TNAG-2324-FCO40-3368-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 163

Reference..

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of the Covenant, the Committee notes that this article prohibits arbitrary arrest and

detention. The author was lawfully arrested and detained in connection with his unauthorised entry into Costa Rica. The Committee observes that the author is being detained pending deportation and that the State Party is endeavouring to find a host country willing to accept him. In this connection the Committee notes that the State Party had pleaded reasons of national security in connection with the proceedings to deport him. It is not for the Committee to test a sovereign State's evaluation of an alien's security rating.

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The communication was declared inadmissible.

deportee

3.

No breach of Article 9 was found in either of these cases. Case 236/1987 suggests that even where the period of detention is prolonged the Committee is slow to criticise where a very good reason is submitted by the State Party. However, the reasons for detention in both cases were based on the conduct of the detainee himself. (In 236/1987 the author had a very serious criminal record.)

4. My overall impression, based on the above two cases and Mr Rankin's comments on the others, is that Hong Kong's real vulnerability may have more to do with the purpose of detention than its length. It is not possible to advise, as Hong Kong appear to be asking us to do in paragraphs 6-8 of telno 98, that detention for up to x months is acceptable, whereas any detention in excess of x months is not.

If individuals challenge their detention in the courts, as they could well do, on the basis of the Liew Kar-seng case now, or Article 5 BOR in due course, HKG could face various other lines of attack. They may need to be able to demonstrate:

(i)

(ii)

(iii)

that screening, or removal as the case may be, is being actively pursued as speedily as is possible in the circumstances;

in the case of removal, that there is a foreseeable prospect of it being carried out;

and

that that individual cannot be left at liberty in the meantime.

(i) and (ii) are explained in my minute of 24 January. It may well be that (iii) would present the greatest, or at least as many, difficulties. In cases of known or suspected troublemakers, the reason for detention would be easy to demonstrate. In other cases it may not. However, if all

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