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TITLE: HONG KONG HUMAN RIGHTS PRACTICES, 1994 AUTHOR: U.S. DEPARTMENT OF STATE DATE: FEBRUARY 1995 HONG KONG Hong Kong, a small, densely populated British dependency, is a free society with legally protected rights. 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. The Governor appoints an advisory Executive Council and a partially representative Legislative Council has limited powers. A well-organized civilian police force maintains public order and generally respects the human rights of the populace. There were, however, instances in which police used excessive force. Hong Kong, a major regional and international trade and financial center, is the principal gateway for trade and investment with China. Its prosperous free market economy operates on the basis of minimal government interference. Per capita gross domestic production was about $20,000 in 1994. Human rights monitors, journalists, and concerned legislators criticized the Government for opposing major human rights initiatives, including the establishment of a human rights commission and legislation against discrimination. Human rights problems included an increasing amount of self-censorship by the media, the inability of people to change their government, and discrimination against women. There were allegations of police use of excessive force; the authorities investigated and punished offenders in accordance with existing laws and regulations. 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 reports of political or other extrajudicial killings. b. Disappearance There were no reports of disappearance. c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment The law forbids torture and other extreme forms of abuse and stipulates punishment of those using them. However, police officers continued to use excessive force. During the first half of the year, complainants filed 797 allegations of assault by the police. As of July, the authorities had substantiated 64 of these. Disciplinary action ranged from criminal proceedings to dismissal or warnings. The Office of Police Complaints investigates complaints. The Police Complaints Committee, which consists of independent members appointed by the Governor, monitors and reviews the handling of such complaints. The Government, however, continues to resist public calls for the creation of an independent body to investigate allegations of police abuse. 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 The judicial and legal systems are organized according to principles of British law and legal precedent, and feature, inter alia, an independent judiciary and trial by jury. The law provides the right to a fair public trial, and this is respected in practice. f. Arbitrary Interference with Privacy, Family, Home, or Correspondence The law provides for the right of privacy, and the Government generally respects this right. The Independent Commission Against Corruption (ICAC) is vested with powers which are normally exercised only by a judicial officer. Amendments to ordinances governing the ICAC deprived it of this 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 the United Kingdom. Numerous views and opinions, including those independent or critical of the British, Hong Kong, and Chinese Governments are aired in the mass media, in public forums, and by political groups. International media organizations operate freely. However, several ordinances permit restrictions of the press, although authorities rarely impose them. The Government required a permit for the screening of a controversial British Broadcasting Corporation (BBC) documentary on Mao Zedong by the Foreign Correspondents Club, after China raised objections, but permitted the program to be shown. The imminent return to Chinese control, however, led some journalists to practice self-censorship. Several incidents during the year had a chilling effect on Hong Kong's media and on the media's judgments of the future press environment after 1997. These included 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," the Chinese Government's secret trial and sentencing of Hong Kong reporter Xi Yang to 12 years' imprisonment for stealing "state financial secrets," and Chinese Government actions taken against Hong Kong businessman/publisher Jimmy Lai's commercial establishments in Beijing after Lai published an open letter critical of Chinese Premier Li Peng. Following up these incidents, Asia Television (ATV) executives attempted to cancel a news program about the sixth anniversary of the June 4, 1989, Tiananmen Massacre. This sparked resignations by members of the station's senior editorial staff, who alleged that management feared possible repercussions from Chinese Government objections to the program's airing. Management decided to broadcast the program. In April the Newscorp Satellite Broadcasting Station, STAR TV, terminated broadcast of BBC news from its northern beam, which covers China and Hong Kong. It is widely assumed that Newscorp did so because of Chinese Government objections to the BBC's "critical" reporting on China. Journalists report that such self-censorship is also increasing for commercial reasons, as Hong Kong-based media organizations which are expanding their ties in China seek to avoid offending the Chinese Government. Following Chinese objections to a Hong Kong Government proposal to privatize the government-owned Radio Television Hong Kong (RTHK), there have been no further efforts by the Hong Kong Government to do so. The Government opposed freedom of information legislation proposed by Legislative Council members and instead decided that an administrative code of practice on access to government information should be developed. b. Freedom of Peaceful Assembly and Association The authorities imposed no significant hindrance on the freedom of peaceful assembly and association, although the amended Societies Ordinance requires officeholders to notify the Police Commissioner of the formation of a society. The Societies Officer may recommend to the Secretary for Security that the operation or continued operation of a society be prohibited if he reasonably believes that the operation or continued operation may be prejudicial to the security of Hong Kong, or to public safety, or public order. While the provision in the Ordinance allowing the Government to refuse to register an organization "incompatible with peace, welfare, or good order" or affiliated with a political organization abroad was repealed in 1992, China adopted similar language in the Basic Law which will become effective in 1997. c. Freedom of Religion The Hong Kong bill of rights includes a provision prohibiting discrimination on the basis of religion. The various faiths represented in Hong Kong are able to practice without restrictions. d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation The Government does not impose restrictions on the travel of legal residents or visitors within or outside Hong Kong. Hong Kong has never refused to accept nor pushed off Vietnamese boat people. Refugee status was automatically accorded prior to June 1988, after which boat people were screened to determine their status, and held in prison-like detention centers awaiting resettlement in other countries or repatriation to Vietnam. In 1991 the United Kingdom and Vietnam reached agreement on the mandatory repatriation of those whom the authorities determined not to be refugees. The Hong Kong Government completed all initial screening of Vietnamese asylum seekers in March. The Government announced completion of all secondary screening by the Refugee Status Review Board. Reintegration assistance programs inside Vietnam, funded by the European Union, the Hong Kong Government, the U.N. High Commissioner for Refugees (UNHCR), and the United States provided an incentive for those not eligible for third-country resettlement to return to Vietnam. On August 8, the Hong Kong Government began offering a "special reintegration allowance" of $150 to all Vietnamese migrants who by year's end volunteered to repatriate. Funding came from money set aside by the British Government. Of those found ineligible for resettlement or not yet screened, since 1989 more than 44,217 have voluntarily returned under the Comprehensive Plan of Action agreed on in Geneva in that year, with 5,581 returning in 1994. Some 24,000 Vietnamese boat people remain in Hong Kong. In May 1992, the Government reached agreement with Vietnamese authorities on an Orderly Return Program (ORP) for the compulsory return of screened-out nonrefugees in 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 a flight's scheduled departure. Government security officers then escort all those being mandatorily returned on to the plane and accompany the flight to Vietnam. On April 7, 1,250 security officials used over 550 canisters of tear gas to remove 1,500 screened-out asylum seekers protesting the selection of individuals for the ORP. Scores of persons were injured, and a government investigation resulted in the indictment of three security officers charged with using excessive force. While initial stories of a similar operation conducted in September mentioned 200 injured asylum seekers, a report later issued by three neutral nongovernmental organization observers discounted those claims and praised the government's handling of the incident. In a third action about a month later, security officials again used minimal force, which resulted in three minor injuries to protesting asylum seekers. The Government recently has adopted new procedures to prevent excessive violence, including the regular appointment of independent monitors to observe such operations. ORP flights resumed on September 20 and by year's end the Government had returned 250 persons aboard ORP flights, and a total of 1,175 persons since the program began. The Government maintained its policy of deporting illegal Chinese immigrants to China, except in rare instances in which a person was found to be qualified as a refugee within the meaning of the U.N. Protocol on the Status of Refugees. There were 2,400 ethnic Vietnamese who fled from China to Hong Kong in 1993. Called Ex-China Vietnamese Illegal Immigrants (ECVIIS) by the Government, they were not recognized as refugees by the UNHCR or local authorities, and 446 were still in detention as of December; another 14 were released when Chinese authorities were unable to verify that they had been resettled in China. Following China's expulsion of Han Dongfang, a Chinese labor organizer, when he returned to China in August 1993, the Government has repeatedly renewed Han's permit to remain in the territory. The Chinese Government has refused to allow Han's return to China. (See also the China report.) Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government Although the Government has adopted measures to democratize district and municipal boards and the Legislative Council, citizens of the Territory do not have the right to change their governor and only very limited ability to effect changes in 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. The Legislative Council enacts and funds legislation. It also debates policy and questions the administration. Although the Legislature's power to initiate legislation is limited (all bills with budgetary implications, for example, must be approved by the Government before introduction), it has become increasingly assertive. The Governor has ultimate control of the administration of Hong Kong but, by convention, rarely exercises his full powers. In practice, decisions are reached through consensus. Political parties and independent candidates are free to contest seats in free and fair elections. Representative government employing universal franchise exists at the local district board level. All municipal board members will be elected in 1995. However, of the Legislative Council's 60 members, only 18 were elected by universal suffrage in 1991, and this number will increase by only 2 in elections in 1995. Currently, 21 members were either appointed by the Governor or are themselves government officials. Another 21 were elected by functional constituencies which 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. The Legislative Council adopted Governor Chris Patten's proposals broadening the political franchise by lowering the voting age from 21 to 18, opening all district board seats to direct election, increasing the number of Functional Constituencies (elected by professional groups) from 21 to 30, and providing Hong Kong residents greater say in the selection of Functional Constituency Legislative Council members previously selected by narrow constituencies. The Government is also implementing legislation which will abolish all appointed seats in the 1995 election and significantly broaden functional constituencies to allow all working residents a second vote. These measures will still not result in a fully representative, democratically elected government. In the absence of prior Sino-British agreement on these measures, the Chinese Government announced its intention to disband Hong Kong's elected bodies when the territory reverts to China in 1997. Hong Kong Chinese are seriously underrepresented in senior government positions. The Government is continuing efforts to place Hong Kong Chinese in senior positions and has publicly committed to fill "principal official" posts with local officers before 1997. Expatriates remain in key positions in the Legal Department and judiciary. The Government's efforts to add Chinese to the Government have been opposed by a group of expatriate government workers who have undertaken legal action against the Government, claiming they are being discriminated against under the provisions of Hong Kong's Bill of Rights. The case is still pending. Women are playing a greater role in politics, with greater numbers running for public office in the 1994 elections than ever before. Women comprise 13 percent of the Legislative Council and 36 percent of the senior ranks of the government secretariat. 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 consistently cooperated with international and nongovernmental human rights organizations on human rights issues. The International Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights currently apply to Hong Kong through the United Kingdom. The UNHCR and nongovernmental human rights organizations have full access to camps for Vietnamese boat people. Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status There is no legislation banning discrimination. Some Legislative Council members supported the introduction of antidiscrimination measures addressing the problems of sex, age, race, and age discrimination, but the Government opposed the legislation, indicating that it would introduce its own bill banning discrimination on the basis of sex and disability. It has not yet done so. The Chinese language has equal status with English in government operations except in judicial proceedings. To help remedy this, the Government has increased the number of directorate officers in the Legal Aid Department proficient in Chinese from three (of nine) to seven. 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 agency which receives some government subsidies, 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 crisis to the public eye, but also to the Government's failure to publicize information about the assistance and resources available. Women face discrimination in the areas of employment, salary, welfare, inheritance, and promotion. Discrimination on the basis of age, particularly in hiring practices, is openly practiced and is not prohibited by law. Legislation to prohibit existing clan practices in the New Territories which discriminate against women on the basis of inheritance rights recently was approved by the Legislative Council in 1994. 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. People with Disabilities There is no law mandating accessibility to buildings and government services for disabled persons. Organizations and individuals representing the interests of the disabled claim that discrimination exists in employment, education, and the provision of some state services. The Government continues to oppose legislation addressing the needs of people with disabilities. 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 provided for by 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 1993, 22 new trade unions were registered. Approximately 543,800 workers (roughly 20 percent) of a total labor force of 2.6 million belong to the 532 registered unions, most of which belong to one of three major trade union federations. Work stoppages and strikes are permitted. However, the Government places 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. Labor unions may form federations, confederations, and affiliate with international bodies. However, the Government must approve any affiliation with foreign labor unions. The Government has never refused such applications. The United Kingdom makes declarations on behalf of the territory concerning Hong Kong's obligations regarding the various International Labor Organization (ILO) conventions. To date, Hong Kong has implemented provisions applying 31 ILO conventions in full and 18 others 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 Although there are no laws mandating collective bargaining, ILO Convention 98 on the right to organize and bargain collectively is one of the 31 ILO conventions referred to above which are applied without modification in Hong Kong. Wage rates in a few trades such as tailoring and carpentry are determined by collective bargaining, but most wages are set by market forces. 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 which may involve statutory benefits and protection in employment as well as arrears of wages, wages in lieu of notice, and severance pay. The DOL assists employers and employees to reach amicable settlements but 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, although it takes a positive attitude toward the participation by trade unions in dispute negotiations. The Labor Tribunal Ordinance provides that an office bearer of a registered trade union, who is authorized in writing by a claimant or defendant to appear as his representative, has the right of audience in the labor tribunal. The law protects workers against antiunion discrimination. Employees who allege such discrimination have the right to have their cases heard by the DOL's Labor Relations Division. Violation of the antiunion discrimination provisions under the Employment Ordinance is a criminal offense carrying a maximum fine of $2,564. However, employers are not required to reinstate or compensate an employee. The International Confederation of Free Trade Unions (ICFTU) has strongly criticized as inadequate Hong Kong's labor legislation because of its failure to protect the right to strike, and its provisions allowing dismissals and disciplinary action against striking trade unionists. The Labor Tribunal adjudicates individual labor claims, purportedly to provide a 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 130 days--to hear workers' cases. There are few protections for almost 100,000 Filipino domestic workers who face deportation if dismissed by their employers and are thus vulnerable to abuse. There are no export processing zones. c. Prohibition of Forced or Compulsory Labor 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 businesses, subject to conditions aimed at ensuring a minimum of 9 years' education and protection of safety, health, and welfare. During 1993 the Government launched 14 large-scale campaigns against the employment of children. They found only five children who were working in violation of the law. The Government successfully prosecuted four of these cases, with fines of around $370 levied in each case. 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 market supply and demand. Because of continued shortages in the labor market (unemployment was around 2 percent), wage increases were given to most workers, particularly those in the construction industry and service sectors. 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 15 to 17. Work is limited to 8 hours per day and 48 hours per week between 6 a.m. and 11 p.m. 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. During 1993 the Labor Inspectorate conducted 161,830 workplace inspections of about 160,000 establishments, resulting in 4,720 prosecutions. The employment of underaged workers is 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 makes regular visits to high-risk areas such as factories and construction sites. During 1993 the Factory Inspectorate carried out 56,668 inspections of factories and 13,947 inspections of constructions sites and issued 3,001 summonses. Fines depended on the seriousness of the violation. In 1994 several serious building collapses revealed the need for stronger government enforcement and inspection efforts. 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 and the inability of workers to elect their own safety representatives weaken the enforcement of safety and health standards in 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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