Joint Submission by NGOs coordinated by the Hong Kong Human Rights Monitor to the UN Human Rights Committee on the implementation of the ICCPR in the Hong Kong Special Administration Region, China

Universal Suffrage

 

1. The Basic Law stipulates, “The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.”[1] The Standing Committee of the National People’s Congress adopted a decision in 2007 that universal suffrage may be implemented for the Chief Executive in 2017, and for the Legislative Council in 2020.[2] The decision[3] also made it clear that when universal suffrage for the Chief Executive is implemented in 2017, the nominating committee may be formed with reference to the current provisions regarding the Election Committee in Annex I to the Basic Law.[4] According to experience, the Election Committee was based on restricted franchise akin to functional constituency elections and could not represent the general public but instead a method for keeping the election under control.

 

2. More importantly, there are calls from the business and privileged sectors to prevent the Chief Executive elections (“CE elections”) in 2017 from being genuinely universal and equal. These include various unreasonable restrictions to be put on who would be validly nominated and ultimately put forward for voting by the general electorate. Such unreasonable restrictions include:

• a cap on the number of candidates;
• exclusion of candidates with any political or party affiliations;
• a tight control of the composition and membership of the Nominating Committee;
• unreasonable nomination requirements including
  • a high nomination threshold; and/or
  • nomination thresholds consisting of a certain percent in each of the sectors of the Nomination Committee; and/or
• preliminary elections or other forms of vetting by the nominating committee;

so as to screen potential candidates for the CE elections.

 

3. A related matter is whether to give citizens the right to put forward candidates, say 100 thousand valid nomination for a candidate, for the Nominating Committee’s consideration. Denial of similar nominations should be explicitly denounced as an infringement of the right to universal and equal suffrage.

 

4. Similarly, there are calls to prevent the genuine abolition of functional constituencies by requiring potential candidates to be nominated by their respective sector or constituency before putting forward for the general electorate to cast their vote so-called “universally and equally”.

 

5. We urge the Committee to explicitly spell out and forcefully denounce such probable unreasonable restrictions, vetting and pre-screening of potential candidates, especially those in CE elections and modified forms of functional constituencies, as inconsistent with the Covenant, especially articles 2, 3, 25 and 26, to clarify the right to universal and equal suffrage and to participate in public life for the eradication of these unreasonable hurdles being formulated. The HKSAR government should be required to introduce proposals to implement universal suffrage in a way consistent with all Covenant rights, especially the equal right to nominate and be nominated to run for elections, and to run for elections and by elected.

 

 

Arrangements for Filling Casual Vacancies in the Legislative Council

 

6. Last year, the Hong Kong government put forward legislative proposals for introducing a replacement arrangement for filling casual vacancies arising from the resignation of members of the Legislative Council. The government attempted to abolish by-elections in geographical constituencies to prevent de facto referendum from being triggered by resignation of Legislative Councillors (as a means for the public to express their political opinions). It was openly criticised by the Hong Kong Bar Association[5] and other NGOs as being incompatible with the ICCPR and the Basic Law by for e.g. taking away the voters’ right to express their will and prospective candidates’ right to stand for election in by-election. Massive protestors turned up for the July 1st March in 2011 for different reasons but a key demand of the march was to oppose the proposals. The proposals were subsequently withdrawn and replaced by a new version in February 2012.[6] The new proposals retain all by-elections but with a 6-month prohibition to prevent all resigned Legislative Councillors from standing for elections in by-elections. Such prohibition is not applicable to General Elections. The proposals were enacted into law in June 2012. We urge the government from repealing such newly enacted restrictions which unnecessarily restrict the rights of Hong Kong people, including the resigned Legislative Councillors, to participate in public life and to ensure their and the public’s rights to choose by-elections as a means to express their political opinions.

 

 

Vote-rigging

 

7. Serious inaccuracies in elector registers were identified by political parties, NGOs and the press in Village Representative (VR), District Council (DC) and Legislative Council (LegCo) Elections in the past few years, triggering public concern about the possibilities of vote rigging, including cross-border ones. Such problems were to a large extent due to the passive and neglect of duty by the authorities responsible for voter registration. For instance, the Home Affairs Department was happy to have their fingers crossed so as to rely on individual electors to risk their personal and their families’ safety and at their own expenses to challenge problematic registration in VR Elections. Of course it has completely failed to initiate judicial review of problematic decisions by the Review Officers. One of the key reasons is that the Home Affairs Department is responsible for public relations work of the government in the community, including the villages. Their need to pacify village leaders makes it difficult for them to take up any fair administration of VR elections, including proper elections registration. Even civil servants in the Home Affairs Department have expressed serious concern about their conflict of interests and asked the Registration and Electoral Office (REO) to take up the Home Affairs Department’s responsibility in Village Representative Elections. We urge the REO to take up such responsibility as soon as possible and amend the laws to require all departments responsible for registration of electors to take active steps to ensure the accuracy of registration and to proactively take actions against any improper registrations.

 

8. After a public outcry on the vote rigging problems in the 2011 DC Elections, the government has only resorted to convenient and quick fixes to address such problems by sending out letters to registered electors and then deleting all those who failed to respond to its call for verification. As a result, about 230,000 persons had their registration removed by the g Only a few cases of vote rigging have been prosecuted in the past few months. No efforts have been used, say, by visiting those addresses by temporary community officers with an attempt to update the address and to preserve and/or update the registration of those persons affected. Such visits will also help to identify probable cases of vote rigging for further investigation. The government should ensure that voter registration should be properly done and maintained so as to prevent and detect the vote-rigging cases cautiously while safeguarding the eligibility of registered electors to participate in elections with more prudent measures. The government has also a very narrow interpretation of the “purposes of elections” and denying meaningful access and study of the elector registers by NGOs and scholars specialised in election monitoring or media with a view to unearth problematic registration. The government should be reminded that monitoring of elections including problems in voter registration are crucial parts of elections especially in ensuring the rights enshrined under articles 2, 3, 25 and 26 of the Covenant and public involvement and scrutiny are important. The government should either interpret the law more liberally or amend the law to enable meaningful and effective public access to the registers and public scrutiny.

 

 

The Rule of law

 

9. From time to time, the rule of law in the HKSAR has been under pressure by individuals with important political backgrounds and certain media favouring the Mainland authorities. For example, the court has been appealed to cooperate with the Executive by senior Chinese leaders.[7] Recently Ms. Elsie Leung, the first Secretary for Justice of the government of the HKSAR and currently a Deputy Chairperson of the Committee for the Basic Law, alleged that the legal profession in Hong Kong, including judges, had a poor understanding of and misunderstood the Central-HKSAR relationship.[8] Elsie is supposed to represent the interests of the HKSAR including supporting the Judiciary, and the legal professions of which she is a member. The fact that she has not done so means that the firm and unwavering support of the HKSAR government is all the more vital. Unfortunately, the HKSAR government has also failed to discharge its duties in defending the judiciary against such attacks. Worst of all, the government has always been one of those which threatened from time to time triggering interpretation of the Basic Law by the political organ, the Standing Committee of the National People’s Congress, on important issues with serious implication of human rights. We urge the HKSAR governments to fulfil its undeniable duty to protect and respect the independence, integrity, ability, credibility, transparency and jurisdictions of the judiciary and make sure that the judiciary are free from any political attacks and influences. We also urge the HKSAR and Mainland authorities not to use, or threaten to use, interpretation of the Basic Law by the Standing Committee for any purposes, thereby weakening or even undermining the rule of law in Hong Kong.

 

 

Human Rights Protection Mechanisms

 

10. There are only four equal opportunities legislation in Hong Kong on sex, disabilities, family status and race. The effectiveness of these existing equal opportunities legislation are very limited as they are basically complaints driven without imposing any positive obligations on the government to promote equality and to eradicate discrimination in those respective fields.

 

11. The Equal Opportunities Commission (EOC), which is responsible for monitoring and executing the anti-discrimination ordinances, adopts a rather passive role.

 

12. There are no laws outlawing discriminations on other grounds on the basis of age, sexual orientation and other gender identity, etc., in the private sector. Public education, publicity measures and self-regulation are simply inadequate.[9]

 

13. The Race Discrimination Ordinance (RDO) does not cover all government actions (unlike the other three similar Ordinances), and excludes discrimination based on immigration status, length of residence, nationality etc. The 2010 Administrative Guidelines on promotion of racial equality do not have statutory status over the g The checklists of measures fail to assess policy impacts on ethnic minorities and describe the plan to eliminate racial discrimination and promote racial harmony because there is no positive duty on the government to promote racial equality. We urge the government to remove the above exclusions and other serious flaws in the RDO.

 

14. The government should take immediate measures to introduce comprehensive anti-discrimination ordinances on age and sexual orientation, etc. Such Ordinances or consolidated Ordinance should also impose positive statutory obligations on the government to promote equality and to eradicate discrimination.

 

15. We urge the EOC to review its role and assume a more proactive role in community capacity building, policy advocacy and conducting formal investigations into policies that may be violating the Ordinance. Such reviews should involve stake holders including DPOs and NGOs, especially on ways to select and appoint its chairperson and members and means to ensure its independence from especially the g The government should desist from appointing EOC chairperson or members as its cabinet members or other role, compromising their actual or perceived independence, or using the EOC and other independent watchdogs as stations for retired civil servants or political appointees for “taking breaks” and then return to the government. It should also assist the EOC’s reviews and in implementing proposals with a view to strengthening EOC in line with the Paris Principles.

 

16. While the EOC has been mandated to enforce the 4 equal opportunities Ordinances in the HKSAR, there is no statutory body to enforce the Hong Kong Bill of Rights Ordinance (BORO). Victims who have their rights guaranteed by the BORO have nobody like the EOC to assist them and they have to rely on civil litigation for remedies. We urge the government to set up a statutory independent Human Rights Commission in line with the Paris Principles to be responsible for the enforcement of the BORO, among other functions in promoting and protecting human rights in the HKSAR.

 

 

Press Freedom

 

17. There is no Freedom of Information Act in Hong Kong. The government maintains that its administrative code on access to information introduced in March 1995 is effective. Even the government appointed Ombudsman criticised severely the Code in 2010.[10] We urge the government to enact as a matter of urgency freedom of information legislation to ensure access to government information and documents.

 

18. The government has imposed tighter control over the dissemination of official information. This has involved the increasing use of government production teams to cover the news[11] – in the absence of independent journalists – and pool coverage (a photographer and a camera man to represent the entire press corps).[12] We urge the government to allow full independent media access to all government events.

 

19. The police and the Fire Services Department have implemented a new system for releasing information about spot news incidents following the digitalisation of their communication systems. Now journalists must rely on short announcements released through the Information Services Department that highlight the nature, place and time of a case, without giving any meaningful details.[13] We urge the police, the Fire Services Department and other law enforcement agencies to release full details of crimes and other incidents of public interest in real time, with only personal information blanketed out.

 

20. The police impose greater and unjustified restrictions on the media through a tougher approach towards journalists covering public demonstrations and visits of Mainland Chinese leaders. A reporter was detained for about 15 minutes for shouting out a question to the visiting Chinese president, Hu Jintao in June 2012, enough to prevent him from carrying out his legitimate journalistic duties. Another incident involved an attempt to prevent a cameraman from filming during a visit by vice-premier Li Keqiang in August 2011. We urge the HKSAR government to ensure the police officers respect press freedom during their operations and in designing and taking measures.

 

21. After two rounds of public consultation, the government has decided to mandate Radio Television Hong Kong (RTHK) to provide public service broadcasting (PSB) for Hong Kong. However, the government required it to remain as a governmental department contrary to the requirements in the UNESCO definition of PSB and to public opinions and programming staff’s views. The government even appointed a government administrative officer from outside RTHK and with no media experience to head RTHK. We urge the government to transform the RTHK as the independent public service broadcaster according to the requirements in the UNESCO definition and for the protection of organizational autonomy and editorial independence of RTHK.

 

22. Offices of media bodies like Singtao Corporation and inmediahk.net were attacked in 2012. Meanwhile, there were allegations of political interference in the affairs of the radio broadcaster Digital Broadcasting Corporation (DBC).[14] While all authorities should refrain from interfering with media bodies and workers, special efforts should be made by the Government, including the police, to offer protection to media bodies and workers so that they could discharge their duties without fear and favour. Such protection includes prompt independent investigation into cases of external pressure on the media bodies or their workers.

 

 

Archive law

 

23. Records are created to conduct business and serve as evidence of transactions whilst archives are those records selected for permanent preservation because of their enduring value. Public archives and records are also proof of birth and citizenship, confirm death and ownership, verify rights and obligations. Without archives law, the Code on Access to Information is almost useless and ineffectual and the usefulness of any future Access to Information legislation would be greatly reduced.

 

24. The government refuses to enact archive law and claims that the non-binding administrative rules and guidelines to manage and provide access to records and archives are effective. However these administrative requirements are frequently ignored by public officials without serious consequences, susceptibility to change of government policy and personnel, and they do not apply to statutory or government funded bodies. In recent years, repeated loss, unauthorized massive destruction and mishandling of public records have been widely reported, which undermines people’s right to know. We urge the government to introduce the archive law to lay down the legal framework and professional standards for managing public records and archives from their creation to final disposition, imposes legal obligation on public officers and provides sanctions for non-compliance.

 

Parody and Copyright Law

 

25. Social and political parody and satires have played an important role in encouraging public understanding and discussion of public affairs and in social mobilization in defence and promotion of the public interest. However, the lapsed Copyright (Amendment) Bill 2011 will be re-introduced into the Legislative Council in the new legislative term starting from Oct 2012. The bill will harm freedom of expression by criminalizing copyright infringement including derivative expression such as parody and satire. This will further enable the use copyright as a means to crackdown on the spread of dissents online “at the right moment”. Even if such amended laws are not strictly enforced, it will still create a chilling effect hampering public discussions. Hence, the Committee should recommend the government to introduce legislative proposals to explicitly exempt parody and satire and to establish liberal comprehensive fair use principles in the laws on copyright. The Committee should also express concerns about any unfair notice and take down system which would hamper the proper distribution of derivative and other expression.

 

 

Charity Law

 

26. The Law Reform Commission issued a consultation paper in June 2011 on proposed legislative framework to regulate charitable organizations and fund-raising activities. The proposals exclude “the advancement of human rights, conflict resolution or reconciliation” from the definition of charitable purposes, and emphasizes that a trust for political purposes is not charitable. Furthermore, the power of the proposed Charity Commission covers investigation of any alleged mismanagement and misconduct of charitable organizations, including to investigate the charity’s funding, property and activities and to obtain relevant information, which would lead to abuse of power and prejudice freedom of association. The ambiguous and sometimes negative position of the consultation paper on advocacy work has also cast doubts as to the room for charitable groups to advocate for positive legal and policy reforms for the promotion of its own charitable objects. We urge the Committee to express concerns about the problems in the proposals and to urge the government to ensure that any regulations on charitable organizations should be consistent with article 19 and 22 of the ICCPR.

 

 

Freedom of Assembly and Police Powers

 

27. The police habitually use video-recording device to record demonstrations even when there are no violations of the law and order by the participants, assuming that participants in public demonstrations have no legitimate expectation of, and the right to, privacy against arbitrary monitoring, filming and recording by electronic equipment of the police force, and assuming that they have been legally empowered to conduct such recording and surveillance activities despite the Covenant and constitutional right to privacy of the protestors. Information on the internal policy and guidelines on e.g. video recording are withheld from the public making it impossible for the public to monitor the adequacy of such policy and guidelines and monitor their proper observation by police officers. Excuses of crowd control and traffic management have been cited for such recording in spite of the prolonged extensive and sometime close up video recording of protestors. We urge the Police to video record a specific participant in a demonstration only when a crime is being committed by him or her or there are reasonable suspicion based on objective evidence that the occurrence of a crime by that person is imminent. The policy and guidelines on video recording, footage uses, storage and destructions should be publicly available to ensure proper accountability. All footage so recorded and detailed records on the recording should be reviewed by IPCC so as to prevent abuses and complaints.

 

28. Protestors and petitioners are often herded into “public activities areas” often out of sight and hearings of the target of demonstration. In a case in late June 2012 when the appeal broad has ruled in favour of a location for demonstration nearer to the demonstration target, the police have defeated the Committee’s intention by engulfing the demonstration in 2-metre tall water barriers in order to stifle the petition to and demonstration against the visiting Chinese Premier in Hong Kong. The police should know that such abusive uses of water barriers would provoke confrontation of the protestors with the police. We urge the police to stop using such water barriers at the immediate perimeter of a demonstration which would effectively make the demonstration invisible to the demonstration target and severely reduce the little angles of view of the protesters inside.

 

29. The Hong Kong police frequently used pepper spray against demonstrators during petitions, public processions and meetings in recent years, sometimes without proper warnings and/or at short range. Sometimes peaceful protestors and even journalists nearby were sprayed and hurt by such sprays obviously for no good justifications. Such improper uses of force were at least reckless if not intentional, and in any case unlawful. We urge the Hong Kong government to provide justifications for using pepper spray in these circumstances and prove that the use of pepper spray in Hong Kong is safe and consistent with all Covenants rights, particularly article 19 and 21.

 

30. The number of protestors arrested has significantly increased in recent years.[15] The regulation of the Public Order Ordinance on public assemblies and its offences of “unauthorized assembly”, “unlawful assembly” and “disorder in public places” are too vaguely, broadly and subjectively defined, which could lead to arbitrary and selective prosecution of protestors. We urge the government to review the Public Order Ordinance to remove the defective factors and protect freedom of assembly.

 

31. The Independent Police Complaint Council (IPCC) cannot fulfill its monitoring role because of its limited mandate to observe, monitor and review the complaints handled by the Complaint Against Police Office (CAPO), which is an internal unit of the police forces. IPCC’s limited access to the information of police forces further undermines its effectiveness. We urge the government to expand the mandate and powers of the IPCC to conduct investigation into complaints against police officers.

 

 

Academic freedom

 

32. For an extended period since late 2011, Sing Ming, a university lecturer specialising in politics, was singled out for fierce personal attacks by the pro-Beijing and pro-communist news media, including calls on his university to sack him.

 

33. In the fall of 2011, officials from the Central Government Liaison Office attacked public opinion surveys conducted by Dr Robert Chung of the Hong Kong University. Like Sing Ming, Robert Chung was subjected to ferocious attacks by the pro-Beijing news media, including accusation that he was a spy working for foreign governments. These attacks put tremendous pressure on university academics and had a chilling effect on the whole academia. They had the impact of discouraging and deterring academics from conducting research on politically sensitive topics or speaking out on issues within their areas of expertise.

 

34. The management of the universities concerned did not offer support to Sing Ming or Robert Chung, until they were cornered at a hearing on academic freedom held in the Legislative Council.

 

35. The HKSAR government made no attempt to defend academic freedom or the autonomy of the tertiary education institutions in these cases. The Committee should ask the Central Government to refrain from interfering in the local affairs of the HKSAR and should not undermine academic freedom. The HKSAR government should uphold one-country, two-systems and take active and timely steps to defend and safeguard academic freedom.

 

 

“National Education” vs. Civic Education

 

36. For many years, the HKSAR government has been marginalising civil education and shifting its efforts and resources to promoting dubious “national education”. In the community, just before the previous Human Rights Committee hearings on Hong Kong in 2005, the government decided to re-establish the human rights education working group under the Committee for the Promotion of Civic Education civic but in 2007 the government dismantled it after its bureau re-structuring. In schools, the government attempted to boost nationalism by focusing on the good sides of China, emphasized responsibility but not rights, required the students to recognize national identity at the expense of critical thinking. Increasing resources have been deployed to support production of indoctrination materials and trips to see positive sides of Mainland China. Echoing China President HU Jin-tao’s call in 2007 for “national education”, the Hong Kong government released the amended Moral and National Education Curriculum guide in May 2012 and made the subject compulsory in primary and secondary schools. However, the curriculum guide was criticized as rollback as it displaced civic education which emphasized universal human rights. Facing strong oppositions from parents and civic society through continued public assemblies, protests, hunger strikes and strikes in university, the government shelved the curriculum guide in Oct 2012. We urge the HKSAR government to stop using public expenditures and organising activities for the de facto promotion of the dubious “national education” even in the absence of the curriculum guide.

 

37. We urge the HKSAR government to reinstate the emasculated civic education in Hong Kong but with strong emphasis on elements of human rights education and genuine participatory citizenship. So that students should be able to learn and understand the world, Mainland China and Hong Kong in such curricular context in a critical manner. Such education should comply with Covenants rights particularly Article 2, 18 & 19. We also urge the government to better include and implement human rights education in an improved civic education framework according to Plan of Action of World Programme for Human Rights Education.

 

 

Restriction on freedom of movement

 

38. Since the Tiananmen Square Massacre in Beijing in June 1989, a number of Chinese Hong Kong permanent residents, including Legislative Councillors, who supported the Chinese democratic movement, have been blacklisted and refused entry into Mainland China by Mainland authorities. Some of them, and other Hong Kong activists, journalists and even academics, sometimes are even refused entry into Macau. The Hong Kong government has also denied entry of Mainland Chinese dissidents who have left the country, foreign artists in support of June 4th commemoration activities, and Falun Gong practitioners and members of performance group related to them, into Hong Kong. The right of movement and of a person to enter its own country has been taken away by the three jurisdictions with dubious reasons or without reasons. These bans based on faith, political opinions and affiliation should be lifted.

 

 

Legal Aid

 

39. In April 2010, the government revised the Land (Compulsory Sale for Redevelopment) Ordinance and lowered the threshold for compulsory sale of apartment buildings for redevelopment from owning not less than 90% of undivided shares in the lot to not less than 80%. Apartment owners have been affected by the amendments and they find it very difficult to seek justice in the Land Tribunal against big developers and their agents since proceedings related to this ordinance are not covered by legal aid. We urge the government to expand the scope of the legal aid or Supplementary Legal Aid Scheme to include proceedings related to compulsory sale.[16]

 

 

Sex Workers

 

40. Police officers, during undercover operations, are allowed to solicit sex workers to perform certain sexual services including masturbation (which is in the end unpaid) to “collect evidence” for prosecution. Some sex workers reported physical / verbal assault by the police. Many even reported that their rights were exploited upon arrest and questioning at the police stations or offices of the Immigration Department. Such rights included: rights of remaining silent; making phone calls to friends; families and lawyers for help; requesting an interpreter; requesting toilet facilities; break to rest during questioning; and refusing to sign the cautioned statements etc. Based on their experience, NGOs specialised on sex workers generally believe that statements given by sex workers were often given less credit by the judges.[17] The government should come up with measures to ensure that the rights of sex workers should be effectively protected without discrimination.

 

 

Refugees

 

41. The HKSAR government continues to refuse to put in place a comprehensive policy to assess and protect refugees and other persons that may be subject to grave human rights violations such as those contrary to Articles 6 and 7 of the Covenant. Furthermore, the government maintains a policy and continues to submit in the courts of the HKSAR that the “immigration reservation” is so wide in its ambit that asylum seekers, refugees and others seeking protection in Hong Kong cannot rely on the Covenant generally—which would include arbitrary detention while in the HKSAR. This is an extreme and worrying proposition which would affect all of the rights in the Covenant if accepted by the Hong Kong courts. While the government has enacted legislation to assess claims under article 3 of the CAT only (following lengthy litigation) not one claim in 1,939 has been found to be meritorious. The zero percent success rate has prompted concern about the fairness of the system. We urge the government to enact comprehensive legislation dealing with refugees, CAT claimants and others in need of protection from return to human rights violations. We also urge the government to uphold their full rights under the Covenant while seeking protection in the HKSAR.

 

 

Ethnic minorities

 

42. Since the Handover in 1997, there are almost no chances for ethnic minorities to enter the civil service especially those with dark complexion. Most ethnic minority residents cannot pass the Common Recruitment Examination’s Chinese test and individual department’s internal Chinese language proficiency assessments. To ensure the right to have access, on general terms of equality, to public service under article 25(c) of the Covenant, we urge the government to re-assess the genuine occupational requirements on Chinese reading and writing capabilities for government positions, and consider waiving or lowering such requirements for ethnic minority applicants as a temporary special measure.

 

43. Another important measure to ensure the equal enjoyment of the right of ethnic minority residents under article 25(c), the government to implement a “Chinese as a second language” curriculum and a corresponding assessment mechanism to allow non-Chinese speaking students to attain satisfactory Chinese proficiency level. Otherwise, the public education system cannot effectively train non-Chinese speaking students to speak Chinese and the opportunities for non-Chinese speaking students to tertiary education and their chances to enter into the civil service are seriously compromised.

 

44. About 60% of ethnic minority students are studying in the 30 government-subsidized “designated schools,” which admit a large number of ethnic minority students and receive extra funding from the Education Bureau. As a result, most designated schools are primarily comprised of ethnic minority students, and thus creating de facto racial segregation in the public school system. We urge the government to come up with concrete plans to combat effectively de facto racial segregation in the public school system.

 

 

Migrant Domestic Workers

 

New Conditions of Stay / Two-Week Rule

45. Migrant domestic workers (MDWs) are frequently disabled from using the judicial system effectively by the highly restrictive immigration controls, the ‘New Conditions of Stay’ (NCS) put in place in 1987, including the “Two-Week Rule”, which do not apply to other migrant workers who are categorized by government as ‘professionals’. By employing the fiction that a terminated foreign domestic worker assumes the immigration status of a mere “visitor”, the worker is only permitted to remain in Hong Kong for the purpose of pursuing her labour claims by paying for a succession of visas while at the same time not normally being permitted to engage in any employment whatsoever and therefore has to subsist on charitable support for her living, often for very extended periods. This imposes a severe pressure to compromise claims unreasonably or abandon them altogether.  Employers tend to exploit these circumstances to their advantage by dragging out proceedings or insisting on settlements which are blatantly unfair.  The NCS has also placed MDWs at a disadvantageous position vulnerable to various exploitations and abuses, including physical ones, by deterring victim MDWs from challenging their employers or reporting their case. We recommend the government to remove NCS and to enable migrant domestic workers to take up new employment while they are engaged in litigation after termination of a previous employment in order to eliminate this factor which causes substantial injustice to many of them by depriving them of a level playing field.

 

Abuses by employment agencies

46. Much of the hardship suffered by migrant domestic workers in Hong Kong is the result of the exploitative and extortionate practices of the recruitment agencies, often working in conjunction with money lending institutions who employ ethically and legally dubious practices in the relationship between agencies, the employer and the worker. The protections afforded by the law, so far as they go, are frequently evaded and circumvented. Only seven employment agencies have been prosecuted from 1 June 2010 to 31 May 2012. MDWs are often coerced or tricked into signing false statements and blank documents, and their identity papers are confiscated, to force them to pay excessive agency fees under conditions of debt bondage. The HKSAR ought to initiate an urgent inquiry into the practices of both the agencies and the lending institutions with a view to introducing legislation to tighten up the legal controls to prevent the widespread abuses which are now prevalent and to exercise closer and more effective regulation over the activities of these institutions. Efforts should also be made to secure agreements with sending countries to stop such exploitation by plugging loopholes in current laws, regulations and practices that allow them to be circumvented.

 

Mandatory Live-In Arrangement

47. Since 2003, the HKSAR government instituted this policy which removes the options for employers and domestic helpers to make living arrangements outside the employer’s home. Aside from restricting the freedom of movement of MDWs, this policy increases the vulnerability of migrants to abuse, long working hours, sexual and physical offences and creates the condition for modern-day slavery. We recommend the government to remove this live-in mandatory requirement for MDWs.

 

Exclusion from Statutory Minimum Wage

48. The Minimum Wage Ordinance (MDO) implemented on 1 May 2011 excludes live-in domestic workers. Domestic workers continue to suffer from extremely low wage and lower saving ability.[18] They are therefore more vulnerable in their retirement. We recommend the government to repeal the exclusion of live-in domestic workers from the Statutory Minimum Wage in the MDO.

 

 

Split families

 

49. A child born in Mainland, especially those who born outside wedlock, with only of his or her parents being a Hong Kong permanent resident, are in theory, recognized as Hong Kong permanent residents under the Basic Law. However, in practical, if the parent who is a Hong Kong permanent resident passes away, has mental problems, disappears or is jailed, making it impossible to go through the rigid application system, the child is difficult or even impossible to obtain citizenship in Hong Kong. Also, even when the child in such special cases finally settles in Hong Kong and even if the child’s parent who is a Mainlander managed to travel to Hong Kong from time to time to take care of the child, the parent can only rely on social security provided to the child, which is definitely not enough for the family of two to live in Hong Kong. We urge the HKSAR government to review the one-way permit procedures and the welfare provisions to children in such special cases.

 

50. Mainland women whose spouses are Hong Kong residents have to pay much higher charges on obstetric service in public hospitals and may even be denied of such service due to a zero-quota policy. We urge the government to revise discriminatory policies against such China-Hong Kong families.

 

 

Persons with Disabilities

 

51. The government maintains the outdated traditional approach and regard rights of persons with disabilities mostly as rehabilitation and welfare instead of human rights. There is no high level mechanism within the government to act as a focal point to proactively and effectively protect and promote the rights of persons with disabilities (PWDs) across all government policy bureaux and bodies and other public agencies. We urge the government to address issues related to PWDs from a human rights perspective, and establish a high level committee headed by the Chief Secretary for Administration for this, especially for the coordination of policy formulation and implementation and for ensuring the participation and cooperation of such public bodies.

 

[1] Article 45.

[2] The interpretation has deprived Hong Kong people the rights to universal and equal suffrage in the 2007-2012 Chief Executive elections and in the 2008 to 2016 LegCo general elections.

[3] “Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2012 and on Issue Relating to Universal Suffrage”. Available at: http://www.basiclaw.gov.hk/en/materials/doc/2007_12_29_e.pdf

[4] The Election Committee is composed of 1200 members from the following 4 sectors (300 members each): (1) industrial, commercial and financial sector, (2) the professions, (3) Labour, social services, religious and other sectors, and (4) Members of the Legislative Council, representatives of district-based organizations, Hong Kong deputies to the National People’s Congress, and representatives of Hong Kong members of the National Committee of the Chinese People’s Political Consultative Conference. The nomination threshold ratio was 1/8 in 2012.

[5] Hong Kong Bar Association, “Hong Kong Bar Association’s Submission on the proposed replacement arrangement in the Legislative Council (Amendment) Bill 2011”: http://www.hkba.org/whatsnew/submission-position-papers/2011/20110617.pdf

[6] Constitutional and Mainland Affairs Bureau, “Legislative Council Brief: Legislative Council (Amendment) Bill 2012” http://www.legco.gov.hk/yr11-12/english/bills/brief/b26_brf.pdf

[7] Ambrose Leung and Fanny W. Y. Fung, “Xi tells Tsang to ‘govern sensibly’”, South China Morning Post, 8 July 2008.

[8] See Hong Kong Bar Association, “HKBA Press Statement in Response to Recent Remarks Made by Ms Elsie Leung” http://hkba.org/whatsnew/press-release/HKBA%20Press%20Statement%20dated%2010%20Oct%20(Eng).pdf

[9] The government reported in ICESCR third report that they promote equal opportunities on ground of sexual orientation through public education and publicity measures, and by setting up Sexual Minorities Forum and Gender Identity and Sexual Orientation Unit. However, the Forum and the Unit is hardly functioning. The Forum even has cease holding meetings since December 2010. The Unit setup a system for receiving discrimination complaints on the basis of sexual orientation, but has so far refused to acknowledge any discrimination cases.

[10] Chapter 5, “Direct Investigation Report: Effectiveness of Administration of Code on Access to Information”, Office of the Ombudsman Hong Kong, January 2010.The report noted that certain government departments displayed “considerable misunderstanding of the provisions and unfamiliarity with the procedural requirements of the Code after well over a decade of implementation.” The ombudsman also noted that some departments had failed to give reasons for not releasing information or given reasons that were not cited in the code, and others had misused reasons specified in the code.

[11] According to HKJA research, the government released 233 press releases, videos and photographs of such events in 2011, including three releases from the Legislative Council. Further, there were 15 exclusive government interviews with senior officials. It should be noted that journalists submitted interview requests with some of these officials before the official footage was released, but these requests were turned down.

[12] From 1 July (the first day of Mr. C.Y. Leung’s Administration) to 8 September 2012, the government organised 37 pooled interviews; 29 activities ‘covered’ by official footage with no press interviews.

[13] E.g., in October 2011, details of serious cases had not been released, including instances of serious attacks with choppers within a period of ten hours and three indecent assaults in the same neigbourhood.

[14] “Tape proves broadcaster DBC a victim of Beijing meddling, co-host says — Leaked conversations suggest liaison office did not want a controversial host to work at DBC”, South China Morning Post, 21 Oct 2012.

[15] The number of protestors arrested in demonstration is greatly increased from 57 in 2010 to 440 in 2011, and about 50 protestors were being prosecuted in 2011.

[16] In 2011, the government refused to expand the scope of Supplementary Legal Aid Scheme to include proceedings related to compulsory sale.

[17] According to a research, the average hearing time in magistracy court to complete an individual sex worker’s case was only 3 minutes. See Laidler, K. J., Petersen, C. and Emerton R., “Bureaucratic Justice The Incarceration of Mainland Chinese Women Working in Hong Kong’s Sex Industry”, International Journal of Offender Therapy and Comparative Criminology, Volume 51(1), February 2007, p. 78.

[18] There is a Minimum Allowable Wage (MAW) set from time to time by the Government for migrant domestic workers. The Immigration Department issues or extends visa for a MDW only if her monthly salary in her contract is no less than the MAW in force. The most recent MAW rate is HK$3,920 per month. The MAW is unrelated to the Statutory Minimum Wage Scheme under the MDO.