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中国人权报告 |
UNITEDNATIONS CERD
International Convention onthe Eliminationof all Forms of Racial Discrimination
Distr.GENERALCERD/C/357/Add.4 (Part II)
19 April 2001
Original: ENGLISH
COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION
REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 9
OF THE CONVENTION
Ninth periodic reports of States parties due in 1999
Addendum
China: Hong Kong Special Adminstrative Region*
[3 October 2000]
* This document is part of the eighth and ninth periodic reports of China. (See CERD/C/357/Add.4 (Part I)).
All annexes referred to in the report may be consulted in the files of the secretariat.
The information submitted by China on the Hong Kong and Macau Special Administrative Regions, in accordance with the guidelines for the initial part of the report of States parties, is contained in HRI/CORE/1/Add.21/Rev.2.
GE.01-42825 (E) 220601 260601
CONTENTS
Paragraphs Page
I. INTRODUCTION 1 - 4 3
II. INFORMATION IN RELATION TO EACH OF THE
ARTICLES IN PART I OF THE CONVENTION 5 - 182 4
Article 1. Definition of racial discrimination 5 4
Article 2. Policy of eliminating racial discrimination 6 - 64 5
Article 3. No racial segregation or apartheid 65 - 68 18
Article 4. No propaganda or organizations which are based
on racial superiority 69 - 74 19
Article 5. Guarantees of the rights of everyone without
distinction as to race, colour, or national or
ethnic origin 75 - 165 20
Article 6. Provision of effective protection and remedies
against any acts of racial discrimination 166 - 173 45
Article 7. Measures to combat prejudice 174 - 182 49
I. INTRODUCTION
Background
1. In June 1997, the Permanent Representative of the People’s Republic of China to the United Nations notified the United Nations Secretary-General that the International Convention on the Elimination of All Forms of Racial Discrimination would continue to apply to the Hong Kong Special Administrative Region (HKSAR) with effect from 1 July 1997 and that the Central People’s Government of the People’s Republic of China (CPG) would assume responsibility for the international rights and obligations arising from the application of the Convention to the Region. This report on the HKSAR under article 9 of the Convention is submitted in accordance with that responsibility.
2. Having regard to the fact that the last (fourteenth) report on Hong Kong was submitted by the Government of the United Kingdom (CERD/C/299/Add.9, chap. III, sect. G) and subsequently considered by the Committee on the Elimination of Racial Discrimination (the Committee) in March 1997, we take the opportunity to inform the Committee of certain significant developments between the date of its previous hearing and 30 June 1997 - a period during which the CPG was not responsible for the rights and obligations arising from the application of the Convention to Hong Kong - in this introductory section.
Developments between March and 30 June 1997
3. There were two developments of note:
(a) Conclusion of the study and consultations on racial discrimination: in paragraph 254 of the fourteenth periodic report, we told the Committee that work on a study on racial discrimination would commence later in 1996. We hoped to complete it and report its findings to the Legislative Council in the 1996/97 session. In late 1996, we consulted the Consuls-General, local ethnic minority groups, community organizations, human rights organizations, District Boards, chambers of commerce and trade unions on issues of racial discrimination. The aim was to establish whether racial discrimination existed in Hong Kong and, if so, its nature and extent, and possible options for addressing such problems as might be found to exist. We published our findings in February 1997 for public consultation. In June 1997, we reported the results of the consultations to the Legislative Council. Some 80 per cent of respondents opposed legislation in this area. But almost all considered that we should address the issue through educational and administrative measures. This was the course that we decided to pursue;
(b) The Hon. Elizabeth Wong’s Member’s Bill: a Member’s Bill - the Equal Opportunities (Race) Bill - was introduced by the then legislator the Hon. Elizabeth Wong in 1996 and for the Legislative Council’s decision in June 1997. The Bill sought to make it
unlawful to discriminate against a person on the ground of race in the areas of work, accommodation, education, the provision of goods, facilities and services, the administration of laws and government programmes and the activities of clubs. As indicated in subparagraph (a) above, the outcome of our public consultation indicated that legislation was unnecessary or undesirable, at least at that stage. The enactment of legislation in this area was clearly against the majority view of the community. The then Legislative Council debated the Bill on 27 June 1997, voting to reject it.
The report
4. The report covers the period from 1 July 1997 to 31 December 1999. In general, the position during the reporting period remains essentially as described in the last two reports on Hong Kong. The framework of legal protections (the rule of law, the Bill of Rights Ordinance and judicial independence) remains in place. Indeed, it has been strengthened by the constitutional protections in the Basic Law, article 39 of which provides that the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR. Details of the implementation of the Convention are set out below.
II. INFORMATION IN RELATION TO EACH OF THE ARTICLES IN PART I OF THE CONVENTION
Article 1. Definition of racial discrimination
5. The commentary on article 1 in the Manual on Human Rights Reporting advises parties to:
(a) Discuss their policy with regard to racial discrimination and the legal framework of such a policy: we do so in paragraphs 4-16 below, in relation to article 2 and in the General Framework section of the revised core document. The revised core document submitted with the present report is an updated version of the one submitted with our report under the International Covenant on Economic, Social and Cultural Rights (ICESCR) (which itself updated the version submitted with our report under the International Covenant on Civil and Political Rights (ICCPR);
(b) Provide information on how the Convention and the rights put forward in it become part of the domestic legal order: again, we address these matters in paragraphs 4-16 below, in relation to article 2 and in the revised core document;
(c) Provide general background information on the reporting State, and make special reference to the demographic composition of the population, and to any problems confronting different ethnic groups: we have addressed this to the best of our present ability in the revised core document and, in relation to certain special groups, in paragraphs 27-64 below in relation to article 2 of the Convention. In this regard, we wish to draw the Committee’s attention to the
note in section (e) of the revised core document concerning the ongoing demographic study of Hong Kong’s ethnic composition and the 2001 Census. Pending the findings of those exercises, we recognize that our ability to meet the Committee’s requirement for demographic information is constrained by a lack of data. We will make the results of the study available to the Committee as soon as they are available. And we hope to include the findings of the 2001 Census in our next report under the Convention.
Article 2. Policy of eliminating racial discrimination
Existing legislative framework
6. Article 39 (1) of the Basic Law (the full text is contained in annex 1) provides that the provisions of the ICCPR and the ICESCR as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR. Article 39 (2) provides that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law, and that such restrictions shall not contravene the provisions of the preceding paragraph. Article 41 of the Basic Law provides that persons in Hong Kong other than Hong Kong residents shall, in accordance with the law, enjoy the rights and freedoms of Hong Kong residents prescribed in chapter III of the Basic Law.
7. Equality before the law and equal protection of the law without any discrimination is fundamental to the protection of human rights. Thus, article 2, paragraph 1 of the ICCPR requires States parties to the Covenant to respect and ensure to all individuals within their territory and subject to their jurisdiction the rights recognized in the Covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 entitles all persons to equality before the law, as well as equal protection of the law. It further provides that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In Hong Kong, those provisions are constitutionally entrenched by virtue of article 39 of the Basic Law.
8. The legal status of international treaties that apply to Hong Kong (including human rights treaties) is explained in paragraph 99 of the revised core document.
The Hong Kong Bill of Rights Ordinance
9. As explained in paragraph 100 of the revised core document, the Hong Kong Bill of Rights Ordinance (BORO) (chapter 383 of the laws of the HKSAR) gives effect in local law to the provisions of the ICCPR as applied to Hong Kong. Article 1, paragraph (1) and article 22 of the BOR give domestic legal effect to the respective provisions of article 2, paragraph 1, and article 26 of the ICCPR. The BORO is binding on the Government and public authorities and any person acting on behalf of the Government or a public authority.
Existing anti-discrimination laws
10. In paragraph 20 of the thirteenth report, we explained that, at that time (1995) Hong Kong had no specific laws against discrimination on the part of private individuals. Anti?discrimination legislation was a relatively new area of law, of which Hong Kong had little experience. The approach adopted by the Government was to start first with “a more confined scope”, concentrating on areas where there was a clear need and public demand for action. That remains our approach.
11. At the time of the submission of the thirteenth report, we were taking action to introduce specific legislation to prohibit discrimination on the grounds of sex and disability, in both the private and the public sector. We are pleased to inform the Committee that, since then, three anti-discrimination ordinances have been enacted. They are the Sex Discrimination Ordinance (SDO) (enacted in July 1995 and entering into full force in 1996), the Disability Discrimination Ordinance (DDO) (enacted in August 1995 and entering into full force in December 1996), and the Family Status Discrimination Ordinance (FSDO) (enacted in June 1997 and entering into full force in November of the same year). The Equal Opportunities Commission (see para. 110 of the revised core document) is responsible for their implementation.
12. Other statutory protections against acts of discrimination are described in paragraphs 71?74 below in relation to article 4 of the Convention.
Review of legislation in the light of the Bill of Rights
13. As explained in the fourteenth report, after the BORO came into operation in June 1991, the Government reviewed local laws in the light of its provisions. By 31 December 1999, some 41 amending ordinances and subsidiary legislation had been enacted to bring existing laws into line with the BORO and hence with the ICCPR to which it gave domestic effect. A list of the amending laws is at annex 3. In compliance with article 39 of the Basic Law, the Government has continued to ensure that - before its submission to the legislature - every new legislative proposal is consistent with the ICCPR, the ICESCR and international labour conventions as applied to Hong Kong.
14. In continuance of that process, we are reviewing the Chinese Temples Ordinance (chap. 153) with a view to ensuring its compatibility with the BOR. The provisions in question relate to registration requirements, restrictions on the location of temples, and revenue controls that apply exclusively to Chinese temples. In 1928, when the Ordinance was enacted, there were sound social reasons for these impositions. But it is for consideration whether they remain valid in the social and economic circumstances of twenty-first century Hong Kong.
Policy of eliminating racial discrimination
15. The HKSAR Government is committed to the promotion of equal opportunities for all and firmly believes that all forms of discrimination - including racial discrimination - are wrong. At the same time, we believe that each form of discrimination has its own characteristics, including the particular ways in which they may be manifest in Hong Kong. Therefore, strategies for combating them must be appropriate to the particular form of discrimination that they are intended to address. Thus, in the case of discrimination on the grounds of sex, disability and family status, we have considered the legislative approach to be appropriate. In the case of discrimination on the grounds of race and sexual orientation, our considered view - following extensive research and public consultation - is that, for the present, a combination of administrative measures and public education offers the best way forward.
16. To that end, we have spent some $7 million over the two years 1997 to 1999 on measures to promote equal opportunities in those two areas. Those measures include extensive publicity programmes, community participation projects and discrete codes of practice for employers and employees.
Legislation: the ongoing debate
17. During the reporting period, the Hon. Christine Loh sponsored a Member’s Bill - the Race Discrimination Bill - that, in substance, was similar to that sponsored by the Hon. Elizabeth Wong in 1997 (paragraph 3 (b) of the Introduction). At the time of finalizing this report, we were studying revisions that the Honourable Member had made.
18. In its concluding observations on the thirteenth report (A/51/18, para. 253), the Committee recommended that the BORO be amended to extend the prohibition of discrimination to acts committed by private citizens, groups or organizations. In its concluding observations on the fourteenth report (A/52/18, para. 40), the Committee reiterated the concern, adding that “article 2, paragraph 1 (d) of the Convention, makes it an obligation for States parties to prohibit, including by the adoption of legislation, racial discrimination ‘by any persons, groups or organization’”.
19. Commentators have echoed this concern, arguing that our approach of relying exclusively on public education to combat racial discrimination ignores the need to protect minorities from discrimination on the part of the majority. They also say that our practice of holding public consultations on these matters panders to “majoritarian” views in that it amounts to asking the discriminators whether there needs to be a law to stop them discriminating. And, by not legislating against this form of discrimination, we are failing to meet our obligations under article 26 of the ICCPR and articles 2 and 5 of the Convention.
20. We agree that Governments should protect minorities from discrimination. This is a fundamental principle of the BORO, which binds public bodies, the Government and their agents. It is also true that Governments must sometimes take the lead ahead of popular consensus. But, in our view, they must also be attentive to the climate of public opinion. A balance must be struck between conflicting pressures and judgements made about what is appropriate at particular times in particular places. Legislation with wide-reaching social implications requires the support of the community or it will not be effective. This is particularly true of anti-discrimination legislation that intimately impinges on the daily lives of ordinary people.
21. In June 1996 and June 1997 - with the object of establishing whether discrimination on the grounds of sexual orientation and race existed and, if so, their nature and extent - we conducted discrete studies and consultations on these forms of discrimination. In both cases, over 80 per cent of respondents were opposed to anti-discrimination legislation. But there was unanimous support for the use of educational means to address the issues. In June 1997, having examined the findings of the study and public consultations conducted by the then Home Affairs Branch, the Executive Council decided that the Administration should not, at that stage, legislate against discrimination on the ground of race. Instead, it should pursue non-legislative measures to promote equal opportunities. The decision was made public later that month in the speech made by the Secretary for Home Affairs at the Second Reading Debate of the Hon. Elizabeth Wong’s “Equal Opportunities (Race) Bill”. The Secretary explained that the Government’s policy was to deal with racial discrimination through a sustained programme of publicity, public education and self-regulation.
22. In so advising the Legislative Council, we undertook to revisit the subject one year thereafter. Accordingly, in July 1998, we submitted a paper to the Council’s Panel on Home Affairs, reaffirming our conviction that self-regulation remained preferable to coercion. But we again undertook to re-examine the issue and have recently completed consultations with selected districts and the Consular Corps. The exercise has shown that there have been no changes of circumstance that might indicate a need for legislation.
23. Thus, the public consultations have clearly indicated that the Government cannot look for community support for legislation in this area, at least for the time being. In the course of the various consultations, fears were expressed that the introduction of such legislation could engender resentment on the part of the majority, to the detriment of the minorities for whose benefit it was intended. Hong Kong, it was felt, was a cosmopolitan city whose citizens were well aware that their own best interests lay in establishing and maintaining good relations with all peoples and all races. They did not need legal compulsion towards that end.
24. The fact remains that Hong Kong, one of the world’s most compact communities, is a tolerant and cosmopolitan society where persons of every race, colour and nationality live together in a remarkable degree of harmony: racial discrimination is not a significant problem. Nevertheless, our minds are not closed and we shall keep the situation in view. Pending any significant change of circumstances, we will persist with our efforts to raise public consciousness of the issues and, through continuing educational initiatives, gradually to foster a culture of mutual understanding, respect and tolerance. To that end, we have actively pursued a programme of administrative and educational measures in compliance with the 1997 directive of the Executive Council. Those measures are explained below.
Administrative measures
25. The Government is committed to eliminating all forms of discrimination in employment, including racial discrimination. The “Code of Practice Against Discrimination in Employment on the Ground of Race” (annex 4) encourages employers to apply consistent criteria in a wide range of aspects of employment (such as recruitment, training, promotion, dismissal and so forth). Such criteria should not relate to race unless race is a genuine occupational requirement “for reasons of authenticity”.
Educational measures
26. Annex 5 lists the measures that we have taken in this area.
Special groups
27. In this section, we discuss four groups that have been the subject of concern both locally and internationally. They are: workers from outside the HKSAR (foreign domestic helpers and imported workers), new arrivals from Mainland China, the Nepalese community, and refugees and other migrants from Viet Nam. This is not to deny the special nature of Hong Kong’s other - and numerous - minority groups, such as the substantial and well-established South Asian communities, those from South-East Asia, or the steadily increasing African communities (particularly persons of Nigerian origin). The discussion below essentially describes the four groups in question and attempts to set their special difficulties in context. For the most part, we have deferred discussion of specific areas of concern in paragraphs 95-163 below in relation to article 5. This is because most relate to the civil, economic, and social rights in articles 5 (d) and (e). But there are some issues that we have chosen to address here either because they are essential to an understanding of the groups in question or because they relate to the question of equality before the law which is integral to any discussion of article 2.
Workers from outside the HKSAR
28. For the avoidance of doubt, we should at the outset acknowledge that a significant percentage of both our settled and relatively transitory minority communities comprise entrepreneurs and top corporate management: that is to say, employers and job creators. They represent as many nations and ethnicities as do those who come to Hong Kong as employees. They are a highly valued sector of our community and the Convention applies as much to them as it does to others. However, this section of the report - like the corresponding section on economic and social rights (in relation to article 5: paragraphs 95-163 below) focuses on those who come to Hong Kong as employees, that is:
(a) “Expatriates”: these comprise professionals, academics, and persons with technical expertise - or administrative and managerial skills - of value to, and not readily available in, Hong Kong. This group comprises persons from many nations. They negotiate their own salaries, terms and benefits with their employers. In terms of their employment in Hong Kong, the Government requires only that their remuneration “packages” be set at levels that do not undercut local persons with comparable qualifications and that there is no likelihood of their becoming a burden on Hong Kong;
(b) Foreign domestic helpers: this is the largest group and almost exclusively comprises women. Foreign domestic helpers are admitted under standard contracts, terms and conditions: see paragraph 131 below in relation to article 5 (e) (i) of the Convention. Since their first admission in the early 1970s, their numbers have consistently increased in step with Hong Kong’s economic expansion. By way of illustration, there were 170,971 at the end of 1997, 180,604 at the end of 1998 and 193,700 at the end of 1999; and
(c) Imported workers: these are skilled workers admitted into the HKSAR for employment under the labour importation schemes: see also paragraph 131 below in relation to article 5. Their terms and conditions of work are discussed in paragraphs 132 to 133 below in relation to article 5 (e) (i) of the Convention. They were admitted under the Supplementary Labour Scheme (introduced in 1996); the - now obsolete - General Labour Importation Scheme (GLS: introduced in 1989 and closed to applications in 1995); and the - also obsolete - Special Labour Importation Scheme for the New Airport and Related Projects (SLIS: introduced in 1990 and closed in March 1999). Their numbers have decreased with the conclusion of these schemes, declining from 6,697 at the end of 1997, to 4,092 at the end of 1998, and to 2,557 at the end of 1999.
Equal protection under the law
29. Workers from outside the HKSAR, including foreign domestic helpers and imported workers, enjoy the same rights, benefits and protection under the labour legislation as local workers, irrespective of their race, colour, descent or national or ethnic origin. A summary of those rights is at annex 6. There is further discussion of the worker protections in paragraphs 137-139 below in relation to article 5 (e) of the Convention.
30. The Labour Department takes vigorous action to safeguard the employment rights and benefits of foreign domestic helpers and imported workers. It investigates complaints against employers of foreign domestic helpers and makes regular inspections of the places where imported workers live or work to ensure that they enjoy all their legal and contractual entitlements. Where it finds infringements of statutory/contractual obligations, it may prosecute the employers and/or subject them to administrative sanctions.
The two-week rule
31. If the employment contract of a foreign domestic helper or an imported worker is prematurely terminated, the worker is permitted to remain in the HKSAR for the remainder of the permitted limit of stay, or for two weeks from the date of termination of contract, whichever is the shorter. This is commonly known as the “two-week rule”.
32. In its concluding observations on the thirteenth report (A/51/18, para. 239) the Committee expressed concern about the “two-week rule” and it recommended that the rule “be modified to allow foreign workers to seek new employment in Hong Kong when their employment contracts are terminated” (para. 253). In expressing its concern, the Committee added that:
“In view of the fact that the overwhelming majority of the persons affected by this rule are female Filipino foreign domestic workers, this rule appears to have discriminatory aspects under the terms of the Convention, which may leave workers vulnerable to abusive employers” (para. 239).
33. The Committee reiterated this concern in its concluding observations on the fourteenth report (A/52/18, para. 41), adding that the rule might “leave the workers concerned extremely vulnerable and in precarious conditions”. The Committee recommended that:
“special attention be given by the government of Hong Kong to the situation of the foreign workers subject to the ‘two-week rule’ and that all the necessary measures, including the modification or repeal of that specific rule, be undertaken to ensure the protection of all their rights under the Convention” (para. 49).
34. Some commentators have echoed the Committee’s views, adding that the rule is doubly discriminatory in that it applies only to workers from developing countries.
35. As we have explained in our report under the ICCPR (in relation to article 8 of that Covenant) (CCPR/C//HKSAR/99/1) the rule was introduced in early 1987 to curb various abuses that had previously been extensive. These abuses included such practices as “job-hopping”, whereby workers deliberately terminated their contracts in order to change employers and stay on indefinitely in Hong Kong. These problems were recognized by the Judicial Committee of the Privy Council (on appeal from the Hong Kong Court of Appeal) in Vergara and Arcilla v. Attorney-General ([1989]1 HKLR 233). The Judicial Committee rejected a challenge, by way of judicial review, to the validity of the two-week rule. It recognized that the former policy - which permitted foreign workers, upon ceasing employment, to stay in Hong Kong for up to six months - had been abused. In its judgement, the Judicial Committee said:
关于本站 || 联系我们北京大学法学院人权研究中心© 1997-2003版权所有 All Rights Reserved. “Some [foreign domestic helpers] were deliberately breaking their contracts early in the six-month period in order to work in other part-time or full-time jobs until the period of stay had expired, or in order to find another employer. This gave rise to complaints by the employer who had made all the arrangements to bring the [helper] to Hong Kong and had paid the travel expenses. It also gave rise to complaints by local people who wished to secure employment as part-time domestic helpers and who found themselves in competition with [foreign domestic helpers] who had only been admitted to work full?time. Moreover it resulted in some cases in the employment of [foreign domestic helpers] in jobs for which, under general policy, foreign nationals were not admitted, for example, bars and clubs” (para. 147).
36. We have always rejected any suggestion that the rule is based on or entails racial discrimination, either in the literal sense of that term or in the broader sense that it has in the Convention. The rule applies to all foreign domestic helpers and imported workers, whatever their country of origin. Most of the persons affected by the rule are indeed female domestic helpers from the Philippines. But it applies equally, and without discrimination, to domestic helpers from other countries and to the imported workers, who are mostly from Mainland China. The imposition of special restrictions on the employment of foreign workers, as distinct from workers who are permanent residents of the territory, is a natural and normal aspect of immigration control. And we consider this particular restriction to be an intrinsically appropriate, reasonable and proportionate response to the problems described above.
37. Nevertheless, all necessary measures are taken to ensure a fair balance between the legitimate interests of foreign domestic helpers on the one hand and those of their employers and the public interest on the other. We also strive to prevent abusive treatment by employers. Thus, in exceptional circumstances - especially where there is evidence of abuse by employers, and also if employers are prevented from honouring their contracts because of death, financial
difficulties or emigration - helpers may be permitted to change employment without first leaving the territory and/or to pursue claims for outstanding entitlements against their former employers. Indeed, some 80 per cent of all applications for such permission were granted in 1999.
The Nepalese community
38. In the outline report that we published for the public consultations that preceded the drafting of this report, we described the Nepalese as “a new community”. Some commentators questioned that appellation on the ground that the Nepalese presence in Hong Kong is of long standing. That is technically true: there have always been a small number of traders from Nepal carrying out business in Hong Kong.
39. But the major Nepalese presence traditionally comprised Gurkha soldiers and their families serving with the British garrison. Like the British units with which they served, they lived in military barracks in relative isolation from the community. And, by virtue of the tripartite agreement between Nepal, India and Britain, both soldiers and families were prepared - in terms of education and post-service training - for eventual return to, and resettlement in, Nepal. However, before 1 January 1983, persons born in Hong Kong, irrespective of their immigration status, had the right to land (now right of abode) in Hong Kong. Consequently, Nepalese children born here, before that date, to Gurkhas serving in the garrison automatically acquired first the right to land in Hong Kong and, later, the right of abode.
40. As the following table demonstrates, relatively few Nepalese took advantage of their right of abode before the mid-1990s. Thereafter, probably because Hong Kong was then enjoying a high level of both absolute and relative prosperity, the numbers increased significantly:
Nepalese nationals living in Hong Kong
As at endof the year Permanentresident Temporaryresidenta Total
1990 162 178 340
1991 92 221 313
1992 68 353 421
1993 182 727 909
1994 806 1 125 1 931
1995 3 259 2 220 5 479
1996 5 518 4 490 10 008
1997 7 589 6 692 14 281
1998 8 434 8 917 17 351
1999 8 420 9 261 17 681
a Here, “temporary residents” are mostly persons who have entered for settlement but have not yet completed the seven years of continuous residence necessary to qualify for permanent resident status.
These figures - which relate to Nepalese nationals - do not account for all the ethnic Nepalese living in Hong Kong. An unknown number of Nepalese residents have acquired various forms of British (and possibly other) nationality and are therefore among the United Kingdom nationals in Hong Kong.
41. Some Nepalese residents speak excellent Chinese and English and have secured a prosperous living - as entrepreneurs and as manager/professionals. But many, perhaps most, have found their lack of fluency in those languages - and of locally recognized qualifications - a handicap in the quest for work and/or self-betterment through further education. These and other concerns are discussed in paragraphs 157-163 below in relation to article 5 of the Convention.
42. The HKSAR Government sympathizes with their difficulties and very much wishes to establish better communications with the community in order to obtain a clear and coherent understanding of its needs and how best they might be met. One difficulty in attaining that understanding is the highly fragmented nature of the community. Our hope is that the ongoing survey and the 2001 Census will go far towards ameliorating the position.
New arrivals from Mainland China
43. These are persons who have recently migrated to the HKSAR from Mainland China for permanent settlement. They are Han Chinese, ethnically the same as Hong Kong’s settled majority. But as new arrivals, they are a distinctive group within the ethnic majority. They have entered in accordance with an established programme of quota-based immigration designed to foster family reunification at a rate that Hong Kong’s economic and social infrastructure can absorb without excessive strain. For many years, the quota was 75 persons a day, or 27,000 a year. That quota has steadily increased and the current rate is 150 a day, or about 54,000 a year. Further details are in paragraphs 45 and 46 below.
44. Traditionally, persons entering for settlement in this way were gradually absorbed into the mainstream population after a period of adjustment that varied between individuals. Indeed, a substantial percentage of the present-day population comprises persons who entered in this way in the decades since the Second World War and their Hong Kong-born descendants. However, the increased quota and the entry of those with entitlement under article 24 of the Basic Law have substantially increased the rate of entry. There are now a much greater number of new residents - mostly mothers and children - who are largely unfamiliar with Hong Kong’s way of life. Like immigrants everywhere, they share certain difficulties that people commonly encounter when adapting to life in a new environment. Perhaps because of their position in society, they are sometimes treated unfairly and their situation has attracted considerable discussion and public concern.
45. As we explained to the Human Rights Committee in our report under the ICCPR, in relation to article 26 of that Covenant, Mainland China is Hong Kong’s principal source of immigrants. Over 90 per cent come to the SAR for family reunion. Entry is controlled by the quota system described in paragraph 43 above. But the extent of demand is such that not all members of a family can obtain the necessary exit permits at the same time from the Mainland
authorities. This has led to the problem of “split families” which is largely the result of cross?boundary marriages between Hong Kong men and Mainland women, who are, of course, subject to the quota system and must therefore wait in the immigration queue. The subsequent birth of children increases the numbers so waiting.
46. To expedite entry for family reunion, a special sub-quota of 48 places has been reserved (within the overall daily quota of 150) to enable Mainland mothers to take with them a child aged under 14 when they enter Hong Kong for settlement. Nevertheless, some families continue to arrange for their children to enter Hong Kong illegally. When discovered, they are removed to the Mainland: a practice that some commentators consider to be inhumane. But removal remains necessary both in justice to those waiting their turn in the queue and to preserve an orderly and manageable rate of entry.
47. Additionally, we have devised measures to manage and contain the additional demand engendered by article 24 (2) (3) of the Basic Law. That provision accords right of abode in the HKSAR to children of Chinese nationality born outside Hong Kong who - at the time of their birth - had at least one parent who was a Hong Kong permanent resident of Chinese nationality. As at 1 July 1997, an estimated 66,000 Mainland residents qualified for the right of abode under the provision. To expedite their entry, the relevant sub-quota was increased from 45 to 60 a day from January 1998. Between 1 July 1997 (when the Basic Law came into effect) and 31 December 1999, about 68,000 eligible children entered Hong Kong for settlement.
48. The increased rate of migration has substantially increased the number of new residents. Between 1 July 1995 (when the daily quota was increased) and 31 December 1999, some 246,500 people from the Mainland have settled in Hong Kong. As we advised the Human Rights Committee, many (some 20 per cent) cannot speak either Cantonese or English and so have difficulty in communicating with their neighbours, co-workers and schoolmates. The children have been educated in a different pedagogic tradition and are unfamiliar with the Hong Kong curricula. Adults often find that their qualifications are not recognized in Hong Kong. Together, these things can result in disorientation, “culture shock” and other difficulties such as finding work or school places, particularly on first arrival.
49. Other difficulties arise from family circumstances. The (Hong Kong-based) husbands are often less well off than their Mainland-based families had expected. Their living conditions may have been adequate when they were single, but, often, they are less than adequate for families with children. These difficulties, compounded by those described above, have in some cases led to family breakdown, domestic violence, and spouse/child abuse.
50. As we informed the Human Rights Committee, the Government and NGOs are acutely aware of these matters and, together, have taken active steps to address them. New arrivals have access to the full range of welfare services, including counselling, day and residential childcare services, financial assistance and housing assistance where compassionate grounds apply. And as explained in paragraph 97 of the United Kingdom’s third report on Hong Kong under the ICESCR (E/1994/104/Add.10), Government subsidizes the Hong Kong Branch of the International Social Service (ISS), to provide post-migration support, including information
and inquiry services; orientation sessions; short-term counselling and referral services. The ISS subvention is a long-standing arrangement (it began in 1972). But since 1996, following the decision to increase the rate of immigration, Government has provided it with additional resources to strengthen its post?migration services.
51. With the cooperation of the Guangdong Provincial Government, the ISS is also organizing a pre-migration service in Guangzhou with funding support of the Hong Kong Jockey Club. The programme comprises casework and group counselling, orientation programmes, English and computer classes and other social activities. It targets families and their children who will come to Hong Kong within three years so that they can more readily assimilate on arrival.
52. To meet these challenges, both NGOs and Government have seen the need for a coordination mechanism to ensure that the various programmes for new arrivals are coherently focused. To that end, in December 1995, the Government established a “Coordinating Committee on New Arrival Services” to monitor and assess the services for new arrivals from the Mainland. It is chaired by the Director of Home Affairs. Its members comprise representatives of relevant government agencies and the Hong Kong Council of Social Services. They meet regularly to identify and examine the problems encountered by new arrivals and recommend measures for both Government and NGOs to pursue. At the local level, the Committee’s work is complemented by District Coordinating Committees on New Arrival Services in each of the 18 districts.
53. In January 1998, the Committee was further strengthened by the establishment of the “Steering Committee on New Arrival Services”. This is a higher-level body chaired by the Secretary for Home Affairs. It oversees the work of the Coordinating Committee and determines strategy for the provision of services.
54. Welfare planning naturally takes account of the anticipated numbers of new arrivals from the Mainland. But social provision also comprises non-welfare services in areas such as:
(a) Education: the Government has initiated measures to ensure that the newly arrived children are enrolled in schools. We have also introduced support services to help them adapt to the local system. The initiatives in this area are discussed in the initial report on the ICESCR (E/1990/5/Add.43) in relation to article 13 of that Covenant;
(b) Employment: the Government has established an “Employment and Guidance Centre for New Arrivals” in the Labour Department to help new arrivals find employment. New arrivals also have access to the retraining courses offered by the Employees’ Retraining Board, which again is explained in our initial report under the ICESCR, in relation to article 6 of that Covenant. In September 1997 and March 1999 respectively, the Labour Department established two “Employment and Guidance Centres”. These provide services designed to help new arrivals to adapt to their new working environment. The services include intensive job matching and referrals, provision of labour market information, employment counselling, and briefings on practices/conditions of work in Hong Kong. The Centres have reference libraries with publications on employment and training opportunities and audio-visual facilities; and
(c) General: the Government has published the “Service Handbook for New Arrivals” to provide general information on life in Hong Kong and details of services available to new arrivals. The handbook is distributed free of charge to new arrivals upon their arrival in Hong Kong and is readily available at government outlets.
55. Other recent initiatives include:
(a) “District-based Network Employment Support Programme”: this is a two?year project, financed by the Lotteries Fund. Under the programme, 41 NGOs - coordinated by the Hong Kong Council of Social Services - provide integrated services to the unemployed, including new arrivals. Those services include counselling, job training, development programmes, job referrals and replacement services;
(b) Integrated Neighbourhood Projects: these are Government-subsidized initiatives to serve vulnerable groups, including new arrivals, in selected old urban areas. Six such projects have been operational since 1999; and
(c) Projects: six NGOs, with funding support from the Hong Kong Jockey Club, provide services to facilitate new arrivals’ integration into the local community. The services include orientation programmes, counselling, social/mutual aid and volunteer groups, community education programmes, retraining programmes, hotline services, and so forth.
Refugees, migrants and illegal immigrants from Viet Nam
56. At the outset, and to avoid stereotyping, we must affirm that there is a small community (whose numbers are unknown) of Vietnamese persons living in Hong Kong who are either permanently or temporarily settled here. They comprise the typical mix of merchants, professionals, blue- and white-collar workers. Ethnically, they comprise native Vietnamese, Chinese and persons of mixed race. Like the other minority communities, they include an unknown number of persons who have acquired other nationalities, particularly United States nationality. They entered Hong Kong legitimately and are not refugees, though some may have been at some time in their lives. But it is the question of refugees from Viet Nam, and not that of the established Vietnamese community in Hong Kong, that has been the focus of both local and international concern and therefore of this section of the report.
57. As at the end of 1999, there were about 970 Vietnamese in Hong Kong who had been granted refugee status and, accordingly, permission to stay in Hong Kong pending resettlement overseas. They are housed in an open centre at Pillar Point (in the New Territories), which is operated by the Office of the United Nations High Commissioner for Refugees (UNHCR). There is no restriction on their movement. These persons either have no family connections overseas, or have criminal records and/or problems of drug addiction. These factors - and “compassion fatigue” in the main resettlement countries - mean that their acceptance for resettlement elsewhere will be difficult.
58. The Government has sought to encourage them to lead a normal life and to be self-reliant pending their resettlement. Many are already gainfully employed and self-supporting. Half now live in the general community. To further this process, refugee children have been enrolled in local schools. Services at the Pillar Point Centre are gradually reduced, and residents are encouraged to seek services, such as medical and social services, outside the camp in the same way as ordinary Hong Kong residents. UNHCR and the NGOs will continue to help needy refugees. And the Government will provide additional assistance when individual cases so warrant.
59. There also remained about 560 Vietnamese persons who had been screened out as non?refugees in accordance with the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Most have been released on recognizance and live at the Pillar Point Centre. Under the internationally agreed Comprehensive Plan of Action, these screened-out Vietnamese migrants should be repatriated to Viet Nam. However, the Vietnamese Government has been refusing to recognize some 330 of them as its nationals or to agree to their repatriation. And others have yet to be repatriated for reasons such as ill-health, serving prison sentences, involvement in court proceedings, or because they are missing. Despite the slow progress, we have continued to seek the return of those rejected by the Vietnamese Government. The others will also be repatriated when the factors delaying their repatriation are resolved.
60. Additionally, Vietnamese illegal immigrants continue to come to Hong Kong illegally in search of employment: a total of 953 arrived in 1999. Like other illegal immigrants, they are detained when intercepted, and arrangements are made for their prompt repatriation to Viet Nam.
Ex-China Vietnamese
61. This group of about 350 people predominantly comprises ethnic Chinese who fled Viet Nam in the early 1980s and settled in Mainland China. Most of those now in Hong Kong entered, without valid documentation, in 1993. Since they had already found protection in Mainland China, they had lost the right to seek resettlement outside Mainland China. Their removal to Mainland China has been delayed pending judicial review of the decision to so remove them. At the time of finalizing this report, those proceedings were still in progress. In the meantime, all concerned have been released on recognizance.
Integration into the local community
62. Commentators have proposed that - on humanitarian and de minimis grounds - the remaining refugees should be offered the opportunity of settling in Hong Kong. While the remaining population of refugees is not large, the proposal has presented great difficulties. Immigration pressures on Hong Kong have been - and remain - immense and immigration controls have to be strictly enforced. The spouses and children of Hong Kong residents from Mainland China often have to “queue” for several years before joining their families here. And it would have been seen as unfair to them if the refugees - who have no ties with Hong Kong - were granted residential status.
63. However, by early 2000, it was clear that the chances of securing their resettlement were remote. Having exhausted all other options, we decided that the only effective and durable solution lay in the integration into Hong Kong society of the 973 remaining refugees, the 327 “non-nationals” and their 108 family members. The remaining 132 Vietnamese migrants
whose repatriation has been delayed for the reasons given in paragraph 59 will be repatriated once those impediments are removed. The position of the approximately 350 remaining ex?China Vietnamese remains as explained in paragraph 61.
64. A consequence of the decision will be the closure, in May 2000, of the Pillar Point Refugee Centre. Its population - comprising approximately 580 refugees, 430 Vietnamese migrants and 60 ex-China Vietnamese - will have to move. Caritas Hong Kong, which - since 1998 - has run the Centre on behalf of UNHCR, will assist them to find new accommodation. Those who experience hardship may apply for Comprehensive Social Security Assistance and may be considered for compassionate rehousing. The closure is expected to be welcomed by all concerned, including NGOs. Physical conditions there have deteriorated as the Centre approaches the end of its designed life. Maintenance, structural problems and fire safety have become major concerns. Additionally, the Centre has been a source of social problems such as drug dealing and addiction, violence and other crimes. And, because the residents do not pay rent, some have developed a culture of dependency that has impeded their adaptation to a normal, self-reliant, way of life.
Article 3. No racial segregation or apartheid
65. The position remains as explained in paragraph 28 of the thirteenth report. That is, neither apartheid nor any form of racial segregation is practised in Hong Kong. Nor would it be tolerated by Hong Kong’s people or Government.
Pattern of settlement
66. The commentary on article 3, in the Manual on Human Rights Reporting (pages 278 and 279), draws attention to the possibility that racial segregation may arise as an unintended by?product of the actions of private persons. It points out that residential patterns can be affected by differences in income and that those differences may sometimes be combined with differences of race, colour, descent and national or ethnic origin. In these circumstances, the inhabitants may be stigmatized and individuals suffer a form of discrimination on both racial and other grounds. With these possibilities in view, the Committee invites Governments to monitor trends towards that situation, to work for their eradication and to describe any such action in their periodic reports.
67. It is true that in Hong Kong, as elsewhere, some ethnic groups are more in evidence in some localities than in others. For example, members of the various South Asian communities have traditionally tended to congregate in the intensely commercial urban area of Tsimshatsui. And some members of the Nepalese community live in “pocket settlements” in the north-western New Territories, near the former British military bases where many of them were born. These patterns have developed partly for economic reasons, but also for reasons of familiarity, mutual support, convenience for business or job purposes, and the human desire to live in contact with one’s cultural fellows. But none of the areas concerned is exclusively the preserve of any particular ethnic group: as in all parts of Hong Kong, the majority of the people who live in them are Chinese. In this context, a pertinent consideration is that in planning our new towns,
our policy is to maintain a mix of public and private housing. This contributes, to some extent, to a more balanced community and avoids stigmatization of particular residential areas on, at least, economic and social grounds.
68. In short, there are no marked signs of a trend towards “ghettoization” and it is the Government’s policy increasingly to reach out to the ethnic communities with a view to their full participation and integration into the general community of the Hong Kong SAR.
Article 4. No propaganda or organizations which are based on racial superiority
69. Our position remains as explained in paragraph 30 of the thirteenth report. That is, the views of extremist or racist organizations are obnoxious and entirely repugnant to the people and Government of the Hong Kong SAR. Should the activities of such groups or their members breach the law, they are liable to be dealt with by the police under public order and criminal legislation. However, we are pleased to advise the Committee that no such groups exist in Hong Kong: there are no individuals or organizations that carry out acts of racial hatred, be it by deed or by word; nor is there any propaganda based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form.
70. Our view is, as it has always been, that individuals enjoy the right to freedom of opinion and expression guaranteed in article 5 (d) (viii) of the Convention, the ICCPR, the Basic Law, and the BORO. This includes, we believe, the right to express views that the majority of the population may find repugnant, so long as that expression does not manifest itself in the form of violence, or incitement to violence, or hatred. Nevertheless, our existing laws contain adequate provision that would enable any racially motivated acts of violence (or the incitement to such acts) and any activities - whether of individuals or organizations - aimed at inciting racial hatred to be effectively punished or suppressed.
71. The general criminal law of Hong Kong proscribes acts of violence of various kinds, as well, of course, as the incitement of others to commit such acts. For example, killing and causing grievous bodily harm - which may be racially motivated - are offences under section 9A of the Offences against the Person Ordinance (chap. 212). Under section 5A of the Societies Ordinance (chap. 151), the Societies Officer may refuse to register a society or a branch if he reasonably believes that the refusal is necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others. An order may also be made under section 8 of the Ordinance to prohibit the operation or continued operation of a society or a branch for the same reasons.
72. Additionally, there are measures in force to prevent television and radio broadcasts containing material that is likely to incite racial hatred or is racially denigrating. The Television Ordinance (chap. 52) and the Telecommunication Ordinance (chap. 106) prohibit television and radio licencees, respectively, from broadcasting any programme, advertisement, announcement or other material that is likely to incite hatred against any group of persons, a group being defined by reference to, inter alia, colour, race, sex, religion, nationality, or ethnic or national
origins. And the Film Censorship Ordinance (chap. 392), enacted in 1988, provides that approval for exhibition of a film may be refused if the film denigrates or insults any particular class of the public by reference to the colour, race, religious beliefs or ethnic or national origins or the sex of the members of that class.
73. Television and radio broadcasts in Hong Kong adhere to Codes of Practice on Programme Standards. These contain provisions forbidding the broadcast of any programme that is likely to encourage hatred against or fear of, and/or considered to be denigrating or insulting to any person or group on the basis of ethnicity, nationality, race, gender, sexual preference, religion, age, social status, or physical or mental disability.
74. Finally, article 22 of the BOR, which reproduces article 26 of the ICCPR, prohibits the Government of the HKSAR and all public authorities - and any person acting on behalf of the Government or a public authority - from engaging in practices that entail racial discrimination.
Article 5. Guarantees of the rights of everyone without distinction as to race, colour, or national or ethnic origin
75. None of the rights specified in article 5 is subject to restriction on the grounds of race, colour or national or ethnic origin.
Article 5 (a). Equal treatment before tribunals and organs administering justice
76. In Hong Kong, all persons, regardless of their race, colour or national or ethnic origin, are equal before the law and have equal access to the courts. This always was the position and is now expressly provided for in article 25 of the Basic Law and articles 1, 10 and 22 of the BOR.
77. Legal aid is available to all persons if they satisfy the Director of Legal Aid that they are financially eligible and that there is justification for legal action. Article 11 of the BOR provides that any person charged with a criminal offence is entitled, in full equality, to legal aid where the interests of justice so require and without payment if he himself cannot pay for it. The operation of the legal aid system is explained in paragraphs 103-105 of the revised core document.
78. In paragraph 33 of the thirteenth report, we told the Committee that, before 1 July 1997, we aimed to put into place a framework for the use of Chinese, along with English, in all judicial proceedings in Hong Kong. We are pleased to inform the Committee that all legal restrictions on the use of Chinese in the courts were lifted before 1 July 1997. Both Chinese and English are official languages for filing and conducting proceedings. In civil proceedings, parties may issue writs, file defences or notices of appeal in either of the official languages. Charge sheets served on the accused in criminal proceedings are in both official languages. The prosecution is obliged - on request - to give persons accused of crimes translations of documents served on them. Defendants, parties and witnesses are free to use any language they choose before the court. Where a defendant or party is not conversant in the official language in which the trial is conducted, interpretation services are provided free of charge by the court.
Decisions made under the Immigration Ordinance
79. Decisions made under the Immigration Ordinance (chap. 115) are subject to the scrutiny of the courts. Persons objecting to decisions made under the Ordinance may apply to the High Court to seek leave for judicial review of the decision. Any person aggrieved by a decision, act or omission taken, done or made under the Immigration Ordinance may make a statutory objection under section 53 of Immigration Ordinance to the Chief Secretary for Administration within 14 days of the decision. The objection will be considered by the Chief Executive in Council. Alternatively, they may petition the Chief Executive in person. Persons subject to removal orders may appeal to the Immigration Tribunal under section 53A of the Immigration Ordinance. Persons aggrieved by immigration decisions or services may lodge complaints with the Immigration Department through the mechanisms described in paragraph 81 below. They may also complain to external bodies such as the Ombudsman and the Independent Commission against Corruption. These rights may be exercised by any person without distinction as to race, colour, or national or ethnic origin.
80. Commentators assert that when a decision that could be the subject of review under section 53 or 53A of Immigration Ordinance is made, the person affected is not told of the right of review. They also argue that deportation decisions should be made by the courts, not by the executive.
81. Persons who are to be deported or who are subject to removal orders are informed that they have the right of review. When the Director of Immigration makes removal orders, he must serve written notice on the persons to be removed, informing them of the grounds on which the orders are made, and their right of appeal to the Immigration Tribunal. In a deportation case, the Immigration Department serves the person concerned with a “Notice of Consideration of Deportation”, informing them that they may make representations to the Director of Immigration. Those representations will be carefully considered. A notice posted in all Immigration Department interview rooms informs persons detained under the Immigration Ordinance that they have the right to contact a lawyer. Another notice, which is displayed in all Immigration Department premises to which the public have access, clearly states that complaints against other immigration decisions or services may be made on the spot with the immigration officer-in-charge, or - at any time - with the Department’s Management Audit Division. These avenues are also publicized through information booklets available in all public offices.
82. Section 20 of the Immigration Ordinance vests the power to make deportation orders with the Chief Executive, not the judiciary. That power has been delegated to the Secretary for Security. In considering a deportation case, all relevant factors are given due weight. Those factors include the deportee’s family connections and length of residence in Hong Kong and the actual penalty imposed by the court. Guilt or innocence and appropriate sentence for a criminal offence are matters to be determined by the courts in accordance with the law and the principles of criminal justice. But decision as to whether a convicted criminal should be allowed to stay in Hong Kong - or to re-enter in future - are matters that are entirely appropriate to the executive authorities. This is because such decisions are based on security, immigration control and other relevant considerations.
Persons in police custody
83. Commentators have said that migrant workers in police custody have been denied access to legal counsel, to call their friends, and/or have not been cautioned before making statements. Our respondents have not provided sufficient information to enable us to investigate specific cases.
