HONG KONG HUMAN RIGHTS MONITOR



Briefing Paper for the Committee on the Elimination of Racial Discrimination on the Thirteenth Periodic Report by the United Kingdom in respect of Hong Kong under the International Convention on the Elimination of All Forms of Racial Discrimination

Executive Summary

Transfer of Sovereignty

The Thirteenth Periodic Report does not contain a section relating to arrangements (if any) between the United Kingdom Government and the People's Republic of China Government for the continued application of the Convention to Hong Kong. In particular, the Thirteenth Periodic Report does not indicate whether the Central People's Government of the People's Republic of China has reached a decision, be it provisional or final, regarding the continued application of the Convention to Hong Kong.

Clarification should be sought from the Government of the People's Republic of China as to whether the People's Republic of China subscribes to the interpretative statements/reservations in relation to Articles 4, 5, 6 and 15 of the CERD made by the United Kingdom upon signature and maintained upon ratification.

Ethnic Characteristics of Hong Kong

The Hong Kong Government states in paragraph 15 of the Thirteenth Periodic Report that it does not possess any information on the racial characteristics of Hong Kong. This unsatisfactory state of information leads to difficulty in gauging the size of racial or ethnic minorities in Hong Kong. The Hong Kong Government should consider including a question on race or ethnicity in the population census.

Policy of Eliminating Racial Discrimination

The Hong Kong Bill of Rights Ordinance (Cap 383)

While violations of the articles of the Hong Kong Bill of Rights have been made justiciable, the effectiveness of the remedy can only be measured in the context of litigation, which in Hong Kong is the only avenue by which a legally binding remedy for human rights violation can be sought. A proposal for a comprehensive Human Rights Commission was stillborn as a result of active opposition on the part of the Hong Kong Government. Without a statutory Human Rights Commission, individual legal action against a violator of human rights has serious implications in time, effort and costs. The Hong Kong Government, despite many requests, has declined to adopt a policy of asking for no order for costs in a Bill of Rights challenge. Applications for legal aid in civil cases involving Bill of Rights issues (apart from immigration related cases) mostly failed on the merits test adopted by the Legal Aid Department in determining whether to grant legal aid.

Despite the stated intention of the Hong Kong Government when introducing the Hong Kong Bill of Rights, section 7 of the Hong Kong Bill of Rights Ordinance was interpreted as barring inter-citizen disputes from the operation of the Hong Kong Bill of Rights.

Emergency Regulations Ordinance (Cap 241)

The rule-making powers currently present in the Emergency Regulations Ordinance under sections 2 and 4 are not fettered by any statutory language that comply with the obligations of the United Kingdom and Hong Kong Governments under the CERD.

Immigration Law

Schedule 1 to the Immigration Ordinance (Cap 115), which states that one of the classes of persons permitted permanent resident status are persons "wholly or mainly of Chinese race" who have been in the territory for 7 years, amounts to a piece of racially discriminatory legislation as it indicates a preference on the ground of race.

Section 20 of the Immigration Ordinance (Cap 115) makes distinction among 3 classes of persons on the ground of national origin or nationality. Separate criteria and procedures leading to the making a deportation order are provided for these classes of persons. Such legislation is unjustified and racially discriminatory.

Instances of removals of children, born of parents one of whom is a Hong Kong permanent resident but found remaining in Hong Kong illegally, from Hong Kong causing a split in the family may amount to a breach of Article 5(e) of the CERD.

The maintenance of the policy by the Hong Kong Government regarding immigration from PRC for family reunion and its refusal to exercise discretion to entertain applications from lawful entrants using two way exit permits or passports with the consequence that families are to be split between Hong Kong and the People's Republic of China for considerable period of time amounts to a breach of Article 5(e) of the CERD.

Section 32(4) of the Immigration Ordinance (Cap 115) authorises arbitrary detention with the absurd effect that where the accused is free to move in Hong Kong having been granted bail, with the prosecution witness (who is invariably an illegal immigrant from a foreign country) subject to detention because the prosecution sees some value in his evidence.

Incorporation of CERD in Domestic Legislation

Hong Kong Government should enact specific legislation dealing with racial discrimination so that through such legislation, the provisions of the CERD can be incorporated into domestic law.

Comprehensive Race Relations Legislation

The stance taken by the Hong Kong Government in 1995 in opposing a private member's bill outlawing racial discrimination, plus its strenuous efforts of lobbying and disinformation, may amount to a breach of its undertakings under Article 2(1)(b), (c), (d) and (e) and 5 of the CERD.

Review of Legislations

There are still numerous Ordinances in Hong Kong which provide for distinction, restriction or preference on the ground of race.

Vietnamese Asylum Seekers

The Hong Kong Government should take immediate steps to remedy these breaches of international human rights norms it has committed in relation to Vietnamese asylum seekers, both in terms of the conditions of detention and the propriety of the length of detention. Secondary schooling was withdrawn from Vietnamese students detained in detention camps in Hong Kong.

Development and Protection of Racial Groups

Education

The education policy in Hong Kong may have failed to take into account, in terms of language of instruction, the needs of ethnic minorities, particularly such needs to preserve their ethnic and cultural characteristics through the use of their languages.

New Migrants

There appears to have been inadequate resources directed for the benefit of new migrants to Hong Kong, especially new migrants from the PRC, to enable them to integrate into Hong Kong society.

Condemnation of Racist Propaganda and Incitement to Racial Hatred

In view of the enactment of the Hong Kong Bill of Rights Ordinance (Cap 383), the interpretive statement of the United Kingdom Government in respect of Article 4, is difficult to justify in relation to Hong Kong. We disagree with the approach taken by the Hong Kong Government as stated in paragraph 30 of the Thirteenth Periodic Report and consider that it is obligatory upon the Hong Kong Government to enact legislation to carry into effect the requirement under Article 22 of the Hong Kong Bill of Rights. There is no legislation in Hong Kong proscribing dissemination of ideas based on racial superiority or hatred and proscribing incitement to racial discrimination. There is no legislation in Hong Kong declaring illegal propaganda activities which promote and incite racial discrimination; proscribing participation in such activities; and proscribing provision of assistance to racist activities, including the financing thereof.

Prohibition of All Forms of Racial Discrimination and Guarantee of Equality before the Law without Distinction as to Race, Colour, National or Ethnic Origin

Right to Equal Treatment before Tribunals and All Other Organs Administering Justice

There are instances in which the quality of interpretation facilities to non-Chinese or non-English speakers in the investigation process conducted by either the Immigration Department or the police may have failed the purpose of assisting the investigating officers to determine whether statutory or administrative requirements are complied with or whether an offence has been committed, and thereby caused injustice.

Right to Participate in Elections

The United Kingdom and Hong Kong Governments were in breach of Articles 2 and 5 of the CERD in enacting a 1993 amendment to the Letters Patent which confers, on persons of a particular description, an entitlement to vote which is in addition to a vote in respect of a geographical constituency, since there is no restriction on the possible range of descriptions.

Equal Access to Public Service

Some aspects of the localization policy of the Hong Kong Government were found to be contrary to Article 21(c) of the Hong Kong Bill of Rights as amounting to either an unreasonable restriction or a distinction prohibited by Article 1 of the Hong Kong Bill of Rights by the High Court.

Right to Nationality

Members of Hong Kong's Indian Community face an uncertain future in terms of nationality during the changeover of sovereignty. Action from the United Kingdom Government in this respect is urged for in order to ensure that Hong Kong's ethnic minorities have a meaningful and effective nationality after 1997.

Employment Rights

-- Foreign Domestic Helpers

Although a foreign domestic helper is permitted to enter into a new employment contract with the same or a new employer upon completion of an employment contract, her visa application will be processed in the same way as an application for an initial entry visa. This policy does not contemplate and entertain the event where a foreign domestic helper applies for change of status to that of a resident on the basis of a period of ordinary residence in Hong Kong as a foreign domestic helper under the standard employment contract. The rationale of this policy, which imposes an unwarranted restriction specifically upon foreign domestic helpers amongst foreign workers in Hong Kong, requires justification.

Where a foreign domestic helper's contract is terminated prematurely, she is generally required to leave Hong Kong within two weeks. A change of employment upon premature termination of contract is permitted on an exceptional basis. A foreign domestic helper whose contract has been terminated prematurely and who is awaiting the resolution of a dispute with the employer in Hong Kong is not permitted to take any employment. We ask the Committee to recommend the abolition of this "two-week rule" and to call on the Hong Kong Government to explain the reason for not implementing a similar recommendation of the Economic Committee adopted in December 1994.

Foreign domestic helpers are prosecuted for the offence of breach of condition of stay by taking up work of other nature with the same or a different employer; or of similar nature but with a different employer, in addition to domestic duties with the employer specified in the standard contract of employment. The Hong Kong Government should explain the reasons for enforcing a strict prosecution policy regarding breaches of the nature described above, which often are either innocently motivated by a desire to earn additional income during spare time or committed at the behest of the employer specified in the standard employment contract.

Unlike professional migrant workers, foreign domestic helpers are not permitted under immigration policy to sponsor family members to enter and reside in Hong Kong as their dependents. The standard employment contract of foreign domestic helpers merely states that the foreign domestic helper is to do domestic duties. Neither the employment contract nor the explanatory notes specifies or recommends a limit of working hours. We ask the Committee to adopt a recommendation calling on the Hong Kong Government to review the employment conditions of foreign domestic helpers; and to require the Hong Kong Government to explain its failure to implement a similar recommendation adopted by the Economic Committee in December 1994.

On the pretext of "controlling illegal immigration" the Hong Kong Government started to implement or preparations to implement, the following administrative measures since December 1995:

- All foreign domestic helpers who are applying for an identity card, or are replacing an old one, will receive an identity card with a special "W" prefix. Such an identity card will, it is suggested, distinguish them from the general population and enable their immigration status to be easily ascertained.

- It is proposed that all foreign domestic helpers will be required to surrender their identity cards to the Immigration Department for cancellation on their departure at the end of their contracts.

We consider that these measures have the effect of distinguishing and stigmatising foreign domestic helpers within the Hong Kong society as a high risk group so far as overstaying is concerned. We ask the Committee to call on the Hong Kong Government to justify the need to impose such measures.

While the standard employment contract of foreign domestic helpers specifies certain conditions of work and living to be provided by the employer, such conditions are frequently breached by employers. However, there appears to be a lack of resources in combatting these breaches to ensure fair treatment to foreign domestic helpers. This situation is aggravated by the apparent unavailability of any translation of the standard employment contract and the accompanying explanatory notes to both the employer and the domestic helper in the languages which they are more familiar with.

Foreign domestic helpers are vulnerable to exploitation and abuse in Hong Kong. There are often cases involving female foreign domestic helpers being the subject of sexual or physical abuse. Their human dignity has been insulted. Their cultural development both as individuals and as a group is often neglected.

-- Imported Skilled Workers

Imported skilled workers are often recruited through employment agencies abroad and have work arranged for them through another employment agency or contractor in Hong Kong. This situation is prevalent in the construction industry. Such workers are often at risk of exploitation by employment agencies or contractors. There have been instances of suspected fraud or mistreatment in relation to pay, hours of work and conditions of living.

Effective Protection and Remedies

Criminal and Law Enforcement Injuries Compensation Scheme

The Criminal Injuries Compensation Board was known to have decided that Vietnamese asylum seekers who are screened out did not qualify for compensation despite the fact that they may be detained in Hong Kong for a number of years pending repatriation. We consider that this restriction is unreasonable and racially discriminatory and urge the Committee to express a similar view and to declare this restriction to be inconsistent with the obligation of the Hong Kong Government under Article 6.

Combatting Prejudices through Teaching, Education, Culture and Information

Some recent privately commissioned opinion surveys show a lack of awareness of human rights issues amongst the young people in Hong Kong. We ask the Committee to question the Hong Kong Government on the resources allocated to publicize the contents of the Convention and other human rights instruments applicable to Hong Kong; and on whether any survey has been conducted by the Hong Kong Government on the awareness of human rights by the general population of Hong Kong and if so, the results of such survey with full breakdown of figures by age, sex and education level.