Submission to the United Nations Human Rights Committee on Hong Kong Human Rights Situations after the Change of Sovereignty , March 1998

Chapter 1: Introduction

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

Recommendations

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):

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:

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.

BACK TO TOP