Thursday, January 14, 2016

Reaction to Chief Executive's Remark that Hong Kong Could Quit Torture Convention (SCMP)

"Hong Kong could quit torture convention, says CY"
Jennifer Ngo and Christy Leung
South China Morning Post
14 January 2016
Chief Executive Leung Chun-ying says Hong Kong will unilaterally withdraw from an international convention on torture “if it is needed”, sparking criticism that such a move would undermine the city’s standing in the world .
     Leung’s unprecedented comments – which followed his announcement of a wholesale review of the current system for dealing with claims for refugee status and asylum in his policy address – are understood to have caused consternation among officials in the policy department responsible for such matters.
     A source with a knowledge of the review said officials were “completely surprised and shocked” by Leung’s comments . It is also unclear how, if at all, Hong Kong can withdraw from an international convention given that it is not a sovereign state.
     At a press conference after his address, Leung was asked by a journalist if the city needed to ditch its commitments under the United Nations Convention Against Torture.
     Leung responded: “We will consider the issue from different aspects, such as law enforcement and the law itself. You asked if there is a need to quit the international agreement: if it is needed, we will do so.”
     The reaction was swift with critics saying such a move would weaken human rights in the city at a time where Hongkongers are sensitive to any erosion of freedoms and rights, especially in light of the mystery surrounding missing booksellers.
     Kelley Loper, director of the human rights programme in the faculty of law at the University of Hong Kong, said pulling out of the convention would send a signal that Hong Kong thinks it acceptable to torture people.
     Puja Kapai, professor of law at the HKU and a former barrister at the High Court, said to withdraw from such an international treaty would have a major impact in the region. “It would cement the feeling that there are deliberate steps being taken to roll back on human rights in Hong Kong,” she said.
     Human rights lawyer Mark Daly called the chief executive’s comments shocking and showed a “dangerous and irresponsible attitude”. He said: “This is unravelling human rights and the rule of law ... principles that make Hong Kong an international city.”
     Hong Kong ratified the convention before the 1997 handover and China is also a signatory since 1986. Under the Immigration Ordinance, asylum seekers may lodge non-refoulement claims on grounds including torture, inhuman or degrading treatment or punishment, and persecution because of the convention.
     Another HKU law professor, Michael Davis, said pulling out of the convention would mean no refuge for those who need it in the city, as Hong Kong is not under the UN Convention of Refugees.
     In the policy address, Leung said there will be a comprehensive review of the strategy of handling non-refoulement claims, including a review of the Immigration Ordinance.

"Rights groups alarmed by Hong Kong chief executive's remarks on pulling out of UN torture treaty"
Racquel Carvalho, Jennifer Ngo and Christy Leung
South China Morning Post
15 January 2016
Experts have warned that Hong Kong cannot unilaterally pull out of the United Nations Convention Against Torture, after Chief Executive Leung Chun-ying raised eyebrows by declaring the city would do it “if needed”.
     Rights groups are alarmed at the prospect of Hong Kong abandoning the treaty signed by 158 of 193 UN member states after Leung announced a comprehensive overhaul of the current system for dealing with refugee status and asylum to stamp out alleged widespread abuse.
     “It would be an extreme measure – and very rare – for any state to withdraw from their commitments under international human rights law,” said Kelley Loper, director of the human rights programme at the University of Hong Kong’s Faculty of Law. Only China can withdraw from the convention, not Hong Kong on its own, Loper noted. “China would need to make the request on behalf of the state, not a particular part of the state,” she said. Loper pointed out that Beijing would have to give one year’s notice to the UN if it were to pull out. The convention also stipulates any commitments made before such a withdrawal must be met.
     She also explained that even if the central government rejected the convention, Hong Kong’s Basic Law and Bill of Rights duties would still apply. “Hong Kong also has a duty not to return anyone to face a serious risk of torture or other forms of cruel, inhuman or degrading treatment or punishment under the International Covenant on Civil and Political Rights, which has been entrenched into Hong Kong domestic law,” she said.
     Piya Muqit, executive director of Justice Centre, warned that if Hong Kong were to withdraw “it would join the ranks of repressive regimes such as Zimbabwe, the Central African Republic and North Korea”.
     The controversy comes two months after the Committee Against Torture, which monitors implementation of the convention, expressed concern over the Hong Kong’s portrayal of “all claimants in need of protection as abusers of the system”.
     The current system of screening asylum seekers started in March 2014, and there is a backlog of 10,922 cases , with 5,400 people having been screened so far. Chief Secretary Carrie Lam Cheng Yuet-ngor said yesterday the government receives around 400 new torture claims every month, with costs to taxpayers of HK$600 million a year.
     Puja Kapai, professor of law at the University of Hong Kong and a former barrister at the High Court, said the chief executive’s declarations reflected the government’s short-sightedness. “When you discover abuse or loopholes in a system, you work to plug the gap. You do not throw out the baby with the bath water,” she said. Kapai also criticised the timing of Leung’s comments, in light of the missing bookseller mystery. She said “As we await news on the facts surrounding the disappearance of Lee Bo, such a withdrawal would foment further distrust and deepen paranoia harboured against the government.”
     Hong Kong does not resettle asylum seekers, as it is not a signatory to the UN Refugee Convention, but is obligated to screen torture claims.
    A government source said officials were shocked by Leung’s remarks, as it was not discussed with related law enforcement agencies. “We have never heard of it before. We also find the remarks contradictory to the policy address, as Leung just pledged to add manpower to speed up screenings of asylum claims,” the source said. The chief executive has left them puzzling over how to handle current torture claims.
More recently, Simon Young joined a panel on the RTHK 3 radio programme, Backchat, to discuss the issue on 16 March 2016.  Click here to listen to the debate.

1 comment:

  1. The remark also reflects ignorance of the Court of Final Appeal's decision in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, which held that Article 3 of the Hong Kong Bill of Rights conferred non-refoulement protection against torture, cruel inhuman and degrading treatment or punishment. Thus to achieve his end, it would also be necessary for LegCo to repeal Article 3.