TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 32

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(vi)

"If the applicant is not recognized [as a refugee], he should be given a reasonable time to appeal for a formal reconsideration of the decision

...

;

(vii) "The applicant should be permitted to remain in the country

while an appeal

...

is pending."

Amnesty International stresses that, in order to ensure the protection of refugees, internationally-recognized safeguards regulating the expulsion of asylum-seekers should apply in all cases where a decision is made to expel or deport asylum-seekers, whether or not they are present in Hong Kong with official authorization and whether or not they have the right of abode there.

Accordingly, the Draft Bill of Rights should be revised to ensure that asylum-seekers, whether or not they are present in Hong Kong with official authorization, and whether or not they have the right of abode there, may never be expelled or deported without being afforded internationally- recognized procedural safeguards, and that they should never be expelled or deported to a country where they would risk human rights violations, including detention as prisoners of conscience, torture, "disappearance" or execution.

9.3 State of Emergency

In Part 1, Clause 5, the Draft Bill of Rights adopts Article 4 of the International Covenant on Civil and Political Rights that names certain rights as nonderogable, and limits the restriction of all other rights during a state of emergency. The nonderogable rights include the right to life, the prohibition on torture and ill-treatment, the prohibition on slavery, the prohibition on imprisonment for being in debt, the prohibition on making conduct a crime that at the time it took place was not a crime, the right to be recognized as a person with legal rights, and the freedom of thought, conscience and religion.

Article 18 of the Basic Law may undermine this provision of the Bill of Rights, however, as it states that if the Standing Committee of the National People's Congress of the People's Republic of China decides that the HKSAR is in a state of emergency, "by reason of turmoil within the Hong Kong SAR which is beyond the control of the Government of the Hong Kong SAR and which endangers national unification or security", the Government of the People's Republic of China may then decree the "application of the relevant national laws in the Hong Kong SAR".

The Basic Law states in Article 8: "The law previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for those that are inconsistent with the [Basic] law or have been amended by the legislature of the HKSAR" (emphasis added). Accordingly, the protections in the Public Emergency provision of the Bill of Rights could be jeopardized by the sweeping language of the State of Emergency provision of the Basic Law. Moreover, Article 160 of the Basic Law gives the Standing Committee of the National People's Congress of the People's Republic of China the power of interpreting whether there is an inconsistency between the laws of the HKSAR and the Basic Law.