LAW pointed out that Hong Kong was not protecting human rights properly in accordance with the ICCPR.

36. As regards ways of bringing improvement in use of violence by the Police, Mr LAW said the training of the Police should include human rights issues. The guidelines for Police to carry out their operations, such as checking identity cards and handling demonstrations, should be made known to the public. He urged members to approve more funding on monitoring police operations, which should include video recording. Regarding the investigation of the causes of death and autopsy, Mr LAW opined that the process was unacceptable and quoted a recent case to support his statement. He further suggested the participation of lay observers in investigations and the push to grant statutory status to the Independent Police Complaints Council.

Next Meeting

37. The next meeting was scheduled for 21 June 1996 at 8:30 a.m. in Conference Room A and a discussion of the report to UNHRC would be held on the same day after the meeting of House Committee.

Clerk

38. The meeting ended at 10:45 a.m.

LegCo Secretariat
29 August 1996