Arbitrary Detention of Vietnamese Asylum Seekers
One of the most stark examples of the failure of the colonial administration to protect human rights is how it has eroded protections against arbitrary detention in Hong Kong. Senior members of the judiciary and a small majority of legislators have been willing participants in this process. I refer here to the highly politicised situation of Vietnamese asylum seekers, the recent cases challenging their detention and the enactment of the Immigration (Amendment) Bill.
Article 9 of the International Covenant on Civil and Political Rights (ICCPR) guarantees that: "No one shall be subject to arbitrary arrest or detention". This Article is part of Hong Kong's constitution and our courts are thus obliged to strike down any legislation that provides for arbitrary detention.
The word "arbitrary" describes a concept. It embodies the notion of inappropriateness, injustice and lack of predictability. Thus, Article 9 of the ICCPR requires a court to determine whether detention is reasonable in all the circumstances.
In the wake of the recent Privy Council judgment regarding detention of asylum seekers from Vietnam, the administration released some 275 people with Taiwanese documents who had been registered in Vietnam as aliens. They had each been detained in Hong Kong, without trial, for periods of between 5 and 8 years.
The administration's response to the Privy Council ruling was shocking. The Refugee Coordinator and Deputy Secretary for Security, Brian Bresnihan stated: "There are those who acknowledge that if we had our own court of final appeal, it might have taken a decision which reflected more the feelings of the community on this particular issue".
Refugee advocate Pam Baker noted that the administration would apparently prefer our Court of Final Appeal to be a court of public opinion rather than a court of law, at least when its own policies are challenged. Legislator Christine Loh stated: "Some comments emanating from the Administration have verged on calls for a more compliant Judiciary".
The administration proposed emergency legislation to "plug the loophole" of freedom from arbitrary detention "pending removal" of people who cannot be removed from Hong Kong. It then attempted to railroad the amendment through the Legislative Council with three readings in a single day, just 6 working days after legislators first saw the Bill and 3 working days after it was gazetted. Had the administration been successful in achieving its aim, there would have been no opportunity for public debate, or input by the Bar Council and NGOs who were subsequently called upon to assist legislators.
Further, the administration misled legislators concerning the implications of the proposed law. First, in its explanatory memoranda, the administration stated that the new law would in no way affect a court's discretion to release a person on habeas corpus, when of course it does exactly that. Second, the administration stated that the law would not curtail common law rights to liberty when of course that was its very purpose.
Finally, the administration initially said nothing about the issue of arbitrary detention and the proposed law's potential inconsistency with the ICCPR. It was only after the Bar Council and five NGOs produced written reports criticising the Bill as providing for arbitrary detention, that the administration dealt with the issue.
The administration told legislators that its first line of defence to a court challenge would be to claim that a reservation limiting the scope of the application of the ICCPR to immigration legislation meant that the administration was not prevented from detaining persons arbitrarily under the Immigration Ordinance. This in itself is startling. Twelve months before China resumes sovereignty and at a time when the Bill of Rights and the protection it provides Hong Kong people against arbitrary detention is under threat, the administration was prepared to argue in court that arbitrary detention was both lawful and appropriate.
The administration told legislators its second line of defence to a court challenge would be to deny that detention would be arbitrary. Almost half of the legislators did not accept this. Many legislators criticised the Bill as providing for arbitrary detention and stated that arbitrary detention of Vietnamese or any other unpopular group in Hong Kong was unacceptable, as was the precedent it set at this critical time in Hong Kong's history.
Margaret Ng stated: "There is simply no justification to tamper with the present law, and no justification to interfere with the Privy Council's decision, which in such a timely fashion reaffirms one of the most important functions of our courts in safeguarding the liberty of the individual. This is what the rule of law has been called into being to defend: the liberty of the least of us against the mightiest of the state machinery." The Bill was nonetheless passed by a narrow margin, 29 votes for with 26 votes against.
Another habeas corpus action is presently being prepared. The administration has failed to protect the least of those in our community against arbitrary detention. So too has the legislature. Our last line of defence is the courts. Let us hope the courts use greater foresight and adopt a more considered approach than they generally have in the past on issues of individual liberty involving Vietnamese asylum seekers.