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HONG KONG Sometime before July 1, 1997, the framed portraits of Queen Elizabeth II
that decorate the administrative offices of Hong Kong's prisons will be
taken down. A small but symbolic change, like the removal of the crown insignia
from prison guards' uniforms, it represents the end of British colonial
rule and the beginning of Hong Kong's administration as a Special
Administrative Region (SAR) of the People's Republic of China. How Hong Kong will function under Chinese sovereignty and, in particular,
how the territory's prisons will be administered, is not yet clear. Few if
any groups are more vulnerable to the impact of political change than prisoners.
Given China's notoriously poor prison conditions and its frequent use of
capital punishment, it comes as no surprise that Hong Kong prisoners have
already expressed grave apprehensions regarding their treatment under Chinese
rule.(1) Because of these considerations, Human Rights Watch and the Hong Kong Human Rights Monitor decided in 1996 to investigate the human rights conditions of the
territory's prisons. The purpose of the investigation was to establish a
benchmark of prison conditions prior to the changeover. It was also meant to
establish a precedent of independent monitoring of Hong Kong's prison
conditions, to encourage future monitoring. Indeed, our inspections of the
territory's prisons, which took place in March and April 1997, are to our
knowledge the first full inspections of the facilities ever conducted by
independent nongovernmental organizations. This report, which is based primarily on information gathered during these
inspections, describes and evaluates the treatment of prisoners confined in Hong
Kong prisons under the authority of the Hong Kong Correctional Services Department (CSD). It does not address conditions in police holding cells, where
prisoners are generally held after arrest and prior to transfer into the prison
system. As in other reports published by Human Rights Watch and the Hong Kong
Human Rights Monitor, this report assesses the government's practices with
reference to the relevant provisions of international human rights treaties
binding on the territory, and to other authoritative international standards, in
particular the United Nations Standard Minimum Rules for the Treatment of Prisoners. Endowed with a healthy economy, high per capita incomes, and a substantial
proportion of the world's trade, Hong Kong has long been renowned for its
prosperity and its status as an international financial center. Although
colonial rule did not, for many years, permit the development of democratic
processes or guarantee sufficient protection for the human rights of the
territory's residents, Britain's last-gasp effort to remedy these
defects has been in large part successful.(2) At present, Hong Kong residents
enjoy a lively if imperfect legislature and a comprehensive Bill of Rights.(3)
Moreover, to an enviable degree, the territory is free of the social and fiscal
pressures that tend to encourage poor prison conditions: it has a low rate of
violent crime, a large government budget surplus, and substantial fiscal
reserves. It is far from clear, however, to what extent Hong Kong's reversion to
Chinese sovereignty will alter the territory's economic, social and
political landscape. On paper, the protections against undue Chinese
interference are substantial. The 1984 Joint Declaration, a legally binding bilateral treaty registered at the United Nations, declares that the Chinese government will grant Hong Kong "a high degree of autonomy" and that
the territory's "capitalist system and way of life shall remain
unchanged for 50 years."(4) The Basic Law, promulgated by China in 1990 to set out the basic policies governing the territory, codifies the principle of "one
country, two systems" and provides that, with the exception of laws
relating to defense and foreign affairs, China's national laws will not
apply in Hong Kong.(5) Instead, as both documents affirm, the laws in force in
Hong Kong prior to its reversion to China will be preserved, subject to later
amendment by the territorial legislature, and the "rights and freedoms"
enjoyed by Hong Kong's inhabitants will be maintained. Besides these formal legal guarantees, observers have speculated that Hong
Kong's economic success provides another, perhaps more potent form of
protection against inappropriate Chinese intervention. According to this view,
because China's own economic development is to a large extent dependent on
the continued infusion of knowledge, expertise and investment from Hong Kong,
China would be reluctant to tamper with Hong Kong's recipe for success. Yet recent developments suggest that China believes it can intervene in Hong
Kong's legal and political affairs without affecting its economic
prosperity. The Chinese government has decided to disband the elected
legislature and replace it with a provisional appointed body, which is expected
to tighten controls over political parties and demonstrations, and introduce
laws on secession and subversion. Shipping magnate Tung Chee-hwa, the chief
executive-designate appointed by China, has already initiated an inauspicious
series of legislative proposals that would, among other things, restrict
peaceful public demonstrations in post-reversion Hong Kong. These developments raise questions as to the autonomy from China of the
future Hong Kong government and whether Hong Kong residents will continue to
enjoy the rights and freedoms they do currently. It goes without saying that
the territory's prisons may not be immune from future changes. Of course, the legal and political ramifications of Hong Kong's
reversion to China are not the only variables that may have an impact on the
territory's prisons. Other important factors include the widening poverty
gap and the continuing increase in immigration from mainland Chinese. Although
average incomes are high in Hong Kong, the territory's affluence is
unevenly distributed. A 1995 World Bank study showed that while the wealthiest
20 percent of the Hong Kong population enjoy over 50 percent of the territory's
total income, the poorest 20 percent make do with only 4.3 percent of it.(6)
The poverty gap continues to widen, but the government continues to resist
allocating more funds to social welfare programs to benefit the territory's
poor and needy. The growth of an impoverished underclass may, at some point,
jeopardize Hong Kong's low rate of crime. Increases in illegal Chinese immigration are also particularly relevant,
since in 1988 Hong Kong began relying on incarceration as a deterrent for
immigration offenses. In 1995, Hong Kong increased the number of Chinese
immigrants allowed in the territory from 105 to 150 arrivals per day; however,
this increase has been far from sufficient to meet the demand. Despite vigilant
police patrols and a high steel fence to mark the border with China,
undocumented immigrants arrive daily. Many who are discovered working illegally
end up in the prison system. The possibility that such immigration will swell
after July 1997, as some observers contend, may have severe consequences for
prison overcrowding. This report is based on inspections of twelve of Hong Kong's twenty-two
penal facilities (excluding police lock-ups and half-way houses) as well as its
largest closed detention camp for screened-out Vietnamese migrants. Included
among the facilities visited, all of which are operated by the Correctional Services Department (CSD), were two women's prisons, a psychiatric center,
a drug addiction treatment center, and a detention center for juveniles.(7) The
Human Rights Watch/Hong Kong Human Rights Monitor delegation spent a full day at
nearly every prison we visited, viewing the entire facility, including
disciplinary segregation units and other segregation areas, the infirmary, the
kitchen, the recreation areas, the bathrooms, and, of course, the prisoners'
living quarters. Besides inspecting the facilities, members of the delegation
also met Gov. Chris Patten, then in his last hundred days in office, and
representatives of nongovernmental organizations, lawyers, former prisoners,
prison chaplains, the deputy ombudsman, representatives of unions of prison
employees, and numerous high-level CSD staff, including the commissioner of the
CSD. Human Rights Watch normally undertakes prison visits only when its investigators, not the authorities, can choose the institutions to be visited;
when the investigators can gain access to the entire facility to be examined;
and when the investigators can be confident that they will be allowed to talk
privately with inmates of their choice. The purpose of these rules is to avoid
being shown model institutions or their most presentable areas, and to avoid
speaking to "model prisoners" or prisoners who feel constrained in
discussing their treatment. In Hong Kong, however, we were unable to gain
access in accordance with the last of these terms: the authorities refused to
allow us private conversations with prisoners. Even though this limitation
constituted a departure from our usual policy, the delegation decided that
inspections of the prisons would still provide us with valuable information that
could be supplemented from other sources, and that the importance of conducting
as full an investigation as possible at this time weighed in favor of accepting
these terms. Except for this one significant limitation, Hong Kong officials and, in
particular, CSD staff, greatly facilitated our investigation. They granted us
full and free access to each of the prisons we wished to visit, provided us with
helpful documentary and statistical information, and made themselves available
for extended meetings. On the whole, it should be emphasized, the investigation
benefitted from the cooperation, assistance and responsiveness of the Hong Kong
correctional authorities. The chief international human rights documents applicable in Hong Kong
clearly protect the human rights of prisoners. The International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter, the Torture Convention) both prohibit torture and cruel, inhuman, or degrading treatment or
punishment, without exception or derogation.(8) Article 10 of the ICCPR, in
addition, mandates that "[a]ll persons deprived of their liberty shall be
treated with humanity and with respect for the inherent dignity of the human
person."(9) It also requires that "the reform and social readaptation
of prisoners" be an "essential aim" of imprisonment.(10) Several additional international documents flesh out the human rights of
persons deprived of liberty, providing guidance as to how governments may comply
with their international legal obligations. The most comprehensive such
guidelines are the United Nations Standard Minimum Rules for the Treatment of Prisoners (hereinafter, Standard Minimum Rules), adopted by the Economic and
Social Council in 1957. It should be noted that although the Standard Minimum
Rules are not a treaty, they constitute an authoritative guide to binding treaty
standards. Indeed, recognizing the authority of these guidelines with regard to
compliance with Article 10 of the ICCPR, the Hong Kong government specifically
noted in its fourth periodic report under the ICCPR that the territory's
prison rules "take full account" of the Standard Minimum Rules.(11) Other documents relevant to an evaluation of prison conditions include the
Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, the Basic Principles for the Treatment of Prisoners, and, with regard to juvenile prisoners, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (known as the "Beijing Rules").
Like the SMRs, these instruments are binding on governments to the extent that
the norms set out in them explicate the broader standards contained in human
rights treaties. These documents clearly reaffirm the tenet that prisoners retain fundamental
human rights. As the most recent of these documents, the Basic Principles for
the Treatment of Prisoners, declares: Except for those limitations that are demonstrably necessitated by the fact
of incarceration, all prisoners shall retain the human rights and fundamental
freedoms set out in the Universal Declaration of Human Rights, and, where the
State concerned is a party, the International Covenant on Economic, Social and
Cultural Rights, and the International Covenant on Civil and Political Rights
and the Optional Protocol thereto, as well as such other rights as are set out
in other United Nations covenants.(12) Endorsing this philosophy in 1992, the United Nations Human Rights Committee
explained that states have "a positive obligation toward persons who are
particularly vulnerable because of their status as persons deprived of liberty"
and stated: [N]ot only may persons deprived of their liberty not be subjected to
[torture or other cruel, inhuman or degrading treatment or punishment],
including medical or scientific experimentation, but neither may they be
subjected to any hardship or constraint other than that resulting from the
deprivation of liberty; respect for the dignity of such persons must be
guaranteed under the same conditions as for that of free persons. Persons
deprived of their liberty enjoy all the rights set forth in the [ICCPR], subject
to the restrictions that are unavoidable in a closed environment.(13) It should be noted, however, that on ratifying the ICCPR the United Kingdom
entered a reservation stating that prisoners would still be subject to those
laws and procedures deemed necessary for "the preservation of . . .
custodial discipline." This reservation was later echoed in the Hong Kong's
1991 Bill of Rights Ordinance, the legislation which incorporated the
protections of the ICCPR into Hong Kong's local law.(14) Notably, no such reservation was entered with respect to the Torture Convention. The application of the ICCPR in Hong Kong after its reversion to China is
complicated by the fact that China is not a party to the treaty.(15)
Nonetheless, the Sino-British Joint Declaration states that the provisions of
ICCPR will remain in force in Hong Kong after the territory's reversion to
China.(16) The U.N. Human Rights Committee, commenting on the treaty's future application in the territory, has stated that human rights treaties
devolve with territory and that, in particular, the people of Hong Kong will
continue to be protected under the ICCPR after July 1, 1997. |