Rule of Law in Hong Kong
The Rule of Law in Hong Kong
(June 1999 to September 2001)
A SUBMISSION OF THE HONG KONG BAR ASSOCIATION
1. The Committee on International Human Rights of the Association
of the Bar of the City of New York and the Joseph R Crowley Programme
in International Human Rights of the Fordham School of Law jointly
invited the Hong Kong Bar Association to provide with them information
of what in the view of the Hong Kong Bar Association are the most
significant developments affecting rule of law, democracy and fundamental
rights since June 1999. The said two organizations also invited the
Hong Kong Bar Association in addition to submit reports, articles
or other documentation that the Hong Kong Bar Association believes
may be appropriate and may assist them in developing a proper understanding
of recent events.
June 1999 - December 1999
2. On 26 June 1999, the Standing Committee of the National People's
Congress of the People's Republic of China (NPCSC) adopted an Interpretation
of Article 22(4) and Article 24(2)(3) of the Basic Law of the Hong
Kong Special Administrative Region, following a proposition by the
Central People's Government instigated as a result of a report of
the Chief Executive of the HKSAR. The move of the Chief Executive
to seek an "interpretation" was strongly opposed by members
of the legal community in Hong Kong and abroad. The Hong Kong Bar
Association issued numerous statements and appeals to the public.
Although the Law Society Council took the position that interpretation
and amendment were "both lawful" and the matter was a political
choice to be left to the government, many of its members disagreed.
630 lawyers from both branches of the legal profession co-signed an
appeal to the government against re-interpretation. Over 360 signed
a four-page letter rejecting the arguments of the Secretary for Justice.
A group of some 300 solicitors published in local newspapers an open
petition to the NPCSC not to accept the request of the government.
The International Bar Association expressed serious concern on 28
May 1999. The Lawyers Committee for Human Rights wrote to the Chief
Executive on 29 May 1999 asking him to reconsider. The Chairman of
the English Bar did the same. Nevertheless, the Chief Executive submitted
his report ostensibly on the basis of two articles of the Basic Law,
claiming that the interpretation adopted by the Hong Kong Court of
Final Appeal ("the CFA") of Articles of the Basic Law in
its judgments of 29 January 1999 had made it "difficult"
for him to implement those judgments. This hastily assembled "procedure"
leading to the issuance of the "interpretation" was secretive.
It also bypassed Articles 158 and 159 of the Basic Law which protects
the autonomy of Hong Kong: the CFA decides on whether an interpretation
should be sought, and the Legislative Council decides on whether an
amendment should be proposed. Most chilling of all is that this "procedure"
is not subject to any procedural restraint, particularly as to the
occasions at which an "interpretation" may be sought.
3. The NPCSC considered that the CFA was wrong in not seeking an
interpretation from the NPCSC at the time when it heard the cases;
and that its interpretation of the Basic Law was not consistent with
the "legislative intent". Two provisions of the Basic Law
were interpreted by the NPCSC, including a provision which the HKSAR
Government openly acknowledged as being within the autonomy of the
HKSAR. Mr Qiao Xiaoyang, the member of the NPCSC responsible for explaining
the draft "interpretation" before the plenary session of
the NPCSC, said on state television that he hoped all sectors of Hong
Kong "could, through the interpretation this time, enhance the
concept of "one country" ...... We should talk about two
systems but it's more important for us to talk about "one country"."
4. After the adoption of the "interpretation" by the NPCSC,
the HKSAR Government has refused to state publicly the situations
or conditions under which it would again seek an "interpretation"
from the NPCSC; or the limits beyond which, or issues on which, it
would not seek an "interpretation" from the NPCSC. There
is theoretically nothing to stop the HKSAR Government from seeking
an "interpretation", through the use of the said "report"
device, in the absence of a court case, in anticipation of a court
case, during a court case, and subsequent to the final adjudication
of a court case (as it had done on this occasion). And the HKSAR Government
or the Secretary for Justice has so far declined to indicate that
there would be no further approach for "interpretation"
in a similar manner.
5. On 30 June 1999, 642 lawyers from both branches of the legal profession
walked in sober clothes from the High Court Building to the Court
of Final Appeal Building in silent protest of the "interpretation"
adopted by the NPCSC.
6. On 21 July 1999, a judge of the Court of First Instance granted
leave to apply for judicial review in the case of two persons liable
to removal to the Chinese Mainland and an injunction against removal
17 minutes after they were removed out of Hong Kong by immigration
officers (who had been informed of the pending applications prior
to their decision to execute the removal orders). When the case next
came back before the court, counsel for the Immigration Department
indicated in open court that the department had a policy to deport
or remove persons without waiting for the outcome of pending applications
for leave to apply for judicial review (which may include an application
for an interlocutory injunction restraining the Director of Immigration
to deport or remove the applicant until the court determines the application).
This sequence of events gave rise to serious objections from members
of the Legislative Council and the legal profession as indicative
of the scant regard and respect by immigration officers of the legal
rights of persons liable to removal to have the legality of their
removal orders challenged in the courts, and of the authority of the
courts to deal with applications before them, by refusing to preserve
the status quo. Government officials in response repeated the old
promise not to remove persons whose legal aid applications have been
granted, which did not apply to the present case.
7. On 20 August 1999, the Privacy Sub-committee of the Law Reform
Commission released two consultation papers. One of the consultation
papers was on the topic of media intrusion into privacy and recommended
the establishment of a press council to adjudicate and punish privacy
intrusion by the media. This consultation paper was met with widespread
opposition from the media, which saw this as a first move in the direction
of governmental interference and control of the media.
8. Ms Margaret Ng, Legislative Councillor, barrister and Vice-chairman
of the Hong Kong branch of the International Commission of Jurists,
found out in September 1999 that she was on a "blacklist"
of HKSAR residents barred from entering Mainland China when she was
informed at the Hong Kong International Airport by airline personnel
that the visa she obtained a week ago to enter the Mainland was revoked
by the Mainland authorities and therefore she would not be allowed
to board an aircraft to Beijing for the purpose of attending a course
of the constitutional law of the PRC. Commentators suggested that
the causes for the action by the Mainland authorities included her
open opposition to the move by the HKSAR Government to seek an "interpretation"
from the NPCSC of provisions of the Basic Law relating to the right
of abode and her motion of no confidence of the Secretary for Justice.
9. On 4 November 1999, the UN Human Rights Committee adopted its
concluding observations on the fifth periodic report of the HKSAR
Government under the ICCPR (CCPR/C/79/Add.117). The Human Rights Committee
expresses serious concern at the implications for the independence
of the judiciary at the request by the Chief Executive of the HKSAR
for a reinterpretation of Art 24(2)(3) of the Basic Law by the NPCSC
following upon the decision of the CFA in the right of abode cases.
The Human Rights Committee also expressed its concern that a request
by the executive branch of government for an interpretation of the
Basic Law could be used in circumstances that undermine the right
to a fair trial under Art 14 of the ICCPR. Further, the Human Rights
Committee expressed its concern over the system in Hong Kong for investigating
police misconduct, the non-compliance of the electoral system of the
Legislative Council with the political rights and equality provisions
of the ICCPR, the absence of safeguards in regulating interception
of post and telecommunications by the governmental authorities, the
absence of guarantees in the exercise of the power to deport (particularly
to those facing a risk of imposition of death penalty or of torture,
etc as a result of their deportation), the absence of legislative
remedies to individuals in respect of discrimination on the grounds
of race or sexual orientation against private violators, the application
of the Public Order Ordinance to restrict enjoyment of the freedom
of assembly and the application of the Societies Ordinance to restrict
enjoyment of the freedom of association.
On 3 December 1999, the CFA handed down its judgment in the Lau
Kong Yung case. The CFA accepted without reservation or qualification
the validity and binding force of the NPCSC "interpretation"
of 26 June 1999. Some commentators suggested that the CFA's judgment
was the result of the HKSAR Government's action in seeking an "interpretation"
from the NPCSC, thus putting the CFA in the invidious position of
considering a NPCSC resolution of disputable legality and legitimacy.
If the CFA rejected the NPCSC resolution, refused to enforce it, or
attempted to qualify its impact upon Hong Kong, a constitutional crisis
would ensue. If the CFA accepted the NPCSC resolution, it would signify
a significant climbdown from the position it adopted in the two judgments
of 29 January 1999. The latter course was chosen by the CFA, even
though that ruling was not necessary in the context of the facts of
the particular case.
11. On 15 December 1999, the CFA handed down its judgment in the
Ng Kung Siu or the flag desecration case. The CFA allowed the appeal
of the HKSAR Government and held that the two offences of flag desecration
in question were justified restrictions of the freedom of expression
enshrined in Art 19 of the ICCPR. However, the reasoning of the two
judgments lay stress on communitarian values but failed to address
satisfactorily submissions advanced by the defendants on the legitimacy
of the protection of national symbols, the speech content inherent
in the national flag (which highlights leadership of the Communist
Party over China) and the proportionality of criminalisation of flag
desecration for the purpose of such protection. Some commentators
remained sceptical as to whether the CFA also succumbed to political
pressure or took into account in their deliberations the dire political
consequences if it ruled against the HKSAR Government in this case.
This scepticism was particularly lingering bearing in mind press reports
based on "Government sources" before the hearing of the
Ng Kung Siu case, where such sources not only suggested arrogantly
the strength of the Government's case and the existence of a "contingency
plan" in case the CFA ruled against the HKSAR Government, but
also revealed internal considerations earlier on to seek an interpretation
from the NPCSC of Basic Law provisions pertaining to the flag desecration
issue before the CFA hearing of any appeal from the HKSAR Government.
12. At the ceremony of the opening of the Legal Year on 17 January
2000, the Chief Justice of the CFA, the Hon Andrew Li, made the point
that "where the courts come under unwarranted attack, it is the
constitutional responsibility of the Government, that is the executive
authorities, to explain and defend the fundamental principle of judicial
independence, whether or not the decision in question is in its favour".
Some commentators suggested that this point was a reference to the
hostile position taken by the HKSAR Government against the CFA during
the events leading to the issuance of the NPCSC "interpretation"
of 26 June 1999. On the same occasion, the Secretary for Justice,
Ms Elsie Leung, claimed in her speech that the events leading to the
issuance of the NPCSC "interpretation" of 26 June 1999 had
nothing to do with judicial independence.
13. In his annual report to the General Meeting of the Bar Association
in January 2000, the Chairman of the Bar, Mr Ronny Tong SC, noted
that "an important aftermath of the right of abode cases is that
the SAR Government, while accepting it would only seek an interpretation
of the Basic Law from the NPCSC in "exceptional circumstances",
refuses to publicly confirm that it would not resort to such an application
if it should lose in the Desecration of Flag case. The effect of such
a refusal, whether intended or not, was that there was a constant
threat that any interpretation of the Basic Law by the CFA unacceptable
to the SAR Government would result in another application to the NPCSC."
Mr Tong continued: "In the Bar's view, this was and still is
a Damocles sword to our CFA. Confidence in our legal system and the
independence of our Judiciary is bound to suffer. It is difficult
to envisage how this confidence can be restored unless the SAR Government
publicly accepts that it will henceforth comply strictly with Article
158 of the Basic Law and not seek an independent reference to the
NPCSC outside the ambit of the Basic Law. This is the challenge which
the Bar will have to contend with in coming years."
14. In late 1999, the HKSAR Government decided against the proposal
of the Legal Aid Services Council to provide for an independent legal
aid authority. The present Legal Aid Department is a government department
and is considered by the legal profession to be lacking in independence.
January 2000 - December 2000
15. Mr Param Cumaraswamy, the UN Special Rapporteur on the independence
of judges and lawyers, referred in his report to the UN Human Rights
Commission of February 2000 to the communications between him and
the Government of the People's Republic of China in respect of the
course of events leading to the re-interpretation of two provisions
of the Basic Law by the Standing Committee of the National People's
Congress of 26 June 1999. The Special Rapporteur concluded that: There
is no doubt that the judicial power of the courts in the HKSAR is
restricted with regard to the interpretation of the Basic Law. Judicial
power, however, cannot be unlimited. Courts too are subject to the
law so long as the law is rational and constitutional. The Court of
Final Appeal has acknowledged this restriction on its judicial power.
Though it may appear that the interpretation, in this case, by the
Standing Committee had the effect of revising to some extent the 29
January 1999 judgements of the court, in violation of principle 4
of the Basic Principles of the Independence of the Judiciary, yet
the peculiarity and the constitutional arrangements of the "one
country, two systems" principle should be given due effect, as
was done by the Court of Final Appeal, and the interpretation should
not be viewed as an encroachment on the independence of that court.
In any event, the interpretation of the Standing Committee did not
overturn the rights of the litigating parties acquired by virtue of
the two judgements.
16. Mrs Mary Robinson, the UN High Commissioner on Human Rights,
visited Hong Kong in February 2000 and met with the Chief Executive
and other members of the HKSAR Government. Amongst the topics raised
was the establishment of a statutory human rights commission. The
HKSAR Government promised to study the issue but later on backtracked
17. In late April to early May 2000, there were press reports of
a trial in Shaoqing of Mainland China where allegations were made
of Mainland public security officials taking Hong Kong residents in
their custody from the Mainland into Hong Kong clandestinely and coercing
those Hong Kong residents to give access to the public security officials
their homes and bank accounts, allegedly for the purpose of investigating
crimes. It later transpired that the Hong Kong police had no knowledge
of any such activity in spite of an understanding between the Mainland
and Hong Kong authorities that Mainland public security officials
must inform the Hong Kong police if they wish to enter Hong Kong to
investigate crimes; that Mainland public security officials have no
power of investigation in Hong Kong; and that Mainland public security
officials who are in Hong Kong for the purpose of investigating crimes
must be accompanied by members of the Hong Kong police when conducting
any such investigation.
18. The Secretary for Justice, the Hon Elsie Leung, was re-appointed
for another two year term in May 2000.
19. The HKSAR Government announced in May 2000 that a Women's Commission
would be established.
20. The UN Committee Against Torture released its concluding observations
on its consideration of the periodic report of the HKSAR Government
under the Convention Against Torture, Inhuman and Degrading Punishment
or Treatment on 9 May 2000 (A/55/44,paras.106-145). The Committee
Against Torture expressed its concern that the Crimes (Torture) Ordinance,
which sought to implement the Convention in Hong Kong, was in a number
ways not in conformity with the Convention. The Committee also considered
that the practices of the HKSAR relating to refugees may not be in
full conformity with the Convention.
21. A demonstration by right of abode claimants and student activists
to mark the first anniversary of the re-interpretation of provisions
of the Basic Law by the NPCSC of the Basic Law on 26 June 2000 resulted
in scuffles between demonstrators and police officers in the course
of which pepper strays were used. The police subsequently charged
five student activists of participating in an unlawful assembly in
August 2000. The prosecution of the students attracted widespread
condemnation in the community and focussed the attention of the public
on the compatibility of the Public Order Ordinance with international
human rights standards protecting the freedoms of expression, assembly
and association. Commentators considered the Public Order Ordinance
to be incompatible with such standards on the grounds that it (a)
requires organizers of public meetings or public processions to notify
the police 7 days before the holding of such meetings or processions;
(b) subjects the holding of public meetings or public processions
at little or short notice to police approval; and (c) punishes the
participation of public meetings or public processions that the police
object in the case of (a) above or do not approve in the case of (b)
above with a maximum penalty of imprisonment for 5 years. The prosecution
was subsequently dropped.
22. However, the public debate on the Public Order Ordinance persisted
before the Legislative Council. Public hearings held by a select committee
of the Legislative Council to gather views from the public attracted
many community organizations hitherto not concerned with the constitutionality
of the Public Order Ordinance, all of which came to the hearings to
express support of that Ordinance and to profess belief in the benevolent
enforcement of the laws by the HKSAR Government and the police. Commentators
considered this phenomenon to have involved active organization behind
the scene for the purpose of mobilising "popular" support
for the Public Order Ordinance. Informed public debate on the subject
was undermined. The Secretary for Security thereafter introduced a
motion before the Legislative Council asking the Council to affirm
the Public Order Ordinance as striking the proper balance between
individual freedom and social order and being compatible with the
international human rights standards. This inappropriate move of putting
what is essentially a question of law before a legislative body split
by party politics and not equitably representative of the general
public was considered by some commentators as stifling continuing
public discussion and possibly with the view of applying pressure
on the courts in any subsequent prosecutions under the Public Order
Ordinance. The motion sponsored by the HKSAR Government was carried
in early December 2000.
Dr Robert Chung, an academic and opinion pollster based at the University
of Hong Kong, disclosed in a newspaper article in July 2000 that he
was subject to pressure in his polling activities. The sources of
the pressure were later on revealed to be the Vice-chancellor and
Pro-vice-chancellor of the university. An inquiry of the university
concluded that following visits by Andrew Lo, a special assistant
of the Chief Executive, the Vice-chancellor and Pro-vice-chancellor
discussed with Dr Chung about his polling activities, particularly
the polls about the popularity of the Chief Executive. The Vice-chancellor
and the Pro-vice-chancellor resigned. Andrew Lo also had similar visits
with other universities in Hong Kong. Commentators considered that
the HKSAR Government had interfered with the academic freedom of the
24. Hong Kong held its Legislative Council elections in September
2000. Of the 60 members returned, 30 were returned by functional constituencies
(whose electors were leaders or members of different sectors of the
community, totalling about 300,000), 24 returned by geographical constituencies
(whose electors were registered permanent residents of the HKSAR,
totalling about 3 million) and 6 returned by an election committee
(whose membership was about 800).
January 2001 - September 2001
25. The United Nations Committee on Economic Social and Cultural
Rights adopted on 11 May 2001 concluding observations on the initial
report submitted by the People's Republic of China on the International
Covenant on Economic Social and Cultural Rights as applied to the
Hong Kong Special Administrative Region (E/C.12/1/Add.58). The Committee
found the failure of the HKSAR Government to prohibit race discrimination
in the private sector constituted a breach of its obligations under
Art 2 of the ICESCR, called upon the HKSAR Government to extend its
prohibition of race discrimination into the private sector and requested
information on the progress in implementing this recommendation to
be submitted by 30 June 2003. The HKSAR Government was also urged
to prohibit discrimination on the basis of sexual orientation and
26. The Committee noted that families affected by the re-interpretation
of Article 24 of the Basic Law by the NPCSC of 26 June 1999 were impeded
in their enjoyment of economic, social and cultural rights and was
deeply concerned about the hardship arising from the HKSAR Government's
policies on permanent residence and families split between Mainland
China and Hong Kong.
27. The Committee expressed regret that some judgments of the Court
of First Instance of the HKSAR expressed the opinion that the ICESCR
was "promotional" or "aspirational" in nature
and indicated that such opinions were based on a mistaken understanding
of the legal obligations arising from the ICESCR. The Committee urged
the HKSAR Government not to argue in court proceedings that the ICESCR
is only "promotional" or "aspirational" in nature.
The Committee also recommended that the Public Order Ordinance, which
restricts the freedoms of expression, assembly and association, be
reviewed with a view to amending its provision to ensure freedom of
trade union activities.
29. Towards the end of May 2001, news reports suggested that the
Security Bureau of the HKSAR Government had completed a study of foreign
legislation or measures adopted to combat "sects" or "cults";
and that the HKSAR Government might wish to introduce legislation
similar to that recently adopted in France to outlaw "sects"
or "cults" and to prohibit brainwashing. Commentators regarded
these reports as indicating an inclination on the part of the HKSAR
Government to proscribe the activities of the adherents of the spiritual
movement known as "Falun Gong" in Hong Kong. The "Falun
Gong" was outlawed in Mainland China as an "evil cult"
carrying on subversive acts but the activities of the adherents in
Hong Kong had not been in breach of any laws in Hong Kong. However,
some adherents were refused entry by the immigration authorities when
they wished to come to Hong Kong to participate in meetings or demonstrations.
The Hong Kong Bar Association published a press statement on 25 May
2001 expressing concern of the HKSAR Government's thinking about legislating
against "cults". The statement noted the danger of the lack
of an objective definition of "cult", which permits arbitrariness
and abuse in the implementation of any legislation against "cults".
The statement further indicated that no case of necessity had been
made out for legislating against "cults" in the HKSAR. The
personal safety of individuals and the public order and morals of
the community were not threatened by any "cult". The existing
laws were capable of dealing with any threats to personal safety,
public order or morals by the activities of "cults". Any
legislation proposed for regulating or prohibiting "cults"
or certain activities of "cults" would, in the opinion of
the Bar Association, have a grave impact on the freedoms of thought,
conscience, belief and religion and the freedoms of expression, assembly
and association, all of which are guaranteed under the Basic Law.
The momentum generated by these reports then subsided, though recently
some "Falun Gong" demonstrators were arrested for obstruction
when they were having a fast on the pavement in front of the Liaison
Office of the Central People's Government.
30. The police attracted criticisms from social activists in May
2001 for its handling of demonstrators during the period of the Fortune
Global Forum. The questionable acts included the demarcation of a
demonstration area far away from the venue of the forum, the forcible
seizure of a plywood coffin from demonstrators at a place far removed
from both the venue and the demonstration area, the arrest and prosecution
for obstruction of demonstrators who chained themselves to a flag
pole in the afternoon before the commencement of the forum, when the
location of that flag pole was still not off limits, and the arrest
and prosecution for obstruction and assault of three individuals in
connection with a vehicle used by an activist organization. The prosecutions
mentioned above are still pending before the courts.
31. A legislative bill seeking to put in place the electoral system
for the upcoming election of the Chief Executive in March 2002 attracted
severe criticism in the Legislative Council in May and June 2001.
The main criticism was a proposed provision that the office of the
Chief Executive would become vacant "if the Central People's
Government removes him from office ... under any other circumstances",
since it wrongly acknowledged that the Central People's Government
could remove the Chief Executive from office under circumstances that
were not provided by the Basic Law. The Hong Kong Bar Association
released a submission that stated its opinion that there was no plenary
power of removal under the Basic Law for the Central People's Government
to remove the Chief Executive. Although this proposed provision was
subsequently amended and adopted by the Legislative Council in the
form of "if the Central People's Government removes the Chief
Executive from office in accordance with the Basic Law", the
HKSAR Government refused to disavow its understanding that apart from
the two circumstances of resignation and impeachment, there were other
unspecified circumstances and bases for the Central People's Government
to remove the Chief Executive. Many legislators decried the stance
of the HKSAR Government as surrendering the autonomy of the HKSAR.
32. On 22 June 2001, a judge of the Court of First Instance held
that three gender based mechanisms in the territory-wide system for
transfer of students from primary to secondary schools constituted
unlawful discrimination on the ground of sex.
33. On 20 July 2001, the Court of Final Appeal handed down three
judgments on different questions concerning claimants for the status
of HKSAR permanent resident and hence the right of abode in the HKSAR.
The first case was concerned with the question of whether a child
of Chinese nationality born in Hong Kong could become a HKSAR permanent
resident without the additional qualification of one of his parents
being a HKSAR permanent resident at the time of his birth. The second
case was concerned with the question of whether a child of Chinese
nationality and born outside Hong Kong of non-HKSAR permanent residents
but adopted by HKSAR permanent residents could become a HKSAR permanent
resident. The third case was concerned with the question of whether
a person of non-Chinese nationality could become a HKSAR permanent
resident by virtue of seven years' continuous ordinary residence in
Hong Kong, even though he was imprisoned in Hong Kong for a period
of time during the relevant seven year period. The CFA ruled in the
affirmative in the first case and negative in the second and third
case. However, in the first case, counsel for the HKSAR Government
requested the court to refer Article 24(2), paragraph (1) of the Basic
Law to the NPCSC for interpretation on the ground that implementation
of that provision of the Basic Law would have a substantive effect
on affairs which were the responsibility of the Central People's Government
or the relationship between the Central Authorities and the HKSAR.
In making this submission, the HKSAR Government asked the CFA to depart
from the test for reference previously determined in 1999. Commentators
considered that this submission, if accepted by the Court of Final
Appeal, would have a negative impact on the Rule of Law in Hong Kong
since many provisions of the Basic Law hitherto considered to be not
concerning affairs which are the responsibility of the Central People's
Government or concerning the relationship between the Central Authorities
and the HKSAR, particularly those establishing and guaranteeing the
rights and freedoms of individuals in Hong Kong, might conceivably
become a provision required to be interpreted by the NPCSC by judicial
reference as a result of the HKSAR Government asserting "a substantial
effect" on those two matters in their implementation. Eventually,
the CFA in its judgment in the first case, affirmed the common law
approach towards interpretation of the Basic Law (subject to an interpretation
of the NPCSC under the Basic Law) and declined to refer the case to
the NPCSC for interpretation, applying the 1999 criteria.
34. Professor Li Shaomin returned to Hong Kong from the United States
in August 2001, after he had been deported from the People's Republic
of China upon his conviction of national security-related offences
before a court in Beijing. The HKSAR Government permitted him to land
and remain in Hong Kong, where he held a teaching position with a
university there. Professor Li's return generated much debate since
he had been deported from the People's Republic of China and presumably,
the HKSAR, being part of the People's Republic of China, should not
permit him to enter the territory of the nation again. In the event,
a substantial number of commentators in Hong Kong considered the response
of the HKSAR Government to be in accordance with the principle of
"One Country, Two Systems".
35. The UN Committee for the Elimination of Racial Discrimination
released its concluding observations on the report of the HKSAR Government
under the Convention for the Elimination of All Forms of Racial Discrimination
on 9 August 2001 (CERD/C/59/Misc.16/Rev.3). The Committee reiterated
its concern about the continuous absence in the HKSAR of legal provisions
protecting persons from racial discrimination to which they may be
subjected by private persons, groups or organizations. The Committee
did not accept the argument put forward for not initiating such legislation,
ie that such legislation would not be supported by the society as
a whole. The Committee recommended that the existing unsatisfactory
situation be thoroughly reviewed and that appropriate legislation
be adopted to provide appropriate legal remedies and prohibit discrimination
based on race, colour, descent or national or ethnic origin similarly
to what has been done with regard to discrimination on the grounds
of gender and disability. The Committee also reiterated its concern
regarding the situation of foreign domestic workers in the HKSAR,
mainly from the Philippines, Indonesia and Thailand, and the existence
of certain rules and practices, such as the so called "two-weeks
rule", which may be discriminatory in effect.
36. The Secretary for Justice had declined the request of the Chairman
of the Bar that there be consultation of the legal profession before
a decision is made as to the successor to her as Secretary for Justice
The Court of Final Appeal resumed on 6 and 7 September 2001 the oral
hearing on the case of 5,000 odd right of abode claimants for relief
in the light of the Interpretation of the NPCSC of provisions of the
Basic Law of 26 June 1999. The claimants argued that their legitimate
expectation to have their status verified in Hong Kong following the
judgments of the CFA of 29 January 1999 were not respected by the
HKSAR Government; that they should come within the scope of the test
cases encompassed by the judgments of the CFA of 29 January 1999;
or that they should benefit from a concession policy announced by
the HKSAR Government in the light of the NPCSC Interpretation of 26
June 1999. The CFA thereafter reserved its judgment.
38. Throughout the last two and a half years, there had been occasional
press reports and suggestions that the HKSAR Government was proposing
to enact legislation to implement Art 23 of the Basic Law, which requires
the HKSAR to enact its own laws on treason, secession, sedition, subversion,
theft of state secrets, prohibition against foreign political organization
or bodies conducting political activities in Hong Kong and prohibition
against Hong Kong political organizations or bodies from having ties
with foreign counterparts. Article 23 legislation has been a constant
concern not only of activists but also of media organizations and
journalists, since such laws are bound to have a negative impact on
the freedoms of conscience, expression, assembly and association.
39. Another issue that surfaced from time to time was that of rendition
between the HKSAR and Mainland China. The HKSAR Government and the
Central People's Government have been having secret talks on rendition
and the HKSAR Government had refused to discuss in public the principles
under which it conducted the negotiations, including the significance
(if any) to be placed on recognised principles of international extradition,
such as those in the UN Model Extradition Treaty. Yet the HKSAR Government
appeared to have assumed that rendition would involve a two-way process
with the HKSAR Government having the obligation to render to the Mainland
for trial and punishment HKSAR residents accused or sentenced of any
criminal offence, including political offences. The only promise the
HKSAR Government is prepared to make was that there would be consultation
after the conclusion of the negotiations and before the enactment
of relevant legislation to give effect to the rendition agreement.
13th September 2001.