Human Rights Developments
Unprecedented international scrutiny of human rights in Hong Kong took place in 1991, brought on by the enactment of a local Bill of Rights, the report of the United Kingdom to the U.N. Human Rights Commission, and visits by human rights delegations such as one sent by the International Commission of Jurists. The continued incarceration of nearly sixty thousand Vietnamese asylum-seekers stood out as Hong Kong's most glaring and intractable human rights problem. It was compounded by the resumption of forced repatriation before the government had rectified flaws in the procedures for identifying true refugees and ensured that adequate safeguards were in place to protect those who returned. Hong Kong's Bill of Rights promised to be a powerful new tool for challenging oppressive colonial laws and government actions, but its efficacy was hobbled by various restrictions, notably a period of immunity for certain of the government's police powers. The crisis of confidence in Hong Kong's future deepened as both the British and local governments compromised on the principle of Hong Kong's autonomy to accommodate China.
As of year's end, approximately 59,000 Vietnamese were being held in closed detention centers awaiting either evaluation of their claims to refugee status or repatriation to Vietnam. The relevant immigration ordinance sets no precise limit on the amount of time that Vietnamese may be detained. Waits of over two years are normal, and some Vietnamese, particularly unaccompanied minors, have been waiting since 1988 to undergo the first "screening" of their claims.
Former residents of Vietnam who came to Hong Kong after having spent some time in China also face indefinite detention. These suspected "ex-China" Vietnamese are considered to have the same legal status as Chinese migrants, who under Hong Kong law are not entitled to any consideration of their refugee status. But unlike Chinese migrants, who are usually repatriated to the mainland within hours of interception in Hong Kong, these "ex-China" Vietnamese must await identification and acceptance by China as former residents, a wait that can take years unless the Hong Kong government intervenes.
While illegal under international law, the distinction in Hong Kong's law between the treatment of Vietnamese and Chinese migrants is a product of political realities. Hong Kong's territory would be flooded with arrivals from China if it did not enforce a stringent return policy, and China would not countenance Hong Kong openly "screening" Chinese citizens for refugee claims. On the other hand, in response to international pressure, Hong Kong has maintained first asylum for Vietnamese boat people, and agreed to conform its policies to the 1951 Refugee Convention and its 1967 Protocol. Britain, which is a party to the Refugee Convention, did not extend its treaty obligations to Hong Kong. It did, however, extend its obligations under the International Covenant on Civil and Political Rights to its colony. The use of racial categories to distinguish between the rights of immigrants under Hong Kong's law violates Article 26 of the Covenant, which states that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. Hong Kong, apparently recognizing this difficulty, excepted its immigration laws from the application of its local Bill of Rights, which reproduces this guarantee. The Bill of Rights aside, the Covenant, with its prohibition against legal discrimination on the basis of national origin, still applies to Hong Kong.63 Moreover, quite apart from Britain's failure to extend treaty refugee guarantees to Hong Kong, the customary law prohibition against refoulement _ returning a person to face political persecution _ effectively mandates screening of potential refugees even among Chinese aliens.
Conditions in the detention centers for Vietnamese asylum-seekers are more squalid and dangerous than those of local prisons. Inmates, who are referred to by number rather than name, live behind barbed wire, in corrugated metal huts lined by rows of triple bunk beds, or in some cases, in large tents. Both the internal and external living space per inmate falls well below international standards.64 Little opportunity or space was available for work, education or exercise. The police or the correctional services department manage most detention centers and enforce their rules, including provisions for limiting visits ("subject to orders of Superintendent"), censoring mail (may be read "for good cause" or restricted "for good cause") and punishing escape, vandalism, disobedience and disrespect. However, assault, rape and substance abuse within the camps remain serious problems, and Vietnamese make periodic allegations of abuse by guards and police. The government strictly controls press access to the camps and discourages stories on the plight of particular asylum-seekers.
Families and minors have suffered the effects of these conditions especially severely. Camp workers report a widespread breakdown in family relationships and a rise in child abuse and juvenile delinquency.65 Several thousand unaccompanied minors, the most vulnerable inmates, live in these conditions the longest. Although the special procedures for evaluating their claims were revised in 1991, the new committee has only begun to make headway in resolving the backlog of cases.
The prolonged detention of asylum-seekers cannot be justified on grounds of public order. Indeed, Hong Kong has handled much larger numbers of both Vietnamese and Chinese immigrants on past occasions without resorting to incarceration. The only stated rationales for detention have been deterrence of future arrivals and deference to local public opinion, neither of which justifies the arbitrary deprivation of liberty prohibited by Article 9 of the International Covenant on Civil and Political Rights. Some eighty thousand arrivals later, even Hong Kong authorities no longer claim that detention effectively deters others from setting sail. Nor does the unpopularity of a specific national or racial group make a deprivation of liberty less than "arbitrary" under the Covenant.66
The 1951 Refugee Convention protects both refugees and potential refugees from unnecessary restriction on their movements and penalties imposed solely because of illegal entry.67 Hong Kong has not seriously claimed that detention of all Vietnamese not yet determined to be refugees is necessary as a matter of public order. Prior to 1987, the colony allowed an even greater number of Vietnamese citizens (mostly of ethnic Chinese origin) to live in open camps pending their resettlement abroad. More recently, 111 boat people were released on nominal bail while they challenged the government's action in arresting them directly after a court had ordered them freed on habeas corpus grounds. In that case, a Hong Kong court had found a detention of eighteen months unreasonable, at least under circumstances in which the Vietnamese had asked not for asylum but for supplies and repairs.68 The government's response to this case was to amend the Immigration Ordinance to permit the incarceration of any Vietnamese arriving illegally for as long as the government deems necessary.
In September and October, Britain and Vietnam agreed in principle to the mandatory repatriation of all Vietnamese who were not refugees, and that those who would be forced back first would be the so-called doublebackers _ Vietnamese who had voluntarily returned from Hong Kong to Vietnam and then left again for Hong Kong. On November 9, twenty men, sixteen women and twenty-five children were forced aboard a transport plane bound for Hanoi. Hong Kong police at the scene wore plain clothes and did not carry weapons, but some Vietnamese put up so much resistance they had to be dragged or wrapped in blankets and carried aboard. Hong Kong officials were quick to deny that the repatriations were "forcible," out of sensitivity to Vietnam's rejection of the term, but any other description would have been inaccurate.
The undisclosed agreements on mandatory repatriation contain guarantees that Vietnam will not "persecute" or "harass" those returned for their act of leaving the country, according to statements by Hong Kong's secretary for security. However, past agreements of this sort have not protected those accused by Vietnam of "organizing" boatloads of fleeing Vietnamese. Nor is there any indication that returned Vietnamese will be immune from liability for actions in Hong Kong, where many Vietnamese have expressed views critical of Vietnam's government. Hong Kong has promised not to return genuine refugees to Vietnam _ that is, those with a well founded fear of persecution on specified grounds _ but given that Hong Kong's screening procedures are flawed, it was difficult to be confident that no refoulement would take place. The flaws are both procedural and substantive. Asylum seekers have been subject to superficial interviews without adequate interpreters or pre-screening counseling. Most are not given legal assistance in preparing their appeals and have no right to review the reasons for their initial rejection or the record of their interview. Government authorities decline to articulate the precise standards applied in determining refugee status for Vietnamese, and decisions suggest that they are unusually stringent. In the meantime, even with the new repatriation agreement, Hong Kong officials admitted that most Vietnamese are likely to stay in Hong Kong for "a very long time."69
The provisions of Hong Kong's new Bill of Rights are modeled on those of the International Covenant on Civil and Political Rights. Article 3 of the Bill of Rights repeals all inconsistent pre-existing legislation. Six ordinances were exempted for one year from any such repeal, with another one-year "freeze" possible by resolution of the Legislative Council.70 These ordinances, which all grant extraordinary and highly discretionary law-enforcement powers to administrative authorities, are the laws most likely to conflict with individual-rights guarantees. In arguing for the "freeze" provision, the government claimed that there would be a dangerous gap in existing police powers if these laws were struck down. However, the government has not committed itself to revising these laws during the "freeze," but merely to reviewing them for possible conflict with the Bill of Rights.
Although the Bill of Rights came into operation on June 8, the first judicial decisions relying on its provisions did not appear until months later, after an international conference sponsored by the University of Hong Kong drew attention to the new law. These decisions struck down presumptions of guilt in Hong Kong's drug laws and the automatic issuance of stop orders to prevent judgment debtors from leaving the territory. The High Court also required the government to provide legal assistance to a criminal defendant, holding that the Bill of Rights establishes a test for eligibility independent of the rules governing the Legal Aid Department.
While these early cases are encouraging, it remains to be seen whether the Bill of Rights can be used to protect a wide range of rights and plaintiffs. Because Hong Kong follows the British practice by which the loser in civil litigation must pay the winner's legal fees, the litigation of rights issues will be limited to those few plaintiffs with the means to risk an adverse judgment. The government has rejected proposals to establish a commission that could inexpensively enforce the rights of the disadvantaged or to alter or waive the rule on payment of fees. Another limitation on the Bill or Rights is that it does not govern most disputes between private individuals. Thus, employment discrimination on the basis of gender, a serious problem in Hong Kong, is unlikely to be reached under this law.
Nineteen ninety-one was no exception to the Hong Kong government's history of exercising its considerable powers to mute confrontations with China. In late 1989, the governor assured China that the territory would not be used as a "base for counterrevolutionary activities." In July 1991, the government appeared to act on this pledge by refusing to admit over a dozen overseas students who had landed in Hong Kong to attend a pro-democracy conference. Two months earlier, customs officials impounded a replica of the Tiananmen Square "Goddess of Democracy" which was intended to be used at a mass rally to commemorate the June 4, 1989 massacre.
Britain, under pressure from China, breached the promise that Hong Kong would enjoy a "high degree of autonomy," as set forth in the 1984 Sino-British Joint Declaration on the Question of Hong Kong. Following Britain's concessions to China over the financing and management of Hong Kong's new airport project, another compromise was announced regarding the composition of Hong Kong's highest court. Under Hong Kong's Basic Law _ the equivalent of the territory's constitution _ the Court of Final Appeal may be composed of local judges or, "as required," foreign judges from other common-law jurisdictions. The Sino-British Joint Liaison Group, after months of stalemate on the composition of the court, announced on September 27, 1991 that only one of the five judges could be selected from overseas or retired local judges. This restriction was criticized by liberal legislators and the Bar Association as a concession to Beijing, which would prefer the court not to be overly independent. In the face of public pressure, British officials hinted that they might seek to renegotiate the composition of the court, but senior Chinese government officials reportedly rejected this possibility.71
On December 4, the Legislative Council overwhelmingly voted for a counter-proposal that would allow the high court greater flexibility in using overseas judges. This marked the first time that the legislature has opposed an agreement worked out by China and Britain. The leader of the British contingent to the Joint Liaison Group, Anthony Galsworthy, said that if the legislature were to veto the Sino-British proposal, the government would not likely establish the high court before 1997. He reaffirmed British commitment to the restriction on foreign judges. China swiftly reiterated its view that the Legislative Council was without power to change the agreement.72
Britain was similarly reticent, and China intransigent, on accelerating the transition to a democratically elected legislature. Liberals won sixteen of the eighteen seats contested in Hong Kong's first legislative elections, while every pro-China candidate was defeated. China's response was to claim that the liberals' landslide did not represent the will of most Hong Kong people, and to declare that the legislature was merely an advisory body, not a law-making branch of government.73 Although prior to the election British leaders had hinted that they might press Beijing to increase the number of elected positions allocated in the Basic Law, China again showed resistance and Britain has not yet pursued the matter.
These battles over the composition of the legislature and judiciary were all the more important because of the expansive powers vested in the colony's colonial administration. In particular, Hong Kong lacks laws that require the government to disclose administrative decisions, internal regulations, or the information that the government collects on groups or individuals. The Official Secrets Acts of 1911 and 1939, now discarded in Britain, remain in force in Hong Kong, criminalizing any unauthorized disclosure of official information by both the person who initially reveals the information and any person who learns of it.74 Although prosecutions under the Official Secrets Act did not occur in 1991 and were rare in previous years, the existence of the act worked to inhibit further a press that already was subject to broad censorship powers at home.75
The independence of the judiciary and legislature, and the accountability of government to those governed, are of the utmost importance in protecting human rights as 1997 approaches. Asia Watch was concerned that precedents set by expedience now, such as the mass incarceration of civilians, would lay the foundation for ever more serious rights abuses in the future, especially while China's commitment to the rule of law remains questionable.
The Right to Monitor
In practice, Hong Kong's colonial administration allows human rights monitors relative freedom to conduct their activities, but the laws governing the territory both now and after the 1997 transition to Chinese rule provide ample basis for restriction.
The Societies Ordinance vests in the commissioner of police the power to refuse to register any society that is likely to be used for any purpose "prejudicial to or incompatible with peace, welfare or good order," or that is affiliated with a political organization abroad. Moreover, the commissioner may inspect membership registers, enter meeting places, and order amendments of society constitutions. Although originally intended to combat organized crime in the form of Triad societies, the law has inhibited other associations as well. To avoid police supervision, groups concerned with both politics and human rights have chosen to register as commercial organizations rather than as societies.76
China requested that the statutory prohibition against local "political organizations or bodies" establishing ties with foreign "political organizations or bodies" be written into the Basic Law as well, in Article 23. The Societies Ordinance is one of the laws exempted from the operation of the Bill of Rights for up to two years. To date, the government has not announced any amendment to bring the law in conformity with the Bill of Rights guarantees to free association and assembly. After 1997, the provisions of the Basic Law, which has been promulgated as a national law of China, will take priority over the Bill of Rights, a local Hong Kong statute. However, China has agreed in the Sino-British Joint Declaration, a bilateral treaty, to keep in force the identical guarantees of the International Covenant on Civil and Political Rights.
After heated debate, China also prevailed in inserting in Basic Law Article 23 a promise to outlaw sedition, a crime previously unknown in Hong Kong. The article states that Hong Kong "shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's government, or theft of state secrets, [and] to prohibit foreign political organizations or bodies from conducting political activities in the Region." Asia Watch is concerned that such laws could easily be used to silence human rights monitors, political critics or journalists, and to close Hong Kong to scrutiny by outsiders.
In previous years, other local laws have been used to punish or inhibit protest. On September 29, 1989, activists were beaten by the police and arrested for unlawful assembly. The activists had been attempting to march in protest of the June 4 Beijing massacre at a site where the New China News Agency was giving a cocktail reception. One month later, the political advisor to the Hong Kong governor wrote to the head of the Foreign Affairs Section of the New China News Agency stating that the government "has no intention of allowing Hong Kong to be used as a base for subversive activities against the People's Republic of China." He cited as evidence the arrest of these activists and the government's rejection of a permanent site for a replica of the "Goddess of Democracy" statue that was raised by students in Tiananmen Square. The law invoked in prosecuting the demonstrators was the Public Order Ordinance, which gives the commissioner of police authority to license and control public assemblies of more than thirty people and processions of more than twenty. Shortly after the arrests, the police obtained search warrants and seized unedited videotapes of the incidents from local televisions stations, although these ultimately were not used at trial. The seizures were condemned both in Hong Kong and abroad as violating press freedom.
In February 1990, prominent pro-democracy activists led a protest against the lack of democracy in the Basic Law. Five months later, just after the promulgation of the Basic Law, they were charged with using megaphones (in Hong Kong usage, "loud-hailers") without a permit from the commissioner of police. The Summary Offences Ordinance prohibits unlicensed use of loud-hailers without "lawful excuse." At trial, an assistant police commission testified that in his seventeen years of service he had never come across a prosecution for using loud-hailers in public gatherings, and confirmed that such unlicensed use (by tour groups or school outings, for example) is part of everyday life in Hong Kong. The defendants' conviction was ultimately reversed on the basis that the prosecution was an abuse of power, and the appeals court did not examine whether the law violated the guarantee of freedom of assembly in the International Covenant on Civil and Political Rights.
In December 1989, Reverend Fung Chi Wood, a well-known local elected official, was arrested for refusing to produce his identity card to a police officer. Reverend Fung, who was at the time in an elevator on his way to lead a demonstration protesting a draft of the Basic Law, produced identification ten minutes later once he was on the street. The law requiring Hong Kong residents to produce identity cards on demand is part of the Immigration Ordinance, and designed for the control of illegal immigration. Although it was extremely unlikely that Reverend Fung was suspected of being an illegal immigrant, his conviction was upheld. The Immigration Ordinance was permanently excepted from the operation of the Bill of Rights. Identity card checks are still used in Hong Kong at public gatherings for purposes other than immigration control.77
These incidents raise the question whether the Hong Kong government is committed to politically motivated law enforcement to appease China. The government's interventions in impounding a statue of the "Goddess of Democracy" and refusing to admit into the colony participants in a pro-democracy convention kept this question alive. In local affairs, the government's response has been selectively to limit access to sensitive information,78 for example, through restrictions on journalists visiting detention centers, or through the Official Secrets Act. The right to monitor is largely a matter of administrative discretion in Hong Kong. It is highly doubtful that the executive branch under Chinese rule will be as tolerant of dissent as British administrators have proven. Under these circumstances, it behooves the colonial administration to amend and supplement Hong Kong's legal protection for human rights critics, rather than relying on discretion in enforcement.
The Bush Administration showed signs of recognizing Hong Kong's special position as it moves from British to Chinese sovereignty, but stopped short of treating it as an autonomous entity. The State Department was quick to cite Hong Kong's vulnerability should Most Favored Nation trading status for China be revoked. However, it was silent about Britain's failure to press for more elected legislators or overseas jurists. While the State Department reiterated U.S. opposition to mandatory repatriation of Vietnamese from Hong Kong, it tacitly accepted the policy by characterizing it as a bilateral matter between Britain and Vietnam.
Congress was more directly responsive to human rights issues in Hong Kong. On September 20, Senator Mitch McConnell introduced a bill that in essence would write into U.S. policy the understanding of Hong Kong's autonomy set forth in the Joint Declaration. Under the bill, Congress "welcomes" the continued application to Hong Kong of the International Covenant on Civil and Political Rights and the constitution of the legislature through elections. The bill further calls for the United States to recognize Hong Kong passports and travel documents, to encourage Hong Kong residents to travel to the United States, to expand informational ties with Hong Kong's legislature, to maintain Hong Kong's Most Favored Nation trading status, and to continue to recognize Hong Kong's separate legal status under U.S. law. Martin Lee, an outspoken advocate of human rights and the leader of Hong Kong's most popular political party, visited the United States in November to lobby for the McConnell bill. The bill, which has attracted over a dozen co-sponsors, is currently in the Senate Foreign Relations Committee, which is due to hold hearings on it in early 1992.
The Work of Asia Watch
Asia Watch was given access to Hong Kong's detention centers throughout 1991 by the government's Security Branch, and conducted numerous interviews with Vietnamese on human rights conditions in Vietnam. Asia Watch issued two newsletters based on this research which were critical of Hong Kong's policy on Vietnamese asylum-seekers. "Vietnam: Repression of Dissent" described the failure of the screening process to identify as refugees Vietnamese human rights activists and dissident artists. "Mandatory Repatriation and Indefinite Detention: The Incarceration of Vietnamese in Hong Kong" laid out the rights abuses inherent in the detention policy and suggested alternatives to the premature resumption of forcible return. Throughout 1991, Asia Watch intervened with both Hong Kong and United Nations authorities on behalf of Vietnamese seeking refugee status.
In July, Asia Watch issued a press release condemning Hong Kong's refusal to let overseas Chinese students pass through Kai Tak airport to attend a pro-democracy convention. Local students responded to the government's stance by holding the convention at the airport. In June, Asia Watch attended the first conference on the Bill of Rights in Hong Kong, and assisted the Hong Kong University Law Faculty in gathering human rights publications on Hong Kong. Asia Watch also provided a chapter on Hong Kong in the Human Rights Watch report released during the October meeting of Commonwealth heads of government in Zimbabwe.
The 1985 Joint Declaration between the governments of China and Britain, a treaty which lays out the blueprint for Hong Kong after the transition to Chinese sovereignty, says that the provisions of the Covenant "as applied to Hong Kong" shall remain in force. Although Britain made certain reservations in the application of the Covenant to Hong Kong, Article 26 is not among them. However, Britain did not extend the protections of the Covenant's 1966 Optional Protocol to Hong Kong, which would have provided a forum (the United Nations Human Rights Committee) for raising the issue of a racially discriminatory immigration policy.
Anne Wagley Gow, Protection of Vietnamese Asylum Seekers in Hong Kong: Detention, Screening and Repatriation (June 1991) working paper submitted to the U.N. Economic and Social Council, Commission on Human Rights, and Subcommission on Prevention of Discrimination and Protection of Minorities), p. 8. The exception is Tai Ah Chau Detention Centre, in which residents have access to an entire island during the day.
Refugee Concern Hong Kong, Defenseless in Detention, June 14, 1991.
See Article 26.
Article 31; see also Conclusions on the International Protection of Refugees, No. 22, para. 11(b)(1) (adopted by the Executive Committee of the United Nations High Commissioner for Refugees Programme, 1981.
In re Pham Van Ngo and Others (Sears, J.), 1 Hong Kong Law Review, 499, 508 (1991).
"'No quick end' to problem," South China Morning Post October 4, 1991.
The exempted ordinances are the Immigration Ordinance (Cap. 115), the Societies Ordinance (Cap. 151), the Crimes Ordinance (Cap. 200), the Prevention of Bribery Ordinance (Cap. 201), the Independent Commission Against Corruption Ordinance (Cap. 204) and the Police Force Ordinance (Cap. 232).
"Beijing rules out court deal," The Standard, November 5, 1991.
Stanley Jeung and Rita Lun, "Legco powerless on Court says Beijing," The Standard, December 6, 1991.
Ursula Yeung, "Legislators 'lack public support,'" The Standard, November 5, 1991; Kent Chen, "Legco only an advisory body, says senior NCNA official," South China Morning Post, October 3, 1991, p.7.
See Yash Ghai, "Official Information: Government Secrets or Public Asset?" Hong Kong Law Journal, Vol. 21, Part 1, January 1991, pp. 78-86.
Censorship powers include the Film Censorship Ordinance, which permits the government to ban a film if its showing "would seriously damage good relations with other territories"; the Television Ordinance, which provides for pre-censorship of all programming; the Telecommunications Ordinance, which authorizes controls on grounds of "security"; and the Prevention of Bribery Ordinance, which bars unauthorized disclosure of the names of suspects in corruption investigations.
In a survey conducted in 1991, almost a quarter of journalists admitted to apprehension or self-censorship, especially when reporting on China, and about seventy percent believed press freedom would be curtailed after 1997. (Fanny Wong, "Reporters affected by self-censorship," South China Morning Post, September 24, 1991.) China encourages this attitude by strictly controlling the access of Hong Kong reporters to the mainland, and maintaining dossiers on which journalists and publications are friendly and which are not.
S.L. Law, "Dissidents see firm registration loopholes," The Standard, November 25, 1991.
See "Unlawful assembly denied," South China Morning Post. July 4, 1991, describing an identity card check of an audience at a courtroom hearing on the legality of a widely publicized community protest over the construction of a village crematorium.
Included in the categories of classified information is anything that could cause "embarrassment" to the Hong Kong government.