Joint NGO Submissions Regarding

the Report of the Hong Kong Special Administrative Region People's Republic of China

 

Introduction                                                                      Para  1 - 2

 

Interpretation of the Basic Law

   (Articles 1, 2, 25 and 26)                                             Para  3 - 6

 

Chief Executive and Functional Constituency Elections

    (Articles 1, 2, 25 and 26)                                            Para  7 - 11

 

Radio Television Hong Kong (RTHK) and Freedom of Expression

    (Article 19)                                                                  Para 12 - 17

 

Interception of Communications and Surveillance Bill

    (Article 17)                                                                  Para 18 - 22

 

Race Discrimination Bill

    (Articles 2 and 26)                                                      Para 23 - 27

 

Human Rights Commission and Statutory Watchdogs

    (Article 2)                                                                    Para 28 - 35

 

Public Order Ordinance

    (Article 21)                                                                  Para 36 - 37

 

Policing of Demonstrations and the Appeal Board

    (Articles 14 and 21)                                                    Para 38 - 45

 

Complaints Against the Police

    (Articles 2, 9 and 26)                                                  Para 46 - 51

 

Equal Protection of the Law and Migrants

    (Articles 2, 9, 14 and 26)                                            Para 52 - 57

 

Split Families

    (Article 23)                                                                  Para 58 - 59

 

Asylum Seekers in Hong Kong

    (Articles 7, 9, 13 and 14)                                            Para 60 - 61

 

Assistance to Hong Kong Residents in Mainland China

    (Articles 6, 8, 9, 11, 12, 14, 15, 17, 23, 24 and 26) Para 62 - 63

 

Human Rights Education

    (Preamble and Article 2)                                             Para 64 – 67


Joint NGO Submissions

to the United Nations Committee on

International Covenant on Civil & Political Rights

Regarding

the Report of the Hong Kong Special Administrative Region

of the People's Republic of China

 

 

March 2006

 

Introduction

1.                     This joint NGO submission highlights issues we consider to be the most important with regard to the protection of civil and political rights in the Hong Kong Special Administrative Region of the People's Republic of China (HKSAR).

 

2.                     We urge the Committee to request information to be submitted by 31 March 2007 on the development of the following key issues:

(a)   reforms of electoral laws and constitutional development;

(b)  interpretation of the Basic law;

(c)   enactment of the Interception of Communications and Surveillance Bill;

(d)  government measures related to the review of public service broadcasting; and

(e)   the progress regarding the enactment of the Race Discrimination Bill.

 

Interpretation of the Basic Law

(Articles 1, 2, 25 and 26)

3.                     The Standing Committee of the National People's Congress (NPCSC) has three times formally interpreted the Basic Law between 1999 and 2005. The three occasions demonstrate that an NPCSC interpretation may be sought and rendered in the absence of a court case, in the middle of a court case, or subsequent to the final adjudication of a court case, and with or without a request from the Chief Executive of the HKSAR.

 

4.                     The Committee should express serious concerns over the NPCSC interpretations which have now become a flexible instrument enabling the Central Authorities of the People's Republic of China to impose its will upon the legal order of the HKSAR and to deny the enjoyment of rights guaranteed in the ICCPR (e.g. the SCNPC interpretations in 2004 prevent the realisation of universal and equal suffrage in the 2007 Chief Executive and 2008 Legislative Council elections). All these interpretations were made notwithstanding the language of the provisions of the Basic Law, and the interpretation of those provisions by the courts of the HKSAR using canons of construction based upon the language of the law. The integrity of the legal system of the HKSAR and the protection of covenant rights by enacting laws is subject to an uncertain and dominant source of law to which the residents of the HKSAR have little chance to participate in shaping its content, and at the same time, international obligations for protection of rights are being ignored.

 

5.                     The Committee should express serious concern over the use of interpretation in 2004, which together with a subsequent decision of the SCNPC, denied universal and equal suffrage for the 2007 and 2008 elections. The Committee should also express grave concerns over the fact that the rights guaranteed under the ICCPR and the Basic Law, the independence and effectiveness of the role of the protection of rights by the law, may be seriously undermined by SCNPC interpretations.

 

6.                     The Committee should urge the SCNPC and the HKSAR government not resort to interpretation, and at the same time, the PRC government should ensure that Hong Kong's autonomy and protection of Covenant rights should not affected. The promise that interpretation will only be resorted to in exceptional circumstances is simply insufficient.

 

Chief Executive and Functional Constituency Elections

(Articles 1, 2, 25 and 26)

7.                     The electoral system for the Chief Executive consists of two tiers. In the first tier, "subsectors", akin to Functional Constituencies, elect 800 Members to an Election Committee. At the second tier, the Election Committee then elects the Chief Executive.

 

8.                     Similar to functional constituencies, subsectors are reserved mainly for the business sector and professionals. From there a number of Members are elected on to the Election Committee.[1] Like functional constituencies, the subsector election gives undue weight to the views of the business community and discriminates among voters on the basis of property and functions, as expressly criticised by your Committee.[2] The high nomination requirement has been so designed to, and so far has been very successful in, barring any person who Beijing does not approve of, from even getting successfully nominated. Moreover, in the second tier of the election the small size of the Election Committee together with the need to publicise all nominators have undermined the secrecy of ballots because practically every Member has no means to keep his choice a secret.

 

9.                     It is of crucial importance that the Committee should also point out expressly in its Concluding Observations that, similar to Functional Constituencies in the Legislative Council elections, the Chief Executive election in Hong Kong is inconsistent with articles 2, 25 and 26 of the ICCPR.

 

10.                The Committee should express concerns over undemocratic features such as corporate voting and, in the election of the Chief Executive by the Election Committee, the de facto denial of secrecy of ballots in the small circle, high nomination requirement in the Chief Executive election.

 

11.                The Committee should express concern over the Chief Executive's lack of willingness to take up his unshirkable constitutional responsibility to introduce democratic reforms in the pending exercise of amendments of election laws in Hong Kong.[3] The Committee should urge the Chief Executive to remove at least some of the undemocratic features of the Chief Executive and functional constituency elections, to broaden franchise, to set a timetable to achieve universal and equal suffrage in the near future and to abolish appointed seats in the District Councils. All hindrance to universal and equal suffrage should be removed, including the categorical bar of prisoners to elections. The Committee should request further information on the progress on the amendments to electoral laws in Hong Kong by 30 March 2007 (before the date for the next full periodic report).

 

Radio Television Hong Kong (RTHK) and Freedom of Expression

(Article 19)

12.                The government continues to take action potentially threatening to the freedom of expression, including the review of public broadcasting services and the public broadcaster RTHK. For many years, RTHK, a government department run mostly by civil servants, served as the only public broadcaster in the HKSAR. RTHK enjoys editorial independence under an agreement with the Government. But it has been constantly under attack by the pro-Beijing and pro-government camps for not 'serving' the HKSAR government, and there have been calls by these same people to 'bring RTHK under control'. There is fear that government actions after the review might further tighten the freedom of speech in Hong Kong, thus eroding the role of RTHK as an independent public broadcaster that might eventually transform RTHK into a mouthpiece for the government.

 

13.                The editorial independence and freedom of expression of RTHK should be upheld. Its programmes provide the society with information and entertainment important to the promotion and protection of human rights. Its programmes also provide impartial and pluralistic perspectives to various political, economic and social issues. Such programmes put pressure on other operators or competitors in the media field. This helps to prevent the flourishing of the mass media in the media market in Hong Kong from deteriorating too much through self censorship. If it is allowed to be turned into a mouthpiece or if its role is marginalised, the socio-political landscape of Hong Kong will drastically deteriorate, and this will be detrimental to the protection and promotion of human rights in Hong Kong.

 

14.                The Committee should urge the HKSAR Government to uphold RTHK as a public broadcaster with editorial independence guaranteed. The HKSAR should set up an institutional framework, which de-links RTHK from the Government, preferably in the form of a public body with public funding, by way of legislation to safeguard the public broadcaster's editorial independence, from both government intervention and commercial interference. The legislation should also allow public access programmes on radio and television services which were promised by the government a decade ago but have never materialized.

 

15.                To ensure that the review and the subsequent actions taken by the HKSAR on RTHK and public broadcasting service is kept in line with the Covenant, especially under article 19 of the ICCPR, the Committee should request the submission of information on the progress in the review of public service broadcasting and the measures taken by the HKSAR related to the review by 31 March 2007.

 

16.                Self-censorship remains a problem, in particular for news which is regarded by the mainland government as too sensitive, such as issues related to Taiwan, Tibet, Falun Gong and dissident activities. The detention of Hong Kong journalist Ching Cheong in April 2005 also created a chilling effect on press freedom. The problem of the use of violence and intimidation against journalists and media organisations has become an important problem. The intimidation of outspoken radio talk show hosts alarmed the community, and three of them were forced to resign in 2004. 

 

17.                The UN Human Rights Committee should urge the HKSAR government to refrain from taking further actions which may threaten the freedom of expression. Instead it should promote Hong Kong as a city which treasures diversity of opinion by combating violence and intimidation against journalists and the media, promoting public access programmes and channels, introducing a freedom of information law, and refraining from the setting up of designated press areas and stopping the blocking of media access to police radio calls.

 

Interception of Communications and Surveillance Bill

(Article 17)

18.                Judges in three recent cases say that there is no legal basis for authorising covert surveillance and such acts are contrary to the privacy provisions in the Basic Law. The government has been given a grace period to enact a law to authorise and regulate interception of communications and covert surveillance on suspects by law enforcement bodies. We worry that if the government fails to enact the law in time, it will resort to another interpretation of the Basic law by the SCNPC.

 

19.                The legislation on covert surveillance may pose threats to the freedom of communication if not properly enacted. The mechanism proposed by the administration can be abused. While the public needs to be concerned about their privacy, journalists are also concerned that such investigative measures may reveal confidential journalistic sources.

 

20.                Since Hong Kong has a murky history of political surveillance in its colonial past and that the Police Force Ordinance provides no basis for police work on security other than those related to detection of crimes, it is of utmost importance to guard against political surveillance under the new legislation and therefore the definition of "public security" should be carefully and narrowly drafted and defined.

21.                While it is a good start for the proposals to require warrants by judges to authorise interception of communications and covert surveillance involving serious intrusion into privacy, it is important to limit the exceptions to such rules and those surveillance not yet covered by the warrant system. The proposal to leave less intrusive surveillance to be authorised not by judges but by senior officers have yet to justified cogently, and apparently such authorisation of less intrusive surveillance should be dealt with by judges, if not from the High Court, perhaps also from the District Court. The classification and definition of "less intrusive surveillance" has yet to be clarified.

 

22.                The Committee should express serious concerns over the government's attempt to conduct security checks (which may be abused as political screening) against a panel of judges to be specifically appointed by the Chief Executive for handling the application for the authorization of surveillance under the Interception of Communications and Surveillance Bill. The Committee should urge the Government not to allow political surveillance under the broad concept of "public security". The Committee should urge the HKSAR and Chinese authorities not to resort to the SCNPC for another interpretation on this issue.

 

Race Discrimination Bill

(Articles 2 and 26)

23.                The commitment of the HKSAR to legislate to outlaw racial discrimination was a result of the efforts of UN treaty bodies, members of the public and NGOs in Hong Kong. The Human Rights Committee, the Committee on the Elimination of Racial Discrimination and the Committee on Economic Social and Cultural Committee have all called for legislation to outlaw racial discrimination. The strong comment from the Economic Committee in 2001 that the government was in breach of the covenant over its failure to legislate, and its call for supplementary information on the progress of the legislation by in two years' time put tremendous pressure on the HKSAR to act.

 

24.                However, the Government's commitment is now seriously in doubt. The introduction of the Race Discrimination Bill has been repeatedly delayed, most recently for yet another year and more for allegedly "legal and technical" reasons. Our understanding is that the Bill has encountered serious difficulties within the Government. The Education Bureau, for instance, has openly expressed concerns over the bill on the education of ethnic minorities in a LegCo meeting. We are concerned that the bill has been unduly delayed in its introduction and, even if introduced, it can easily be killed off in its tracks by the Government which may adopt a laid back approach in its enactment in LegCo.[4] Without strong support and lobbying by the Government, the pro-business LegCo may not pass the Bill.

 

25.                It is also important to note that the Bill being drafted at this moment will not protect migrants from the Mainland or other parts of China and will not override the Immigration Ordinance.[5] It will not adopt the updated definition of indirect discrimination and it will not really combat all forms of racial discrimination. For example, it has a very narrow definition of transferred discrimination. Racial discrimination on the grounds of language, religion and immigration status have not been properly addressed. In the Bill, there is no positive obligation for the government to combat racial discrimination and there are no provisions on racial profiling and policy impact assessment.

 

26.                The Committee should urge the Government to expand its Bill to cover migrants from other parts of China and to cover racial discrimination on the grounds of language, religion and immigration status. The Government should also update the definition of indirect discrimination. The Committee should urge the Race Discrimination Bill to combat all forms of racial and related discrimination and to cater for special measures, positive obligations and policy impact assessment.

 

27.                The Committee should express concerns over the delay in the introduction of the Bill. Most importantly, the Committee should ask the HKSAR Government to demonstrate that the whole government, including its policy secretaries, bureaus, governmental departments and agencies are firmly supportive of the Bill and will do its utmost to enact as a proper and effective piece of legislation in combating all forms of racial discrimination. To ensure that, the Committee should request the HKSAR Government to supply supplementary information in a year's time on its progress in the enactment of the Bill, and to demonstrate support from the whole government of the enactment.

 

Human Rights Commission and Statutory Watchdogs

(Article 2)

28.                The Hong Kong government maintains that a National Human Rights Institution is not necessary, since the existing legal framework and the various specialist institutions offer adequate human rights protection.

 

29.                The Independent Police Complaints Council (IPCC) is not even a statutory body and has no power to investigate complaints against the police. The government's belated proposals for legislation for giving  the IPCC a statutory basis still does not confer any power of investigation on the Council. The Ombudsman's jurisdiction is severely limited by broad and vague exceptions in the Ombudsman Ordinance.

 

30.                The Privacy Commissioner's jurisdiction is confined to personal data protection and has no conciliation measures or a provision for legal advice or aid nor any power to bring legal proceedings.

 

31.                The Equal Opportunities Commission (EOC) has a limited role, even in equal opportunities, which has mainly been confined to the enforcement of three equal opportunities ordinances. It has been the subject of controversy in the past few years for reasons of (a) refusal to renew the contract of ex-chairperson Anna Wu (who had been widely praised by the local and international community for her leadership and her services in the EOC) and a number of controversial appointments of subsequent chairs and members; (b) for the removal of its top personnel Patrick Yu (who had a strong, active and liberal background in Human Rights) and the government and official involvement in handling the incident; (c) the low morale and problems of management and operation and in the EOC; and its lack of support from activist NGOs in Hong Kong for its failure to improve its transparency and public accountability, etc. The jurisdiction and power of these bodies, even when taken together, are far from what are envisaged by the Paris Principles and to meet the needs to protect and promote rights and to provide remedies under the ICCPR. The decisions on appointment of members and the head of these bodies have also been the subject of concern and such appointments failed to meet the independence, pluralistic composition and other requirements in the Paris Principles.

 

32.                The Committee should recommend that an independent mechanism should be set up to choose and fill the positions of members and the Commissioner or Chairperson of all statutory watchdogs in Hong Kong with the right candidates to serve for terms consistent with the Paris Principles on pluralistic composition and other requirements of the Paris Principles. The HKSAR Government should also be reminded not to interfere with the independence of such watchdogs.

 

33.                The Committee should urge the EOC to take serious measures in improving its transparency and public accountability by opening the Commission's meetings; adopt a general transparent policy in publicising its papers and information, save those justified on grounds that they conform with the ICCPR; and to actively address the problems of its lack of support from activist NGOs in Hong Kong.

 

34.                The Committee should express concern over the lack of progress in having an independent statutory body to investigate at the very least serious complaints against police in Hong Kong.

 

35.                The Committee should continue to urge the HKSAR to set up a Human Rights Commission in accordance with the Paris principles. The Human Rights Commission can be established first by the expansion of the jurisdiction and power of the Ombudsman. The Committee should further recommend that a National Rights Institution be established (and any appointments should be made in a transparent manner).

 


Public Order Ordinance

(Article 21)

36.                Recently, in Leung Kwok Hung v HKSAR, the CFA judgment held the concept of "ordre public" in the Public Order Ordinance (POO) to be too broad and vague a concept to guide the exercise of the discretion of the Commissioner of Police to refuse or restrict a constitutional right in his power to regulate public procession. The Court also commented incidentally, that the validity of the discretion in relation to the purpose of "public order (ordre public)" in contexts other than in public processions 'must be regarded as doubtful.' It also expressly questioned the grounds for "the protection of the rights and freedoms of others". It was silent on "national security" but presumably the same logic applies and the concept can hardly satisfy the requirement of "prescribed by law". However, even in the light of such a judgment, the Government refused to review the Ordinance.

 

37.                The Committee should therefore urge the Government to conduct a thorough review of the Public Order Ordinance and the procedures and practices in law enforcement, and to make necessary amendments in the light of the CFA judgment and Covenant standards to provide the necessary protection of freedom of peaceful assembly.

 

Policing of Demonstrations and the Appeal Board

(Articles 14 and 21)

38.                The setting up of public demonstration areas ("public activity areas") at sites away from symbolic building or location without genuine justification, or out of sight from the protest targets, the interruption and intermittent halting of processions very far away from demonstration targets for delaying them or confining them far away from targeted ceremonies and activities are not unusual police measures in Hong Kong. The situation gets more serious when Chinese leaders and important international conferences are being held in town. Provocative measures like stopping of vehicles carrying demonstration props (coffin) and amplification devices, forcing the driver to leave his van, snatching of demonstration props and physical attacks of passer-by protestors, snatching of amplification devices in spite of reasonable volume, were documented. Symbolic venues, like the empty space immediately in front of the Government headquarters hitherto frequented by protestors is now closed to protestors most of the time. Removal of protestors from the site in the name of obstruction repeatedly happened in spite of ample parking areas at the back and access path from other directions.

 

39.                During the WTO protests, batons were used and pepper spray, pepper canisters, tear gas and super sock rounds were fired at protestors. More than a thousand protestors were detained and arrested, most of whom were peaceful at the time of the protests. However, they were also confined in the cold weather in an open area on the road for many hours, some for up to 16 hours, without blankets. There were a large number of complaints related to access to lawyers and interpreters, due process, and reports of maltreatment following the arrest. In the light of complaints from detainees and lawyers, the Hong Kong Human Rights Monitor requested to send observers (based on the Johannesburg Principles), to police stations where the protestors were being detained but this request was regrettably refused by the police. It turned out that only 14 of the one thousand some protestors arrested were ever charged, and charges against 12 of those were later dropped due to a lack of evidence, leaving a question as to whether the arrests were legally justified.

 

40.                The Committee should call for an independent inquiry into the use of force and weapons to see whether the use of force and weapons by the police, and their guidelines and procedures in these regards, are consistent with the standards of the Covenant and related human rights treaties and instruments on the conduct of law enforcement officers and their use of force and firearms. The independent inquiry should also cover the confinement, arrest and detention of over a thousand persons to see whether these actions were legally justified, what kind of treatment these persons received, whether their rights were respected and whether the related legislation, police guidelines and procedures are consistent with international human rights standards.

 

41.                There was a documented incident in which the authorities put tremendous economic pressure on the right of abode related protestors by claiming damages and costs from them, creating a chilling effect on other protestors.

 

42.                Very often, journalists have been confined to designated press areas. Occasionally, journalists are forced to leave or are even carried away. In at least one instance, journalists were handcuffed and detained.

 

43.                Candles have been used on numerous occasions in the past, especially at the annual June 4th Vigils, this was however prohibited for WTO protestors. Unfortunately, the Appeal Board on Public Meetings and Processions upheld the police's prohibition, in spite of the fact that WTO protestors had used them on prior occasions without any problems. It is hoped this decision will not set a precedent, since candles are used as a symbol of hope, and it would be a pity if their use was denied again, depriving persons of the freedom of expression.

 

44.                On more than at least one occasion, the Appeal Board relied on inaccurate information provided to it and scheduled an appeal hearing after the time of the intended protest, which was objected to by the police. The appeal was dismissed, casting doubt as to the ability of the Board to act fairly.

 

45.                The Committee should urge the police to desist from all unjustified or provocative policing measures in dealing with demonstrations. The Police should be reminded to be prepared to conduct their work in the presence of journalists and human rights observers at close range in line with the Johannesburg Principles. The Government should strengthen the monitoring and control of the police. The Appeal Board should conduct its business in a timely and fair manner with due respect to international human rights standards.

 

Complaints against the Police

(Articles 2, 9 and 26)

46.                Complaints against the police are usually dealt with by the Complaints against Police Office (CAPO) which is a part of the police force. This body is in turn monitored by the non-statutory Independent Police Complaints Council (IPCC), without any power of investigation. The system for the handling of complaints against the police continues to lack independence, credibility and effectiveness.

 

47.                Many people who got arrested in the WTO demonstration and had complaints of ill-treatment and abuses refused to make formal complaints to CAPO.

 

48.                According to credible NGOs specialised in working on the rights of sex workers, many sex workers complain to NGOs that they have often been discriminated against by police officers, and their reporting of crimes has not been properly dealt with giving them the belief that they are not equally protected by law enforcement agencies.

 

49.                Many sex workers also complain to NGOs of incidents of police malpractice, such as: receiving free sex while performing their undercover duties; police harassment; and even physical abuse by officers. They also complain that they face retaliation by the police if they dare to complain to CAPO. Recently, a young sex worker jumped to her death after complaining to her family that she had been framed by the police and providing them with evidence that she had performed an act of oral sex with an undercover officer who did not pay her, but arrested her, after the act was completed. Her family also complained of pressure by the police on them to prevent them from making the details of her case public.

 

50.                Recently, personal information of 20 thousand complainants who had filed complaints against the police was leaked, and became freely accessible on the Internet. Information including case numbers, the names of the complainants, identity card numbers, addresses and criminal records were available. This event further weakened the credibility of the system.

 

51.                The Committee should urge serious reforms to be introduced to the system and its operation to improve its independence, credibility and effectiveness. Apart from involving civilians in the investigation of complaints against police, the Committee should recommend that as a minimum, the Government should provide the IPCC with statutory status, empower the IPCC to undertake investigations of serious cases, introduce a civilian to head CAPO, and implement a lay observer scheme at police stations.

 

Equal Protection of the Law and Migrants

(Articles 2, 9, 14 and 26)

52.                Persons from the Mainland who were suspected of having provided sex related services in breach of their condition of stay, or sex workers who are suspected of having committed certain crimes are often forced to confess their "crime" whether they have committed it or not, because the detention pending trial they received is often longer than the sentence they normally get if they confess. They are therefore not equally protected by the law.

 

53.                For foreign domestic workers, the discriminatory two-week rule deprives them of their freedom to change jobs and their bargaining power, and thereby putting them in a more vulnerable position to exploitation of various kinds and to physical and psychological abuses by their employer or their employer's family. The rule has been purportedly justified on the grounds that it prevents job-hopping of the Foreign Domestic Helpers, however, their employers are quite free to "maid hop".

 

54.                Some foreign domestic workers are forced to take up unauthorised tasks by their employer. Even though they are allowed to remain in Hong Kong while filing a claim against their employer, they are often denied employment visas, and therefore their income, and are required to pay visa fees. When they report their cases to the authorities, they are often charged and put in jail first on unauthorized labor charges. They would then be asked whether they agree to be a prosecution witness against their "offending" employers, but normally they would not be given an employment visa to work while the case is pending.

 

55.                When foreign domestic workers complain about crimes committed against them by their employer or other people, their complaints would normally be dealt with with greater suspicion and would more often be ignored, as compared to cases in which their employer or other people complained against them.

 

56.                The Committee should call for equal treatment by law enforcement officers of all people, migrant workers and sex workers included, without discrimination in handling their cases. Cultural sensitivity training should be emphasized in the training of such officers and laid down in guidelines. Departmental equal opportunities officers should be appointed to conduct monitor compliance and conduct policy impact assessments for further improvements. The Committee also needs to urge the Government to conduct a review into its criminal justice system with a view of preventing forced confession by lengthy detention pending trial.

 

57.                The Committee should highlight the problem of abuses to foreign domestic workers, partly due to the two-week rule, and should express serious concerns over the lack of equal protection by the law under such a rule. The Committee should also express concern over the lack of sensitivity in the policy of denying employment visa and the levying of visa charges against foreign domestic workers in distress. The Committee should express grave concern over the prosecution of foreign domestic workers for unauthorised labour forced on them by their employer, and of the discriminatory two week rule which exposes them to more employer compulsion.

 

Split Families

(Article 23)

58.                In Hong Kong, there are approximately 100,000 split families composed of parents and children separated between Mainland China and Hong Kong as a result of an erroneous policy of the one-way permit system, which is unfair, ineffective, and lacks a transparent and uniform standard. Most of the victims who had their right of abode recognised by the Hong Kong Court of Final Appeal stripped are still not eligible to join any queue to join their family to settle in Hong Kong and no serious effort has been made by the Hong Kong and, worst of all, the Mainland authorities.

 

59.                The Hong Kong SAR Government and the People's Republic of China Government should have better coordination to ensure that One-way Entry Permits are approved on a family basis, so as to allow mothers and children to settle in Hong Kong at the same time. A monitoring mechanism should be established to enable public scrutiny to ensure the transparency of the procedure of migrant applications. The Mainland and Hong Kong authorities should meet to come up with means to address the family reunion issues of the former right of abode claimants.

 

Asylum Seekers in Hong Kong

(Articles 7, 9, 13 and 14)

60.                At present, there are 1000 persons seeking asylum in Hong Kong pending refugee status determination. However, the Refugee Convention is not extended to Hong Kong by Britain and China, there is no law to provide for the right to seek asylum in Hong Kong, and there is no government refugee determination procedure until recently, but the new procedure was a response to a court decision and is restricted to asylum seekers relying on torture as the grounds for seeking protection.  Other claimants are left to the Hong Kong Office of the United Nations High Commissioner for Refugees (UNHCR) for determination, if not forced to leave immediately. Both the government and UNHCR Procedures are not user-friendly, lack due process and offer no legal assistance to the applicants. Asylum seekers are not allowed to work, nor are they entitled to social welfare or support. Only the most vulnerable sectors such as separated minors, single mothers and patients can get financial support from UNHCR and such support will be withdrawn in May 2006. Asylum seekers are now detained more often than before the September 11th attack.

 

61.                The Committee should recommend that the HKSAR request for an extension of the application of the Refugee Convention to Hong Kong. The Immigration Ordinance should be amended to give applicants the legal right to seek asylum in Hong Kong, to establish a fair and user-friendly determination procedure, not to detain asylum seekers and to provide financial and medical assistance to asylum seekers.

 

Assistance to Hong Kong Residents in Mainland China

(Articles 6, 8, 9, 11, 12, 14, 15, 17, 23, 24 and 26)

 

62.                Since the handover, there are more than 2,500 Hong Kong residents being detained in Mainland China by law enforcement authorities, who are being offered no support from the HKSAR Government.

 

63.                The HK Government should establish a cross-border legal aid service, actively visit, monitor and report on any unlawful treatment of detainees by public security officials, and request the Central People's Government to strengthen its supervision over the law enforcement agencies in order to ensure its strict compliance with the law.

 

Human Rights Education

(Preamble and Article 2)

64.                The Hong Kong Government has thus far not shown any political will or determination in formulating a policy on human rights education. In the recent educational reforms, the government highlighted seven learning goals for kindergarten, primary and secondary education, including the promotion of a healthy lifestyle, increasing the breadth of knowledge, developing learning skills, enhancing language skills, developing a habit of reading, understanding of one's own national identity and recognizing one's own roles and responsibilities. Human rights education has not even been factored into the equation.

 

65.                Moreover, human rights NGOs were surprised by the awarding of a government contract to educate teachers on human rights and anti-discrimination to the Society for Truth and Light (a group which is known for its conservative and extremist homophobic views). Proposals by known human rights educators from the University of Hong Kong such as law professor Benny Tai and Hong Kong Institute of Education and civic education expert Leung Yan Wing were rejected.[6]

66.                The Committee should express a concern that human rights education in Hong Kong is being sidelined, and that to fulfil its obligation "to promote universal respect for and observance of, human rights and freedoms" (ICCPR, Preamble), the HKSAR government should place a focus on human rights education as part and parcel of the education policy and have it incorporated into the education curriculum.

 

67.                The Committee should urge the government to review its human rights education policy and choose more carefully who it appoints to teach these subjects.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Signatories

 

Civil Human Rights Front

Democratic Party of Hong Kong

The Frontier

Hong Kong Human Rights Commission

Hong Kong Human Rights Monitor

Hong Kong Journalists Association

International Federation for Human Rights

Office of Emily Lau

Power of Democracy

Radio Television Hong Kong Programme Staff Union

 



[1] There are also a number of seats reserved for religious faiths and politicians such as all Members of the Legislative Council.

[2] Concluding observations of the Human Rights Committee (Hong Kong) : United Kingdom of Great Britain and Northern Ireland. 09/11/95. CCPR/C/79/Add.57. Para 19. "The Committee is aware of the reservation made by the United Kingdom that article 25 does not require establishment of an elected Executive or Legislative Council. It however takes the view that once an elected Legislative Council is established, its election must conform to article 25 of the Covenant. The Committee considers that the electoral system in Hong Kong does not meet the requirements of article 25, as well as articles 2, 3 and 26 of the Covenant. It underscores in particular that only 20 of 60 seats in the Legislative Council are subject to direct popular election and 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. This clearly constitutes a violation of articles 2, paragraph 1, 25 (b) and 26. It is also concerned that laws depriving convicted persons of their voting rights for periods of up to 10 years may be a disproportionate restriction of the rights protected by article 25."

[3] According to the Basic Law, a private member cannot introduce any Bill or amendment to change the Hong Kong electoral methods and system except with the consent in writing of the Chief Executive. Therefore the introduction of Bills and amendments for any democratic reform could only be done by the executive arm of the Government under the Chief Executive.

[4] The Committee on Economic, Social and Cultural Rights asked in May 2001 in its Concluding Observations on China (Hong Kong) for supplementary information to be submitted by two years' time. (See Concluding observations of the Committee on Economic, Social and Cultural Rights (Hong Kong) : China. 21/05/2001. E/C.12/1/Add.58, para. 48. (See http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/1f67bd3f2a811fddc1256a4c002ed71a?Opendocument ). The HKSAR Government committed to the enactment of a Race Discrimination Ordinance a few days before the due date of the supplementary report to the Economic Committee. As China submitted its initial full report under the CESCR, the Hong Kong supplementary information was provided in that full report instead of a supplementary report.

[5] Concluding observations of the Committee on Economic, Social and Cultural Rights on People's Republic of China (including Hong Kong and Macao). E/C.12/1/Add.107. 13 May 2005. Paragraph 79:

'The Committee is concerned that in the proposed racial discrimination law, the protection it affords will not cover migrants from the Mainland despite the widespread de jure and de facto discrimination against them on the basis of their origin. The Committee is also concerned that according to the proposals made by the Hong Kong Home Affairs Bureau, the new law will not affect the existing immigration legislation in HKSAR.'

 

[6] "Society cannot teach enshrined human rights" South China Morning Post, 6 Oct 2005