|
Consideration of reports submitted by states parties |
|
under Article 40 of the covenant |
|
Concluding Observations of the Human Rights Committee |
|
Hong Kong Special Administrative Region |
Main Issues of Concern:
Continuity of the
reporting obligation
Interception of
Communications Ordinance
Legislative
remedies in respect of discrimination
Discrimination in
education system
Age of criminal
responsibility
Content:
1. The Committee considered the fifth periodic
report of the Hong Kong Special Administrative Region (CCPR/HKSAR/99/1 and supplementary information
CCPR/C/SR.1803-SR.1805), held on 1 and 2 November 1999. This report is the
first submitted by the People's Republic of China after the return of HKSAR to
Chinese sovereignty on 1 July 1997. The Committee adopted, at its 1810th
meeting (sixty-seventh session) held on 4 November 1999, the following
concluding observations:
A. Introduction
2. The Committee expresses appreciation
to the delegation from HKSAR for the information it provided and for its
willingness to submit further information in writing. It further welcomes the
recognition given by the delegation to the contribution made by NGOs to the
consideration of the HKSAR report.
3. The Committee
thanks the People's Republic of China for its willingness to participate in the
reporting procedure under article 40 of the Covenant by submitting the report
prepared by the HKSAR authorities and by introducing the HKSAR delegation to
the Committee. The Committee affirms its earlier
pronouncements on the continuity of the reporting obligations in relation to
Hong Kong.
B. Positive aspects
4. The Committee notes that Article 39 of
the Basic Law provides that the provisions of the Covenant as applied to HKSAR
shall remain in force and shall be implemented through the laws of HKSAR. The
Committee welcomes the fact that the primacy of the Covenant is ensured in
domestic legislation by a combination of Articles 39 and 11 of the Basic Law.
5. The Committee welcomes the efforts
undertaken by the HKSAR to give publicity to its report and its commitment to
give wide dissemination to the Committee's concluding observations.
6. The Committee welcomes the efforts
undertaken by HKSAR to educate civil society about human rights. In particular,
the Committee welcomes the great number of training courses, workshops and
seminars conducted in HKSAR for all sectors of the population, including the
civil service, the judiciary, the police and the educational establishments.
7. The Committee welcomes the steps taken by HKSAR to promote
gender equality through educational campaigns and appropriate legislation.
C. Principal subjects of concern and
recommendations
8. The Committee is concerned that most
of the recommendations formulated in the Committee's concluding observations
(published in A/51/40, papas, 66-72; A/52/40, paras, 84-85) have not yet been
implemented.
9. The Committee
remains concerned that there is no independent body established by law to
investigate and monitor human rights violations in HKSAR and the implementation
of Covenant rights.
10. The Committee is
seriously concerned at the implications for the independence of the judiciary
of the request by the Chief Executive of HKSAR for a reinterpretation of
article 24(2)(3) of the Basic Law by the Standing Committee of the National
People's Congress (NPC) (under article 158 of the Basic Law) following upon the
decision of the Court of Final Appeal (CFA) in the Na Ka Ling and Chan Kam Nga
cases, which placed a particular interpretation on article 24(2)(3). The
Committee has noted the statement of the HKSAR that it would not seek another such interpretation
except in highly exceptional circumstances. Nevertheless, the Committee remains
concerned that a request by the executive branch of government for an
interpretation under article 158(1) of the Basic Law could be used in
circumstances that undermine the rights to a fair trial under article 14.
11. The Committee
takes the view that the independent Police Complaints Council has not the power
to ensure proper and effective investigation of complaints against the police.
The Committee remains concerned that investigations of police misconducts are
still in the hands of the police themselves, which undermines the credibility
of these investigations. The HKSAR should reconsider its approach on this issue
and should provide for independent investigation of complaints against the
police.
12. The Committee
reiterates its concern, expressed in paragraph 19 of the concluding
observations, adopted at the end of the consideration of the fourth periodic
report, that the electoral system for the Legislative Council does not comply
with articles 2, para.1, 25 and 26 of the Covenant. The Committee is concerned
about the impending abolition of the Municipal Councils that would further
diminish the opportunity of HKSAR residents to take part in the conduct of
public affairs, that is guaranteed under article 25. The HKSAR should
reconsider this step. It should take all necessary measures to maintain and
strengthen democratic representation of HKSAR residents in public affairs.
13. The Committee is
concerned that the Interception of Communications Ordinance, which was passed
in June 1997 in order to restrict the power of the authorities to intercept
communications, has not yet been brought into effect. Section 33 of the
Telecommunication Ordinance and Section 13 of the Post Office Ordinance still
continue to be in force, thus allowing the authorities to violate the right to
privacy under article 17 of the Covenant. The HKSAR must ensure that its law
and practice protect the rights guaranteed under article 17.
14. In the light of
the fact that the Covenant is applied in HKSAR subject to a reservation that
seriously affects the application of article 13 in relation to decision-making
procedures in deportation cases, the Committee remains concerned that persons
facing a risk of imposition of the death penalty or of torture, or inhuman,
cruel or degrading treatment as a consequence of their deportation from HKSAR
may not enjoy effective protection. In order to secure compliance with article
6 and 7 in deportation cases, the HKSAR should ensure that their deportation
procedures provide effective protection against the risk of imposition of the
death penalty or of torture or inhuman, cruel or degrading treatment.
15. The Committee
remains concerned that no legislative remedies are available to individuals in
respect of discrimination on the grounds of race or sexual orientation. Necessary
legislation should be enacted in order to ensure full compliance with article
26 of the Covenant.
16. The Committee is
concerned that the educational system in HKSAR discriminates against girls in
selection for secondary schools, that considerable differences exist in the
earning level between man and woman, that women are under-represented in public
boards and public offices, and that there is discrimination against women in
the Small Home Policy. The HKSAR should adopt positive measures to overcome
discrimination against women and should ensure equal pay for work of equal
value.
17. The Committee is
concerned that the age of criminal responsibility is 7 years and takes note of
the statement by the Delegation that the Law Reform Commission is currently
conducting a review of this matter. The age of criminal responsibility should
be raised so as to ensure the rights of children under article 24.
18. The Committee is
concerned that the offences of treason and sedition under the Crimes Ordinance
are defined in overly broad terms, thus endangering freedom of expression
guaranteed under article 19 of the Covenant. All laws enacted under article 23 of
the Basic Law must be in conformity with the Covenant.
19. With regard to
freedom of assembly, the Committee is aware that there are very frequent public
demonstrations in HKSAR and takes note of the Delegation's statement that
permission to hold demonstrations is never denied. Nevertheless, the Committee
is concerned that the Public Order Ordinance could be applied to restrict
unduly enjoyment of the rights guaranteed in article 21 of the Covenant. The
HKSAR should review this Ordinance and bring its terms into compliance with
article 21 of the Covenant.
20. With regard to
freedom of association, the Committee is concerned that the Societies Ordinance
may be applied in a way to restrict unduly the enjoyment of Article 22 rights. The
HKSAR should review this Ordinance so as to ensure full protection of the right
to freedom of association, including trade union rights, under article 22 of
the Covenant.
D. Date of examination of the sixth
periodic report dissemination of Information
21. The Committee sets the date for the
submission of the next periodic report as 21 October 200X. That report should
be prepared in accordance with the Committee's new Guidelines (CCPR/C/66/GUI)
and should give particular attention to the issues raised by the Committee in
these Concluding Observations. The Committee urges the State Party to make
available to the public as well as to the legislative and administrative
authorities the text of these concluding observations. It requests the next
periodic report be widely disseminated among the public, including civil
society and non-government organisations operating in HKSAR.