Following is the opening statement given by the Secretary for Home Affairs, Mr David Lan, at the hearing held by the United Nations Human Rights Committee on the report of the Hong Kong Special Administrative Region in the light of the International Covenant on Civil and Political Rights (ICCPR) in Geneva today (Monday):
Madame Chair, distinguished Members,
Thank you for this opportunity to address you on the implementation of the ICCPR in Hong Kong. On behalf of the Government of the Hong Kong Special Administrative Region, I would like to express my gratitude to the Committee for accommodating this hearing within what I know to be a crowded and complex programme of business.
The Committee will, I am sure, recall the fears expressed before the reunification as to whether Hong Kong would ever be allowed to submit reports under the two Covenants - or to appear before this Committee - again. Madame Chair, our report is before you. And so are we - my colleagues from Hong Kong and I - to present our report and to answer directly the questions that the Committee may put to us. Together - the report and our presence here today - are by virtue of a special arrangement between the United Nations and the Government of the People's Republic of China which, as the Committee is aware, has yet to ratify the Covenant. The report was written by the Hong Kong SAR Government after extensive consultation with NGOs and the general community in Hong Kong. The Central People's Government did not change a single word, scrupulously maintaining its commitment to a hands off approach to Hong Kong under the unique concept - and working reality - of 'one country, two systems'.
From the outset, I would like to assure you that human rights, freedom of expression, freedom of the press - in fact, all the freedoms we have come to expect over the years as our right - are very much alive and well in Hong Kong. Our open, argumentative and freewheeling society continues to operate successfully in a free market economy underpinned by the rule of law and the free and unfettered flow of ideas and information. This is the key to Hong Kong's success and is recognised as such in great detail in our constitution, the Basic Law. Chapter III of the Basic Law guarantees the fundamental rights and duties of Hong Kong residents. It does so, not only by expressly creating such rights and duties, but also by entrenching the whole of the Covenant and the ICESCR as applied to Hong Kong.
Anyone who doubts our commitment to a free and open society only has to look at the energetic, vigilant and dedicated Non-Government Organisations at the hearings today. They bring a vitality to civil society in Hong Kong where people have the right to say what they want. We staunchly uphold that right, and will continue to do so. The NGOs have an important role in these hearings, as it ensures the Committee will be presented with a wide range of views and perspectives. Indeed, we listened carefully to their views in drawing up our own report. The Administration may not always see the issues in the same light, but a divergence of views is what a civil society is all about.
As the Hong Kong report covers such a broad sweep, I propose to concentrate on one or two issues of great importance which, I know, have already been brought to the Committee's attention. They concern the recent developments in relation to our laws on the right of abode and the associated question of the rule of law, and in relation to press freedom.
Our report refers to the legal history of the law on the right of abode, and to the appeal to our Court of Final Appeal which was heard in January 1999, with the judgement being delivered on the 29th of that month.
A practical - and potentially disturbing - consequence of the judgement was the extension of the right of abode to a very large number of people: both in terms of absolute numbers and, more importantly, in terms of Hong Kong's physical capacity to absorb additional permanent population.
We estimated that, within a decade, the decision would entitle an extra 1.6 million Mainland-born people to enter Hong Kong to live, increasing our population by 26%. That would be the same as the United States taking in 68 million extra people or, say, France, another 15 million, in just 10 years.
Meeting the needs of such a large and sudden influx of people for housing, schools, hospitals, transport and social services - in our case - would involve additional expenditure in excess of HK$710 billion (US$91 billion). In tiny Hong Kong - where reclamation is the principal method of land formation due to difficult, hilly terrain - we would have needed to create the equivalent of 30 years' land supply in a single decade. The costs of all these would have had to be met at the expense of plans to improve the living standards of our present population of 6.8 million.
Historically, Hong Kong has had a long tradition of absorbing migrants from the Mainland. We are already one of the most densely populated places in the world with nearly 6,000 people per square kilometre. Nevertheless, every year, we admit about 54,000 new residents: an annual increase equivalent to a small European town. We have been able to do this because their entry has been sustained at a rate and a level that our social infrastructure can absorb. But, in our view, the court's interpretation of two articles in the Basic Law effectively removed the mechanisms that enabled us to control the rate of entry and thus the growth rate of our permanent population.
We needed to put those mechanisms back in place. But Hong Kong could not do this on its own, since the Court of Final Appeal's decision related to the meaning of the Basic Law, which is a national law. The Basic Law includes very clear legal powers in respect of who can interpret or amend it. The power of final interpretation lies with the Standing Committee of the National People's Congress. The power of amendment lies with the National People's Congress itself. The fact that the power of final interpretation is vested in a legislative - rather than a judicial - body reflects the influence of the Civil Law tradition on China's constitutional arrangements. Indeed, the position is similar to that in Belgium, where the legislature has the power to pass an interpretative statute to correct or simply prevent a judicial misinterpretation. Also similar is the position in Article 77 of the Greek constitution which provides that "the authentic interpretation of the laws shall rest with the legislative power."
We came to the conclusion that, in order to resolve our problem, we had to seek either an interpretation or an amendment of the Basic Law. There is a fundamental difference between an interpretation of a law and an amendment to it. An interpretation is based on the true legislative intent of a provision. An amendment changes that legislative intent.
After carefully reviewing the judgement, we came to the view that the Court's understanding of Articles 22 and 24 of the Basic Law may not have reflected the true legislative intent of those provisions. Our own understanding of that intent was derived from a thorough analysis of the documents relating to the drafting history of both the Articles themselves and of the immigration laws that they affect. In the light of this analysis, we decided to seek an interpretation of the two articles by the Standing Committee. In seeking that interpretation, we sought to clarify the true legislative intent of the relevant provisions, not to change that intent.
The Standing Committee issued its interpretation on June 26, 1999. This clarified two issues, the first being that, under Article 24, persons of Chinese nationality born outside Hong Kong are eligible for right of abode only if, at the time of their birth, at least one of their parents already has the right of abode. Generally speaking, that means he or she was a person born in Hong Kong or who had ordinarily resided in Hong Kong for seven years. Secondly, under Article 22, Mainland residents born of Hong Kong permanent residents must apply for approval from Mainland authorities for entry into Hong Kong for the purpose of settlement.
Some commentators have asserted that the decision to refer the matter to the Standing Committee - a non-judicial body - was inconsistent with the rule of law. However, we firmly believe the actions we took were entirely consistent with the rule of law - the bedrock on which all rights are founded in a truly civil society. And, we remain, as we always have been, unswervingly committed to the maintenance of the rule of law and to the principles on which it is based.
There are those who say the interpretation will diminish the status of the Court of Final Appeal. But, in our view, this overlooks the fact that the interpretation simply reflects the respective roles given to the Court and the Standing Committee as clearly spelt out in the Basic Law. Similarly, it cannot be argued that an interpretation would deprive Hong Kong of any legal powers because, while the Court of Final Appeal has the power of final adjudication, no arm of the SAR Government - whether Judicial, Legislative or Executive - has the power of final interpretation or amendment of the Basic Law.
Nor does it undermine judicial independence. In common law jurisdictions, judges decide cases in accordance with the law. That is what happened. Our decision to seek an interpretation was an exceptional measure to deal with exceptional circumstances. And it was one that had the overwhelming support of the community and a clear majority of Hong Kong's legislature.
Let us also be clear about one thing: the Government fully respects the Court of Final Appeal's judgements. There has not been - nor will there be - any attempt to overturn the ruling as it applies to the Mainland people who brought their case before the court, or to the 3,700 persons who are treated as parties concerned in those proceedings. Those judgements stand. The interpretation has changed only the principles to be applied to claims for right of abode that were pending when the interpretation was made, and to those that are made after it.
In addition, the power of interpretation relates exclusively to the Basic Law itself, and cannot be exercised in relation to common law principles or to Hong Kong's own statutory provisions.
The other issue on which there has been much recent debate has been the issue of press freedom and freedom of expression. This is one of the pillars of a free society and is fundamental to our continued protection of human rights and liberties. The fact that there has been such a vigorous and open debate on this issue is the best illustration of our total commitment to upholding these freedoms - freedoms, Madame Chair, that are enshrined in the Basic Law. Recently, there have been concerns - unjustified in our view - that these vital freedoms are under threat. Those concerns stem from a proposal to establish a Press Council for the protection of privacy.
The first point I would like to make is that the question of setting up a press council in Hong Kong did not come from the Government. It is included in a discussion paper on the regulation of media intrusion issued by the Privacy Sub-Committee of the Law Reform Commission, the members of which are mainly private citizens. The paper is part of a comprehensive review of the law of privacy on which the sub-committee has been engaged for the past ten years. As with its proposals on other areas of privacy, the sub-committee circulated its initial recommendations for comment by interested parties, including the media and the Government. It is a consultation paper only and the Government is keeping an open mind. We are aware of the divergent views in the community on this sensitive issue and look forward to the commission's final report and recommendations. We will examine them carefully, taking full account of community views and our commitment to protecting the right to privacy and the freedom of the press - which, in Hong Kong's case, is arguably the freest in Asia.
I hope I have not taken too much of your time, Madame Chair. But it is important to reiterate our total commitment to the support of the ICCPR as enshrined in our constitution, and to address two issues of particular concern - the rule of law and press freedom. My team and I are ready to answer any questions the Committee may wish to ask, including those that the Committee's working group sent us on 15 October. If we have failed to anticipate a particular area of interest, we will do our utmost to make good the deficiency with minimal delay.
Madame Chair, thank you.
End/Monday, November 1, 1999