U.S. Department of State Country Report on Human Rights Practices 2002 - Hong Kong
|Publisher||United States Department of State|
|Publication Date||31 March 2003|
|Cite as||United States Department of State, U.S. Department of State Country Report on Human Rights Practices 2002 - Hong Kong , 31 March 2003, available at: http://www.refworld.org/docid/3e918c308.html [accessed 11 March 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Hong Kong is a Special Administrative Region (SAR) of the People's Republic of China (PRC), and maintains a high degree of autonomy except in matters of defense and foreign affairs. It has well-established institutions that support the rule of law and a vigorous civil society. The Basic Law, the SAR's constitution, was approved by the PRC in 1990. It provides for the protection of fundamental rights and calls for progress toward universal suffrage and further democratization after a 10-year period, starting with Hong Kong's July 1, 1997 reversion to Chinese sovereignty.
The Chief Executive is chosen by an 800-person selection committee composed of individuals who are either directly elected, indirectly elected, or appointed. The Chief Executive supervises a cabinet of principal officers whom he appoints. The power of the Legislative Council (legislature) is significantly circumscribed by the Basic Law. The legislature is composed of 24 directly elected members representing geographic districts, 30 indirectly elected members representing functional (occupational) constituencies, and 6 members elected indirectly by an election committee. Majorities are required in both the geographic and the functional constituencies to pass legislation introduced by individual legislators. Members could not initiate legislation involving public expenditure, political structure, government operations, or government policy.
By law and tradition, the judiciary is independent and the Basic Law vests Hong Kong's highest court with the power of final adjudication; however, under the Basic Law, the Standing Committee of the PRC's National People's Congress (NPC) has the power of final interpretation of the Basic Law.
A well-supervised police force under the firm control of civilian authorities maintained public order. An Independent Police Complaints Council, made up of public members appointed by the Chief Executive, monitored and reviewed the work of an office that investigated public complaints against the police. The 4,000 Chinese troops sent to Hong Kong in 1997 to replace the British military garrison have maintained a low profile and have not performed or interfered in police functions.
Hong Kong, with a free market economy, is an international trade, shipping, and finance center and is a principal platform for trade and investment with the PRC. The economy has suffered 5 years of deflation and was stagnant in 2002 with gross domestic product (GDP) growth of approximately 1.5 percent. Per capita GDP was approximately $24,000; the population was approximately 6.8 million.
The Government generally respected the human rights of residents, and the law and judiciary generally provided effective means of dealing with individual instances of abuse. Human rights problems that existed both before and after the handover included: limitations on residents' ability to change their government and limitations on the power of the legislature to affect government policies; some degree of media self-censorship; violence and discrimination against women; discrimination against the disabled and ethnic minorities; restrictions on workers' rights to organize and bargain collectively; intimidation of domestic workers of foreign origin; and trafficking in persons for the purposes of forced labor and prostitution. Despite the ban on the Falun Gong in mainland China, the Falun Gong remained legally registered, and practitioners continued their activities in Hong Kong. In September the Government issued a consultation paper to elicit public discussion of legislation to implement Article 23 of the Basic Law, which triggered intense public debate about the impact of such legislation on civil liberties and fundamental freedoms. Article 23 calls for the Government to draft and implement laws that criminalize subversion, secession, treason, sedition, and theft of state secrets, and to criminalize links with foreign political organizations that are harmful to national security.
RESPECT FOR HUMAN RIGHTS
1. Respect for the Integrity of the Person, Including Freedom From:
a. Arbitrary or Unlawful Deprivation of Life
There were no reports of arbitrary or unlawful deprivations of life committed by the Government or its agents.
There were two cases of death in police custody in the first 6 months of the year. In May there were two cases of suicide involving prison inmates. One case of death in police custody from 2001 was pending results of an inquest.
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law forbids torture and other abuse by the police. There were no reports that police used excessive force against persons in custody during the year. The law stipulates punishment for those who violate these prohibitions. Disciplinary action could range from warnings to dismissal. Criminal proceedings could be undertaken independently of the disciplinary process. Allegations of excessive use of force are required to be investigated by the Complaints Against Police Office (CAPO), whose work was monitored and reviewed by the Independent Police Complaints Council (IPCC), a body composed of public members appointed by the Chief Executive.
There were no complaints of forced confessions during the year.
In the first 8 months of the year, CAPO received 322 complaints of assault by the police against persons not in custody. Of the 107 cases in which investigations were completed and endorsed by the IPCC, none were substantiated. Seventy-six were withdrawn, 22 were deemed "not pursuable," 1 was judged to be "no fault," 4 were judged to be false, and 4 were judged "unsubstantiated." The remaining 215 cases were pending at year's end.
In February three police officers were jailed for fabricating allegations against a disco manager to cover up a January 2001 assault on him by one of the officers. In 2001 six police officers accused of assaulting a television cameraman during interrogation were acquitted in District Court. An internal police disciplinary inquiry was completed; at year's end, the case was pending required follow-up hearings.
The U.N. Human Rights Committee and local human rights groups have called for a more independent and efficient monitoring body with statutory powers, noting long delays in hearing some allegations, the large difference between the number of complaints received and the few that are substantiated, the light punishment that police officers received when complaints were found to be substantiated, and the unwillingness of some witnesses to pursue complaints for fear of retribution. Various observers have expressed concern that police responsibility for investigation of police misconduct undermined the credibility of IPCC investigations and called on the Government to reconsider its approach. At year's end, the Government was considering legislation to provide a statutory basis for the IPCC, which would allow it to set up its own secretariat, receive funding to hire its own permanent staff, and initiate investigations.
Prison conditions generally met international standards. Men and women were housed separately, juveniles were housed separately from adults, and pretrial detainees were held separately from convicted prisoners. From April 2001 to April 2002, the average occupancy rate for Hong Kong's main prison facility was 131 percent, and the rate for all other penal institutions was 113 percent. The Government began to address the problem of prison overcrowding by converting buildings in three locations to provide space for 520 additional prisoners and redistributing the prison population. In addition, completion of the Immigration Department's Detention Center in Tuen Mun in 2005 is expected to provide 400 additional places and eliminate the housing of immigration offenders in prison or detention facilities managed by the Correctional Services Department.
The Government permitted prison visits by human rights monitors. Local justices of the peace regularly inspected prisons, and most of these visits were unannounced. However, the justices of the peace spoke with prisoners in the presence of Correctional Services Department staff. Human rights monitors have called for revisions to the inspection system.
d. Arbitrary Arrest, Detention, or Exile
Common law, legal precedent, and the Basic Law provide substantial and effective legal protection against arbitrary arrest or detention, and the Government generally observed these provisions. Suspects must be charged within 48 hours or released. The average length of preconviction incarceration did not exceed 80 days.
The law does not provide for, and the Government did not use, forced exile.
e. Denial of Fair Public Trial
The Basic Law provides for an independent judiciary, and the Government generally respected this provision in practice. The judiciary generally provided citizens with a fair and efficient judicial process. The judiciary has remained independent since the handover, underpinned by the Basic Law's provision that Hong Kong's common law tradition be maintained. Under the Basic Law, the courts may interpret on their own provisions of the Basic Law that are within the limits of the autonomy of the region. The courts also may interpret other provisions of the Basic Law that touch on PRC central government responsibilities or on the relationship between the central authorities and the SAR. Before making final judgments on these matters, which are unappealable, the courts must seek an interpretation of the relevant provisions from the Standing Committee of the PRC's National People's Congress. The Basic Law requires that when the Standing Committee makes an interpretation of Basic Law provisions, the courts, in applying those provisions, "shall follow the interpretation of the Standing Committee." Judgments previously rendered are not affected. The National People's Congress' mechanism for interpretation is its Committee for the Basic Law, composed of six mainland and six Hong Kong members. The Hong Kong members are nominated by the Chief Executive, the President of the Legislative Council, and the Chief Justice. Human rights and lawyers' organizations long have expressed concern that this process, which circumvents the Court of Final Appeal's power of final adjudication, could be used to limit the independence of the judiciary or could degrade the courts' authority.
In a controversial 1999 "right of abode" case (concerning the right of certain persons to reside in Hong Kong), the Government, after losing the case in the Court of Final Appeals, sought a reinterpretation of relevant Basic Law provisions from the Standing Committee of the PRC's National People's Congress. This action raised questions about the independence and ultimate authority of the judiciary. After the controversy, the Government expressed its intention to make recourse to the NPC interpretation mechanism a rare and exceptional act, and there have been no such occurrences since the one instance in 1999.
The Court of Final Appeal is the SAR's supreme judicial body. An independent commission nominates judges; the Chief Executive is required to appoint those nominated, subject to endorsement by the legislature. Nomination procedures ensure that commission members nominated by the private bar have a virtual veto on the nominations. Legal experts and legislators have complained that the commission's selection process is opaque. The Government responded that privacy concerns prevented opening the process to the public. The Basic Law provides that, with the exception of the Chief Justice and the Chief Judge of the High Court, who are prohibited from residing outside of Hong Kong, foreigners may serve on the courts. Approximately 40 percent of judges were expatriates from other common law jurisdictions. Judges have security of tenure until retirement age (either 60 or 65, depending on the date of appointment).
Under the Court of Final Appeal is the High Court, composed of the Court of Appeal and the Court of First Instance. Lower judicial bodies include the District Court (which has limited jurisdiction in civil and criminal matters), the magistrates' courts (which exercise jurisdiction over a wide range of criminal offenses), the Coroner's Court, the Juvenile Court, the Lands Tribunal, the Labor Tribunal, the Small Claims Tribunal, and the Obscene Articles Tribunal.
The law provides for the right to a fair public trial, and an independent judiciary generally enforced this right. Trials were by jury except at the magistrate-court level, and the judiciary provided citizens with a fair and efficient judicial process.
Under corruption prosecution rules, there is a presumption of guilt in official corruption cases. Under the Prevention of Bribery Ordinance, a current or former government official who maintains a standard of living above that which is commensurate with his official income or who is in control of monies or property disproportionate to his official income is, unless he can satisfactorily explain the discrepancy, guilty of an offense. The courts have upheld this practice.
Human rights activists remained concerned that the legal system may favor those closely aligned with China. However, other observers pointed out that significant convictions of mainland Chinese entities or those close to them continued to occur, suggesting that the courts were operating without undue bias.
According to the Basic Law, English may be used as an official language by the executive, legislative, and judicial branches. For historical reasons and because of the courts' reliance on common law precedents, almost all civil cases and most criminal cases were heard in English. In recent years, the Government has developed a bilingual legal system. It has increased the number of officers in the Legal Aid Department proficient in Chinese and extended the use of bilingual prosecution documents and indictments. All laws are bilingual, with the English and Chinese texts being equally authentic. All courts and tribunals could operate in either Chinese or English. Judges, witnesses, the parties themselves, and legal representatives each could decide which language to use at any point in the proceedings.
Some human rights groups alleged that the Government has not protected vigorously enough the interests of Hong Kong residents arrested in mainland China. There was no agreement allowing Hong Kong officials access to Hong Kong residents arrested or detained in mainland China. Under an agreement signed in 2000 and in effect since 2001, PRC and SAR public security authorities were required to notify each other of certain categories of detentions of each other's residents.
There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law prohibits arbitrary interference with privacy, family, home, and correspondence, and the Government generally respected these prohibitions in practice. Interception of communications was conducted under the Telecommunications Ordinance and the Post Office Ordinance. Wiretaps required high-level authorization for interception operations, but a court-issued warrant was not required. The Government did not release information regarding how often the Chief Executive used his powers to authorize telephone wiretaps and interception of private mail.
The Office of the Privacy Commissioner for Personal Data (PCO), established under the Personal Data (Privacy) Ordinance (PDPO), is tasked with preventing the misuse and disclosure of data such as medical and credit records. The PDPO also prohibits matching sets of personal data without the consent of the subject individual or the commissioner, although some government departments were exempted in order to combat social welfare abuse and tax evasion. Some violations of the PDPO constitute criminal offenses. In other cases, an injured party could seek compensation through civil proceedings. If the PCO believes that violations may continue or be repeated, it may issue enforcement notices to direct remedial measures. Between June 2001 and June 2002, the PCO investigated 1,027 complaints of suspected breaches of the ordinance, completing action on 956. The PCO found violations of the PDPO in 30 of these cases, resulting in 1 successful prosecution leading to a fine. The rest resulted in issuances of warning notices and requirements for remedial action to comply with the Ordinance. The Personal Data Privacy Ordinance is not applicable to PRC government organs in Hong Kong. At year's end, the Government was considering whether it should be made applicable to PRC bodies.
In March the Government introduced a draft privacy code that seeks to outlaw secret video cameras and monitoring of e-mail and phone calls in the workplace by employers. At year's end, the draft legislation awaited action by the Legislative Council.
2. Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The law provides for freedom of speech and of the press, and the Government generally respected these rights in practice. A wide range of views and topics appeared in the press, including articles critical of the PRC and Hong Kong SAR governments. Some who monitored press freedom asserted that some journalists and news media practiced self-censorship, mainly in PRC-related reporting. Overall, the media has been outspoken in defending civil liberties; however, the Telecommunications Ordinance potentially allows limits on some speech and press freedoms by granting the Government wide-ranging powers to ban messages whenever it "considers that the public interest so requires." In practice, the Government has never invoked this law to limit freedom of speech.
The Basic Law's Article 23 requires that the Government enact legislation prohibiting treason, secession, sedition, subversion against the Central People's Government, and theft of state secrets, and to criminalize links with foreign political organizations that are harmful to national security. The process of introducing this legislation began in September with the Government's release of a consultation document proposing guiding principles for the legislation. Legislative Council members, human rights groups, business associations, representatives of the media, foreign governments, and others voiced concern that when enacted these laws and other provisions passed to implement Article 23 could restrict fundamental rights and freedoms. Of particular concern were the proposed extension of treason, sedition, secession, and subversion criminal offenses to permanent residents, without regard to nationality or legal domicile; the proposal to ban organizations affiliated with mainland political organizations that have been banned by the PRC on national security grounds; the proposal for extended emergency powers for the police; new uncertainty about the parameters of "unlawful disclosure" of state secrets; and other proposals perceived as potentially limiting freedom of speech and press. Some concern derived from the Government's decision to provide a consultation document, but not a draft of the legislation itself, for public discussion. The Government stated repeatedly that civil liberties were guaranteed by the Basic Law and the ICCPR and that it had revised its proposal to accommodate public concerns. Opponents of the proposed legislation conducted a series of protests, including a December 15 march in which tens of thousands of persons participated. A counter-rally in support of the legislation also drew thousands of participants. At year's end, the process of developing the legislation continued, and the Government expressed the goal of passing the new provisions before the end of the legislative session in July 2003.
Individuals could criticize the Government publicly or privately without reprisal, and many persons spoke freely to the media and used the media to voice their views. Political debate was vigorous, and numerous viewpoints, including stories and opinions critical of the SAR and PRC Governments and statements by leading Chinese dissidents and proindependence Taiwan activists, were provided in the mass media, in public forums, and by political groups.
During the year, newspapers published a wide variety of opinions, including opinions on Taiwan, Tibet, PRC leadership dynamics, Communist Party corruption, and human rights. There were some 15 daily newspapers, all privately owned in name although 4 were supported financially – and guided editorially – by the PRC (Wen Wei Po, Ta Kung Pao, the Hong Kong Commercial Daily, and the China Daily). The non-PRC-owned newspapers, hundreds of periodicals, four commercial television stations (broadcast and cable) and two commercial radio stations functioned with virtually no government control. International media organizations operated freely. Foreign reporters needed no special visas or government-issued press cards for Hong Kong.
China still requires some journalists to apply for permission to make reporting trips to the mainland, but in October the Government somewhat eased those requirements, announcing that it would simplify visa application procedures and drop the requirement for a host organization for foreign journalists from Hong Kong, if their organizations have offices in Beijing, Shanghai, or Guangdong Province. All local journalists from Hong Kong can cover mainland stories, but must register with the Hong Kong Macau Affairs Office. At least three Hong Kong publications that were banned on the mainland were blocked from registering their reporters for mainland reporting.
Despite regular coverage of sensitive subjects in print and in the broadcast media, professional journalist groups and NGOs asserted that media self-censorship continued. The Hong Kong Journalists Association, for example, commented in a June report that self-censorship was on the rise. The Association reported that subjects avoided included topics of particular sensitivity to China, leadership dynamics, and Taiwanese and Tibetan independence. In April the South China Morning Post (SCMP) dismissed its Beijing bureau chief, Jasper Becker. Becker asserted that he was dismissed because the paper was increasingly steering clear of controversial mainland stories. The SCMP's editor, in turn, asserted that Becker would not follow instructions from the paper's China editor, and that the newspaper was not changing its policy on China coverage and had not been directed by Beijing to dismiss Becker. The SCMP continued to cover a number of sensitive political issues involving the PRC and Hong Kong SAR governments. In August a leading scholar of Chinese law submitted an article on the obstacles faced by criminal defense lawyers in the PRC to "China Law and Practice." Despite an initial commitment, the publishers of the journal ultimately withdrew their offer to publish the article, citing "political realities." The publisher later denied self-censorship, stating that the article contained comments that could result in defamation and contempt of court charges.
The government-owned Radio Television Hong Kong (RTHK) continued to enjoy the editorial independence granted to it in its framework agreement between the Government and the station's Director of Broadcasting. Local pro-PRC figures have called for the station to be more supportive of the PRC and Hong Kong Governments and for RTHK to conform to PRC political usage, for example by not referring to Taiwan leader Chen Shui-bian as "president" on the grounds that Taiwan is not a country. In August a Government official contacted RTHK's director of broadcasting about the station's plans to conduct a phone interview with Taiwan Vice President Annette Lu. The interview did not take place. The Government official denied pressuring RTHK and stated that the Government respected the editorial independence of all media organizations.
The Basic Law provides for academic freedom, and the Government generally respected that freedom in practice. There was independent research, a wide range of opinions, and lively debate on campuses.
In June a U.S.-based academic who has been refused a visa to enter China since 1996 was questioned for 40 minutes by immigration officials upon his entry to Hong Kong. He was subsequently allowed to enter.
There were no restrictions on the use of the Internet.
The Falun Gong was able to print flyers and small items in Hong Kong, despite reported concerns of some printers about associating with the group, but most of its publishing took place outside the SAR. One bookstore, owned by a practitioner, carried Falun Gong books.
In August the Government issued warnings against distributing a catalog for an art exhibition at a public venue that showcased the work of an Australian Falun Gong practitioner. The Government requested that the exhibit organizer not distribute the catalog, which noted that the artist had been imprisoned in China for several months in 2000 for being a Falun Gong practitioner. In the end, the organizer ignored the requests and the Government neither stopped the exhibition nor restricted distribution of the catalog. However, the artist was denied entry into Hong Kong to attend the exhibit. The Government stated that the decision to deny entry was based on immigration irregularities, not on her Falun Gong affiliation.
b. Freedom of Peaceful Assembly and Association
The Basic Law provides for freedom of assembly and the Government generally respected this right in practice. The Government routinely issued the required permits for public meetings and demonstrations.
Under the law, demonstration organizers must notify the police of their intention to demonstrate 1 week in advance (shorter notice is accepted when the Commissioner of Police is satisfied that earlier notice could not have been given) for a march involving more than 30 persons and for an assembly of more than 50 persons. The police must give a clear reply within 48 hours if they object; no reply indicates no objection. In practice, demonstrators could assume "no objection" if they were not notified to the contrary 48 hours in advance of the planned demonstration. The posthandover provision in the Public Order Ordinance that empowered police to object to demonstrations on national security grounds has never been invoked. Appeals of a denial to demonstrate could be made to a statutory appeals board comprising members from different sectors of society. Both the board's proceedings and the police's exercise of power were subject to judicial review.
In September some organizations held a protest march asking the Government to abolish provisions in the Public Order Ordinance requiring prior approval for assemblies and demonstrations. The organizations also urged the Government to withdraw charges against three political activists arrested in May for organizing an unauthorized rally in February. In November the three activists were convicted and sentenced to a 3-month probation. This was the first case since 1997 in which protestors were charged for not obtaining advance permission from police for holding a demonstration.
Since the handover, there have been over 11,000 public meetings and public processions. Approximately half of these demonstrations required notification. Since the handover, the police have objected to six demonstrations, three of which proceeded after the demonstration organizers altered their plans. In the first 6 months of the year, police objected to 3 out of 1,145 demonstrations.
Demonstrators have complained that demonstrations often were limited to "designated areas" where they received little public attention and that police sometimes outnumber demonstrators. A police order issued in 1998, while underlining that it is police policy "to facilitate, as far as possible, all peaceful public order events," also stipulated that certain "internationally protected persons" are, in addition to security, entitled to "protection of their dignity." In July these issues were prominent when some groups were required by police to hold their demonstrations during the fifth anniversary handover ceremony, attended by PRC President Jiang Zemin, in protest zones that were 200 meters further away from dignitaries than in 1997.
In addition to holding assemblies and marches on Hong Kong-related issues, groups continued to be free to demonstrate on issues of sensitivity in mainland China. In May approximately 1,500 persons marched through central Hong Kong to commemorate the 13th anniversary of the June 4, 1989, massacre in Beijing's Tiananmen Square. On June 4, tens of thousands attended the annual candlelight vigil to commemorate the anniversary. The Public Meetings and Processions Appeal Board overturned a police decision to ban the Hong Kong Alliance in Support of the Patriotic Democratic Movement in China from holding a June 4 rally outside the Central Government Offices.
Falun Gong practitioners regularly conducted public protests against the crackdown on fellow practitioners in the PRC, holding some protests in front of the Hong Kong offices of the Central Government. In August a group of 16 Falun Gong practitioners, including 4 from Switzerland and 1 U.S. legal permanent resident, were convicted and fined for obstruction after refusing repeated police instructions to remain in a designated demonstration zone. This was the first time that Falun Gong practitioners were convicted of an offense in Hong Kong. The group's appeal was pending at year's end.
The Basic Law provides for freedom of association and the Government generally respected this right in practice. Since the handover, no applications for registration have been denied. From January through October, the Societies Licensing Office of the police registered 1,157 new organizations for a total of 7,104 registered since the 1997 handover. Pro-Taiwan groups also have expressed concern that the amended Societies Ordinance – which like the amended Public Order Ordinance was passed by the Provisional Legislature – could be used to restrict political activity. The Societies Ordinance requires that new societies must apply for registration within 1 month of establishment. The Government may refuse registration if it believes that the refusal is in the interests of national security, public safety, public order, or the protection of the rights and freedom of others. The Government also may refuse to register a political body that receives support from a foreign political organization or a Taiwan-based political organization.
c. Freedom of Religion
The Basic Law provides for freedom of religion, the Bill of Rights Ordinance prohibits religious discrimination, and the Government generally respected these provisions in practice.
The Government does not recognize a state religion but does grant public holidays to mark numerous special days on the traditional Chinese and Christian calendars, as well as the Buddha's birthday.
Religious groups were not required to register with the Government and were exempted specifically from the Societies Ordinance, which requires the registration of nongovernmental organizations. Some groups, such as the Falun Gong and various other martial arts/meditation groups, known collectively as qigonq groups, that did not consider themselves religions, have registered under the Societies Ordinance. Catholics freely and openly recognized the Pope as the head of the Catholic Church. The Vatican maintained a Diocese overseen by a local Bishop.
According to the Basic Law, the PRC Government had no authority over religious practices in the SAR. PRC representatives in the SAR and two PRC-owned newspapers nonetheless have criticized some religious and other spiritual groups and individuals. Local religious leaders also have noted that the Basic Law provision that calls for ties between local religious organizations and their mainland counterparts to be based on "nonsubordination, noninterference, and mutual respect" could be used to limit such ties. Similarly, the Catholic Bishop of Hong Kong expressed concern that religious groups could be negatively affected by Article 23 laws.
During the year, Falun Gong, a spiritual movement that has explicitly characterized itself as "not a religion," practiced freely and held regular public demonstrations against PRC policies. In 2001 a series of developments sparked concerns about pressures on the Government to constrain the group's criticism of the PRC's anti-Falun Gong policies. In particular, statements by Chief Executive C.H. Tung in May and June 2001 that the group was "no doubt an evil cult" and that the Government would not let the Falun Gong "abuse Hong Kong's freedoms and tolerance to affect public peace and order" prompted concern. In May 2001, the Government barred the entry into Hong Kong of approximately 100 overseas-based Falun Gong practitioners during President Jiang Zemin's visit, although several hundred local and foreign Falun Gong practitioners demonstrated freely on numerous occasions and at numerous venues during the visit. In June 2002, over 90 foreign practitioners were denied entry upon arrival at the Hong Kong international airport (see Section 2.d.). Falun Gong representatives claimed that Hong Kong practitioners remained generally undeterred by these developments, but stated that the number of practitioners in Hong Kong had dropped from approximately 1,000 to approximately 500 since the PRC government began its mainland crackdown in mid-1999.
Other qigong groups, including Zhong Gong (which was banned in the PRC in late 1999), Xiang Gong, and Yan Xin Qigong, also were registered as societies and practiced freely. Another group allegedly listed as an "evil cult" by the PRC, the Taiwan-based Quan Yin Method, was registered legally and practiced freely.
For a more detailed discussion see the 2002 International Religious Freedom Report.
d. Freedom of Movement, Foreign Travel, Emigration, and Repatriation
The Basic Law provides residents freedom of movement within Hong Kong, freedom of emigration, and freedom to enter and leave the territory, and the Government generally respected these rights in practice with some prominent exceptions. Travel documents were obtained freely and easily. There were limits on travel to the mainland imposed by the mainland Government.
As was the case before the handover, the Taiwan passport is not recognized as valid for visa endorsement purposes.
Since the handover, several prominent overseas dissidents have been denied entry or visas to enter Hong Kong. In April exiled mainland dissident Harry Wu, who held foreign citizenship, was refused entry to Hong Kong, on the grounds of protecting Hong Kong's security. The Government asserted that the denial of Wu's entry was in accordance with the law. In June Wu was denied a visa to come to Hong Kong, where he had been invited to address a seminar. Also in June, over 90 foreign Falun Gong adherents who intended to stage protests during the fifth anniversary of the handover celebration were denied entry upon arrival at the Hong Kong international airport.
In August the Court of Final Appeals upheld the right of nonpermanent residents to return after leaving, a right that in practice had been treated as requiring case-by-case consideration.
Chinese authorities did not permit a number of Hong Kong human rights activists and prodemocracy legislators to visit the mainland.
The 1951 U.N. Convention Relating to the Status of Refugees and its 1967 Protocol does not extend to Hong Kong, and the SAR eliminated its first asylum policy (extended only to Vietnamese) in 1998. On a case-by-case basis, the Director of Immigration had discretion to grant refugee status or asylum in cases of exceptional humanitarian or compassionate need. The general practice was to refer refugee and asylum claimants to a lawyer or to the office of the U.N. High Commissioner for Refugees (UNHCR). Those granted refugee status, as well as those awaiting UNHCR assessment of their status, received a subsistence allowance from the UNHCR, but were not allowed to seek employment or enroll their children in local schools. The UNHCR worked with potential host country representatives in Hong Kong to resettle those few persons designated as refugees. Government policy is to repatriate all illegal immigrants, including those that arrive from the mainland, as promptly as possible. From January to October, a total of 4,927 illegal PRC migrants were repatriated to the mainland.
3. Respect for Political Rights: The Right of Citizens to Change Their Government
Residents' right to change their government is limited by the Basic Law, which provides for the selection of the Chief Executive by an 800-person selection committee (composed of individuals who are either directly elected, indirectly elected, or appointed), the direct election of only 26 of 60 Legislative Council members (to become 30 of 60 in 2004), and the inclusion of appointed members to the elected district councils. The approval of the Chief Executive, two-thirds of the legislature, and two-thirds of Hong Kong's National People's Congress delegates is required to place an amendment to the Basic Law originating in Hong Kong on the agenda of China's National People's Congress. The National People's Congress has the sole power to amend the Basic Law. Procedures for amendment or interpretations that originate in the mainland were unclear.
The Government is executive-led, with a two-tiered legislative system consisting of the Legislative Council and 18 district councils, and is staffed by a professional and independent civil service. The Basic Law provides for elections for Chief Executive in 2002 and 2007 by a selection committee of 800 local residents. The selection committee was composed of the 60 members of the Legislative Council, the 36 Hong Kong delegates to the National People's Congress, 41 representatives of the Hong Kong members of the Chinese People's Political Consultative Conference, 40 representatives from religious groups, and 623 persons elected by the same approximately 180,000 voters (some representing organizations; others voting as individuals) who choose the functional constituency representatives of the Legislative Council. In February C.H. Tung, unopposed, won his second 5-year term, which began in July.
The Basic Law permits amendment of the Chief Executive selection process after 2007 by a two-thirds majority of the Legislative Council, with the consent of the Chief Executive and the National People's Congress Standing Committee. Article 45 of the Basic Law states that "the ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures." As of year's end, the Government had not initiated steps to prepare for a change in the procedure for choosing the Chief Executive as provided for under the law.
In July the introduction of a new "Principal Officials Accountability System" changed the SAR's government system by adding a layer of 11 political appointees to run the 11 policy bureaus. Three other civil service positions – Chief Secretary, Financial Secretary, and Justice Secretary – also were converted to political appointments, although without a change in personnel. These 14 political appointees were chosen by the Chief Executive and approved by the PRC Government. They served as members of the Executive Council, which functioned as the Chief Executive's cabinet. The restructured Executive Council also includes members of two political parties, a labor leader, and two other private citizens, also appointed by the Chief Executive.
The members of the Legislative Council were elected in 2000 to 4-year terms; 24 members were elected directly from geographic districts through universal suffrage, 30 from functional (occupational) constituencies, and 6 by votes of the 800-person selection committee. Prodemocracy candidates won 17 of the 24 seats elected on a geographic basis (including 1 in a December 2000 by-election) and 22 seats overall.
In both the 1998 and 2000 elections, the functional constituencies were drawn more narrowly than the nine broad functional constituencies of the 1995 Legislative Council, reducing the total number of potential voters in functional constituencies from 1.15 million in 1995 to 180,000 in 1998. Human rights and democracy groups contended that the election of functional constituency representatives by so few persons was fundamentally undemocratic. There was general acceptance of the geographic electoral districts, which included over 3 million registered voters. Article 68 of the Basic Law states that the "ultimate aim is the election of all the members of the Legislative Council by universal suffrage." As of year's end, the Government had not initiated steps to prepare for a change in Legislative Council electoral arrangements as provided for under the law.
The ability of the legislature to influence policy is limited substantially by Basic Law provisions that require separate majorities among members elected from geographical and functional constituencies to pass a bill introduced by an individual member. Another Basic Law provision prohibits the Legislative Council from putting forward bills that affect public expenditure, political structure, or government operations. The Chief Executive's written consent is required before bills affecting government policy may be introduced. The Government has adopted a very broad definition of "government policy" to block private member bills, and the President of the Legislative Council has upheld the Government's position. However, the Legislative Council's degree of popular representation and outspokenness resulted in its having some influence over the Government's positions. During the year, the Government took into consideration the views of an eight-party coalition on the Government's budget presentation. Similarly, legislators' views influenced the final text of an anti-terrorism bill presented by the Government as required by U.N. Security Council Resolution 1373.
The November 1999 elections for Hong Kong's District Councils were generally free and fair; however, democratic legislators and human rights activists argued that the appointment of nearly one-quarter of District Councilors by the Chief Executive was an undemocratic procedure. According to the District Councils Ordinance, the District Councils are responsible for advising the Government on matters affecting: (1) the well-being of district residents; (2) the provision and use of public facilities; and (3) the use of public funds allocated for local public works and community activities. The next District Council elections were scheduled for 2003.
In 2000 the Court of Final Appeal ended a century-old practice of excluding nonindigenous villagers (residents who were not members of long-term local families) from participating in some rural elections. The Court unanimously found that the practice violated both the Bill of Rights and the Sex Discrimination Ordinances. In October the Government introduced a bill on village elections to the Legislative Council that proposed to elect two village heads in the 2003 rural elections. Under this proposal, one village head would represent indigenous residents to deal with traditional affairs such as burial grounds, while the other leader would handle general affairs. In September approximately 4,500 village residents demonstrated against the Government's proposal, objecting to the inclusion of nonindigenous (persons not from the village's original families) village heads. At year's end, the bill was still under consideration in the Legislative Council.
Hong Kong sends 36 delegates to China's National People's Congress (NPC). The NPC requires the approval of two-thirds of Hong Kong's NPC delegates to place an amendment to the Basic Law on the NPC's agenda. Hong Kong's NPC delegates also were members of the selection committee that chose six of the Hong Kong legislators in 2000. In December Hong Kong's NPC delegates were elected to a 5-year term by an NPC-appointed committee of 955 residents, up from 424 residents voting in the previous (1997) NPC election. Politicians and human rights activists have criticized the election process as undemocratic and lacking transparency.
Larger numbers of women sought public office than ever before. Women held 11 of the 60 Legislative Council seats, and made up between 5 and 33 percent of membership in political parties. The President of the Legislative Council is a woman, as are the heads of several government departments. Three of the 15 most senior Government positions were held by women. The Equal Opportunities Commission, itself headed by a woman, noted that women were a minority in Government advisory bodies.
Minorities also were represented in senior civil service positions.
4. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
A wide variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases (see Section 2.b.). These organizations had unrestricted contacts with the local community and with groups overseas. Government officials were generally receptive to, and respectful of, their views. Prominent human rights activists critical of mainland China also operated freely and maintained permanent resident status in Hong Kong, but overseas dissidents sometimes had difficulty gaining entry to the SAR.
Under the Basic Law, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights apply to Hong Kong. The central Chinese Government transmits Hong Kong's reports under these covenants, without editing, to the U.N. The SAR Government and several domestic NGOs have testified before several U.N. human rights committees, including the United Nations Human Rights Commission in Geneva. The hearings, including concerns of the Commission, have received widespread and balanced press coverage.
The Office of the Ombudsman has wide powers to investigate and report on grievances from members of the public as a result of administrative actions of the executive branch and other designated public bodies. The Ombudsman may publish investigation reports in which the identity of the complainant is protected. In addition to responding to public complaints, the Ombudsman may initiate investigations. The Ombudsman may report to the Chief Executive if recommendations to the organizations under his jurisdiction have not been acted upon or if there are serious violations. The Chief Executive is bound by law to present such reports to the legislature. The Ombudsman (Amendment) Ordinance, in December 2001, helped strengthen the independence of the Ombudsman by delinking the office from Government systems and processes. It empowered the office to set terms and conditions of appointment for staff and to have full powers to conduct its own financial and administrative matters.
The Ombudsman does not have oversight authority over the police, the Independent Commission Against Corruption, the Equal Opportunities Commission, or the Office of the Privacy Commissioner for Personal Data, although it may investigate complaints of noncompliance with the law on access to information by government departments, including the police and the Independent Commission Against Corruption. With regard to election-related complaints, the Ombudsman only is empowered to investigate complaints made against the Registration and Electoral Office, but not those made against the Electoral Affairs Commission.
The U.N. Human Rights Committee and U.N. Committee on Economic, Social, and Cultural Rights (UNCESCR) expressed particular concern that Hong Kong had failed to establish a broadly-mandated human rights institution. Human rights groups also have complained that Hong Kong does not have a human rights commission.
5. Discrimination Based on Race, Sex, Disability, Language, or Social Status
The Basic Law provides that all Hong Kong residents are equal before the law. The Bill of Rights Ordinance, which provides for the incorporation into law of the International Covenant on Civil and Political Rights as applied to Hong Kong, entitles residents to the civil and political rights recognized therein "without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." However, the ordinance binds only the Government, public authorities and persons acting on their behalf; that is, not private persons or entities. Three pieces of antidiscrimination legislation – the Sex Discrimination Ordinance, the Disability Discrimination Ordinance, and the Family Status Discrimination Ordinance – have made it illegal for any person or entity (public or private) to discriminate on the grounds of sex, marital status, pregnancy, disability, or family status, and prohibits behavior such as sexual harassment, harassment or vilification on the grounds of disability, and discriminatory advertising.
An Equal Opportunities Commission (EOC) was established in 1996 to work toward the elimination of discrimination and to promote equality of opportunity with specific reference to gender, disability, and family status. During the year, the Government extended the term of the EOC's chairperson by just 1 year and said that it would keep the Commission's work under review.
The EOC and human rights groups continued to call for laws specifically targeting, among other problems, public or private discrimination based on race and age. In 2001 the UNCESCR concluded that Hong Kong's failure to prohibit race discrimination in the private sector constituted a breach of its obligations under the International Covenant on Economic, Social, and Cultural Rights. The UNCESCR also urged Hong Kong to prohibit discrimination on the basis of sexual orientation and age. The U.N. Committee on the Elimination of Racial Discrimination (UNCERD) recommended that "appropriate legislation be adopted to provide appropriate legal remedies and prohibit discrimination based on race, color, descent or national or ethnic origin." Meanwhile, press reports continued to identify examples of strong societal prejudice against minority groups and newly arrived mainland Chinese migrants. In addition, the EOC, on the basis of the large number of complaints and inquiries, continued to maintain that the elderly were discriminated against in the allocation of public housing, but noted that it was powerless to help, because there was no legislation prohibiting age discrimination.
During the year, the EOC received 785 total complaints for investigation and conciliation. The Commission handled 1,710 cases (including complaints from previous years) and concluded 1,403 cases. Of these, 741 cases were discontinued for various reasons, including withdrawal by the complainant; agreement reached before an investigation was completed; and a lack of substance. Of the remaining concluded cases, 60 percent were successfully conciliated. Legal assistance was available for unsuccessful complainants.
Violence against women remained a problem, particularly among new immigrants from the mainland. The Domestic Violence Ordinance allows a woman to seek a 3-month injunction against her husband (extendable to 6 months). Domestic violence also may be prosecuted as common assault. The Government enforced the law and prosecuted violators, but sentences generally were lenient, consisting only of injunctions or restraining orders. During the year, there were 3,034 cases of domestic violence reported to the Social Welfare Department, which received reports of domestic violence from the police as well as from social workers, the Health Department, and volunteer organizations.
Cultural factors and inadequate information about available assistance and resources resulted in many cases of spousal abuse going unreported. In 2000 the Government established an interdepartmental Working Group on Sexual Violence to ensure coordination of efforts among various departments and authorities in handling the problem of sexual violence. In 2001 the Government established a Women's Commission to address women's concerns in a comprehensive and systematic manner. In May the Commission held a conference to help raise public awareness of gender-related issues and provide a forum for local, foreign and mainland experts to promote the well-being of women. The Government also funded programs such as family life education counseling, a hot-line service, temporary housing, legal aid, and child protective services; it also has initiated public education and media programs to promote public awareness and encourage women to seek professional assistance.
The reported incidence of rape was low. There were 59 cases reported to the police in the first half of the year and 95 in 2001. However, underreporting was a serious problem. The amendment to the Crimes Ordinance proposed in 2001, to expressly clarify that marital rape is a crime, had not yet passed as of year's end. Indecent assault cases reported to the police totaled 574 in the first 7 months of the year and 1007 in 2001.
Prostitution is not illegal, but there are laws against activities such as causing or procuring another to be a prostitute, living on the prostitution of others, or keeping a vice establishment. Some women working in the sex industry have been trafficked to Hong Kong (see Section 6.f.).
Sexual harassment was a problem. The Equal Opportunities Commission reported 50 sexual harassment complaints during the first half of the year, with 99 such complaints reported in 2001. However, Government and NGO surveys conducted in 2000 suggested that sexual harassment was seriously underreported.
Women faced discrimination in employment, salary, welfare, inheritance, and promotion (see Section 6.e.). During the year, a 2-month study of government and Hospital Authority jobs, commissioned by the EOC's task force on Equal Pay for Work of Equal Value, was conducted. The results were not yet available at year's end. The press reported occasional stories of women alleging discrimination in the workplace. Official unemployment figures for the second quarter of the year were 8.8 percent for men and 6.1 percent for women. However, human rights organizations and unions have asserted that the statistics inaccurately recorded many unemployed women as housewives and that, in fact, the unemployment rate for women was actually higher than the unemployment rate for men.
Women entered professional fields, including law and medicine, in growing numbers. Nonetheless, female judicial officers and judges made up only 19 percent of the judiciary. A July government survey showed that the number of female senior government officials had increased more than nine-fold in the past 2 decades but that women as a whole still earned only approximately two-thirds as much as men. In the Legislative Council, women held 11 of the 60 seats. Women held 20 percent of the most senior government positions and 23 percent of the senior policy level positions in the civil service.
Women were disproportionately represented in the lower echelons of the work force, holding positions such as retail sales assistants and office clerks. The law treats men and women equally in inheritance matters, although women still faced discrimination based on traditional practices (such as in the inheritance of small homes in rural areas of the New Territories).
The High Court ruled in 2001 that the 23-year-old practice of separately ranking boys and girls for secondary school admission purposes discriminated in favor of boys. Of the 807 cases initiated in 2001, 257 were successfully conciliated, 267 were satisfied with Education Department relief measures, and investigation was discontinued for 283, due to alternate arrangements or findings of no discrimination after 12 months of investigation. There were no pending complaints at year's end.
In 2001 the Government established a Women's Commission to promote and protect the interests and well-being of women. The Commission declared its intention to focus on provision of health services, childcare support, protecting women against violence, promotion of a women-friendly working environment, and legal issues relating to women and the family. However, the UNCECSR expressed concern that the Commission might not have sufficient resources and powers to pursue its mission.
In September the Government issued a draft outline of Hong Kong's second report under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to seek views from the public.
The Government was committed firmly to children's rights and welfare through well-funded systems of public education, medical care, and protective services. The Education Department is committed to providing schooling for children between 6 and 15 years of age and provided placement services for non-Chinese speaking children. Education was free and compulsory through grade nine. The Government supported programs for custody, protection, day care, foster care, shelters, small group homes, and assistance to families.
Subsidized, quality medical care was available to all children who are residents.
At year's end, the Government was considering legislation proposed in 2001 to raise the age of criminal responsibility for children from 7 to 10 years. For the first 7 months of the year, there were 49 youths under the age of 16 who were incarcerated: 14 in prison, 9 in training centers, 24 in detention centers, and 2 in drug addiction treatment centers.
Child abuse and exploitation were not widespread. In the first 7 months of the year, there were 645 child abuse cases newly registered with the police: 265 involved physical abuse and 380 involved sexual abuse. The Government reported 99 cases of "cruelty to children" in the first half of the year; there were 181 cases in 2001, and 178 in 2000.
There are no specific laws dealing with child pornography, but child pornography is covered under other anti-pornography laws. A bill on Prevention of Child Pornography, introduced before the Legislative Council in January, would criminalize the making, production, distribution, publication, advertising, and possession of child pornography. The bill would also prohibit the procurement of children for making pornography, extend the application of certain sexual offense provisions to acts committed against children outside of Hong Kong, and prohibit any arrangement or advertising relating to commission of those acts. At year's end, the bill was still being studied in committee.
The Government provided parent education programs in all 50 of the Department of Health's Maternal and Child Health Centers. The police maintained a child abuse investigation unit to improve the treatment of victims, and laws have been passed to make it easier for child victims to testify in court using an interviewing suite for recording statements. There are substantial legal penalties for mistreatment or neglect of minors. A witness support program helped child witnesses in need. A child witness information kit in Chinese, with books explaining legal and court proceedings, helped reduce children's anxiety about testifying. A Child Care Center Law helped to prevent unsuitable persons from providing childcare services and facilitated the formation of mutual help childcare groups.
Persons with Disabilities
Discrimination against the physically and mentally disabled persisted in employment, education, and the provision of some public services. The Disability Discrimination Ordinance called for improved building access and sanctions against those who discriminate, and the amended Buildings Ordinance updated design requirements. Despite inspections and occasional closure of noncompliant businesses, access to public buildings (including public schools) and transportation remained a serious problem for persons with disabilities. Advocates complained that limited access for persons with disabilities at polling stations made voting difficult. The Government offered an integrated work program in sheltered workshops and provided vocational assessment and training. No comprehensive statistics were available on the number of persons with disabilities in the work force, but a consortium of organizations representing persons with disabilities reported that approximately 700,000 residents are disabled, and about half were able to work. Government estimates indicated that during the year there were approximately 265,000 persons with physical disabilities and 53,500 with mental disabilities. Of these, 52,500 were employed and 59,700 were considered "economically active," (such as small business owners and street vendors). As of April, there were 3,408 persons with disabilities employed as civil servants in a total civil service work force of approximately 173,000 – approximately 2 percent of all civil servants. During the year, the Labor Department's Selective Placement Division found jobs for 2,572 of 4,225 disabled job seekers. Approximately 10,000 students in a school population of 960,000, about 1 percent, were disabled. Of these, 3,657 were in mainstream schools where they received special education services.
In 2001 the UNCESCR recommended that the Government undertake a comprehensive review of mental health policy and adopt effective measures to ensure that persons with mental illness enjoyed the right to adequate and affordable health care. The Committee also noted its concern over the Government's "apparent lack of initiative" to undertake public education to combat discrimination against those with mental disabilities. In response, the EOC undertook a variety of activities during the year to address discrimination against persons with disabilities, including co-sponsoring seminars and research.
The UNCESCR, the UNCERD, Hong Kong legislators, human rights groups, continued to call for laws specifically targeting racial discrimination in the private sector. In response, the Government conducted public consultations on the need for antiracism legislation. The Government's analysis of the consultations, released in August, showed significant support for enacting such legislation. As of year's end, however, the Government had not introduced legislation to prohibit racial discrimination in the private sector.
The Government's non-legally binding "Code of Practice for Employers," put into place in 2001 and designed to prevent discrimination, states that race, among other factors, should not be considered when hiring employees. The Government has undertaken a public education and awareness campaign to combat race discrimination with only limited effect. In July the Government established a new Race Relations Unit to enhance services to ethnic minorities.
Minorities, who made up approximately 5 percent of the population, were well represented in the civil service and many professions. However, there were allegations of racial discrimination in such areas as private sector employment, admission to public restaurants, placement in public schools, treatment in public hospitals, apartment rentals, and acceptance to institutions of higher education. Foreign domestic workers, most of whom were from the Philippines and Indonesia, were particularly vulnerable to discrimination. An Indonesian Migrant Workers Union was established in 2000 to unite Indonesian domestic helpers throughout Asia to protect members from abuse and exploitation. The organization served the approximately 75,000 Indonesian domestic helpers who work in the SAR. Similar organizations worked for the interests of approximately 154,000 Philippine domestic helpers. According to organizations representing migrant workers, police intimidation of migrant workers also was a problem.
6. Worker Rights
a. The Right of Association
The law provides for the right of association and the right of workers to establish and join organizations of their own choosing. Trade unions must be registered under the Trade Union Ordinance. The basic precondition for registration is a minimum membership of seven persons. The Trade Union Ordinance does not restrict union membership to a single trade, industry, or occupation. The Government did not discourage or impede the formation of unions. Trade unions were independent of political parties and the Government.
During the year, 23 new unions were registered, while 11 were deregistered; at year's end, there were 622 registered trade unions. As of 2001, over 22 percent of the approximately 3.3 million salaried employees and wage earners belonged to a labor organization.
The Employment Ordinance includes provisions that protect against antiunion discrimination. Violation of the antiunion discrimination provisions is a criminal offense with a maximum fine of $12,800 (HK$100,000). Employees who allege such discrimination have the right to have their cases heard by the Labor Relations Tribunal. The Tribunal may order reinstatement of the employee, subject to mutual consent of the employer and employee. The Tribunal may award statutory entitlements (severance pay, etc.) and compensation. The maximum amount of compensation is $19,230 (HK$150,000). Some labor activists complained that the Labor Tribunals tended to push conciliation rather than issue orders.
The Basic Law commits the SAR to 40 International Labor Organization (ILO) conventions, and the Government has amended labor legislation and taken administrative measures to comply (see Section 6.b.).
The Employment and Labor Relations (Miscellaneous Amendments) Ordinance permits the cross-industry affiliation of labor union federations and confederations and allows free association with overseas trade unions (although notification of the Labor Department within 1 month of affiliation is required).
b. The Right to Organize and Bargain Collectively
In 1997 the prehandover Legislative Council passed three laws that greatly expanded the collective bargaining powers of workers, protected them from summary dismissal for union activity, and permitted union activity on company premises and time. The new ordinances would have enabled full implementation of ILO Conventions 87, 98, and 154. However, in 1997 after consultation with the Labor Advisory Board, the Provisional Legislature repealed the Employee's Right to Representation, Consultation, and Collective Bargaining Ordinance and the Employment (Amendment) Ordinance, and amended the Trade Union (Amendment) Ordinance. The repeals removed the new legislation's statutory protection against summary dismissal for union activity; the Government argued that existing law already offered adequate protection against unfair dismissal arising from antiunion discrimination. In 2001 the U.N. Committee on Economic, Social and Cultural Rights expressed concern over the absence of protection against unfair dismissal.
The Employment and Labor Relations (Miscellaneous Amendments) Ordinance removed the legal stipulation of trade unions' right to engage employers in collective bargaining; bans the use of union funds for political purposes; requires the Chief Executive's approval before unions can contribute funds to any trade union outside of the SAR; and restricts the appointment of persons from outside the enterprise or sector to union executive committees. Because of this law, the Hong Kong Confederation of Trade Unions promptly filed a complaint against the Hong Kong Government for violation of ILO Conventions 87, 98, and 154. In 1999 the ILO Committee on Freedom of Association concluded that the Employment and Labor Relations (Miscellaneous Amendments) Ordinance breached Conventions 87 and 98 and recommended that the Government take legislative action to remedy the situation. The Government provided the ILO progress reports in 1999 and 2000 asserting that it was in compliance with all of the 40 ILO conventions that apply to Hong Kong. In 1999 the Government blocked a legislator's attempt to introduce two bills on collective bargaining and antiunion discrimination on the grounds that they would affect government spending and operations and therefore fell outside the scope allowed for private member bills under the Basic Law. With the repeal of the short-lived collective bargaining legislation, the prehandover framework continued. There were no laws that stipulated collective bargaining on a mandatory basis.
Collective bargaining was not practiced widely. Unions generally were not powerful enough to force management to engage in collective bargaining. The Government did not encourage it, since the Government itself did not engage in collective bargaining with civil servants' unions but merely "consulted" with them. Wage rates in a few trades like tailoring and carpentry were determined collectively in accordance with established trade practices and customs rather than as a statutory mechanism.
In 1998 the Government established the Workplace Consultation Promotion Unit in the Labor Department to facilitate effective communication, consultation and voluntary negotiation between employers and employees. The Government has set up tripartite committees for nine sectors of the economy, each of which has representatives from trade unions, employers and the Labor Department.
Work stoppages and strikes were permitted; however, there were some restrictions on this right for civil servants. Although there was no legislative prohibition of strikes, in practice, most workers had to sign employment contracts that typically stated that walking off the job was a breach of contract which could lead to summary dismissal.
There were no export processing zones.
c. Prohibition of Forced or Bonded Labor
The law prohibits forced or bonded labor. The law does not specifically prohibit forced or bonded labor by children; however, there were no reports that such practices occurred.
d. Status of Child Labor Practices and Minimum Age for Employment
The Employment of Children Regulations prohibit employment of children under the age of 15 in any industrial establishment. Children 13 and 14 years of age could be employed in certain non-industrial establishments, subject to conditions aimed at ensuring a minimum of 9 years' education and protecting their safety, health, and welfare. To enforce compliance with the regulations, the Labor Department conducted regular workplace inspections. During the year, the Labor Department conducted 161,447 inspections, and discovered 12 violations of the Employment of Children Regulations, resulting in the assessment of $4,102 (HK$32,000) in fines. Work hours for young persons 15 to 17 years of age in the manufacturing sector remain limited to 8 hours per day and 48 hours per week between 7 a.m. and 7 p.m. Overtime is prohibited for all persons under the age of 18 in industrial establishments. Employment in dangerous trades is prohibited for youths, except for 16- and 17-year-olds.
e. Acceptable Conditions of Work
There is no statutory minimum wage except for domestic workers of foreign origin. Aside from a small number of trades where a uniform wage structure existed, wage levels customarily were fixed by individual agreement between employer and employee and were determined by supply and demand. Some employers provided workers with various kinds of allowances, free medical treatment, and free subsidized transport. The average wage generally provided a decent standard of living for a worker and family. Two-income households were the norm. In 2001 the UNCESCR expressed concern over the lack of adequate regulation on statutory minimum wage, working hours, paid weekly rest, rest breaks and compulsory overtime.
The minimum wage for foreign domestic workers was approximately $470 per month (HK$3,666). The standard workweek was 48 hours, but many domestic workers worked far longer hours. The standard contract law requires employers to provide foreign domestic workers with housing, worker's compensation insurance, travel allowances, and food or a food allowance in addition to the minimum wage, which together provided a decent standard of living. Foreign domestic workers were subject to deportation if they were dismissed. There were credible reports of such workers illegally being forced to accept less than the minimum wage and unacceptable living conditions. There have been a number of cases of foreign domestic workers successfully taking their employers to court for mistreatment.
The Occupational Safety and Health Branch (OSHB) of the Labor Department is responsible for safety and health promotion, enforcement of safety management legislation, as well as policy formulation and implementation.
The Factories and Industrial Undertakings Ordinance and its 30 sets of subsidiary regulations regulate safety and health conditions. During the year, the Labor Department conducted 162,417 inspections of workplaces and issued 3,174 summonses, resulting in a total of $561,186 million in fines (HK$4,377,250). Worker safety and health has improved over the years, due in part to the transfer of many manufacturing jobs to factories in mainland China, but serious problems remained, particularly in the construction industry. During the first 9 months of the year, there were 35,654 occupational injuries, of which 17,112 were classified as industrial accidents. There were 21 fatal industrial accidents. Employers are required under the Employee's Compensation Ordinance to report any injuries sustained by their employees in work-related accidents. There is no specific legal provision allowing workers to remove themselves from dangerous work situations without jeopardy to continued employment.
f. Trafficking in Persons
There is no specific law prohibiting trafficking in persons; however, there are various laws and ordinances that allowed law enforcement authorities to take action against traffickers. Trafficking in persons was a problem; Hong Kong was both a transit and a destination point for trafficked persons. However, it was difficult for authorities to identify trafficking victims among the larger group of illegal immigrants.
Hong Kong was a transit point for some persons trafficked from China and other nations to third countries, despite active efforts by the Government to stop such trafficking. During the year, authorities caught 3,549 persons with forged travel documents. The most common method used to attempt to traffic persons through the SAR employed forged or illegally obtained travel documents to move through the airport. In past years, traffickers have attempted to smuggle persons in shipping containers. In 2001 the Government uncovered a trafficking ring and arrested 11 Hong Kong residents involved in a forgery operation that produced fraudulent passports.
There were reports that Hong Kong was a destination for women trafficked for the purpose of prostitution. According to a 2001 study, some of the women did not know before coming to Hong Kong that they would be pressured into serving as "escorts" for male customers of the bars where they were given jobs. Large numbers of mainland Chinese women also illegally engaged in prostitution with the reported assistance of organized criminal groups. There were reports as well that criminal elements brought in small numbers of women from the former Soviet Union, Eastern Europe, and Colombia for the purpose of engaging in illegal prostitution.
The authorities sought to combat illegal prostitution by nonresidents through strict immigration controls and by arresting and prosecuting illegal prostitutes and their employers. In the first 9 months of 2001, 982 nonresident women prostitutes and a much smaller number of their employers were arrested. Most of those arrested were deported rather than formally charged.
Persons also were trafficked to the SAR for labor purposes, including domestic labor. Some foreign domestic workers, particularly from Indonesia, have been recruited abroad and brought to Hong Kong only to be placed in coercive working and living conditions. Organized criminal groups generally were behind the illicit activity and sought to profit from it through forced labor, debt bonded labor, or prostitution.
Government policies to combat fraudulent marriages that could be used to disguise trafficking in persons appeared to be producing results. Immigration officials closely scrutinized applications for the entry of foreigners to take up residence with local spouses, and in cases where the claimed relationship as husband and wife was deemed not credible, applications were rejected.
Provisions in the Immigration Ordinance, the Crimes Ordinance, and other relevant laws enabled law enforcement authorities to take action against trafficking in persons. The courts can impose heavy fines and prison sentences for up to 14 years for such activities as arranging passage of unauthorized entrants into Hong Kong, assisting unauthorized entrants to remain, using or possessing a forged, false or unlawfully obtained travel document, and aiding and abetting any person to use such a document. The Security Bureau has policy responsibility for combating migrant trafficking and oversees the police, customs, and immigration departments, which are responsible for enforcing antitrafficking laws. Law enforcement officials received specialized training on handling and protecting victims and vulnerable witnesses, including victims of trafficking.
Legal aid was available to those who chose to pursue legal proceedings against an employer, and immunity from prosecution was often made available to those who assisted in the investigation and prosecution of traffickers. The Government did not provide funding to foreign or domestic NGOs for services to victims of trafficking. The Government's prevention efforts included providing pamphlets to workers about their rights; the pamphlets were widely distributed and were published in a wide range of languages.