United Kingdom of Great Britain and Northern Ireland (Hong Kong)
1. At its 1451st to 1453rd
meetings, held on 19 and 20 October 1995, the Human Rights Committee considered
the part of the fourth periodic report of the United Kingdom of Great
Britain and Northern Ireland relating to Hong Kong (CCPR/C/95/Add.5 and
HRI/CORE/1/Add.62), and adopted At its 1469th meeting (fifty-fifth
session) held on 1 November 1995./ the following observations:
2. The Committee welcomes
the presence of a high level delegation which included several officials
of the Hong Kong Government. It expresses its appreciation to the representatives
of the State party for the high quality of the report, abundance of additional
information and detailed and frank answers provided in response to the
oral and written questions posed and comments made by the Committee during
its consideration of the report. The Committee notes with satisfaction
that such information enabled it to engage in a highly constructive dialogue
with the State party.
3. The detailed information
submitted by a wide range of non-governmental organizations has greatly
assisted the Committee in its understanding of the human rights situation
in Hong Kong.
B. Factors relating to reporting obligations under the Covenant
4. The Committee notes that
the United Kingdom and the People's Republic of China have agreed in the
Joint Declaration and Exchange of Memoranda of 19 December 1984 that the
provisions of the Covenant as applied to Hong Kong shall remain in force
after 1 July 1997. In this connection, the Committee, at its 1453rd meeting
on 20 October 1995, made clear its view on future reporting obligations
in relation to Hong Kong in a statement made by the Chairperson, which
is attached to the present document that, as the reporting obligations
under article 40 of the Covenant will continue to apply, the Committee
will be competent to receive and consider reports that must be submitted
in relation to Hong Kong.
C. Positive aspects
5. The Committee welcomes
the initiatives taken by the Government with a view to ensuring the full
implementation of the Covenant in Hong Kong, in future as well as at present.
In that regard, the Sino-British Joint Declaration on the question of
Hong Kong appears to provide a sound legal basis for the continued protection
of the rights as specified in the Covenant. The Committee welcomes the
enactment of the Bill of Rights Ordinance in June 1991.
6. The Committee takes note
with appreciation of the various ordinances that have been reviewed as
to their conformity with the Bill of Rights and amended accordingly, and
also appreciates the continuing process of reviewing and updating of relevant
legislative provisions in that regard.
7. The Committee welcomes
efforts being made by the authorities to disseminate information on human
rights to members of the judiciary, civil servants, teachers and the public
in general, including school-age children.
8. The Committee further welcomes
the recent enactment of the Sexual Discrimination Ordinance and the Disability
Discrimination Ordinance, the aims of which include the elimination of
discrimination against women and disabled persons. It welcomes the oral
information provided by the authorities that an Equal Opportunities Commission
will be established in the first quarter of 1996 with power to recommend
draft laws and draft amendments to these Ordinances.
9. The Committee welcomes
the enactment of the Torture Ordinance, which gives domestic effect to
part of article 7 of the Covenant.
D. Principal subjects of concern
10. The Committee notes that
Section 7 of the Bill of Rights Ordinance provides that "the Ordinance
binds only the Government and all public authorities; and any person acting
on behalf of the Government or a public authority". The Committee
emphasizes in this regard that under the Covenant a State party does not
only have an obligation to protect individuals against violations by Government
officials but also by private parties. It thus notes with deep concern
the absence of legislation providing effective protection against violations
of Covenant rights by non-governmental actors.
11. The Committee expresses
concern over the investigative procedure in respect of alleged human rights
violations by the police. It notes that the investigation of such complaints
rests within the Police Force itself rather than being carried out in
a manner that ensures its independence and credibility. 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. The Committee
welcomes the changes made to strengthen the status and authority of the
Independent Police Complaints Council but notes that these changes still
leave investigations entirely in the hands of the police.
12. The Committee notes with
concern that, while the majority of the population is Chinese-speaking,
official charge forms and charge sheets as well as court documents are
in English only, though efforts are being made to make Chinese versions
13. The Committee expresses
concern over the situation of women in Hong Kong, particularly the high
level of violence and the absence of adequate punitive or remedial measures.
It regrets that the Sexual Discrimination Ordinance is not yet in force
and that it limits the damages awarded to women who are subject to sexual
discrimination and does not give power to direct the reinstatement of
women who have lost their jobs due to sexual discrimination. The Committee
is also concerned that the Sexual Discrimination Ordinance has significant
exemptions and that it is limited in its application to discrimination
based on gender and marriage and does not prohibit discrimination on ground
of age, family responsibility or sexual preference.
14. The Committee notes with
concern that there is as yet no detailed regulations to cover emergencies
and that under the Court of Final Appeal Ordinance, the jurisdiction of
the Court will not extend to reviewing undefined "acts of state"
by the executive. The Committee is concerned that vague terminology such
as "acts of state" may be interpreted so as to impose undue
restrictions on the jurisdiction of the Court, including the application
of any emergency laws that may be enacted in the future.
15. The Committee also regrets
that there is not yet detailed legislation to cover emergency and that
the provision in article 18 of the Basic Law on that subject appears not
to correspond with the provisions of article 4 of the Covenant.
16. The Committee expresses
concern that the administration of legal aid in Hong Kong is refused in
a large number of Bill of Rights cases that are directed against the Government
or public officers.
17. While noting with satisfaction
the efforts by the Government, in cooperation with the United Nations
High Commissioner for Refugees, to care for the needs of the Vietnamese
asylum-seekers, the Committee expresses concern that many Vietnamese asylum-seekers
are subject to long-term detention and that many are held under deplorable
living conditions that raise serious questions under articles 9 and 10
of the Covenant. It is particularly alarmed 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. The Committee
also expresses concern at the conditions under which deportations and
removals of non-refugees of Vietnamese origin were carried out in practice.
18. With respect to article
17, the Committee takes note of the Law Reform Commission's review of
the Telecommunication Ordinance and the Post Office Ordinance. The Committee
notes with concern that these ordinances can be abused to intrude on the
privacy of individuals and that their amendment is urgently required.
19. The Committee is aware
of the reservation made by the United Kingdom that article 25 does not
require establishment of an elected Executive or Legislative Council.
It however takes the view that once an elected Legislative Council is
established, its election must conform to article 25 of the Covenant.
The Committee considers that the electoral system in Hong Kong does not
meet the requirements of article 25, as well as articles 2, 3 and 26 of
the Covenant. It underscores in particular that only 20 of 60 seats in
the Legislative Council are subject to direct popular election and that
the concept of functional constituencies, which gives undue weight to
the views of the business community, discriminates among voters on the
basis of property and functions. This clearly constitutes a violation
of articles 2, paragraph 1, 25 (b) and 26. It is also concerned that laws
depriving convicted persons of their voting rights for periods of up to
10 years may be a disproportionate restriction of the rights protected
by article 25.
E. Suggestions and recommendations
20. The Committee recommends
that efforts be accelerated to introduce, as soon as possible, Chinese
versions of official charge forms and charge sheets as well as court documents.
21. The Committee recommends
that the State party adopt the proposal of the Independent Police Complaints
Council to incorporate non-police members in the investigation of all
complaints against the police.
22. The Committee recommends
that the State party reconsiders its decision on the establishment and
competence of a Human Rights Commission.
23. The Committee recommends
that the deficiencies in the Sexual Discrimination Ordinance be overcome
by appropriate amendments and that comprehensive anti-discrimination legislation
aiming at eliminating all remaining discrimination prohibited under the
Covenant be adopted.
24. The Committee urges the
Government to take immediate steps to ensure that living conditions in
Vietnamese Refugee detention centres be improved. Special attention should
be devoted to the situation of children whose rights under the Covenant
should be protected. Refugee status of all detainees should be speedily
determined with right of judicial review and legal aid. Deportation and
removal of non-refugees of Vietnamese origin should be closely monitored
to prevent abuse.
25. The Committee recommends
that immediate steps be taken to ensure that the electoral system be put
in conformity with articles 21, 22 and 25 of the Covenant.
F. Request for a report
26. The Committee requests
the Government of the United Kingdom to submit a brief report, by 31 May
1996, on new developments with regard to the enjoyment of human rights
in Hong Kong, pursuant to the recommendations contained in these Observations
and in the attached Statement by the Chairperson, for consideration by
the Committee at its fifty-eighth session to be held in Geneva from 21
October to 8 November 1996.
STATEMENT BY THE CHAIRPERSON ON BEHALF OF THE HUMAN RIGHTS COMMITTEE RELATING
TO THE CONSIDERATION OF THE PART OF THE FOURTH PERIODI REPORT OF THE UNITED
KINGDOM RELATING TO HONG KONG Read out by the Chairman at the Committee's
1453rd meeting on 20 October 1995.
The Human Rights Committee
- dealing with cases of dismemberment of States parties to the International
Covenant on Civil and Political Rights -has taken the view 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. Once the people living in a territory find themselves under the
protection of the International Covenant on Civil and Political Rights,
such protection cannot be denied to them by virtue of the mere dismemberment
of that territory or its coming within the jurisdiction of another State
or of more than one State. See documents CCPR/C/SR.1178/Add.1, CCPR/C/SR.1200,
CCPR/C/SR.1201 and CCPR/C/SR.1202.
However, the existence and
contents of the Joint Declaration of the Government of the United Kingdom
of Great Britain and Northern Ireland and the Government of the People's
Republic of China on the Question of Hong Kong make it unnecessary for
the Committee to rely solely on the foregoing jurisprudence as far as
Hong Kong is concerned. In this regard, the Committee points out that
the parties to the Joint Declaration have agreed that all provisions of
the Covenant as applied to Hong Kong shall remain in force after 1 July
1997. These provisions include reporting procedures under article 40.
As the reporting requirements under article 40 of the International Covenant
on Civil and Political Rights will continue to apply, the Human Rights
Committee considers that it is competent to receive and review reports
that must be submitted in relation to Hong Kong.
Accordingly, the Committee
is ready to give effect to the intention of the parties to the Joint Declaration
as far as Hong Kong is concerned, and to cooperate fully with the parties
to the Joint Declaration to work out the necessary modalities to achieve