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Chief Executive Leung Chun-ying, in response to a journalist’s question at a recent press conference, said that Hong Kong will unilaterally withdraw from The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Convention”) “if it is needed”. This is a rather reckless and dangerous idea and does not help solve the problem of dealing with claims for refugee status and asylum.
The Convention has been applicable to Hong Kong since 1992 and was ratified by China in 1988. After the handover, the Convention has remained effective in Hong Kong which means that the HKSAR Government must continue to fulfil its undertakings under the Convention.
Article 3(1) of the Convention stipulates that no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that that person would be in danger of being subjected to torture. Article 4 requires each State Party to ensure that all acts of torture are offences under its criminal legislation. In Hong Kong, the Crimes (Torture) Ordinance states that any public officer or any person acting in the capacity as a public officer is liable to life imprisonment at maximum if that person inflicts, or consents to, or acquiesces in the infliction of, severe pain or suffering on another person. In addition, Article 19 of the Convention requires each State Party to submit a report every four years on the measures taken to give effect to its undertakings under the Convention. At present, Hong Kong’s report forms part of China’s report.
The recognition of international human rights conventions requires the mutual cooperation and supervision from the international community. It is also the responsibility of each State Party to fulfil its undertakings under the Convention. Any contravention of an international convention will spark severe criticisms from the international community. In the past, the UN Committee Against Torture had urged the HKSAR Government to respond to the excessive use of violence by the police during the Umbrella Movement, such as the use of pepper spray, batons, tear-gas bombs and also the incident where a protester was beaten up by seven policemen.
It is indisputable that any mechanism is susceptible to abuse. However, to withdraw from an international convention safeguarding basic human rights solely on the ground of possible abuse is neither a palliative nor a cure. In fact, following two decisions of the Court of Final Appeal regarding the non-refoulement principles, the Immigration Department has in March 2014 introduced a Unified Screening Mechanism for CAT / refugee claims applicants, which helped speed up the process for non-refoulement claims and shortened the applicants’ waiting time in Hong Kong (there were cases in the past where applicants had to wait for as long as five years), hence dis-incentivising any abuse of the system. According to a paper issued by the LegCo Panel on Security in July 2015, the Immigration Department only needed 25 weeks on average to decide on an application. Although the new mechanism still has its shortcomings, the HKSAR Government should continue to work on improving the mechanism rather than withdrawing from the Convention.
Finally, we urge Hong Kong citizens not to make generalisations about all refugees or torture claims applicants being abusers, and we urge the media not to exaggerate, spread or encourage any form of hatred or discrimination towards refugees. Hardships are everywhere – in any country and any region at any time. It is impossible for a country or a region to stay completely aloof as there will always be times when international cooperation and foreign assistance are required. It is also a core value of international human rights law, and of a civilised society, to work together towards protecting and defending the inherent dignity of humankind.
Progressive Lawyers Group
19 January 2016
Originally published in Stand News on 19 January 2016