|
Submission to the United Nations Human Rights Committee on Hong Kong Human Rights Situations after the Change of Sovereignty , March 1998
Chapter 2: Right to Peaceful assembly and Right to Freedom of association
Chapter 3: Right to Political participation
Chapter 4: Right of Abode
Chapter 5: Labour's Rights
Appendices (not included here)
Chapter 1
Introduction
1. With the revert of sovereignty
from British to Chinese government, Hong Kong people are now
suffering from the regression of democratic development and human
rights protection. It is witnessed that there has been enormous
changes stemmed from the governmental attitude towards individual
rights and democracy of the new Hong Kong Special Administrative
Region Government (SAR Government).
2. Evidently, the SAR Government
deprives human rights development with far-reaching structural
and legislative changes. Soon after the inauguration of the SAR
Government, various laws have been changed that infringed the
constitutional rights of the people and triggered the spirit of
rule of law. For instance, the amendments of the Immigration
Ordinance empowered the government to repatriate people who have
right of abode, which is clearly a irrespective action of the SAR
Government towards the constitution and the law.
3. Indeed, more than one example
showed that the SAR Government intends to devote individual
rights to serve administrative and political purposes. The
intention of amending the civil liberties related Public Order
Ordinance and Societies Ordinance is evidently based on the
"national security" concept. However, "national
security" as a ground for restricting fundamental rights is
too vague and too imprecise. It is also a mistake to apply it for
public gathering and freedom of association. Unfortunately, the
SAR Government is now imposing strong state control over
individual activities. It intends to control and suppress the
collective expression of voices that is deviant from the
government opinions.
4. Regarding the political
development, the SAR Government not only inherited the unfair
electoral system from the colonial government, but took away the
already limited voting power and rights to political
participation of the public. Whether it is the election of the
SAR Chief Executive, the setting up of the provisional
legislature or the election of National People's Congress
delegations, the election mechanism itself did restrict and
discourage mass participation. As a result, Hong Kong is ruled by
a small elite group composed of the conservative pro-China
businessmen and the professional sector.
5. Any move to empower the working
class and the deprived groups will then be interpreted as
detrimental to Hong Kong. After years of reviewing the employment
laws, the government tabled an employment bill in June 1997. To
protect workers' rights in a more comprehensive scale, a trade
unionist Legislative Councillor submitted to the Legislative
Council (Legco) a Member's Bill. It was passed several days
before the handover to protect workers' rights in collective
bargaining, anti-discrimination on trade union activities and
trade union organizing. Regrettably, these provisions were
repealed by the undemocratic Provisional Legislative Council
(PLC) which is dominated by the pro-China politicians and
businessmen. The workers' rights protected by law was taken away
by the PLC. It is a derogation and restriction of the rights
already existed pursuant to law which violated article 5(2) of
the ICCPR and ICESCR.
6. As a coalition of
non-governmental human rights groups, we feel obliged to provide
independent and reliable information on the post handover human
rights situations, particularly at the time when there is evident
derogation of human rights and democratic developments in Hong
Kong. We are confident that, as proven from past experience, the
continuous monitoring and intervention of the Committee are of
great importance in improving the human rights situation in Hong
Kong.
Chapter 2
Right to Peaceful
Assembly and Right to Freedom of Association
7. According to Art. 21 of ICCPR,
the right of peaceful assembly shall be recognized. Whereas Art.
22 of ICCPR provides everyone shall have the right to freedom of
association with others. Yet for the past years, Hong Kong
government employed the provisions of the Public Order Ordinance
to restrict people's right to organize peaceful assembly and
protest rally. Under this ordinance, the police force is vested
with excessive power to control any public assembly or
procession. Despite severe opposition from the public, the SAR
Government revised the Public Order Ordinance and Societies
Ordinance in order to tighten control over public rallies and
associations so as to prevent any act that threatens
"national security".
8. The Public Order (Amendment) Bill
and Societies (Amendment) Bill were rushed into laws by the PLC
on 14 June 1997 in the mainland China after only a swift
three-week public consultation period. They were enacted at the
mid-night of 1 July 1997, several hours after the inauguration of
the new SAR Government (Appendix 1). Apparently these ordinances
refocused the restrictions permissible under the ICCPR and
tighten the social control in order to prevent anti-China
activities under outside influence. However, what is unclear is
what activities will be considered as being anti-China.
9. The restrictions set forth in the
laws, which are merely copied out word for word the permissible
reasons as stated in ICCPR for imposing restrictions on
fundamental rights are heavily criticised as too board and too
vague. It just copied out the general guidelines for domestic
legislation without justifying how and why and what restrictions
should be placed on what activity.
Public Order (Amendment)
Ordinance (Appendix 2)
10. The amended Public Order
Ordinance is a reintroduction of the requirement for police
permission to hold public assemblies and processions. Under the
amended ordinance, it is required that a "Notice of No
Objection" be obtained from the police before a public
procession exceeding 30 persons may be held. Such provision
empowered the police to prohibit the holding of a procession on
national security grounds. It degraded the right to peaceful
assembly to a "privilege" granted by or "on
objected" by the law-enforcement agency.
11. As stated above, the reasons for
objecting public procession set forth in the laws are vague terms
indeed. It leaves the executive tremendous discretionary power
and control over public assemblies.
12. The new law also requires any
public procession be notified to the Commissioner of police 48
hours prior to the public procession. This is an unreasonable
restriction inconsistent with Article 21 of the ICCPR. It would
stifle many spontaneous public demonstrations in response to
urgent causes. In fact, the right to respond immediately to an
event by a public expression is an essential element of the right
to peaceful assembly. Given the efficiency of the police force,
modern technology of communication and ready accessibility of
resources in the Hong Kong, 48 hours' notice is likely to be a
luxury.
Societies (Amendment)
Ordinance (Appendix 3)
13. The new law reintroduced
registration of societies. To be legalized, activities of
societies have to seek approval from the Administration by
registration. Or else the society and its activities be regarded
as "unlawful". The duty imposed on all persons seeking
to exercise the right to freedom of association to apply for
registration or exemption from registration is inconsistent with
Article 22 of ICCPR, since the exercise of a right recognized by
law cannot be made conditional upon governmental recognition.
14. Under the new law, it would be
the Chief Executive in Council be the appeal channel of the
registration of societies. It may order a society or a company to
be struck off the register simply on being satisfied that
"the suspicion is justified". As part of the
Administration, the independence and impartiality of such appeal
mechanism remained doubtful. We recommend it should be an
independent court chairing the appeal system.
Misinterpretation of ICCPR
15. The spirit and intention of
ICCPR, are to require state parties to first recognize the rights
to freedom of peaceful assembly and association. In general, no
restriction may be placed on the exercise of this right. However,
the amended legislation misinterpret these provisions, by stating
that it is in full compliance with ICCPR if the Administration
restricts associations and peaceful assemblies for the reasons
listed in ICCPR (i.e. national security, public safety, public
order, public health, morals or to take account of the rights and
freedoms of others) (Appendices 4 & 5).
16. According to ICCPR, the
Government has to meet 3 conditions in order to restrict basic
human rights of association, assembly and demonstration:
1.) Be prescribed by the law;
2.) Be necessary in a democratic society;
3.) Address one of the aims or interests
enumerated in the relevant Article.
17. Therefore, those restrictions
which have been prescribed in the law must be clear and absolute,
so that one can predict whether his/her rights will be
restricted. For the second condition, those restrictions would be
necessary only if there is a pressing social need to attack
certain misbehavior, and with the absence of any other
alternative. However, the amended legislation empowered the
administrative organ to suppress people's rights of assembly and
association for the vague reasons like "national
security1" (Appendix 6). It firstly violates the clear,
specific requirements of the law and secondly, it failed to prove
how "necessary" that the government has to restrict the
right of peaceful assembly and association. Evidently, Hong Kong
people have been deprived of these rights as stipulated by
articles 21 and 22 of ICCPR.
Iron Police Control over
Public Assembly after July 1st 1997 -- Threatened the Right to
Peaceful Demonstrations
18. Not only did the pass of laws
that threatens the right to peaceful demonstrations, but also the
iron control of the police after the change of sovereignty that
obstructed the exercise of such right. It is evidently not a
coincident, rather, a clear intention of the Hong Kong SAR
Government to control and suppress the collective expression of
voices that is deviant from the government opinion. Examples are
illustrated as follows (Appendices 7-10):
Date
Incident
Reaction of Police
Critique
1 July 1997
Peaceful demonstration at the
celebration ceremony of the change of sovereignty
Using loud healers to broadcast
symphony at the demonstration venue
Using music to override the shouts
and voice of the demonstration
21 Sept 1997
5 of the 100 peaceful protesters at
the World Bank and IMF meeting were arrested and alleged of
breaking through the police line.
More than 50 armed police officers
linked, some forced those who broke the police cordon to the
ground, handcuffed and taken away for questioning. They were
finally arrested for obstructing and assaulting police officers.
-Abuse use of police power to
suppress the demonstrators
e.g. handcuffing and removal of a
female activist by both female and male police officers
-Signaled a decline in the freedom
of speech and assembly after the handover
23 Sept 1997
Peaceful protest against Li-peng,
the Prime Minister of China at the opening of the World Bank
meeting
More than 230 police officers
swamped the 15 protesters; the protest zone was set far from the
ceremony
-Turning Hong Kong into a police
state
Chapter 3 Right to Political
Participation
19. Article 25(b) of ICCPR provides
that every citizen has the right to vote and to be elected by
universal and equal suffrage which must be non-discriminatory,
equal and universal. Universal suffrage requires that the
broadest reasonable pool of voters is guaranteed participatory
rights. However, Hong Kong people have been deprived of the right
to vote as stipulated by the article 2, 3, 25(b) and 26 of the
ICCPR.
20. In the past, under the British
colonial rule, the direct election of Legislative Council had
been suppressed on the ground that the population is not ready
for democracy. It was not until 1991 could the people of Hong
Kong directly elected 18 seats of the 60 legislative councillors.
The number of directly elected seats of the Legco was increased
to 20 in the 1995 election. The other 40 seats were returned
through the so-called "functional constituencies" and
"election committee" respectively. The UN Human Rights
Committee clearly stated that "the concept of functional
constituencies, which gives undue weight to the views of the
business community, discriminated among voters on the basis of
property and functions", constituted a violation of the
ICCPR.2
21. With the handover of sovereignty
from British to Chinese government, it can be an opportunity to
show that Hong Kong people are given power to vote for their own
political leaders without the colonial rule. However, this is not
the reality and the new Special Administrative Region (SAR)
government not only inherited the unfair electoral system from
the colonial government, but took away the already limited voting
power of the public. Rights to political participation of the
Hong Kong people are being further deprived. This can be seen in
the election of the SAR chief executive, the setting up of the
provisional legislature and the composition of the first SAR
legislature.
Selection Committee
-- Election of Chief Executive of SAR and Provisional Legislature
22. Both the Chief Executive and the
Provisional Legislature were elected by a 400-member Selection
Committee(SC). According to the Basic Law, only 100 seats of SC
are allocated to the grassroots and labour sector which consist
of the largest proportion of Hong Kong people. Among the rest,
100 are from the industrial, commercial and financial sectors,
100 from professional sectors, 100 from former political figures,
HK deputies to the National People's Congress and representatives
of HK members of the National Committee of the Chinese People's
Political Consultative Conference.
23. It is clear that the 400 members
of the SC did not represent the public as they were screened and
selected by the China-appointed Preparatory Committee, and hence
it is merely "small group" politics which could be
easily controlled. Most HK people could not take part in electing
the chief executive and members of the provisional legislature.
24. Furthermore, the nominees of the
SC have to be vetted by the presidium of the Preparatory
Committee before submitting to the Preparatory Committee. On the
other hand, the control of the presidium of the PC is in the
hands of Chinese Vice-Premier and Foreign Minister Qian Qichen
and HK and Macau Affairs Office Director Lu Ping. As a matter of
fact, before the vetting of the presidium of the PC, the
Secretariat of the PC could decline applications of several
people who are against the provisional legislature. In this way
the Selection Committee lacked autonomy. In spite of all this,
the leadership of the future HK government will be controlled by
such small group of people.
Undemocratic Nature of the
Provisional Legislature
25. The Provisional Legislature(PL)
was set up by the Chinese government(PRC) as a response to the
moderate proposals for political reform made by Governor Chris
Patten in 1992 without the consent of China. The PRC opposed the
reform and stated that the entire Legco elected in 1995 would be
disbanded and rebuilt on July 1, 1997. The Provisional
Legislative Council was only set up according to a resolution
passed by the National People's Congress without any stipulation
in the Basic Law so as to fill the political vacuum after the
scrapping of the Legco of the term 1995-1998, thus it is a very
controversial body in terms of its legality. The public has had
no say in its composition.
26. Most of the candidates for this
interim body did not present any concrete ideas on how HK should
be governed, and did not express their knowledge or expertise
through open debates and forum. Among the 60 winners of seats on
the provisional legislature, 51 are members of the Selection
Committee, 24 are even members of the Preparatory Committee.
Among them, 33 were 1995 elected Legislative Councillors, but all
members of the Democratic Party were ousted because they declined
to recognize the legality of the PL. It is most ironic that 10
candidates who lost in the 1995 Legco election finally seized
power by winning seats on the PL, while most of the people who
won in the 1995 direct election have to leave. From the
composition of the PL, it is clear that it is a body dominated by
businessmen, professionals, wealthy people and conservative
politicians, but not the general public and grassroots
(Appendices 11-14).
Electoral Methods for the
first SAR Legislature
27. The election of the first
Legislative Council of the SAR, with a term of two years, will be
held in May 1998. It is composed of 60 seats in total, with 20
members returned by geographical constituencies(GC) through
direct elections, 30 members returned by functional
constituencies(FC) and 10 members returned by an election
committee(EC).
5 GCs returning 20 members
28 FCs returning 30 members
the EC returning 10 members
total: 60 members
28. The election by functional
constituencies and election committee has totally violated the
principle of equal and universal suffrage, and the newly designed
method for geographical election is criticized as a strategy to
squeeze out democrats.
Functional
Constituencies(FC)
29. Among the FC 30 seats, 21 will
go to the sectors adopted for 1991 and 1995 elections and nine
new FC seats, namely sports, performing arts, culture and
publication; labour; imports and exports; textile and garment
manufacture; wholesale and retail; information technology;
transport; agriculture and fisheries; and insurance.
30. Inside the functional
constituencies, the voting right is confusing, some being given
to individuals who are members of a profession or organization,
such as engineers, architects, social workers, accountants,
lawyers, members of certain associations, etc., and some to
selected groups, such as companies, trade unions, social services
agencies, etc.. However, corporate, instead of individual, voting
will be used in most of the constituencies in the 1998 election,
ignoring the strong opposition of the public and almost every
political party, so as to replace the method being employed in
the 1995 election. In 1995, the voting rights of the functional
constituencies were all granted to individuals and almost all
working persons have voting rights.
31. As a result, the number of
eligible voters for the 30 FC seats under the new system was
reduced from 2.7 million to 180,000, an average of 6,000 per
seat. In fact, several thousands to several hundreds have the
power of choosing a seat in FC , while in geographical
constituencies, about 100,000 people are allocated with one seat.
The same case can also be found in the Election Committee. Such a
contrast in the power of votes from different sectors will never
happen in an election which should uphold the principle of
fairness. The "one vote, one value" principle of a fair
election can in no way be found in such election. This electoral
system further diluted the voting rights of most of Hong Kong
people and maintain the privilege of the business and
professional sectors within the political arena.
32. Although Mr. Michael Suen,
Secretary for Constitutional Affairs, said these seats were a
transitional measure and universal suffrage would be achieved in
the end, human rights activists opined that the nine new
functional constituencies were in breach of the Basic Law. Since
Basic Law guaranteed gradual and orderly progress in legislative
elections, the re-introduction of corporate votes violated this
because the new system is a regression in democracy rather than
progression. (Appendices 15-16)
Election Committee(EC)
33. The EC is composed of 800
members which will elect 10 legislators. The EC will comprise
four equal-size sectors, each with 200 members. The four sectors
are business, professionals, labour and religious, and
politicians. The number of seats held by various groups within
the first three sectors are roughly evenly distributed.
34. The EC election shows clearly
how a small group of people are monopolizing the election. Some
sectors, especially the business sectors are also included in FC
and thus, had a bigger say in the election. Moreover, although
labour sector can have their representatives in the third sector,
with the adding of two new sub-sectors - social welfare and
sports and performing arts - which occupy 80 votes in the sector,
labour votes are greatly undermined.
35. Moreover, although the 800
representatives come from various sectors, these
"representatives" are not necessarily representatives
of their organizations or sectors, and they can enter the
election on a personal basis. Most of these so-called
representatives indeed are not elected by members of the related
sectors. The accountability of these representatives cannot be
guaranteed (Appendix 17).
Geographical Constituencies
(GC)
36. There are 20 seats to be
returned by geographical election through five large
constituencies by proportional representation. Compared to the
other 40 seats elected through FC and EC, this is the most direct
method and involves the largest number of voters.
37. However, the replacement of
"single-seat, single-vote" system which was used in the
1995 polls by the proportional representation system, was
criticized as a strategy to squeeze out democrats and their
allies who win 17 of the 20 seats (Appendices 18-19).
38. Five large constituencies,
namely Hong Kong Island, Kowloon East, Kowloon West, New
Territories East and New Territories West, each with three to
five seats, will be created under the new system to replace the
former twenty smaller ones. Under proportional representation, a
voter can cast only one vote in the much bigger constituency.
Each voter is required to vote for a closed list of candidates
following the same ticket. Voters are more likely to cast their
ballots based on their preferences for political parties, instead
of individual politicians. This electoral method guaranteed that
no one political party can dominate the legislature.
39. One can say that this method is
fair and can guarantee more voices from different walks of life
in the legislature if all seats in the legislature are elected by
it. However, only one-third of the seats are elected by this
method. With the other two-third being dominated by the business
and professionals, whether proportional representation election
can really act as a balance and represent the general public's
opinions is difficult to answer. Moreover, with such a
complicated election method, can common Hong Kong people really
understand the whole system and willing to cast votes is a
question.
40. To conclude, only a fair, equal,
universal and non-discriminatory suffrage can show that
"Hong Kong people rule Hong Kong " and Hong Kong can
really enjoy "high degree of autonomy" in the SAR, the
promises made in the 1984 Sino-British Joint Declaration. But the
existing proposed electoral system can hardly demonstrate a
progressive, free and democratic society of Hong Kong.
Executive Council of the new
SAR
41. There are a total number of
fourteen members in the Chief Executive's Executive Council. The
council is dominated by people closely linked with China with
nine being former Beijing-appointed Kong Hong affairs advisers.
The Exco is convened by 79-year old former Exco member Sir S.Y.
Chung. As expected, no democrats were included in the Exco. It
was criticized as dominated by the business and commercial
sectors, with only one member with labour union background.
42. Since Hong Kong remains an
executive-led government after the handover, the composition of
the Exco coupled with the business background of the Chief
Executive and the undemocratic structure of the legislature
depict not only limit the rights of political participation, but
also make people hard to depend on the legislators to monitor the
government policy.
National People's Congress
Delegates Election
43. As a Special Administrative
Region of China, Hong Kong can has its delegates in the National
People's Congress of China(NPC). 36 delegates who represent Hong
Kong SAR on the NPC were chosen on September 1997. These 36
representatives were chosen by a Beijing-appointed selection
panel. Compare to the former method, such method is considered as
the most open by some people. When Hong Kong was under British
rule, the delegates were hand-picked by Beijing on the advice of
the local branch of New China News Agency(NCNA). Now that after
the handover, instead of direct appointment, the delegates are
chosen by a 424-member selection panel comprising Chinese
citizens who are members of the Selection Committee originally
formed to choose the chief executive. The mode of election is
still far from the ideal of full democracy because the panel
members are all appointed and pro-democracy forces have been
excluded.
44. Moreover, although the election
is held in Hong Kong, it is not subject to any local laws against
election frauds. Nor have the rules specified any penalty for the
breaches.
45. The election rules were drawn up
as an interim measures to select delegates to the NPC. The rules
do not even require candidates to declare criminal records or
govern the contenders' lobbying behavior. Thus, the election
cannot be considered as open, honest and clean.
46. As members of NPC, the term of
service is five years and all are entitled to sit on the
800-strong selection committee who choose 10 Legislative Council
members in 1998. They also have a voice in any amendments to the
Basic Law, and in cross-border issues. Moreover, under the
Chinese constitution, the NPC is the supreme governing body of
China. The election of delegates to such a body should be taken
seriously.
47. However, the whole election was
heavily criticized as undemocratic and a small-circle selection.
It is clear that the business community dominated the election.
15 deputies are from the business and finance sector. No democrat
got to the pre-selection stage because they could not even win
enough nominates. Most Hong Kong people feel detached because
they are excluded from the whole process of the selection.
48. It is ironic that the largest
number of votes were won by Jiang Enzhu, the newly inaugurated
NCNA director, whose running for the selection was very
controversial and face opposition from the public. As an emissary
to the SAR rather than a local resident and lived in Hong Kong
only for a short period of time, he was queried of how can he
represent Hong Kong people. This also shows clearly that the
Beijing-appointed selection panel cannot represent opinions of
the general public. (Appendix 20)
Chapter 4
Right of Abode
49. ICCPR Article 12(4) provides
that "No one shall be arbitrarily deprived of the right to
enter his own country." However, the newly inaugurated HKSAR
Government restricted the people, who have right of abode in Hong
Kong to exercise such right. On 9 July 1997, following the change
of sovereignty, the HKSAR Government passed the Immigration
(Amendment) Ordinance to deport many children, who are entitled
to enjoy the right of abode under the Basic Law. Such legislation
is back dated to 1 July 1997 with more than 1,000 people are
affected. The retrospective nature of this law is in breach of
Article 15 of ICCPR.
50. The existing migration policy
creates family splits among those affected, which is not in
accordance with Article 10 of ICESCR. Whereas such separation is
against the children's will and the One-way Permit3 policy fails
to address in a positive, humane and expeditious manner, it also
violates the Convention on the Rights of the Child (Article 9 and
10).
51. This issue has been the subject
of legal proceedings. Despite the judgment of the Court of First
Instance supported controversial changes to immigration laws,
these children will keep up their fight to remain in Hong Kong.
They are now pending on court appeal (Appendices 21 & 22).
Not only is the ruling much critiqued as jeopardizing the rule of
law; as a judgment to fit the amended immigration law (Appendix
23), but it will violate two cardinal principles, that of
"one country, two systems" and that of "Hong
Kong's high degree of autonomy", set out in the Sino-British
Joint Declaration as well as the Basic Law (Appendix 24). More
cynically, the profound repercussion will be that every aspect in
Hong Kong, including people's basic rights can be taken away
arbitrarily subject to the decision of the central government of
China (Appendices 25 & 26).
Permanent Residency
52. The change of sovereignty
involves the alteration of the nationality and residence rights
of many Hong Kong people. According to the Sino-British Joint
Declaration (Appendix 27),
"The following categories of
persons shall have the right of abode in the Hong
Kong Special Administrative Region,
and, in accordance with the law of the Hong Kong Special
Administrative Region, be qualified to obtain permanent identity
cards issued by the Hong Kong Special Administrative Region
Government, which state their right of abode:
-all Chinese nationals who were born
or who have ordinarily resided in Hong Kong before or after the
establishment of the Hong Kong Special Administrative Region for
a continuous period of 7 years or more, and persons of Chinese
nationality born outside Hong Kong of such Chinese nationals; ...
"
(art. 158, Sino-British Joint
Declaration)
53. As the constitution of Hong Kong
Special Administrative Region, the Basic Law states the
fundamental rights of the Hong Kong residents. Identical to art.
158 of the Sino-British Joint Declaration, art. 24 of Basic Law
states (Appendix 24):
"... The permanent residents of
the Hong Kong Special Administrative Region shall be:
(1) Chinese citizens born in Hong Kong before
or after the establishment of the Hong Kong Special
Administrative Region;
(2) Chinese citizens who have ordinarily
resided in Hong Kong for a
continuous period of not less than
seven years before or after the
establishment of the Hong Kong
Special Administrative Region;
(3) Persons of Chinese nationality
born outside Hong Kong of those
residents listed in categories (1)
and (2); ...
... The above-mentioned residents
shall have the right of abode in the Hong
Kong Special Administrative Region
and shall be qualified to obtain, in accordance with the laws of
the Region, permanent identity cards which state their right of
abode."
[art. 24, Basic Law]
54. Besides constitutional
provisions, the Immigration (Amendment) (No. 2) Ordinance passed
by the Provisional Legislative Council on 21 June 1997 also
provides a clear definition of permanent residents of Hong Kong
Special Administrative Region (Appendix 29):
"A person who is within one of
the following categories is a permanent resident of the Hong Kong
Special Administrative Region --
(a) A Chinese citizen born in Hong Kong before
or after the establishment of
the Hong Kong Special Administrative
Region if his father or mother was
settled or had the right of abode in
Hong Kong at the time of the birth of the person or at any later
time.
(b) A Chinese citizen who has ordinarily
resided in Hong Kong for a
continuous period of not less than 7
years before or after the establishment
of the Hong Kong Special
Administrative Region.
(c) A person of Chinese nationality born
outside Hong Kong to a parent
who is a permanent resident of the
Hong Kong Special Administrative
Region in category (a) or (b) if the
parent had the right of abode in
Hong Kong at the time of the birth
of the person. ..."
[No. 2 of Schedule 1, Immigration
(Amendment) (No. 2) Ordinance]
55. Not only may the nationality of
some Hong Kong people have changed because of the handover, the
procedure to obtain permanent residency for the person, who is
born outside Hong Kong to a parent who is a permanent resident of
Hong Kong, has also changed as a result of the change of
sovereignty. The differences may be illustrated as follows:
56. Before 1 July 1997,
(i) Any person born outside Hong Kong (except
China) to a parent who was a
permanent resident of Hong Kong
could obtain permanent residency in Hong Kong through the
application to Hong Kong Immigration Department. The child could
enter Hong Kong by relevant travelling documents and then have
the application processed in Hong Kong. There was no quota.
(ii) Any person born in China to a Hong Kong
permanent resident having
British nationality -- same as (i).
(iii) Any person born in China to a Hong Kong
permanent resident having
Chinese nationality could only join
the family in Hong Kong by applying the One-way Permit in
China[abc1]4, which is issued by the Chinese
Government.
57. After 1 July 1997, Hong Kong
reverted to Chinese sovereignty and the immigration law was
amended. As noted above, the Sino-British Joint Declaration and
the Basic Law specify those who qualify as permanent residents of
the Hong Kong Special Administrative Region with the right of
abode.
Right of Abode
58. Correspondingly, the Immigration
Ordinance (Cap.115) states that Hong Kong permanent residents
enjoy right of abode in Hong Kong (Appendix 30):
"(1) A Hong Kong permanent
resident enjoys the right of abode in Hong Kong, that is to say
he has the right --
(a) to land in Hong Kong;
(b) not to have imposed upon him any condition
of stay in Hong Kong, and any condition of stay that is imposed
shall have no effect;
(c) not to have a deportation order made
against him; and
(d) not to have a removal order made against
him. ..."
[2A of Part IA, Immigration
Ordinance (Cap.115)]
Migration Policy
59. It has been very common for Hong
Kong people to migrate to different parts of the world over past
years. While there are no statistics available for the Chinese
born to a Hong Kong permanent resident outside Hong Kong and
China, it is estimated that the number should be more than
1,000,000. There is absence of immigration restriction to such a
huge population to enter and reside in Hong Kong.
60. Starting from the early 1980s,
many Hong Kong males went to China and married with Chinese
women. They had children born in China and then the spouse and
child are waiting to move to Hong Kong. As mentioned in the
previous paragraph, these spouses and children have to apply for
One-way Permits to seek family reunion. Government's estimates5
of the children who are waiting to move to Hong Kong after 1 July
1997 varies over different times:
Year of Government's Estimation
Daily Quota for Children to Reside
in HK
(age under 20)
Number of Children Waiting to Reside
in Hong Kong after 1 July 1997 (age under 20)
1993
Unknown
75,000
1993
15
65,000
1995
45
29,000
1997
45
66,000
1998
75 (since July 97)
40,000
61. Starting from 1995, the One-way
Permit quota amounts to 150 per day. 45 places are allocated for
children who will have right of abode in Hong Kong after 1 July
1997. The Government also projected that every year there will be
3,000 to 4,000 new babies born in China who have right of abode
in Hong Kong. These estimations were conducted on the ground that
it was assuming that the One-way Permit system ran smoothly and
free of abuse. However, the SAR Government estimated that there
are now 40,000 children who have right of abode in Hong Kong
waiting to come to Hong Kong. Apparently, the abuses of the
One-way Permit quota system are not uncommon.
62. In July 1997, the Chinese
Government increased the daily quota for mainland-born children
migrating to Hong Kong from 45 to 75 a day. Each of the 30
mainland spouses migrating to Hong Kong each day, is allowed to
bring one child under the age of 14. Guangdong, the southern
Chinese province which accounts for 2/3 of the national
application migrating to Hong Kong, is allocated the full
national daily quotas for children and married couples who have
been separated for more than 10 years (45 and 30 respectively).
Problems of One-way Permit
System
63. On the other hand, the One-way
Permit system is commonly criticized as unfair, ineffective,
characterized by lack of transparency and of a uniform standard.
The applicants have no way of knowing the eligibility of
applications, the assessment criteria nor the waiting time. In
fact, One-way Permits are given not on the basis of family units,
but on an individual basis and there are different queues for
spouses and for children. As a result, members of the same family
cannot come to Hong Kong at the same time. Sad stories of split
families are common.
64. It is very common that the child
having right of abode in Hong Kong after 1 July 1997 has to leave
the mainland mother and join the father in Hong Kong; the mother
does not know when she can come and join her family. There are
also cases in which children has to be left in China while the
rest of the family has already migrated to Hong Kong. Children in
some parts of China are even denied the right of application.
These children will can never be able to join the family in Hong
Kong. Recently for the spouse queue in Guangdong, the Chinese
government was only dealing with pre-1990 applications.
Applications by those married after 1990 are kept frozen. The
affected families cannot know how much longer have to wait.
65. The change of policy to allocate
more quotas to Guangdong failed to address the root of the
problem. As more quotas are allocated for Guangdong province,
correspondingly the quota for other provinces have to be cut and
the children affected may never be able to join their families in
Hong Kong (Appendix 31).
66. Worse still, the problem is
aggregated by widespread corruption. Many applicants have
reported that they have to pay a bribe (from HKD 60,000 to HKD
200,000 i.e. USD 7,692 to USD 25,641) to the responsible district
officials to speed up the process or else they would be
disqualified.
67. Under such an unsatisfactorily
devised and administered policy, many families have no better
alternative but to smuggle the children to Hong Kong. Some have
overstayed in Hong Kong after the expiration of the Two-way
Permit6 (Appendices 32 & 33). There are now approximately
1,500 children seeking right of abode who entered Hong Kong
illegally before 30 June 1997 or who are overstaying in Hong
Kong.
68. As noted above, Basic Law came
into effect on 1 July 1997 and those children who are born
outside Hong Kong to a parent of Hong Kong permanent residents
become Hong Kong permanent residents and are entitled to the
right of abode.
Government's Contempt for
Children's Right of Abode
69. However, the HKSAR Government
failed to take appropriate corresponding measures to deal with
the change of law. It did not recognize the identity of the 1,500
children who are staying in Hong Kong as permanent residents. It
did not issue permanent identity cards which state their right of
abode to them. Even though 37,000 children's identities (who are
in China) have been verified by both the Chinese and HKSAR
Government, the HKSAR Government did not have any further
arrangements for bringing them to Hong Kong besides the Chinese
One-way Permit system. Nor did the SAR Government speed up the
identity verification process of the remaining children who are
still living in China and who claim to have right of abode in
Hong Kong.
70. On the contrary, on 9 July 1997,
the HKSAR Government hastily passed the Immigration (Amendment)
(No. 5) Bill into law by three readings within one day (Appendix
34). It shows that the Government has devoted administrative
convenience over the children's constitutional rights.
71. The new legislation adds
restrictions for these children who are born in China to enter
Hong Kong without the so-called "Certificate of
Entitlement" (COE). Prior to entering Hong Kong,
applications must be submitted at the applicants' places of
birth, verified by both the Chinese authority and Hong Kong
Immigration Department. The COE will be issued by the Hong Kong
Immigration Department and at the time they came to Hong Kong,
the COE has to be found in, sticking together with the One-way
Permit. That means the children who have abode right of Hong Kong
still have to be subjected to the unfair, corruptive One-way
permit quota to come to Hong Kong.
72. For the 1,500 children who
entered Hong Kong illegally before the passage of the new law,
the Government will deport them back to China. It exhibits how
the SAR Government deprives their right of abode. The definition
of right of abode, which is clearly prescribed by law (including
not to be deported from the HKSAR), is being retailored by the
SAR Government.
Discrimination Against
Children Born in China
73. Among these 66,000 children are
still waiting in China, there is no definite time frame set for
the 37,000 children whose identity have been verified to move to
Hong Kong. The SAR Government denies the exercise of their right
of abode.
74. While the Governments are
verifying the children's identity, which in many cases is clear,
the children are not allowed to stay in Hong Kong. As a result,
the right of abode of these children is violated and they cannot
exercise such right to enter and reside in Hong Kong for at least
another 4 to 5 years.
75. This newly enacted legislation
is clearly a discrimination against the Chinese-born children of
Hong Kong permanent residents. As mentioned above, there are no
quota limit for the children of Hong Kong permanent residents who
are born outside Hong Kong and China. These children can enter
Hong Kong using travel documents or passports issued by the
country where the children are born. They are allowed to apply
for the "Certificate of Entitlement" to the Hong Kong
Immigration Department directly, either in Hong Kong or by mail,
and can remain in Hong Kong when their entitlement is under
verification by the Immigration Department.
76. Alarmingly the new Immigration
Ordinance passed on 9 July 1997, also has retrospective effect.
It is back dated to 1 July 1997. The HKSAR Government claimed it
is designed for the sake of deporting "illegal
immigrants". Such a move is clearly a violation of the ICCPR
but cannot be challenged under the Hong Kong BORO, stating that
no one can be convicted for something that the law did not at the
time of the relevant conduct regard as a crime (Appendix 35).
77. The newly passed Immigration
(No. 3) Ordinance deprives mainland children of their right of
abode in Hong Kong. It permits the deportation of children who
have right of abode in their own place. It restricts and delays
the children's exercise of their right of abode. It discriminates
the children for reasons of parentage and administrative
convenience. It is a contravention of the International Covenant
on Civil and Political Rights (art. 12.4), the Sino-British Joint
Declaration (art. 158), the Basic Law (art. 24.3), the Hong Kong
Bill of Rights Ordinance (art. 8.4) (Appendix 36), as well as
ICESCR (art. 10) and CRC (art. 9 & 10). (Appendices. 37-40)
Chapter 5
Labour's Rights
Background
78. On 26 June 1997, the former
Legislative Council passed three labour laws, which protected the
workers' rights of collective bargaining, anti-discrimination on
trade union activities and trade union organizing. These
ordinances enacted will enable the implementation of Article 8 of
the ICESCR and the International Labour Organization Convention
nos. 87, 98 and 154. Nevertheless, during the first week of its
operation, the SAR Government moved to halt the implementation of
these newly passed ordinances. The newly de facto appointed
Provisional Legislative Council (PLC) passed the government
suspension bill on 18 July 1997. On 30 September 1997, the
Executive Council (Exco) of Hong Kong put forward a new amendment
bill, which repealed two of the three ordinances and amended the
third. The new amendment bill has been submitted to the PLC for
first and second reading on 15 October 1997. The PLC passed the
new bill on 29 October 1997 (Appendix 41).
Repeal of Laws Protecting
Labour Rights
79. On 26 June 1997, the Hong Kong
Legislative Council (Legco) passed three laws, which enabled the
full implementations of Article 8 of the ICESCR. The three
ordinances enacted were:
Employee Right to Representation,
Consultation and Collective Bargaining Ordinance (Appendix 42);
Employment (Amendment) (No.4)
Ordinance 1997 (Appendix 43); and
Trade Unions (Amendment) (No.2)
Ordinance 1997 (Appendix 44).
80. Prior to the enactment of these
ordinances, there was no legislation in Hong Kong which protected
the right of employees to engage their employers in collective
bargaining, employees dismissed for union activities did not
enjoy the right to re-instatement, and the Trade Unions Ordinance
imposed numerous restrictions on trade union organization. Most
of the above contravened Article 26 of the ICCPR and Article 8 of
the ICESCR. The Trade Unions Ordinance, in particular, was an
archaic law which remained largely unchanged from its original
enactment in 1927.
81. However, on 9 July 1997, the
HKSAR government put forward a bill, the Legislative Provisions
(Suspension of Operation) Bill 1997 (referred to as the 1997
Suspension Bill), to suspend the implementation of the
above-mentioned three ordinances together with three other
ordinances also enacted before 1 July 1997. The 1997 Suspension
Bill was passed by the newly-established PLC with minor
amendments on 15 July 1997. (Appendix 45)
82. The HKSAR Government, in moving
the 1997 Suspension Bill, announced that a review of the
above-mentioned three ordinances would be conducted, mainly with
the Labour Advisory Board (LAB), and a deliberation on them would
be made by 31 October 1997. After a series of meetings held with
the LAB, the SAR Exco on 30 September 1997 resolved to repeal the
Employee Right to Representation, Consultation and Collective
Bargaining Ordinance and the Employment (Amendment) (No. 4)
Ordinance 1997, and amended the Trade Union (Amendment) (No. 2)
Ordinance 1997.
83. The HKSAR government gazetted
the Employment and Labour Relations (Miscellaneous Amendments)
Bill 1997 (Appendix 46) (referred to as the 1997 Labour Relations
Bill) on 9 October 1997. The PLC deliberated on them for first
and second readings on 15 October 1997; and approved it at its
third reading on 29 October 1997. Under the 1997 Labour Relations
Bill, the right of trade unions to engage employers in collective
bargaining will be removed, the right of seeking re-instatement
on trade union discrimination case will also be removed, the use
of union funds for political purposes banned, and the appointment
of union officials will be restricted.
No Legal Protection for
Labour's Rights
84. For decades, unionists had
consistently failed to secure legal protection against
discriminatory dismissal. Employees in Hong Kong were protected
against anti-union discrimination by Part IVA of the Employment
Ordinance (Cap. 57, Laws of Hong Kong) which provided for
criminal sanction with a maximum fines of HK$100,000. For
example, the Hong Kong government failed in their attempt to
press charge of criminal sanction against discriminatory
dismissal of two employees by the New Bright Plastics Factory in
1988. Similar failure was repeated in 1994 with a dismissed
unionist at Wellcome Co. Ltd.
85. As a result of the extended
industrial dispute and strikes with Cathay Pacific Airways, the
Hong Kong government undertook a review of existing industrial
relations in Hong Kong in 1993. The end report prepared by the
Education and Manpower Branch in October 1993, (Review of
Industrial Relations System in Hong Kong, referred to as the 1993
report) stated that:
"Although the government has
from time to time received complaints from employees against
their employers for anti-union discrimination, there has yet to
be a successful prosecution case. Past experience has shown that
it is difficult to prove such violations, as often other reasons
are being as cover-up for the hidden discriminatory motive".
86. The 1993 report stated that, in
order to better prevent the discrimination against trade unions
and to solve the technical difficulty to prove wilful acts of
discrimination taken by employers in courts, it was recommended
that if employees were dismissed for his union membership or
activities, he could claim compensation from the Labour Tribunal.
The onus is on the employer to prove that his dismissal was not
an act of discrimination; failing that the employer is obliged to
pay for the compensation for the employee. [Review of Industrial
Relations System in Hong Kong, para. 22. File: EMB CR 1/3051/93
II].
Inadequacy of Employment
(Amendment) (No. 2) Bill 1997
87. Four years after the review, the
Hong Kong government tabled the Employment (Amendment) (No. 2)
Bill 1997 which was passed by the Legco on 17th June 1997.
Section 32A(1)(c)(i) of the amended Employment Ordinance provided
for remedies by compensation and for reinstatement upon consent
of both employers and employees for employees who were dismissed
as a result of their participation in union activities. It is
submitted that the remedies provided under the amendment bill
were inadequate.
88. A trade unionist Legislative
Councillor submitted to the Legislative Council a Member Bill,
later passed and became the Employment (Amendment) (No. 4)
Ordinance 1997, differed from the above-mentioned government bill
in two major aspects: it provided protection not only against
dismissal but also all other forms of detriment; in addition it
provided for automatic reinstatement which would not be
conditional upon mutual consent of both employers and employees.
89. Regrettably, the 1997 Labour
Relations Bill deprives workers in Hong Kong adequate protection
in scope and in remedy, and workers would only be protected
against dismissal with compensation and without remedy of
automatic reinstatement. In doing so, the HKSAR government
violates Article 26 of the ICCPR which guarantee
non-discrimination of any kind and equal protection of the law.
It is submitted that protection against acts of anti-union
discrimination should cover not only hiring and dismissal, but
also any discriminatory measures during employment, in particular
transfer, downgrading and other acts that are prejudicial to the
worker.
90. The Trade Unions (Amendment)
(No.2) Ordinance 1997 (referred to as the 1997 TU Ordinance)
provided for the removal of various restrictions on trade union
organizing in Hong Kong, imposed by the Trade Unions Ordinance
(referred to as the TU Ordinance). The decision of the PLC (15
July 1997) to suspend the 1997 TU Ordinance and the passing of
the Employment and Labour Relations (Miscellaneous Amendments)
Bill 1997 on 29 October 1997 to amend the 1997 TU Ordinance
violated Article 8 of the ICESCR. In particular, it violates
paragraphs 1(b) and (c) of Article 8.
Derogation from rights
already protected
91. It is further submitted the
repeal and amendment of the three labour ordinances which
effectively derogate and restrict the rights already existed
pursuant to law violate Article 5(2) of the ICESCR and that of
the ICCPR which states that: "there shall be no restriction
upon or derogation from any of the International human rights
recognized or existing in any State Party to the present Covenant
pursuant to law, conventions, regulations or custom on the
pretext that the present Covenant does no recognize such rights
or that it recognizes them to a lesser extent".
Recommendations
92. We strongly urged the Committee
to request the Hong Kong Special Administrative Region Government
to repeal the provisions in the Public Order (Amendment)
Ordinance that are threatening people's right of peaceful
assembly. Any restrictions placed on the exercise of this right
have to be in accordance with ICCPR.
93. We strongly urged the Committee
to request the Hong Kong Special Administrative Region Government
to abolish the compulsory societies registration. The right to
freedom of association and form societies should not be regarded
as "unlawful" (if not seeking registration or exemption
from registration) if the behaviour itself is not unlawful
prescribed by law.
94. We strongly urged the Committee
to request the Hong Kong Special Administrative Region Government
to make the application to court should it has to restrict
societies activities and processions. The Government should make
sure such restrictions must be prescribed by law clearly and not
exceed conditions set forth in ICCPR.
95. We strongly urged the Committee
to request the Hong Kong Special Administrative Region Government
to issue guidelines embodying a proper balance between upholding
human rights and public security for police officers to follow.
96. We strongly urged the Committee
to express concern over the undemocratic nature of the Selection
Committee, the Provisional Legislature and the 1998 election
especially the undemocratic electoral methods of Functional
Committee and Election Committee.
97. We strongly urged the Committee
to request the Hong Kong Special Administrative Region Government
to reform the election system that the Chief Executive and all
members of the Legislature should be elected by universal and
equal suffrage.
98. We strongly urge the Committee
to ensure the protection of the rights of the children by
demanding the Hong Kong Special Administrative Region Government
to repeal the discriminative parts of Immigration (No. 3)
Ordinance which contravene the International Covenant on Civil
and Political Rights, International Covenant on Social, Economic
and Cultural Rights, the Convention on the Rights of the Child,
the Sino-British Joint Declaration, the Basic Law, as well as the
Hong Kong Bill of Rights Ordinance.
99. We strongly urge the Committee
to request the Hong Kong Special Administrative Region Government
not to deport the 1,500 Hong Kong permanent residents, mostly
children who are, and issue permanent identity cards which state
their right of abode.
100. We strongly urge the Committee
to request the Hong Kong Special Administrative Region Government
to repeal the provisions in the Immigration Ordinance that
deprive the right of abode of the Hong Kong permanent residents.
101. We strongly urge the Committee
to request the Hong Kong Special Administrative Region Government
and the Chinese Government to adopt effective administrative
measures in order to enable the children who are permanent
residents of Hong Kong to arrive Hong Kong in an orderly manner.
102. We strongly urge the Committee
to request the Hong Kong Special Administrative Region Government
and the Chinese Government to reform the One-way Permit system so
that the mother of the children who have the right of abode in
Hong Kong can join their families in Hong Kong in a speedy way,
and the application for family reunification could be dealt with
in a humane and expeditious manner.
103. We strongly urge the Committee
to request the Hong Kong Special Administrative Region Government
to enact comprehensive legislation on protecting labour's rights.
1 There is much criticized that the
definition of "National Security" is too broad and
unclear. As according to the Public Order (Amendment) Ordinance
and Societies (Amendment) Ordinance, there is only one sentence
explaining this serious allegation, "the safeguarding of the
territorial integrity and the independence of the People's of
China".
2 United Nations Human Rights
Committee, Concluding Observations of the Human Rights Committee,
at its 1469th meeting (fifty-fifth session) held on 1 November
1995, para. 19.
3 3 One-way Permit system is an
emigration policy administered by the mainland authorities. It
governs the migration of Chinese citizens to Hong Kong, whether
or not they are have the right of abode in Hong Kong.
5 According to a paper named
"Increase of Quota for Chinese Immigrants" , which was
submitted to the former Legislative Council by the former
Security Branch, Hong Kong Government in June 1995
(Ref.: SBCR 1 / 2091 / 81).
6 In addition to the One way Permit,
the Chinese authority issues "Two-way Permits" for the
Chinese citizens for visiting purpose. Two-way Permits usually
allows Chinese citizens to stay in Hong Kong for three months.
[abc1]
HKHRC Report to UNHRC on Hong Kong
Human Rights Situation after the Change of Sovereignty (March
1998)