• L E G A L W A T C H
  Polonnaruwa ragging case tests new law
• Hong Kong - one year later
  Under British rule, little was taught in schools about China, and never the kind of civics lesson that would imbue young people with a sense of Chinese nationalism.

By Nayana
The latest incident of ragging reported from Rajakeeya Vidyalaya, Polonnaruwa, has serious implications, for while it did not involve loss of life like some previous incidents, it is the first serious case of ragging to be reported since a tough anti-ragging law was passed by Parliament.

It would seem that the new legislation is therefore not serving as a deterrent, although we do not know whether this is due to a brazen attitude on the part of the students or ignorance of the fact that the new law applies not only to the "Varsity" but to all schools and other educational institutions.

Either way the incident should be an eye-opener to anyone who thought that the ragging problem would be solved by the enactment of the "Prohibition of Ragging and Other Forms of Violence in Educational Institutions Act No.20 of 1998". Obviously greater preventive vigilance on the ground is also going to be necessary.

The one redeeming feature of the Polonnaruwa incident was that the school staff appear to have reported the incident to the Police promptly, in contrast to the seeming reluctance of some University authorities to do the same in the past.

This lethargy or timidity on the part of staff in academic institutions was obviously on the minds of those who drew up the original Prohibition of Ragging Bill, for they had included a section (numbered 8 in the original document) penalising any member of the administrative staff of an educational institution who failed or neglected, without reasonable cause, to investigate a complaint of ragging.

However when the Bill was challenged in the Supreme Court by the Inter-University Students’ Federation of Sri Jayawardenapura University and another party, several of its clauses had to be modified. The section 8 referred to above met a curious fate. It was assailed by the petitioners on the grounds that it violated the right to equal treatment before the law in that it only dealt with those who failed to investigate a complaint, and did not seek to impose any punishment on staff members who might commit more serious offences such as failure to investigate incidents which occurred in their presence or even participation in a rag.

The Court ruled that Section 8 as it stood was indeed a violation of Article 12(1) of the Constitution, but went on to state that inclusion of the other more serious acts within the scope of the section would cure the defect. However, the amended version of the Bill which was passed by Parliament in April this year, made it illegal for "any person" (i.e. student or staff) to participate in ragging, but removed altogether the provision penalising staff members who failed to act on complaints.

Moreover, since it is clear from the judgment of the Court that the word "participation" would be interpreted as "active participation", the mere inactive presence of a person at a rag may not give rise to any liability under the Act, even if it is on the part of administrative staff who might be thought to be under a duty to protect students in their care. However it should be noted that this will not preclude affected parties or their next of kin from bringing a civil suit against the institution concerned for breach of duty of care under the recognised principles of delict.

By the time the Prohibition of Ragging Bill came before the Supreme Court, that Court had already, in the 1997 case of Navaratne vs Chandrasena, expressed its view on what generally passes for ragging in this country:

"Ragging is sometimes sought to be justified as being a necessary part of orientation to life in Universities and other institutions of higher learning. Such ragging may be tolerated, if at all, if it is clean fun; but it is totally unacceptable if it causes pain or suffering, or physical, mental or emotional distress to the victims. No normal person could possibly have considered what happened in this case to be fun; on the contrary it was cruel, inhuman and degrading to ill-treat or torment persons to the point of pain and exhaustion requiring hospitalization, not to mention the possible long-term adverse mental effects, even on the victims who did not need hospitalization. ...... The ragging took place in the College premises openly, and for some time, and the fact that persons in authority did not intervene indicates that what took place was a form of terrorism........

"Ragging is easily done but difficult to prove; victims are afraid to complain because reprisals are likely; those in authority often fail to get involved, whether by intervening, reporting or otherwise. The disciplinary authorities are sometimes intimidated into mitigating or even cancelling punishments. In these circumstances the public interest demands deterrent rather than lenient punishment for admitted or proven misconduct."

However, deterrent punishment must nevertheless conform to the principles set out in the Constitution, and some over-enthusiastic drafting resulted in several clauses of the Prohibition of Ragging Bill having to be deleted or modified after challenge in the Supreme Court. This included the definition of "ragging" which in its amended version reads as follows:

"Any act which causes or is likely to cause physical or psychological injury or mental pain or fear to a student or a member of the staff of an educational institution."

A significant feature of the new Act is that participation in ragging is made a criminal offence in itself, punishable with up to two years imprisonment and an order to pay compensation, without the need to prove any of the specific offences recognised by the Penal Code.

A number of other criminal acts such as intimidation, wrongful restraint, unlawful confinement, hostage taking, sexual harassment, and forcible occupation and damage to property are dealt with separately by the Act in so far as they relate to educational institutions with maximum terms of imprisonment that can exceed those stipulated for similar offences under the Penal Code.

A controversial feature of the original Bill was the stipulation of mandatory minimum jail sentences. These had to be dropped when the Court upheld the submission that such a provision was discriminatory in that it automatically subjected students to harsher penalties than other members of the public committing similar crimes, and also took away the judge’s discretion to consider matters such as age and circumstances when determining the appropriate sentence. The age factor was particularly relevant as the new Act applied to school children as well as adult undergraduates.

However the Court was careful to limit its pronouncements on this subject to the Bill under review, stressing the "cumulative effect" of its provisions. The Court was doubtless aware that statutory minimum sentences had already been laid down once before in the Penal Code (Amendment) Act of 1995 which dealt with a number of offences against women and children.

Despite suffering what some might consider a "watering down" in some respects, the Prohibition of Ragging Act as eventually passed remains a strong piece of legislation directed specifically at a particular situation that had assumed horrendous proportions without anyone apparently having the will to do anything about it. It also emphasises a fact that was self-evident to everyone except the authorities at academic institutions, namely that violent and sadistic acts are against the law irrespective of whether they are committed within the halls of academia or outside.

by Dr. Stanley Kalpage
For China the return of Hong Kong was both a triumph and a challenge. Deng Xiaoping had successfully negotiated with British Prime Minister Margaret Thatcher the return of Hongkong to the motherland and the expiry of the lease on the New Territories.

The Sino-British Joint Declaration on the Future of Hong Kong, signed on 26 September 1984, led to the setting up, on 1 July 1997, of Hongkong as a Special Administrative Region (SAR) of China. The transfer of power was done in terms of Deng Xiaoping's formula of "one country-two systems". Under the declaration, Hong Kong was promised a "high degree of autonomy" until at least 2047, with its own freedoms, judiciary and financial systems.

Subdued celebrations
The formal transfer of power by Prince Charles, the Queen's representative, to China's president Jiang Zemin was marked by emotional speeches and a fireworks display. In contrast, the first anniversary of the handing over was observed with subdued celebrations because economic problems, that had nothing to do with China, loomed ahead. On the contrary, China had kept her promise of "a high degree of autonomy", and the first elections under the new dispensation had been held as scheduled in May 1998.

Hong Kong was feeling the heat of the Asian economic melt-down. One day after the handover last year, the Thai baht floated freely and the economic dominoes - South Korea, Taiwan, Indonesia, Thailand, Singapore, and Malaysia - began to topple. Today analysts ask whether Hong Kong will be Asia's next domino. After one year Hongkong fears recession, not repression.

Tung Chee-Hwa intervenes
After months of watching a deteriorating economy. Hong Kong's Chief Executive, Tung Chee-hwa decided to intervene by postponing government land sales until next March in an effort to stabilise prices and get banks lending again. The about-face was part of a $5.7 billion package of measures, including limited tax breaks, to help stimulate an economy headed for recession. This will push the governments into a rare deficit of $2.7 billion.

Sitting with a row of grim-faced officials at the anniversary celebrations, Tung told the invitees: "The Asian crisis has brought a lot of pain and suffering to Hong Kong people. We believe that we are in a critical phase and, therefore, we have to be pragmatic." Tung's approval rating has fallen from a high of 70 percent at the handover to the 50s one year later; he is being faulted for his management of the economy.

Property prices fall
Hong Kong's economy was built around property and when property prices fell, trouble loomed ahead. The fall in property prices is also dragging down the Hong Kong stock market, because the blue-chip Hang Seng index is weighted heavily towards property companies.

Says Executive Councillor Raymong Chain: "If we don't develop a knowledge-based economy, Hong Kong will become like Venice." In other words, an anachronism. However, over 80 percent of the participants in a recent survey revealed that they were positive about the business environment over the next three years.

The stated reasons for much of the enthusiasm include the continued emphasis on rule of law, the city's strategic location and the growing links with mainland China. In the past, while Hong Kong had the expertise; the mainland had cheap labour and raw resources.

But now the relationship is starting to change. In the old days, for example, goods that were cranked out across the border were generally shoddy and required polishing in Hong Kong before being "re-exported." Now mainland-produced widgets are good enough to travel direct. In fact, Hong Kongers are swallowing their pride and looking north not just for cheap labour but for ideas, too.

Link with US dollar
Ironically, a year ago much of the world was convinced the handover would be bad for Hong Kong. Yet it is China, by holding the line on the Chinese currency - the renminbi - and offering fresh opportunities, that is keeping what is arguably its most important city buffered from the cruelest economic winds. The renminbi is one of the few currencies in Asia which has not yet devalued. And that, at least, must give Tung Chung-hwa some peace of mind.

Clearly there is political will in Hong Kong and mainland China to stick to the peg of the Hong Kong dollar with the US dollar whatever it costs" So far, holding to the official rate of HK$7.80 to the dollar has burdened the Special Administrative region with high interest rates and less competitive prices relative to those in devaluation-hit Asian countries. Both factors have helped slash property prices and economic growth. Still, SAR officials keep sternly repeating that the peg will be maintained, no matter how deep a recession Hong Kong suffers.

Business as usual
Hongkong's unexpected economic slide has masked the most surprising and positive aspect of last year's Chinese rule - that is, the fact that China has largely kept a hands-off policy on the territory's internal affairs and that much remains unchanged.

The Chinese army, which blitzed across the border into Hong Kong a year ago in trucks and armoured vehicles, has remained largely invisible to the public.

For the first time in Hongkong's history, all the principal cabinet secretaries are Chinese. But one level beneath in the civil service, about one-fifth to one-quarter of department heads and deputy-heads are Caucasians - British or Australian holdovers from the last colonial regime. Expatriates still hold top jobs in such departments as tourism, the environment, information services and the policy.

Dissent has not been suppressed. Nine years after Chinese troops massacred hundreds of students demonstrating for democracy in Beijing's Tiananmen Square, tens of thousands of people in Hongkong, newest and most democratic corner of China, gathered to commemorate those who died. Their gathering showed that even under the flag of the communist mainland, Hong Kong citizens remain independent and defiant.

In another sign of the surprises that have unfolded in the last year, Martin Lee, the de facto opposition leader, joined in a toast with Tung and Jiang at the celebratory banquet.

Elected legislature
Beijing abolished Hong Kong's elected legislature and replaced it with an appointed one, which instituted fresh restrictions on the right to form organisations and stage demonstrations. A new law outlawing subversion is still being drafted.

After the transfer of power, on the other hand, elections were held in May 1998, as promised, for a new elected legislature that will replace the appointed one. Democracy advocates ousted from the chamber a year ago have regained their seats. But even with 60 percent of the popular vote at the 24 May elections, democrats won only a third of the seats under a new electoral system that favours pro-Beijing candidates. New laws to control public demonstrations are on the books, but they have been rarely enforced, and small-scale protests are now an almost daily occurrence.

Says Martin Lee, "When the Chinese government said they would roll back some of our freedoms, they did so, but not to the full extent. It could have been worse".

Judiciary
When the UK flag was lowered in Hong Kong last June many asked whether the territory's legal system - cut off from the Privy Council and with its own new Court of Final Appeal - would remain an independent bulwark between citizen and State. But fears for Hong Kong's legal system were misplaced.

Today, public order in Hong Kong is maintained not by the Peoples Liberation Army (PLA) but by the same police and law enforcement agencies that carried out those responsibilities before the transition.

Identity
In many concrete ways, Hong Kong and the rest of China remain entirely separate entities one year after their reunification. Flights from Hong Kong to Beijing are still considered international, and Hong Kong's Chinese residents still need a travel permit to cross the border.

The majority of Hong Kongers, including many elected members of the local legislature, do not know the words to the Chinese national anthem. Chief secretary Anson Chang, Hong Kong's top civil servant, says: "the real transition is about identity and not sovereignty". She describes how her revelation came on 1 Oct. China's national day, and how she felt touched when she saw China's red flag with five gold stars hoisted for the first national day celebrated in Hong Kong.

Under British rule, little was taught in schools about China, and never the kind of civics lesson that would imbue young people with a sense of Chinese nationalism.

A new airport
Despite the economic gloom, Chek Lap Kok, Hong Kong's ultra-modern new international airport, nearly nine years in the making, has been completed at a cost of more than $9 billion. It is said to be one of the world's largest state-of-the-art airports.

The airport was officially opened on 6 July by Chinese President Jiang Zemin when he arrived for the first anniversary of Hong Kong's handover to China. Built to handle at the start 35 million passengers per year, Chek Lap Kok airport has a future annual capacity of 87 million passengers. China's Special Administrative region of Hong Kong is determined to step forward confidently into the next millennium.