After consideration of the United Kingdom's Fourth Periodic Report on the implementation of the International Covenant on Civil and Political Rights (ICCPR) in Hong Kong on October 19 and 20, 1995, the United Nations Human Rights Committee requested that the government of the United Kingdom submit a supplementary report updating the Committee on changes concerning the state of human rights in the territory. Since this request, the government of Hong Kong's slow implementation of basic rights and the government of China's stated policies regarding Hong Kong have precipitated great concern regarding the future of rights in the territory. These developments highlight the urgency for the United Kingdom to do the utmost to convince the People's Republic of China to report on the implementation of the ICCPR in Hong Kong, as it is required to do under the treaty known as the 1984 Sino-British Joint Declaration.
This paper summarizes Human Rights Watch/Asia's concerns in relation to the human rights situation in Hong Kong. It provides a general overview of human rights that are particularly at risk due to the transfer of sovereignty; discusses recent developments concerning current human rights abuses in Hong Kong; and makes recommendations for establishing human rights safeguards for post-1997 Hong Kong.
Developments in Sino-Hong Kong affairs have cast a troubling shadow over the future of human rights in the Hong Kong Special Administrative Region (HKSAR). By the time the Committee meets to examine the government's supplementary report, the territory will be less than 300 days away from the transfer to Chinese sovereignty.
At this point, two things are clear: 1) The rights guaranteed under the ICCPR are under threat in Hong Kong and 2) There is little time for the United Kingdom to take corrective measures and to win the cooperation of China in maintaining and reporting on ICCPR rights in Hong Kong. If the United Kingdom wants to fulfill its duty to Hong Kong, it must redress current human rights abuses in the territory as well as ensure that human rights in the future HKSAR are protected by effective and resilient structures that will survive the transfer of sovereignty. To ensure that the rights set forth in the ICCPR are protected in Hong Kong both before and after the territory's reversion to Chinese rule, Human Rights Watch/Asia makes the following recommendations:
The Chinese government should ratify the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights.
The Chinese government should uphold its obligations under Annex I, Section XIV of the 1984 Sino-British Joint Declaration and Article 39 of the Basic Law and guarantee that the International Covenant on Civil and Political Rights will remain in force in Hong Kong after July 1, 1997. China should also pledge its commitment to uphold Article 40 of the ICCPR and continue reporting on the state of human rights in Hong Kong to the United Nations Human Rights Committee.
The government of the United Kingdom should publicly declare its intention of regarding China's failure to report to the United Nations Human Rights Committee on the application of the ICCPR in Hong Kong as a violation of its treaty obligation under the 1984 Sino-British Joint Declaration.
The United Nations Human Rights Committee should remind China of the Statement by the Chairperson of the Human Rights Committee at the 1453rd meeting on October 20, 1995 concerning the dismemberment of States Parties to the ICCPR. Specifically, the Committee should impress upon China that "human rights treaties devolve with territory, and that States continue to be bound by the obligations under the Covenant entered by the predecessor State."(1) Furthermore, the Committee should instruct China to uphold its obligations and provide assurances that it will continue reporting to the Committee after July 1, 1997.
In the event that China refuses to continue reporting on the application of the Covenant in Hong Kong, the Human Rights Committee should allow the government of the Hong Kong Special Administrative Region to submit a report on its behalf. While noting that the Committee typically deals with sovereign states parties to the Covenant, Human Rights Watch/Asia believes such reporting obligations could be required of the future SAR government through the "one country, two systems"plan that allows "Hong Kong, China"to "conclude relevant agreements with relevant international organisations."(2)
In light of the fact that a number of states party to the ICCPR have overdue reports to the Committee and, in some cases, have not been examined in over fifteen years, Human Rights Watch/Asia urges the Human Rights Committee to amend the Committee rules and allow for an examination of human rights conditions in countries whose governments have failed to submit reports.
In the absence of a report by China in 2001, the Human Rights Committee should consider the report on Hong Kong to be overdue and convene a special hearing on Hong Kong. At this hearing, the Committee should accept and consider reports from local, regional and international non-governmental organizations.
Before the transfer of sovereignty, the government of the United Kingdom should establish an independent human rights commission in Hong Kong to receive complaints regarding human rights abuses, to promote human rights awareness and education, and to monitor the state of human rights in the Hong Kong Special Administrative Region.
Any changes to the Bill of Rights Ordinance should be treated by the United Kingdom as a violation of the 1984 Sino-British Joint Declaration and by the Human Rights Committee as a violation of Article 2(1) and 2(2) of the ICCPR.
The establishment of a provisional legislature should be considered by the United Kingdom as a breach of the Joint Declaration. The Human Rights Committee should also consider such an act as a violation of Article 25 of the ICCPR.
A fully independent and impartial police complaints structure should replace the Complaints Against the Police Office (CAPO). In addition, a civilian should be installed as the head of the Independent Police Complaints Committee (IPCC), and this body should handle all serious cases of police abuse until an independent CAPO is established.
In regard to the Vietnamese asylum seekers, the Hong Kong government should immediately improve living conditions in the detention centers by alleviating overcrowding and removing all restrictions on the press. Furthermore, the government should ensure that the use of minimum force will be a guiding principle for security forces involved in repatriation and transfer operations.
The Hong Kong government should implement and enforce the Sex Discrimination Ordinance and other anti-discrimination legislation as soon as possible. It should also encourage the Equal Opportunities Commission to amend the flaws in the Sex Discrimination Ordinance, or allow a Private Member's Bill concerning this Ordinance to be introduced in the Legislative Council.
Article 2(1) of the ICCPR: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status
Article 2(2) of the ICCPR: Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant
In 1984, the United Kingdom and the People's Republic of China entered into a bilateral treaty known as the Joint Declaration, which among other provisions requires that "the provisions of the International Covenant on Civil and Political Rights [...] as applied to Hong Kong shall remain in force."(3) This treaty is registered with the United Nations. In 1990, the National People's Congress approved the Basic Law of Hong Kong, sometimes referred to as the future "mini-constitution"for the territory because it describes the structure of the future government and is to have superseding effect over future local laws. This Chinese law repeats the Joint Declaration's guarantee in Article 39, providing that "the provisions of the ICCPR, [...] as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Special Administrative Region." In order to comply with both the Joint Declaration and the Basic Law and enforce the guarantees of the ICCPR through local law, the Hong Kong government adopted the Hong Kong Bill of Rights Ordinance in June 1991.
The Bill of Rights Ordinance in large measure reproduces verbatim the guarantees of the ICCPR, introducing them as part of the local law of Hong Kong. Certain provisions in the Bill make explicit the implicit rule of statutory interpretation that the Bill overrides prior inconsistent law. To ensure that the fundamental rights guaranteed in the Bill would prevail over future inconsistent law, Hong Kong's Letters Patent were amended in 1991 by the United Kingdom.(4) A similar superseding effect would remain after the 1997 transition by virtue of the precedence that international treaties would have over local Hong Kong or Chinese national laws.
Human Rights Watch/Asia considers that the Bill of Rights Ordinance is an express attempt to honor Hong Kong's obligation under Article 2 of the ICCPR, which calls on all States Parties to take necessary steps to give effect to the rights outlined in the Covenant. As the means by which the ICCPR is entrenched in domestic Hong Kong law, the Bill of Rights Ordinance renders the Covenant's provisions justiciable in Hong Kong's courts, enabling individuals to seek redress for the violation of their rights.
The government of China has challenged both the status and the scope of the Bill of Rights Ordinance. Objecting to the authority granted to the courts by the Bill of Rights Ordinance to repeal inconsistent pre-existing laws, China's advisory body, the Preliminary Working Committee Legal Subgroup, claimed that the Bill of Rights Ordinance enjoys a status above that of the Basic Law, on the grounds that courts would be able to declare laws void if they were deemed to be inconsistent with the Bill of Rights. It should be noted, however, that the Bill of Rights Ordinance grants no new powers to the judiciary. Under normal rules of statutory interpretation, courts in Hong Kong are always empowered to declare parts of laws void when they are superseded by new laws, or to declare local laws inconsistent with international treaties. The merits of the contention that the Bill of Rights is somehow "above" the Basic Law is dubious, given that the Basic Law itself requires the enactment of the Bill of Rights Ordinance or similar legislation to incorporate the ICCPR into local law. Nevertheless, the Legal Subgroup relied on this rationale to advise the Chinese government to repeal section 2(3), section 3 and section 4 of the Bill of Rights Ordinance which entrench the law and give it superseding effect over other Hong Kong laws,(5) a recommendation that China has stated it intends to act upon.
Normally, the repeal of these sections would not alter China's obligation to give superseding effect to the guarantees of the ICCPR over local law because of the requirement in the Joint Declaration that the ICCPR "remain in force." But the Legal Subgroup also recommended the reinstatement of six draconian emergency laws that had been amended since the adoption of the Bill of Rights Ordinance.(6) These laws gave the Hong Kong government extreme powers to curtail basic rights such as freedom of speech and information, free association and free assembly.(7) China has also stated its intent to act on the recommendation to reinstate these laws -- raising the fear that it may also intend to enforce them.
China's stated intention could be considered a violation of the Joint Declaration's promise of a "high degree of autonomy"for Hong Kong as well as the guarantee that the ICCPR will "remain in force." The United Kingdom should use all its influence to persuade the government of China to avoid such a breach of the Joint Declaration. Should suasion fail, the United Kingdom should declare itself prepared to publicly denounce any amendment or repeal of the Bill of Rights Ordinance as a breach of China's treaty obligations.
Human Rights Watch/Asia urges the Committee to similarly impress upon China its obligations under the Joint Declaration in this respect, and to declare that repeal or revision of the Bill of Rights Ordinance will be denounced as a violation of ICCPR Articles 2(1) and 2(2).
Article 19(2) of the ICCPR: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice
In paragraphs 51-57 of its supplementary report, the government discusses its current activities in regards to freedom of expression issues. While taking note of these endeavors, Human Rights Watch/Asia considers the basic freedom guaranteed in Article 19 of the ICCPR to be at great risk in Hong Kong.
In addressing the issue of self-censorship in the press, the government has said that "its policy is to maintain an environment in Hong Kong in which a free and active press can operate under minimum regulation." (8)his policy, however, has not been able to forestall a clear trend towards self-censorship on the part of journalists and editors who anticipate a much less hospitable environment in post-1997 Hong Kong.
The lack of respect for the freedom of expression in China portends a gloomy fate for this freedom in post-1997 Hong Kong. Recent developments in the mainland suggest that Chinese authorities are becoming both less tolerant of views differing from official policy and more restrictive in controlling such views.
On the eve of World Press Freedom Day in May 1996, the Xinhua News Agency released a 2.3 million-word document establishing guidelines for China's press. In addition to its "mission to be a mouthpiece,"the press, according to this official report, must "publicize the Central Committee's political line and policies unconditionally."(9) This position was extended to China's provincial radio stations nearly three weeks later by Xu Weicheng, the Communist Party's deputy head for propaganda. In a speech to the heads of twenty-seven provincial stations, Xu reiterated that China's radio stations "must fully respect the political line of the central government, ...and enlarge their influence...by controlling the direction of public opinion."(10)
In addition to such demands, Chinese authorities also continued its assault on the freedom of expression through direct censorship. In May 1996, the Asian Wall Street Journal and the International Herald Tribune were banned for distribution in Shanghai because both carried articles and photographs of the inauguration of Taiwan President Lee Teng-hui.(11) More recently, Ding Guangen, head of the Communist Party's Propaganda Department, ordered Chinese journalists not to investigate corruption scandals involving senior party officials.(12)
China has also sought to intimidate local and foreign journalists through harassment and detention. Hong Kong's TVB recently disclosed, for instance, that their reporters have been arrested by Chinese authorities on more than ten occasions.(13) Although these reporters were later released, many others have not been as lucky. Ming Pao reporter, Xi Yang, remains in jail after a closed-door trial in 1993 sentenced him to twelve years in prison for publishing "state financial secrets."Gao Yu continues to endure a six-and-a-half-year sentence after a secret trial in 1993 found her guilty of selling "state secrets"to two Hong Kong magazines. Many others, including Bai Weiji and former Xinhua editor, Wu Shishen, also languish in China's prisons for their work as journalists.
China's intolerance for free expression is not restricted to the mainland. The last six months have seen China attempting to control the press in Hong Kong as well. One notable example of such efforts is the Preparatory Committee's (PC) decision to ban media coverage of its panel meetings. Citing the need to avoid confusion, the Preparatory Committee gagged reporting on all PC discussions in February 1996. The Preparatory Committee has also come under attack for its discriminatory treatment of journalists.(14) While giving special privileges to pro-China news agencies, the PC has banned both the Apple Daily, owned by Jimmy Lai, and the United Daily, a Taiwan-based wire service in Hong Kong, from attending any meetings held by the Committee.
Reports suggest that China has already begun to employ strong-arm tactics to control news reporting in Hong Kong. In February 1996, U-Beat, a Chinese University student periodical, published an editorial alleging that Xinhua officials had pressured the magazine's staff to reword an article concerning Xinhua deputy director Zhang Junsheng. After U-Beat staff decided not to make the requested changes, Xinhua officials apparently warned the students that they would find it hard "to gain a foothold in journalism in the future."(15)
As noted above, in October 1995, the Legal Subgroup of the Preliminary Working Committee proposed that the more restrictive version of six security and broadcasting related laws amended to accord with the Bill of Rights be reinstated. If these recommendations are enforced, authorities would have the power to pre-censor and prohibit programs, revoke television licenses, regulate sources for news programs, prohibit radio programs, grant authorities with the power to vet and prohibit television programs and censor and suppress publications. Needless to say, the freedom of expression could easily erode in such an environment.
Further exposing the precarious future of freedom of expression in Hong Kong was Director of the Hong Kong and Macau Affairs Office Lu Ping's recent statement in an interview with CNN that the press must not advocate "two Chinas"after the handover next year. According to Chinese officials, journalists may risk violating Article 23 of the Basic Law which prohibits treason, secession, sedition and subversion by writing articles that promote Taiwan independence or otherwise call for "two Chinas". Yet under current Hong Kong laws, it is not illegal to advocate Taiwan independence, support "two Chinas"or even call for democracy in China. Therefore, Lu Ping's statements indicate that basic rights such as free expression are precariously subjected to the degree of autonomy Hong Kong will ultimately enjoy.
To ensure that the freedom of expression survives in post-1997 Hong Kong, the government must step up its efforts to repeal or amend existing laws which threaten this freedom. The government of the United Kingdom should urge China to reiterate its commitment to freedom of expression in Hong Kong by publicly disavowing any intent to censor coverage of Taiwan or Tibet, to punish criticism of Chinese officials or investigative reporting that uncovers hitherto undisclosed financial or political information, or to intimate local journalists.
Article 25 of the ICCPR: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;(c) To have access, on general terms of equality, to public service in his country
In paragraphs 41-43 of its report, the government discusses its position in regards to the Preparatory Committee's decision to disband Hong Kong's current Legislative Council and establish, in its place, a provisional legislature.
On March 24, 1996, the second plenary session of the Preparatory Committee voted to disband Hong Kong's current Legislative Council and to appoint a provisional legislature in its place. The substitution of an appointed legislature for an elected one violates not only ICCPR Article 25 but also the Joint Declaration, the Basic Law, and the Bill of Rights.(16) Provisional legislators are to be selected by a China-appointed Selection Committee, a process that will deprive Hong Kong people of their right to vote and freely choose their representatives. It is unlikely that members of Hong Kong's most popular political party will be included in the provisional legislature because of its pro-democracy policies. Although China has declared it intends to hold direct elections for a subsequent legislature, it has not set a time or declared how such elections will take place.
The Preparatory Committee has asked the Hong Kong government for a list of all amendments to existing laws and legislation unilaterally enacted since the signing of the Joint Declaration. It is expected that the provisional legislature will rescind such legislation including the Bill of Rights Ordinance, which incorporates the ICCPR into Hong Kong's domestic law. The appointed legislature will also be called upon to ratify the appointment of the Court of Final Appeal and many other fundamental matters, such as the arrangements, if any, for future legislative elections.
Should China dissolve the present legislature and replace it with a non-elected provisional legislature, we urge the Human Rights Committee to deem such an act a violation of Article 25 of the ICCPR.
Article 2(2): Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps,...to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
Article 3: The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
Human Rights Watch/Asia shares the concern of many local, regional and international non-governmental organizations regarding the application of Article 23 of the Basic Law in the Hong Kong Special Administrative Region. This article, which concerns the prohibition of "any act of treason, secession, sedition, [and] subversion against the Central People's Government, or the theft of state secrets"is widely regarded as the vehicle by which groups or individuals may encounter restrictions or persecution for exercising their civil and political rights in post-1997 Hong Kong.(17)
Although Sino-British discussions on this issue have been underway since July 1995, it appears unlikely that legislation implementing all aspects of Article 23 will be enacted before the transfer of sovereignty. The United Kingdom has emphasized "the need for early and substantive progress" on this issue.(18) However, recent reports reveal that the Crimes (Amendment) Bill, which was to legislate against treason, secession, sedition and subversion, will not be among the bills the government will introduce in this year's legislative session. In addition to being quietly removed from the legislative program, the controversial bill has also been omitted from a list of outstanding issues the government hopes to pursue with China.(19) As a result, legislation on key elements of Article 23 will be left for passage in the provisional legislature, a body which lacks any legal basis.
The government of the United Kingdom intends to provide legislation for the theft of state secrets through the local application of the Official Secrets Act. As a British law extended to Hong Kong through the Letters Patent, the Official Secrets Act will automatically expire on June 30, 1997. Currently, discussion regarding the adaptation of this Act locally is being conducted in the Sino-British Joint Liaison Group (JLG). Citing confidentiality rules, JLG negotiators have refused to disclose details of the proposals. Sources indicate, however, that it is unlikely the Official Secrets Act, which contains excessive restrictions regarding the disclosure of information, will be liberalized in a Hong Kong version.
Human Rights Watch/Asia views these developments with much concern. We urge the government of the United Kingdom to forestall the passage of potentially repressive laws in the provisional legislature by introducing the Crimes (Amendment) Bill during this year's legislative session.
Article 9(1): Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary detention. No one shall be deprived of liberty except on such grounds and in accordance with such procedure as are established by law.
Currently, there are approximately eighty Chinese dissidents living in Hong Kong. Most of these people fled mainland China due to fears of persecution in the wake of the 1989 Tiananmen massacre. Although many had entered the territory without proper documents, and therefore in a technically illegal manner, they have been allowed to legally reside in Hong Kong due to the discretionary power exercised by the director of immigration. The major question is what protection these people will have once Hong Kong reverts to China's control. Those who wish to leave should be given resettlement in other countries.
They are clearly vulnerable to detention in Hong Kong or repatriation and likely imprisonment in China, especially because the Chinese government has effectively denied them the possibility of permanent abode by suggesting that anyone who entered Hong Kong illegally (as all dissidents technically did) would not be eligible for permanent residency, even if they eventually meet the seven-year requirement that now applies. Han Dongfang, a prominent figure in the 1989 pro-democracy movement who now resides in Hong Kong commented on the likelihood of such a scenario, saying, "If the dissidents cannot leave Hong Kong before 1997 and can't stay after 1997, the only way out for them is to be sent back to China. But that means only the likelihood of jail life."(20) Preparatory Committee member Lau Siu-kai offered a similarly pessimistic view. He said, "If the Chinese government demands the SAR government hand back the dissidents, it will be difficult to refuse as it would deny the legitimacy of Chinese laws in doing so."(21)
Clearly, Hong Kong's reversion to Chinese sovereignty puts these dissidents in a particularly vulnerable position. Human Rights Watch/Asia therefore urges the government of the United Kingdom to redouble its efforts to resettle these people abroad.
Police Misconduct and Investigation of Complaints Against the Police
Article 2(3a) of the ICCPR: Each State Party to the present Covenant undertakes to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity
Article 7 of the ICCPR: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment
Human Rights Watch/Asia shares the concerns of other non-governmental organizations regarding the underregulated powers of law enforcement agencies in Hong Kong. According to recent reports, complaints against the Hong Kong police in 1995 rose by twelve percent over 1994 figures.(22) An alarming forty-six percent of the 3,454 grievances received by the Complaints Against Police Office were allegations of assaults by police officers.(23)
The death of Lam Tin-ming in November 1995 suggests the use of excessive force and brutality by police during questioning and investigations. After being questioned in relation to two strangulation murders, Lam collapsed at the Tai Po police station and later died at the Tai Po Jockey Club Clinic at 4:26 a.m. on November 24, 1995. A preliminary post-mortem revealed that the had serious injuries including multiple broken ribs, bruising to his feet, a torn liver and severe chest and internal bruising.
The death of Lee Shing-tat similarly raises concerns regarding police abuse and misconduct. Lee Shing-tat was apparently assaulted by police at Fu Shing Street market in Tai Po on 8 March 1995 after refusing to cooperate in a routine identity card check. Several Tai Po residents and market shoppers apparently witnessed three police officers force Lee to the ground, pin his hands behind his back and beat him for approximately twenty minutes. Lee Shing-tat died later the next day after complaining of chest pains and a severe headache.(24)
Such cases suggest that excessive force, abuse and brutality are not unheard of in the Hong Kong police force. Given the high number of allegations of such assault, it is particularly crucial that the government establish a complaints system that is, and that is perceived by the community to be, independent, fair, effective and reliable.
Human Rights Watch/Asia shares the concerns expressed by the Human Rights Committee in paragraph 11 of its Concluding Observations. The Committee noted that the "investigation of complaints [against the police] rests within the Police Force itself rather than being carried out in a manner that ensures its independence and credibility."It further stated that "in light of the high proportion of complaints against police officers which are found by the investigating police to be unsubstantiated, the Committee expresses concern about the credibility of the investigation process and takes the view that investigation into complaints of abuse of authority by members of the Police Force must be, and must appear to be, fair and independent and must therefore be entrusted to an independent mechanism."(25)
In paragraphs 11-12 of its supplementary report, the government discusses the measures it has taken to improve the police complaints system. While these efforts, including the participation of lay observers in Complaints Against Police Office investigations and the push to grant statutory status to the Independent Police Complaints Council are positive, victims of police misconduct can not be said to have an effective remedy for the violation of their rights until a fully independent and impartial body exists to receive and investigate police complaints.
Article 7 of the ICCPR: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment...
Article 9(1) of the ICCPR: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention...
Article 9(4) of the ICCPR: Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful
Article 10(1) of the ICCPR: All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person
Article 24(1) of the ICCPR: Every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and State
The Hong Kong government's treatment of Vietnamese asylum-seekers remains one of the most serious areas of human rights abuse. Approximately 14,000 Vietnamese men, women and children are held in detention, their asylum claims having been rejected by Hong Kong authorities in screening procedures that have come under much international criticism over the years. The Hong Kong government has violated the above-listed provisions of the Covenant with regards to inhumane conditions of detention, excessive and indiscriminate use of tear gas against the population, the denial of protection to children, failure to provide effective remedy for those seeking redress of abuses, and efforts to legislatively foreclose judicial determination of arbitrary detention.
Hong Kong's detention centers for Vietnamese asylum-seekers contravene the government's responsibility under Articles 7 and 10 of the ICCPR. Enclosed by high concrete walls and barbed wire fences, the Vietnamese boat people live in prison-like conditions where they are patrolled by prison guards, open to administrative punishment, and subjected to regular searches and raids by CSD forces. Privacy is virtually nonexistent in the camps. And basic sleeping, eating and bathing facilities have come under attack for being inadequate and inhumane.(26) For some (including a large number of children), this atmosphere of pervasive violence and overcrowding has been all they have known for the last eight years.
Although they have committed no crime, the Vietnamese asylum-seekers in Hong Kong are subjected to conditions reputedly worse than those experienced by the territory's convicted criminals.(27) Whereas the government takes into consideration the Standard Minimum Rules for the Treatment of Prisoners (SMRTP) for its prisons, the basic requirements afforded in this document are not extended to the detention facilities for the Vietnamese. Therefore, while Article 9, 10, and 12 of the SMRTP may be cited to afford prisoners with individual cells or rooms, minimum floor space, and clean and decent sanitary facilities, the Vietnamese must suffer "barrack-like dormitories where one family normally shares a large bunk bed"and showers that are "located in the open directly above open drain type latrines."(28)
Over the past year, an increasing number of Vietnamese have been relocated to Victoria Prison. Accommodations at this facility have proven to be glaringly inadequate. Far exceeding the official capacity of 438, as many as one thousand people have been held at the prison following a transfer exercise or preceding a repatriation operation. In May 1996, 980 people were quartered in the prison, with two cells holding 200 inmates each.(29) In August 1996, another 1,000 Vietnamese were sent to the facility. According to one inmate, one toilet is shared by sixty people.(30) Another inmate has stated that a room used for Vietnamese has no proper toilet facilities and maintains only two shower taps for as many as 120 men, women and children.(31) Furthermore, the Vietnamese at this facility are only allowed outside their cells at specified periods for a maximum of one hour per day for exercise or recreation. In subjecting the boat people to such conditions, the government violates Articles 7 and 10 of the ICCPR.
Victoria Prison has also been the site of the arbitrary detention of asylum seekers. In numerous cases, the Correctional Services Department has separated individuals from their families and placed them in Victoria Prison without formally arresting or charging them of any crime or offense. After a violent riot at Whitehead Detention Center on May 10, 1996, about seven men were transferred to Victoria Prison without any official charge.(32) One of these men, who was ill during the time of his "arrest,"has remained in Victoria Prison separated from his family for over four months. Clearly a violation of the fundamental freedom of liberty, such detention is technically lawful in Hong Kong due to Victoria Prison's designation as a Vietnamese detention facility.
Desperation on the part of detained Vietnamese facing accelerated repatriation to Vietnam boiled over in a riot in the Whitehead Detention Center on May 10, 1996. In containing the violence, in which camp inmates took guards hostage and burned twenty-six buildings and fifty-three vehicles, Hong Kong authorities used over 2,000 canisters of tear gas. There is no question that tear gas was an appropriate form of crowd control under the circumstances, but eyewitnesses report that it was fired almost indiscriminately and there were no "safe"areas to which children and others who played no part in the riot could escape. This incident represented an increase in the use of tear gas since another major incident on April 7, 1994, where the government was criticized by its own commission and many non-governmental groups for excessive use of tear gas and its effects on women and children.
Last year, the Human Rights Committee expressed particular alarm "about the situation of children living in camps who are deprived of enjoyment of rights under the Covenant in practice, given their parents' status as illegal immigrants."(33) The Committee's suggestion that "special attention should be devoted to the situation of children whose rights under the Covenant should be protected."(34)
The government's treatment of the Vietnamese displays a disturbing disrespect for international human rights standards. The government should immediately rectify its violations of Articles 7, 10, and 24 by improving conditions in the camps and avoiding excessive force in its treatment of Vietnamese asylum seekers.
Article 26 of the ICCPR: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
As part of a "step-by-step approach"to the elimination of discrimination, the Hong Kong government has initiated a series of consultative studies on various forms of discrimination in the territory. In January 1996, it began two studies concerning discrimination on the grounds of family status and of sexual orientation. Currently, the government is conducting consultation on the question of age discrimination in employment. It will initiate a similar study on the issue of racial discrimination later this year.
While noting the government's efforts, Human Rights Watch/Asia shares the concerns of the Human Rights Committee regarding the delay in implementing comprehensive anti-discrimination legislation in the territory. Discrimination on any grounds violates Article 26 of the ICCPR. Therefore, to uphold its responsibilities under Article 2(2) of the Covenant, the United Kingdom must ensure that the Hong Kong government adopts appropriate legislative or other measures to protect against discrimination.
The continued delay in bringing the Sex Discrimination Ordinance into force remains another issue of concern. In paragraph 22 of its Supplementary Report, the government explains that the delay has been due to the development of a Codes of Practice which will help employers and employees understand the Ordinance. Victims of discrimination or sexual harassment should have immediate and effective avenues of recourse. Although the Codes of Practice may be useful, the implementation of the Sex Discrimination Ordinance need not wait for the complete finalization of the Codes.
In spite of the establishment of the Equal Opportunities Commission, which is empowered to amend ordinances relating to discrimination, various weaknesses in the Sex Discrimination Ordinance remain unchanged. These deficiencies, which include a $150,000 limit on damages awarded under the Ordinance, a three-year exemption from the Ordinance for small businesses, and the absence of a power to order the reinstatement of those who have lost their jobs due to sexual discrimination, severely weaken the effectiveness of this ordinance in providing protection against sexual harassment or discrimination on the grounds of sex.
Human Rights Watch/Asia views the slow implementation of anti-discrimination legislation in Hong Kong with great concern. In order to fulfill its obligations under the Covenant, the Hong Kong government should implement and enforce the Sex Discrimination Ordinance and other anti-discrimination legislation as soon as possible. Furthermore, it should amend the flaws in the Sex Discrimination Ordinance either through proposals by the Equal Opportunities Commission or a Private Member's Bill in the Legislative Council.
Article 4: In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation provides that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.
While the government has made some progress in its law reform program, there remain a number of laws, which if left unamended, provide for the restriction of basic rights in Hong Kong. These laws include the Emergency Regulations Ordinance.
Although its subsidiary legislation was repealed, the Emergency Regulations Ordinance continues to confer extraordinary powers to the governor that potentially could place very guarantee in the ICCPR at risk. The ordinance grants the governor power to declare emergencies and to make whatever regulations he or she thinks fit "on any occasion which the Governor may consider to be an occasion of emergency or public danger."No limitations are placed in the ordinance as to what constitutes an emergency"in contrast to Article 4's provision, cited above, that derogation of rights are only permissible when the life of the nation is threatened and an emergency is publicly declared. Under the ordinance, the governor's discretion to produce regulations "in the public interest"is similarly unfettered, in contrast to the requirement in Article 4 that derogation be limited "to the extent strictly required by the exigencies of the situation." The past practice of enacting sweeping draconian regulations on telecommunications, public assemblies and freedom of association shows that this provision is susceptible to severe abuse. China's stated declaration that it will reinstate these draconian regulations merely underscores the urgent need to repeal or amend the underlying ordinance that makes these regulations possible.
Article 17: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.
Both the Telecommunications Ordinance and the Post Office Ordinance allow for the interception of private correspondence. Section 33 of the Telecommunications Ordinance allows the Governor to prohibit the transmission of messages, or to intercept, detain, or disclose private messages if it is considered to be within the public interest. Section 13 of the Post Office Ordinance confers the Post Master General with the authority to intercept any form of mail. Clearly a violation of Article 17(1) of the ICCPR, which guards against the interference with privacy, these sections threaten a basic right in Hong Kong and should be repealed.