CHINA - HONG KONG SPECIAL ADMINISTRATIVE REGION

CCPR A/55/40 (2000)

229.     The Committee considered the fifth periodic report of the Hong Kong Special Administrative Region (CCPR/C/HKSAR/99/1 and supplementary information CCPR/C/HKSAR/99/1/Add.1) at its 1803rd to 1805th meetings (CCPR/C/SR.1803-1805), held on 1 and 2 November 1999. This report is the first submitted by China after the return of Hong Kong Special Administrative Region (HKSAR) to Chinese sovereignty on 1 July 1997. The Committee adopted, at its 1810th meeting, held on 4 November 1999, the following concluding observations.

1. Introduction

230.     The Committee expresses its 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.

231.     The Committee thanks the Government 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.

2. Positive aspects

232.     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.

233.     The Committee welcomes the efforts undertaken by HKSAR to give publicity to its report and its commitment to give wide dissemination to the Committee's concluding observations.

234.     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 educational establishments.

235.     The Committee welcomes the steps taken by HKSAR to promote gender equality through educational campaigns and appropriate legislation.

3. Principal subjects of concern and recommendations

236.     The Committee is concerned that most of the recommendations formulated in the Committee's previous concluding observations (A/51/40, paras. 66-72; A/52/40, paras. 84-85) have not yet been implemented.

237.     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.

238.     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, paragraphs 2 and 3, of the Basic Law by the Standing Committee of the National People's Congress (under article 158 of the Basic Law) following upon the decision of the Court of Final Appeal in the Ng Ka Ling and Chan Kam Nga cases, which placed a particular interpretation on that article. The Committee has noted the statement of 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, paragraph 1, of the Basic Law could be used in circumstances that undermine the right to a fair trial under article 14.

239.     The Committee takes the view that the Independent Police Complaints Council does not have the power to ensure proper and effective investigation of complaints against the police. The Committee remains concerned that investigations of police misconduct are still in the hands of the police themselves, which undermines the credibility of these investigations.

240.     HKSAR should reconsider its approach on the issue of complaints against the police and should provide for independent investigation of such complaints.

241.     The Committee reiterates its concern expressed in its concluding observations adopted at the end of the consideration of the fourth periodic report (A/51/40, para. 65) that the electoral system for the Legislative Council does not comply with articles 2, paragraph 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, which is guaranteed under article 25.

242.     The HKSAR should reconsider this step. It should take all necessary measures to maintain and strengthen democratic representation of HKSAR residents in public affairs.

243.     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.

244.     HKSAR must ensure that its law and practice protect the rights guaranteed under article 17.

245.     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.

246.     In order to secure compliance with articles 6 and 7 in deportation cases, HKSAR should ensure that its deportation procedures provide effective protection against the risk of imposition of the death penalty or of torture or inhuman, cruel or degrading treatment.

247.     The Committee remains concerned that no legislative remedies are available to individuals in respect of discrimination on the grounds of race or sexual orientation.

248.     Necessary legislation should be enacted in order to ensure full compliance with article 26 of the Covenant.

249.     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 levels between men and women, that women are under-represented in public boards and public offices, and that there is discrimination against women in the Small Home Policy.

250.     HKSAR should adopt positive measures to overcome discrimination against women and should ensure equal pay for work of equal value.

251.     The Committee is concerned that the age of criminal responsibility is seven years and takes note of the statement by the delegation that the Law Reform Commission is currently conducting a review of this matter.

252.     The age of criminal responsibility should be raised so as to ensure the rights of children under article 24.

253.     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.

254.     All laws enacted under article 23 of the Basic Law must be in conformity with the Covenant.

255.     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.

256.     HKSAR should review the Public Order Ordinance and bring its terms into compliance with article 21 of the Covenant.

257.     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.

258.     HKSAR should review the Societies Ordinance so as to ensure full protection of the right to freedom of association, including trade union rights, under article 22 of the Covenant.

4. Dissemination of information about the Covenant (art. 2)

259.     The Committee sets the date for the submission of the next periodic report at 31 October 2003. That report should be prepared in accordance with the Committee's revised guidelines and should give particular attention to the issues raised by the Committee in these concluding observations. The Committee urges that the text of these concluding observations be made available to the public as well as to the legislative and administrative authorities. It requests that the next periodic report be widely disseminated among the public, including civil society and non-governmental organizations operating in HKSAR.