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TITLE: HONG KONG HUMAN RIGHTS PRACTICES, 1993 DATE: JANUARY 31, 1994 AUTHOR: U.S. DEPARTMENT OF STATE HONG KONG Hong Kong, a small, densely populated British dependency, is a free society with legally protected rights but without a broad democratic base. Its constitutional arrangements are defined by the Letters Patent and Royal Instructions. Executive powers are vested in a British Crown-appointed Governor who holds extensive authority. The judiciary is an independent body adhering to English common law with certain variations. Fundamental rights ultimately rest on oversight by the British Parliament. In practice, however, Hong Kong largely controls its own internal affairs. A well-organized civilian police force maintains public order and respects the human rights of the populace. Hong Kong's free market economy is among the world's most important shipping, marketing, and finance centers. It serves as an investment center for trade with China and as a communication and transportation hub for Asia. Annual per capita gross domestic product increased by 5.5 percent in 1993 to a projected $18,948. The Bill of Rights, passed in June 1991, continued to make an impact on legislative process and criminal law. Hong Kong political leaders and human rights groups have criticized the Government for not conforming Hong Kong laws to the Bill of Rights. The Legislative Council is expected to consider measures aimed at further reconciliation during the 1993-94 session. The principal human rights problem is the inability of citizens to change their government. China strongly criticized and opposed the Governor's 1992 proposed measures to broaden the political franchise before the colony reverts to China in 1997. In ongoing political talks, the United Kingdom (U.K.) and China have not reached agreement on these proposals. Discrimination and violence against women are continuing human rights concerns. RESPECT FOR HUMAN RIGHTS Section 1 Respect for the Integrity of the Person, Including Freedom from: a. Political and Other Extrajudicial Killing There were no instances of deaths in police custody or as a result of using force in restraining unarmed persons during arrest. b. Disappearance There were no reports of any disappearance. c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment Torture and other extreme forms of abuse are forbidden by law and subject to punishment. Individual acts of police brutality occurred. From January to July 1993, 996 allegations of police assault were lodged. The total number of complaints against the police during this period numbered about 2,000. As of July, 34 cases were substantiated, none of which resulted in death. End of year figures were not available. Disciplinary action can range from criminal proceedings to dismissal or warnings. Complaints are investigated by an internal police unit, subject to outside review. The authorities continued to reject calls from some legislators that investigations should be conducted by an independent body. d. Arbitrary Arrest, Detention, or Exile British legal protections and common law traditions govern the process of arrest and detention and ensure substantial and effective legal protections against arbitrary arrest or detention. Exile is not practiced. e. Denial of Fair Public Trial Hong Kong's judicial and legal systems are organized according to principles of British constitutional law and legal precedent and feature, inter alia, an independent judiciary and trial by jury. The right to a fair public trial is guaranteed and respected in practice. f. Arbitrary Interference with Privacy, Family, Home, or Correspondence The right of privacy is generally respected and provided for by law. The Independent Commission Against Corruption (ICAC) is vested with powers which are normally exercised only by a judicial officer. Amendments to ordinances governing ICAC deprived it of its independent authority to issue arrest or search warrants (it must now go to the courts), but it still operates on the assumption that any excessive, unexplainable assets held by civil servants are considered ill-gotten until proven otherwise. Section 2 Respect for Civil Liberties, Including: a. Freedom of Speech and Press There is a tradition of free speech and press as practiced in Great Britain. However, the admission by China's Ministry of Public Security that it has been gathering information on Hong Kong residents who are "against the Chinese Government" has had some chilling effect on free speech. Numerous views and opinions, including those independent or critical of the British and Hong Kong Governments, are aired in the mass media, in public forums, and by political groups. International media organizations operate freely in Hong Kong. Although rarely imposed, several ordinances permit restrictions of the press. Journalists report that self-censorship is on the increase as Hong Kong-based media organizations which are expanding their commercial ties in China, seek to avoid giving offense to the Chinese Government. Following Chinese objections to a Hong Kong government proposal to "corporatize" the government-owned Radio Television Hong Kong (RTHK), there have been no further efforts by the Hong Kong Government to do so. The Government continues to refuse to consider freedom of information legislation proposed by Hong Kong civil liberties groups. b. Freedom of Peaceful Assembly and Association These freedoms are practiced without significant hindrance, although the amended Societies Ordinance requires officeholders to notify the Police Commissioner (who is the Registrar of Societies) of the formation of a society. The Ordinance permits the Registrar to refuse to register an organization that is found to be "incompatible with peace, welfare, or good order" or is affiliated with a political organization abroad. There were no instances of this provision being applied arbitrarily in 1993. c. Freedom of Religion Government policy and general practice ensure freedom of religion. d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation Travel documents are obtainable freely and easily, subject to neither arbitrary nor discriminatory practices. There is freedom of movement within Hong Kong. By 1991 more than 200,000 Vietnamese had arrived in Hong Kong seeking refugee status. Hong Kong has never refused to accept, or pushed off, Vietnamese boat people. Prior to June 1988, they were automatically accorded refugee status. Thereafter, they were screened to determine their status and were held in prison-like detention centers awaiting resettlement in other countries or repatriation to Vietnam. As of November 1993, only 67 Vietnamese had arrived Hong Kong since agreement was reached in late 1991 by the U.K. and Vietnam The agreement provided for the immediate screening of new arrivals, mandatory repatriation to Vietnam of those whom the authorities determined not to be refugees, and the decision by the U.N. High Commissioner for Refugees (UNHCR) to cease providing a reintegration subsistence allowance to new arrivals. A trial of 13 Vietnamese accused of murdering 24 fellow detainees, who burned to death in a February 1992 riot when their hut was barricaded and set afire, is expected to continue until mid-1994. In addition to the 13 defendants, 2 key defense witnesses were prevented from returning to Vietnam--despite volunteering to return home--until they have testified in the case. Gang violence continues to be a problem in the camps, and women are often raped. On September 1, the UNHCR began cutting nonessential services in the detention centers. The move, which eliminated adult education, community and recreational activities in the camps, and cut back employment opportunities and some medical facilities, was criticized by some nongovernmental human rights organizations. The Hong Kong Government has said it hopes to have all initial screening of Vietnamese asylum seekers completed by January 1994. Reintegration assistance programs inside Vietnam funded by the European community, the Hong Kong Government, and the United States provided an incentive for those not eligible for third country resettlement to return to Vietnam. In order to spur voluntary repatriation of those not recognized as refugees, the Government slashed the assistance package available to those returning home by a third, effective November 1. Anyone who volunteered before that time could still receive the full amount. Those who have not completed the screening process by the deadline will have 90 days to make a decision for voluntary repatriation before benefits are cut. Of those found ineligible for resettlement or not yet screened, more than 10,000 persons had voluntarily returned to Vietnam by year's end and more than 34,000 since the agreement on the Comprehensive Plan of Action in 1989. On May 12, 1992, the Hong Kong government reached agreement with Vietnamese authorities on an Orderly Return Program (ORP) for screened-out nonrefugees in Hong Kong detention centers. Under the program, people are randomly chosen from among the nonrefugee camp population and are moved to a separate location several days before the flight's scheduled departure. Hong Kong government security officers then escort all those being mandatorily returned on to the plane and accompany the flight to Vietnam. Security officials have used limited force in the past when some nonrefugees resisted repatriation. To date the Government has returned 730 persons aboard 14 ORP flights. The Government maintained its policy of deporting illegal Chinese immigrants to China, except in rare instances in which a person qualified as a refugee within the meaning of the U.N. Protocol on the Status of Refugees. In 1992 an average of 130 illegal immigrants, mostly young men, were arrested every day and returned to China. Over 2,400 ethnic Vietnamese living in China fled to Hong Kong during 1992. Called Ex-China Vietnamese Illegal Immigrants (EVCIIS) by the Government, they were not recognized as refugees by UNHCR or local authorities and were returned to China. Following China's expulsion of Han Dongfang, a Chinese labor organizer, when he returned to China in August, the Hong Kong Government has repeatedly renewed Han's permission to remain in the colony while he has continued efforts to obtain Chinese permission to return to his homeland. Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government While Hong Kong is a free society, with most individual freedoms and rights protected by law and custom, citizens of the territory do not have the right to change their government. The Governor is appointed by and serves at the pleasure of the Crown. He is advised on policy by an executive council which he appoints. Legislation is enacted and funds are provided by the Legislative Council which also debates policy and questions the administration. Although the legislature has virtually no power to initiate legislation, it has become more assertive since the September 1991 direct elections for some seats. The Governor has ultimate control of the administration of Hong Kong but, by convention, he rarely exercises his full powers. In practice, decisions reached through consensus. Political parties and independent candidates are free to contest seats in free and fair elections. Representative government employing universal franchise, however, does not exist. Only 18 of 60 legislators were elected by universal suffrage. Of the rest, 21 were either appointed by the Governor or are themselves government officials. Another 21 were elected by functional groupings, such as lawyers, industrialists, teachers, laborers, and accountants. Functional constituencies disproportionately represent the economic and professional elites and, moreover, violate the concept of one person-one vote, since voters in functional constituencies may vote both in a functional and a geographic constituency. In his first policy address in October 1992, the Governor introduced several proposals intended to make the 1995 legislature more democratic. As originally proposed, the measures would give all eligible voters in the working population of 2.7 million a second vote in one of 30 functional constituencies. Furthermore, the election committee, which would elect 10 legislators, would draw all or most of its members from the local district boards, which the Governor proposed to be entirely directly elected, rather than one-third appointed, as is the case now. Even these measures, however, would not result in a fully representative, democratically elected government. The Chinese Government, claiming it had not been consulted on these proposals, denounced them and warned that any changes which did not "converge" with the Basic Law, Hong Kong's post-1997 constitution, would be revoked when China resumes its exercise of sovereignty in 1997. Since April 1993, Chinese and British negotiators have been discussing the procedures for the 1995 Legislative Council elections, although progress has been negligible. However, both the British and Chinese Governments earlier agreed that the number of legislators to be elected by universal suffrage in 1995 will increase to 20. Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights Although the Government to date has interposed no official barriers to the formation of local human rights groups, some human rights monitors believe that provisions of the Societies Ordinance provide the legal means whereby a future government could do so. The Government has consistently cooperated with international and nongovernmental organizations on human rights issues. The UNHCR and nongovernmental human rights organizations have full access to Hong Kong's camps for Vietnamese boat people. Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status The Chinese language has equal status with English in many government operations. The Government is continuing efforts to place Hong Kong Chinese in senior positions. In September the Government announced the appointment of several locally born Hong Kong civil servants (mostly Chinese, but one locally born Indian) to key positions. For the first time a Hong Kong Chinese was appointed to the top civil service position. Overall, however, progress remains slow in replacing expatriates serving in other policy-related positions. Expatriates remain in key positions in the legal and police departments as well as the judiciary. Complicating the Government's localization efforts have been expatriate government workers on local contracts who threaten legal action against the Government if they are not allowed to convert to regular civil service status. The Government's decision to allow long-resident expatriates with appropriate job qualifications to convert has drawn charges from local civil servant organizations that the Government has reneged on its localization policy. As of September, the Government's decision to allow expatriates to convert remained in effect although some members of the Legislative Council threatened to overturn it in the 1993-94 legislative session. Women Violence and discrimination against women remain significant problems. The only legislation to protect the rights of battered women is the 1987 Domestic Violence Ordinance, which enables a woman to seek a 3-month injunction against her husband. This may be extended to 6 months. In addition, domestic violence may be prosecuted as common assault under existing criminal statutes. The Government enforces these laws and prosecutes violators. Nevertheless, women's action groups continue to press for better legal and government provisions for battered wives. They call for public housing to house women as soon as they leave their violent husbands. Harmony House, a private voluntary agency, and the Social Welfare Department operate two homes which offer refuge to a small number of women. Harmony House also has conducted training programs for police personnel on how to deal with domestic violence. Many instances of domestic violence, however, are not reported, owing partly to cultural factors which frown on exposing family crises to the public eye but also to a lack of well-publicized information about the assistance and resources available. Women face discrimination in areas of employment, salary, welfare, and promotion. While a number of women hold senior appointive government positions, only two were elected to the legislature. Children The Government supports child welfare programs including custody, protection, day care, foster care, shelters, and small group homes. Assistance is also provided to families. Child abuse and exploitation are not widespread problems in Hong Kong. The Government remains committed to the human rights and welfare of children. People with Disabilities Organizations and individuals representing the interests of the disabled claim that discrimination against the physically and mentally disabled exists in employment, education, and the provision of some state services. Access to public buildings and transportation remain problems for the physically impaired. Advocate groups have urged the Government to do more to encourage greater public tolerance of the mentally disabled. Harassment of and discrimination against families with mentally disabled children, for example, have occurred in some housing projects. There also has been criticism that mentally disabled children are not allowed opportunities to "mainstream" into public school programs. The Government is generally receptive and sympathetic to these concerns; it encourages greater employment for the disabled and seeks improved access to public facilities for those physically impaired. However, there is as yet no law mandating accessibility provisions for disabled persons. Section 6 Worker Rights a. The Right of Association The right of association and the right of workers to establish and join organizations of their own choosing are guaranteed under local law. Trade unions must be registered under the Trade Unions Ordinance. The basic precondition for registration is a minimum of seven persons who serve in the same occupation. The Government does not discourage or impede the formation of unions. During 1992, 11 new unions were registered. However, only about 525,000 workers (or 18.5 percent) out of a total labor force of 2.84 million belong to one of the 522 registered unions, most of which belong to one of three major trade union federations. Work stoppages and strikes are permitted. However, there are some restrictions on this right for civil servants. Even though the Employment Ordinance recognizes the right to strike, in practice most workers must sign employment contracts which typically state that walking off the job is a breach of contract and can lead to summary dismissal. The Employment Ordinance also permits firms to discharge or deduct wages from staff who are absent on account of a labor dispute. Hong Kong labor unions may form federations, confederations, and affiliate with international bodies. Any affiliation with foreign labor unions requires the consent of the Government. All such requests have been granted. As a dependent territory of the U. K., Hong Kong is not a member in its own right of the International Labor Organization (ILO). The U.K. makes declarations on behalf of Hong Kong concerning the latter's obligations regarding the various ILO conventions. To date, Hong Kong has implemented provisions applying 29 conventions in full and 18 other with modifications. In the Basic Law, China undertook to continue to adhere to these conventions after 1997. b. The Right to Organize and Bargain Collectively The right to organize and bargain collectively is guaranteed by law. Hong Kong laws pertaining to collective bargaining cover mainly the shipping, textile, public transport, public utility, and carpentry trades, and the catering, construction, public service, and teaching professions. Wages are determined by market factors. While collective bargaining does take place, it is not widely practiced, and in general there are no mechanisms specifically to encourage it. Unions generally are not powerful enough to force management to engage in collective bargaining. The Government does not encourage it, since the Government itself does not engage in collective bargaining with civil servants' unions but merely "consults" with them. Free conciliation services are afforded by the Labor Relations Division of the Department of Labor (DOL) to employers and employees involved in disputes dealing with arrears of wages, wages in lieu of notice, severance pay, and breaches of contractual employment terms. The DOL is charged with finding a mutually acceptable settlement, although it does not have the authority to impose a solution. The DOL is not required by law to allow unions to represent employees in these proceedings. Instead, union representation depends upon the mutual consent of both the employee and the employer. Workers are protected against antiunion discrimination under Hong Kong legislation. Employees who allege such discrimination have the right to have their cases heard by the DOL's Labor Relations Division. Employers who attempt to prevent or deter an employee from joining a labor union, or who terminate an employee for joining a labor union, are liable to a fine of approximately $650. However, the employers are not required to reinstate the employee or to compensate him. The International Confederation of Free Trade Unions (ICFTU) is highly critical of the inadequacy of Hong Kong's labor legislation, with its failure to protect the right to strike, and provisions allowing dismissals and disciplinary action against trade unionists going on strike. The ICFTU cites as an example the 17-day strike by the Flight Attendant's Union at Cathay Pacific at the beginning of 1993, in which striking workers were threatened with disciplinary action and dismissal. Individual labor claims are also adjudicated by the Labor Tribunal, a part of the judicial branch, which is supposed to provide quick and inexpensive machinery for resolving certain types of disputes. The Tribunal complements the conciliation service provided by the Labor Relations Division. Union leaders complain, however, that the Tribunal takes too long--an average of 133 days--to hear workers' cases. There are no export processing zones in Hong Kong. c. Prohibition of Forced or Compulsory Labor Existing labor legislation prohibits forced labor, and it is not practiced. d. Minimum Age for Employment of Children The Employment of Children Regulations prohibit the employment of children under age 15 in any industrial establishment. Children aged 13 and 14 may be employed in certain nonindustrial establishments, subject to conditions aimed at ensuring a minimum of 9 years' education and protecting their safety, health, and welfare. During 1992, 9 campaigns against the employment of children covered about 26,100 establishments and found 18 children working in violation of the law, according to the annual report of the Commissioner for Labor. A number of these cases were successfully prosecuted and fines of around $200 were levied. e. Acceptable Conditions of Work There is no minimum wage except for foreign domestic workers. Aside from a small number of trades and industries where a uniform wage structure exists, wage levels are customarily fixed by individual agreement between employer and employee and are determined by supply and demand. In view of continued tightness in Hong Kong's labor market (unemployment averaged about 2.1 percent for 1993), wage increases were given to most workers, particularly those in the construction industry and service sectors. Many employees also receive a year-end bonus of a month's pay or more. Some employers in the manufacturing sector provide workers with various kinds of allowances, free medical treatment, and free or subsidized transport. There are no legal restrictions on hours of work for men. The Women and Young Persons (Industry) Regulations under the Employment Ordinance control hours and conditions of work for women and young people aged between 15 and 17. Work hours are limited to 8 per day and 48 per week between 6 a.m. and 11 p.m. (between 7 a.m. and 7 p.m. only for women, however, this provision is very loosely enforced) for persons age 16 or over. Overtime is restricted to 2 hours per day and 200 days per year for women and is prohibited for all persons under 18 in industrial establishments. The regulations also prohibit women and young persons from working underground or, with the exception of males aged 16 and 17, in dangerous trades. The Labor Inspectorate conducts workplace inspections to ensure compliance with these regulations. During 1992 it carried out 198,748 inspections of approximately 190,000 establishments in industrial and nonindustrial sectors, which resulted in 3,624 prosecutions of employers and a wide range of fines depending on the seriousness of the violation. The employment of underaged workers is generally not a serious problem. The DOL Factory Inspectorate sets basic occupational safety and health standards, provides education and publicity, and follows up with enforcement and inspection in accordance with the Factories and Industrial Undertakings Ordinance and subsidiary regulations. The Inspectorate pays particular attention to safety in high-risk areas of factories and construction sites, with routine visits to factories and construction sites. During 1992 inspectors visited 63,135 factories and 15,229 construction sites and issued 2,811 summons. As part of a complementary effort, the DOL Occupational Health Division investigates claims of occupational diseases and injuries at work, conducts environmental testing in the workplace, and provides medical examinations to employees in occupations that involve the handling of hazardous materials. The small number of inspectors--about 200--and the inability of workers to elect their own safety representatives weaken the enforcement of safety and health standards at the workplace. There is no specific legal provision allowing workers to remove themselves from dangerous work situations without jeopardy to continued employment.
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