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We believe that the longer the relevant provisions of the Immigration Ordinance remain unamended, the greater the risk of having to make further releases. This in turn could lead to an erosion of our detention policy and will not be welcomed by the community; it will also increase our difficulties should the Vietnamese authorities later clear them for return, and we then have to search for and redetain them pending removal.
Since we have made known our intention to legislate in this regard, there have been some unfounded criticisms, mainly centred on whether we are seeking to legislate for indefinite arbitrary detention. I should like to reiterate a few key points here. First, the need to detain Vietnamese migrants, even for long periods of time, is recognised by the courts as essential in order to maintain effective immigration control. Secondly, this detention policy is, of course, subject to the supervisory jurisdiction of the courts, and we are not seeking to change this. In particular, we are not seeking to legislate to bar a Court from ordering the release of a Vietnamese migrant on the grounds that his period of detention is too long. Thirdly, we are only seeking to ensure that in deciding claims by Vietnamese migrants that they are non- nationals, the court may not assume that they will not be accepted back unless the Vietnamese authorities have rejected them. Fourthly, there are over 7,000 Vietnamese migrants in Hong Kong whose clearance is not yet obtained, and there is a real risk that fraudulently obtained documents may be produced by them to seek release from detention. In the Administration's view, this is a potential loophole which should be closed as quickly as possible.
In short, the Bill does not seek to provide for arbitrary or indefinite detention, nor does it set a precedent for such; in our view it is consistent with the International Covenant on Civil and Political Rights as applied to Hong Kong. It does not offend against the spirit of the Common Law. It should not be read across to other kinds of detention, as Section 13(D) of the Immigration Ordinance relates solely to Vietnamese illegal entrants and is there to deal with the massive influx of Vietnamese migrants that has occurred in the past. Once the Vietnamese migrant problem is completely resolved, that section of the law will have served its purpose and may then be repealed.
I would also like to make it clear that the introduction of this Bill in no way indicates disrespect to the Privy Council. The role of the Judiciary is to decide what the current law is, and to apply it to the facts of the case before it. But it is incumbent on the Executive and the Legislature to decide what law is best for the community. If we decide that the law should be changed, we are merely fulfilling our roles as policy- makers and as legislators. This is standard procedure in democratic societies subscribing to the basic concept of separation of powers, whether those societies be Hong Kong, the United Kingdom or any other common law jurisdiction. I trust honourable members will consider the Bill on its merits without fear of acting improperly towards the Judiciary.