Statement by LAW Yuk-kai

Director, Hong Kong Human Rights Monitor


before the Pre-sessional Working Group of

the Committee on Economic, Social and Cultural Rights


May 2004




We would like to outline the situation of economic, social and cultural rights of Hong Kong Special Administrative Region (HKSAR) and of the institutions (for example: democracy and freedom of expression) important to the protection of these rights since the issuance in May 2001 by your Committee of the last Concluding Observations in respect of Hong Kong. 


We want to thank your Committee for the very comprehensive list of comments and recommendations in the Concluding Observations. However, there has been little progress by the Hong Kong Government in addressing these problems identified by your Committee in the Concluding Observations. You may want to ask why. The key answer is the lack of willingness on the part of the HKSAR Government to adopt and implement your recommendations coupled with the lack of ability of women, the discriminated, the poor, and other underprivileged members of the community to push for changes given the lack of democracy in Hong Kong.


Actually, in recent years the economic downturn has led to further deterioration of the economic, social and cultural rights in Hong Kong. The economic depression which emerged in late 1997 deepened, especially during 2003 and the outbreak of SARS, which killed 299 people in Hong Kong. In May to July 2003, the unemployment rate reached its highest in decades of  8.7%, meaning that over 300,000 people became unemployed and a lot more suffered from reduction in salaries and benefits, increase in working hours and a shift to less stable part- time jobs.


Again it was those underprivileged who suffered most from the hostile job market and economic situation and the reductions in public spending. To ease Hong Kong’s economic deficit, even foreign domestic helpers, whose earnings are among the lowest in Hong Kong, were targeted. They have their legal Minimum Allowable Wage reduced by HK$400 a month to HK$3270 while their employers were required to pay a levy of the same amount to a public vocational training fund. The levy was a de facto tax charged against the foreign domestic workers at a rate of over 10% when their monthly incomes were still well below HKD8333, a level below which an ordinary Hong Kong resident, who is single, is not required to pay personal income tax.[1] The Comprehensive Social Security Assistance recipients have their welfare payments reduced by 11% and those new arrivals in Hong Kong are generally no longer eligible for their welfare payments.


Government statistics show that in 2002 and 2003, when households were divided into 10 groups by their incomes with the 10th group having the highest incomes, the richest 30% of households (the top 3 groups) had a drop in their income by 5 to 6% whereas the low income groups (the 2nd & 3rd groups) had a greater drop of 15 to 17%[2] while the median income groups (the 4th to 7th groups) have a drop of 11 to 12 %.  In contrast, according to a report by Forbes, the wealth of the three top tycoons in Hong Kong have actually increased by 60-70% in 2003.


The figures of Gini Coefficient in 1991, 1996 and 2001 are respectively 0.476, 0.518 and 0.525.  According to the survey conducted by World Bank in 2000 on 114 countries, the gap between the rich and the poor in Hong Kong is wider than those in 98 of these countries. 


The data shows that it does not matter whether the economy grows or shrinks, the gap between the rich and the poor continues to widen.


At the same time of the economic downturn, the HKSAR Government pushed forward a very controversial legislation on national security which, if enacted, will undermine freedom of trade unions, speech and assembly, and various basic human rights.  On 1 July 2003, over 500,000 people voiced their strong opposition to the legislation by taking to the streets for about 8 hours.  The HKSAR Government was forced to withdraw the bill and the Central Government in Beijing put forward several measures to improve the economic situation in Hong Kong, an effort we are thankful to for.


However, we have been upset by the Central Authorities’ blocking of most if not all meaningful democratic reforms in Hong Kong.


Your Committee has rightly pointed out in your Concluding Observations, “the current arrangements for the election of the Legislative Council include some undemocratic features which impede the full enjoyment of economic, social and cultural rights in HKSAR.” The UN Human Rights Committee has also pointed out in its 1995 and 1999 Concluding Observations that the electoral system for the Legislative Council does not comply with many articles of the ICCPR. It elaborated in 1995 that “the concept of functional constituencies, which gives undue weight to the views of the business community, discriminates among voters on the basis of property and functions.” So we are not surprised to see time and again that it was for those underprivileged to bear most of the burden of our economic, social and cultural problems simply because they have little political influence, given the undemocratic system in Hong Kong.


Under the Basic Law, the Legislative Council (LegCo) at present has only 40% of the representatives elected by universal suffrage.  In the LegCo elections this September, only half of the Legislative Council seats will be elected by universal suffrage leaving the rest to functional constituency elections. 


Furthermore, according to the Basic Law, the passage of private member bills or amendments to government bills moved by individual Members of the Legislative Council requires a majority vote in each of the following two groups of Members: (1) those returned by functional constituency elections and (2) a combination of those by geographical direct election and those by an Election Committee election (The Election Committee will be abolished in the September 2004 Legislative Council elections).  This constraint gives a veto power to the business dominated functional constituency Members making the voting results incapable of reflecting public opinions and of protecting the rights of the general public. 


Since 1997, many motions moved by the LegCo members are turned down by this unreasonable stipulation.  According to a Catholic Monitoring Group on LegCo performance, in the LegCo session 2001-2002, there were 13 motions that have been voted down under the present separate voting mechanism but should have been carried under the pre-1997 voting procedure which did not provide for separate counting.  In the year 2002-2003, such motions had risen to 17.  Most of those motions were for the protection of the livelihood of the people, such as calling for reducing the public utilities fees. 


Obviously, the composition and the voting procedure of the LegCo should be changed as soon as possible.  The Basic Law provides for a review of the composition of the LegCo in 2008 and its voting procedure.  The method for the selection of the Chief Executive in 2007 could also be reconsidered in the same review according to an Annex to the Basic Law.


Unfortunately, the Standing Committee of National People’s Congress (SC-NPC) has recently interpreted the Basic Law but for political convenience to undermine the democratization process in Hong Kong: It ruled out the option of the possibility of having all the seats in LegCo elected by universal suffrage in 2008. It also decided that the election of the third Chief Executive shall not be by means of universal suffrage. Moreover, the ratio between LegCo Members returned by functional constituencies and Members returned by universal suffrage has been decided and fixed to be 50 to 50 in the 2008 LegCo elections. The procedures for voting on bills and motions in the LegCo are required to remain unchanged. 


In addition to the tense and oppressive political atmosphere created by the Chinese authorities to stamp out any meaningful democratic developments, we have also witnessed a trend of emerging political violence and intimidation in Hong Kong. One of the first victims was the freedom of expression. Albert Cheng and Wong Yuk Man, two outspoken members of the community and generally perceived as tough radio commentators who each hosted their own popular phone-in programme on public affairs on Commercial Radio, have been forced to stop appearing on air and suddenly and secretly leave Hong Kong. Before their sudden departure, the programmes had been addressing a large number of economic, social and cultural right issues as well as civil and political right ones. In their programmes, the two commentators demanded social justice in various fields for the people especially the underprivileged and they were successful in putting a lot of pressure on the authorities to improve their policies in education, health, family labour, poverty and other issues. They were therefore very popular among a large audience and had important social functions within the Hong Kong societies, especially for the protection and promotion of rights under the Covenant.


I can understand the pressure on these commentators. I have seen for myself a fax sent to Wong Yuk Man during his programme which threatened him at a moment when I was one of the guest hosts in his programme. The fax reminded him of the “extermination by patriotic forces” of Lam Bun (a radio broadcaster critical of the Cultural Revolution inspired riots in Hong Kong in 1967 who was burnt to death twenty some yeas ago for his political speech on the same radio station).


Under such circumstances, the economic, social and cultural rights of the Hong Kong people, and the suggestions and recommendations of your Committee in the Concluding Observations, are likely to continue to be neglected by the HKSAR Government. Among the 22 suggestions and recommendations, only one can be said to be really implemented by the HKSAR Government, i.e. the amendments of the laws to raise the age of criminal responsibility.  In 2003, the age of criminal responsibility was raised from 7 to 10 by an amendment to the laws in this regard.


As to the recommendation to legislate against racial discrimination in the private sector, a HKSAR Government official stated last week that the consultation paper is about ready but will not be published until the end of the September LegCo election.  He feared that the consultation would be politicized by the election.  We strongly criticised the HKSAR Government for its further delay in fulfilling its obligations under the international human rights treaties and the use of political considerations as an excuse. 


The right of abode claimants continued to have their right to family reunion ignored. Arrests at home and forced removal continued. The threat and actual removal have led to mental problems of several claimants and their families. The returned persons are normally not eligible for applying for a one-way permit to unite with their families in Hong Kong because there is no such category of eligibility for persons who are over 18 and have one or more siblings in Hong Kong. The request for setting up of a set of criteria and a corresponding queue for these Mainland children of Hong Kong residents who are otherwise ineligible had received no responses from the Central Authorities. On the other hand, there were unused daily quota reserved for children of Hong Kong people after taking in those who are still eligible under the re-interpretation. There were no improvements to the concession policy. As a result, there is an absurd situation in on-going court cases in which claimants, who have been able to prove to the satisfaction of the Court of their making of claims to the Immigration Department of their right of abode before the Court of Final Appeal judgments dated 29 January 1999, are not yet entitled to benefit from the concession policy because the Immigration Department has failed to put them in written records.


Again, we would like to repeat our view that there has been little development in the implementation of your recommendations. We urge your Committee to continue to follow up on the existing ones while taking up other important new issues.


It is also important for your Committee to monitor and comment on the situation of institutions important to the protection of economic, social and cultural rights, especially democracy, interpretation of the Basic Law by the Standing Committee and the freedom of expression in the peculiar situation of Hong Kong.


Together with many about 20 Hong Kong NGOs and FIDH, we have listed a number of issues for your Committee to consider in the drawing up of your list of issues. We do not want to go in details of the list. My colleagues and I are happy to address any questions you may have on our list of issues.




[1] This is the amount of “Basic Allowance” for the financial year 2004-2005.

[2] The lowest income group, that is the first group, had a drop of 5 to 6 %. These households were less seriously affected in terms of percentage drop because they were mostly Comprehensive Social Security Assistance (CSSA) recipients, according to Government explanation.