There was no national minimum wage, but the law requires local and provincial governments to set their own minimum wage according to standards promulgated by the Ministry of Human Resources and Social Security. Monthly minimum wages varied greatly with Shenzhen, Guangdong Province, the highest scheduled to rise to 1,600 RMB ($257) as March 1, 2013, and towns in remote Ningxia Province the lowest at 750 RMB ($120). During the year the country increased its “rural poverty level” to 192 RMB ($31) per month. A regulation states that labor and social security bureaus at or above the county level are responsible for enforcement of the law. It provides that, where the ACFTU finds an employer in violation of the regulation, it shall have the power to demand that the relevant local labor bureaus deal with the case.
In practice almost all local and provincial governments raised minimum wage levels significantly during the year, as a result of changing economic and demographic conditions. Additionally increased economic activity, spot shortages of skilled labor, increased inland investment, and successful strikes led to generally increased wage levels for workers in all parts of the country. A decrease in the migration of workers into Guangdong contributed to a changing factory workforce that was older and more likely to be married and have children. As the tenure of the PRD’s workers continued to increase, their skills improved, adding additional upward pressure on wages.
The law mandates a 40-hour standard workweek, excluding overtime, and a 24-hour weekly rest period. It also prohibits overtime work in excess of three hours per day or 36 hours per month and mandates premium pay for overtime work. However, compliance with the law was weak, and standards were regularly violated. While excessive overtime occurred, in many cases workers encouraged noncompliance by requesting greater amounts of overtime to increase their overall wages.
The labor law and Labor Contract Law include language supporting the principle of equal pay for equal work. Specifically with regard to dispatch (contract) workers, a series of NPC amendments to the Labor Contract Law on December 26 were intended to strengthen enforcement of this principle.
The State Administration for Work Safety (SAWS) sets and enforces occupational health and safety regulations. Companies that violate the regulation have their operations suspended or are deprived of business certificates and licenses.
Effective May 2, the SAWS and the Ministry of Finance jointly issued the Measures on Incentives for Safe Production Reporting (Measures), which authorize cash rewards to whistleblowers reporting companies for such violations as concealing workplace accidents, operating without proper licensing, operating unsafe equipment, or failing to provide workers with adequate safety training. The Measures warn against false accusations, but also stipulate protection under the law for legitimate whistleblowers who report violations.
While many labor laws and regulations on worker safety are fully compatible with international standards, implementation and enforcement were generally poor due to a lack of adequate resources. Inadequately enforced labor laws and occupational health and safety laws and regulations continued to put workers’ livelihoods, health, and safety at risk.
Wage disputes and nonpayment of wages remained a problem in many areas. Governments at various levels continued efforts to prevent arrears and recover payment of unpaid wages and insurance contributions.
Questions related to acceptable working conditions continued to plague electronics manufacturers such as Foxconn. Following unfavorable international media coverage of working conditions at its plants in China, Foxconn allowed the international, nonprofit Fair Labor Association (FLA) to conduct an audit of the company’s labor practices, including working hours and health and safety mechanisms. The FLA’s report, released in March, confirmed the existence of poor workplace conditions and provided a lengthy list of recommendations. In August the FLA reported that Foxconn had completed 280 action items on time or ahead of schedule. It added that Foxconn promised to reduce workers’ hours to 49 per week and stabilize pay by July 2013.
Local governments, in order to incentivize Foxconn to establish operations in their cities, promised to help recruit workers for Foxconn’s labor-intensive operations. In September the media reported that students in Shandong and Jiangsu provinces complained that their universities made it mandatory that they serve 45-day internships on assembly lines in Foxconn factories to meet Foxconn’s production demands.
Guangdong Province continued to implement programs associated with the Guangdong Provincial Communist Party Committee’s July 2011 “Decision on Strengthening Social Construction” that was in part a response to June 2011 migrant worker riots in Zengcheng and Chaozhou. As with Guangdong Province’s new NGO registration policy, efforts to address the social dislocation facing migrant workers and to absorb migrant workers through grassroots organizations or employment as civil servants were inconsistent among municipalities in the province. During the year most municipal governments, as well as the provincial government, increased the number of civil servant positions open to migrant workers.
Tension between migrant workers and local communities in the PRD continued and sometimes led to clashes between migrant workers and police. In June the beating of a migrant youth by local security personnel in the Guangdong town of Shaxi triggered rioting by Sichuan migrant workers who clashed with police, smashed police cars, and effectively shut down Shaxi for three days.
In recent years authorities have pressed mines to improve safety measures and mandated greater investments in safety. According to SAWS the casualty rate for coal-mine production was down by 33.7 percent during the year. Local media estimated 1,300 coal-mine deaths during the year, the first time in the history of the country’s coal-mine industry that deaths were below 1,500. Small coal mines, accounting for approximately 85 percent of 12,000 total coal mines, were responsible for two-thirds of deaths. In August, SAWS announced its goal of closing hundreds of small coal mines during the year in an attempt to reduce the number of deadly accidents.
Despite consistent reductions in mining deaths, there continued to be many coal-mine accidents throughout the country. For example, in March online reports indicated an accident in a mine in Hezhou, Guangxi Province, left one miner dead and five injured. In Liaoning Province, a March 22 gas explosion at the Dahuang Coal Mine in Liaoyang City killed five and trapped 17. In Heilongjiang Province a May 2 underground flood at the Junyuan Coal Mine in Hegang City killed 13 workers. In Jilin Province, an August 13 gas explosion at the Jisheng Coal Mine in Baishan City killed 17 workers and trapped three. Also in August a gas explosion killed 45 miners in a coal mine in the city of Panzhihua, Sichuan Province. A week later in Pingxiang, Jiangxi Province, a coal mine explosion killed at least another 15 miners. In October four miners and three rescuers suffocated from carbon dioxide poisoning in a poorly ventilated manganese mine that had been closed in Yongzhou, Hunan Province.
Instances of pneumoconiosis, or black lung disease, remained high with a charitable NGO that helped to treat migrant workers estimating that the disease affected approximately six million rural residents. The ACFTU occupational disease experts estimated that 200 million workers worked in hazardous environments. The Law on Prevention and Control of Occupational Diseases requires employers to provide free health checkups for employees working in hazardous conditions and inform them of the results, but according to the Chinese Center for Disease Control and Prevention, only an estimated 10 percent of eligible employees received regular occupational health services. Small and medium-sized enterprises, the largest employers, often fail to provide the required health services.
TIBET
EXECUTIVE SUMMARY
The United States recognizes the Tibet Autonomous Region (TAR) and Tibetan autonomous prefectures (TAPs) and counties in other provinces to be a part of the People’s Republic of China (PRC). Tibet policies in the PRC are overseen by the Chinese Communist Party (CCP) Central Committee’s United Front Work Department, headed since September by Ling Jihua. Chen Quanguo, an ethnic Han from Henan Province, became the TAR party secretary in August 2011. Ethnic Han encumbered the party secretary position in nine of the 10 TAPs, which are located in Gansu, Qinghai, Sichuan, and Yunnan provinces. One TAP, in Qinghai Province, had an ethnic Tibetan party secretary. As in other predominantly minority areas of the PRC, ethnic Han CCP members held almost all top party, government, police, and military positions in the TAR and other Tibetan areas. Ultimate authority rests with the 25-member Central Committee Political Bureau (Politburo) of the CCP and its seven-member Standing Committee in Beijing. Civilian authorities generally maintained effective control of the security forces.
During the year the government’s respect for and protection of human rights in the TAR and other Tibetan areas deteriorated markedly. Under the banner of maintaining social stability, the government engaged in the severe repression of Tibet’s unique religious, cultural, and linguistic heritage by, among other means, strictly curtailing the civil rights of China’s ethnic Tibetan population, including the freedoms of speech, religion, association, and movement. The government routinely vilified the Dalai Lama and blamed the “Dalai clique” and “other outside forces” for instigating the 83 self-immolations by Tibetan laypersons, monks, and nuns that occurred throughout the year. In an October 23 article, the official Xinhua News Agency quoted a central party official as stating that Tibet-related issues were of paramount importance for the CCP, stability and development should be stressed in Tibetan regions, and China should exert greater effort in combating the influence of the “Dalai Lama clique.”
Other serious human rights abuses included extrajudicial killings, torture, arbitrary arrests, extrajudicial detentions, and house arrests. There was a deepening perception among Tibetans that they were systemically targeted for economic marginalization and educational and employment discrimination. The presence of the People’s Armed Police (PAP) and other security forces remained at high levels in communities across the Tibetan Plateau. Repression was severe throughout the year but increased in the periods before and during politically and religiously sensitive anniversaries and events. In March all major monasteries in the TAR and other Tibetan areas outside the TAR were guarded by security forces due to the anniversary of the 2008 demonstrations and subsequent police crackdown. Students, monks, laypersons, and others in many Tibetan areas were detained after reportedly demanding freedom and human rights and expressing their support for the Dalai Lama. In the period before and during the 18th Party Congress and the related central leadership transition, oppressive security measures taken by authorities across the Tibetan Plateau contributed to a further deterioration of the human rights situation. The government strictly controlled information about, and access to, the TAR and Tibetan areas outside the TAR, making it difficult to determine accurately the scope of human rights abuses. Because of these restrictions and the government’s many denials of visits to Tibetan areas by foreigners, many of the incidents and cases mentioned in this report could not be independently verified.
Disciplinary procedures were opaque, and it was not clear that security or other authorities were punished for behavior defined under Chinese laws and regulations as abuses of power and authority. Impunity appeared to be a problem.
Tibetan Self-Immolations
The total number of reported self-immolations by Tibetan Buddhist laypersons and clergy during the year, 83, was more than six times that of 2011. In addition to an increase in the incidence of self-immolation, the geographic range of such incidents extended across the Tibetan Plateau (and in one case, to Beijing), and there was an increase in self-immolations by laypersons (as opposed to current or former Buddhist monks or nuns), the majority of whom were age 21 or older. A particularly alarming surge in self-immolations took place from October through early December, when 43 Tibetans reportedly self-immolated, 35 of them laypersons, including 18 in Gansu Province (which had previously seen only two such incidents), 16 in Qinghai Province, six in Sichuan Province, and three in the TAR. The vast majority of these incidents resulted in death.
Prior to March all of the reported self-immolators were current or former monks or nuns. However, as highlighted in the U.S. Congressional-Executive Commission on China (CECC) August 22 report Tibetan Self-Immolation--Rising Frequency, Wider Spread, Greater Diversity, self-immolation by laypersons grew markedly during the spring. By year’s end laypersons represented more than half of the self-immolations committed in 2012. On the basis of data assembled by Beijing-based writer and blogger Tsering Woeser, who collected and published the last words of 26 self-immolators, noted Tibetologist Wang Lixiong observed that 14 of the 26 self-immolators who left final statements saw their act as a form of protest to affect change, 10 saw their act in religious terms and expressed devotion to the Dalai Lama, and five expressed desperation with conditions they found unbearable. While some of the laypersons who self-immolated reportedly made statements that echoed those of many monastic self-immolators (for example, calling for “freedom” for Tibetans and the Dalai Lama’s return to Tibet), some reportedly protested specific mining or infrastructure projects on the Tibetan Plateau that adversely affected them personally or that they believed were harmful to the environment; others protested social and economic conditions that they believed unfairly disadvantaged Tibetans. For example, in June, Dickyi Choezom, a mother of two in her forties, died after self-immolating in Yushu (Yulshul) TAP, Gansu Province, reportedly to protest government expropriation of family property. On September 13, another woman from the same area, 62-year-old Passang Lhamo, was reportedly injured when she set herself on fire in Beijing in a similar protest; her condition remained unknown.
The Chinese government responded harshly to self-immolations. In March the head of the Aba (Ngaba) Tibetan and Qiang Autonomous Prefecture (T&QAP) government, Wu Zegang, asserted that Tibetans who committed self-immolation were being “used by separatists to create chaos.” Alleging that the self-immolators had been in communication with the Tibetan exile community, Wu stated that “the Dalai Lama clique and overseas splittist forces are viciously leading Tibetan Buddhism onto the track of extremism. By touting self-immolators as so-called heroes and performing religious rituals to make amends for the sins of the dead, they support and inspire self-immolations. They instigate people to emulate and will not hesitate to use the terroristic behavior of sacrificing people’s lives to reach their splittist objective.”
An editorial in the December 3 Gansu Daily, an online news site, noted that the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security had jointly issued the Opinion on Handling Cases of Self-Immolation in Tibetan Areas According to Law, which criminalizes various activities associated with self-immolation, including “organizing, plotting, inciting, compelling, luring, instigating, or helping others to commit self-immolation,” each of which may be prosecuted as “intentional homicide.” According to the opinion, the motive of self-immolators was “generally to split the country” and the act itself constituted criminal behavior, as it posed a threat to public safety and public order. The opinion stated that “ringleaders” would be targeted for “major punishment.”
According to various overseas rights groups, on November 14, the government of Huangnan (Malho) TAP in Qinghai Province issued a notice to local party members and government officials ordering them to discipline bereaved family members of self-immolators by withholding public benefits, including disaster relief. The notice also called for the punishment of laypersons, monastic personnel, family members, and officials who organize or participate in burial or mourning activities. Villages where self-immolations take place are subject to the cancellation of publicly funded development and disaster relief projects, and monasteries found to have participated in or organized fundraising activities or prayer ceremonies for self-immolators or their families are subject to cancellation of public funding or even closure.
Not long after the issuance of the November 14 notice, a number of friends, relatives, and associates of self-immolators across the Tibetan Plateau were detained, arrested, or sentenced. For example, the official Xinhua News Agency reported on December 9 that police had detained Kirti Monastery monk Lorang Konchok and his nephew, Lorang Tsering, and accused them of instigating self-immolations. On December 14, Phayul (a news Web site maintained by Tibetan exiles) reported that Chinese officials arrested five Tibetans in connection with the December 9 self-immolation of 17-year-old Bhenchen Kyi, a student in Zeku (Tsekhog) County, Huangnan (Malho) TAP, Qinghai Province. The whereabouts of the five were unknown. On December 27, Phayul reported that the father and grandfather of Gonpo Tsering, who self-immolated on November 26 in Luqu County, Gannan (Kanlho) TAP, Gansu Province, were detained in early December. Their whereabouts were unknown.
Arbitrary or Unlawful Deprivation of Life
There were reports that the government or its agents committed arbitrary or unlawful killings. There were no reports that officials investigated or punished those responsible for such killings.
A number of Tibetans lost their lives during incidents that occurred around the time of Chinese New Year in late January and early February. On January 23, security forces in Luhuo (Draggo) County, Ganzi (Kardze) TAP, Sichuan Province, fired at a crowd of protesters, wounding at least 32 and killing at least one, Norpa Yonten, overseas media and human rights groups reported. According to some reports, the protesters were demonstrating against the arbitrary detention of Tibetans and calling for additional self-immolations if Tibetans’ concerns were ignored. In separate incidents on February 9, brothers Yeshi Rigsel and Yeshi Samdup were reportedly shot and killed, and monk Tsering Gyaltsen was beaten to death, during an official sweep for Tibetans suspected of participating in the January 23 demonstration in Luhuo, according to Phayul.
Overseas media reported that up to five protesters were killed and 40 injured when PAP officers fired on demonstrators in Seda (Serthar) County, Ganzi (Kardze) TAP, Sichuan Province, on January 24. According to the official Xinhua News Agency, one “rioter” was killed when the “mob” he was a part of stormed the Chengguan Police Station in Seda. According to other reports, PAP officers shot at protesters calling for a free Tibet and the return of the Dalai Lama.
Disappearance
Authorities across Tibetan areas continued to arbitrarily detain Tibetan monks and laypersons for indefinite periods of time. Several of these detentions appeared to be linked to the government’s attempts to punish those suspected of being associated with the self-immolations or those who refused to cooperate with official demands to hand over the remains of self-immolation victims.
The whereabouts of the Panchen Lama, Gedun Choekyi Nyima, Tibetan Buddhism’s second-most prominent figure after the Dalai Lama, remained unknown. In 2010 a government official in Tibet stated that Gedun Choekyi Nyima was “living a very good life in Tibet” and that he and his family “want to live an ordinary life.”
Torture and Other Cruel and Degrading Treatment
According to the PRC’s constitution, “the State respects and protects human rights.” However, judges cannot apply the constitution in court cases since its interpretation is reserved exclusively to the Standing Committee of the National People’s Congress.
The police and prison authorities in Tibetan areas employed torture and degrading treatment in dealing with some detainees and prisoners.
Torture: There were reports during the year that some Tibetans who returned from Nepal either voluntarily or as a result of refoulement suffered torture while incarcerated or otherwise in the custody of Chinese officials, including electric shocks, exposure to cold, and severe beatings, as well as being forced to perform heavy physical labor. Security forces routinely subjected detainees and prisoners to “political investigation” sessions and punished them if they were deemed insufficiently loyal to the state.
On March 29, Gongbo Renzeng from Luhuo (Draggo) County, Ganzi (Kardze) TAP, committed suicide, reportedly to avoid arrest and possible torture, according to the overseas-based Voice of Tibet. Local authorities who had reportedly photographed him participating in the January 23 protests had pressured him to turn himself in and undergo “legal education.”
The Voice of Tibet reported that Gonpo Dargye, who had been serving a five-year sentence in the TAR since 2009, was released on medical parole early in the year but had lost the use of his legs as a result of torture inflicted during his detention.
Prison and Detention Center Conditions
In 2009 the deputy director of the TAR Justice Bureau told a foreign diplomat that there were 3,000 prisoners in the five TAR prisons, which are separate from the Reform through Labor (RTL) system.
According to numerous sources, political prisoners in Tibetan areas endured unsanitary conditions and often had little opportunity to wash or bathe. Many prisoners slept on the floor without blankets or sheets. Former prisoners reported being confined with 20 to 30 cellmates for many days, isolated in a small cell for as long as three months, and deprived of sunlight and adequate food, water, and blankets. In addition, prison authorities banned religious observances.
Former prisoners reported that they were routinely not provided with enough food. According to sources, prisoners rarely received medical care unless they had a serious illness. Former prisoners also complained that they often failed to receive money, food, clothing, and books from their families because such items were confiscated by prison guards.
There were continued reports that authorities were suspected of abusing some detainees in Tibetan areas through the forced use of psychiatric drugs.
There were many cases of persons detained and imprisoned who were denied visitors, including both family members and legal counsel. This policy was apparently applied to many detainees and prisoners, but more routinely and stringently to political detainees and prisoners.
As elsewhere in the PRC, the authorities did not permit independent monitoring of prisons.
Arbitrary Arrest or Detention
Arbitrary arrest and detention was a growing problem in Tibetan areas. With a detention warrant, police may legally detain persons for up to 37 days without formally arresting or charging them. Police must notify the relatives or employer of a detained person within 24 hours of the detention. Following the 37-day period, police must either formally arrest or release the detainee. In practice police frequently violated these requirements. Many detainees were held under the RTL system operated by the Ministry of Public Security or under other forms of detention not subject to judicial review.
During the sustained official crackdown on the Kirti Monastery in Sichuan’s Aba (Ngaba) County after the self-immolation of a Tibetan monk there in March 2011, authorities forcibly removed hundreds of monks from the monastery, sending some back to their hometowns and detaining others. Following the crackdown, the several hundred remaining monks were required to participate in regular “legal education” sessions led by government officials.
Several monks associated with Draggo Monastery in Luhuo (Draggo) County, Ganzi (Kardze) TAP, Sichuan Province, were detained following the January 23 protests in Luhuo County. According to The Tibet Post International (an online publication of Tibetan journalists in exile), four Draggo Monastery monks (Tulku Lobsang Tenzin Rinpoche, Geshe Tsewang Namgyal, Thinley, and Dalha) were detained in Chengdu a few days after the January 23 protests. Their whereabouts and the charges against them remained unknown. Radio Free Asia (RFA) reported that on April 2, Geshe Tenzin Pelsang, a senior monk at Draggo Monastery, was detained on suspicion of organizing the January 23 protests. His whereabouts remained unknown.
According to an RFA report, in February police began a series of raids on Dzogchen Monastery in Zhuqing (Dzogchen) Township, Dege (Derge) County, Ganzi (Kardze) TAP, Sichuan Province, during which the police beat, interrogated, and took monks into custody. On April 24, several thousand monks and laypersons gathered at the township’s police station and government offices to protest the raids and demand the release of those who had been detained. In October local contacts expressed concern for the few monks they said remained in police custody, but further information was not available.
Jamyang Tenzin, a monk at Yonru Geyden Rabgaylhing Monastery in Litang (Lithang) County, Ganzi (Kardze) TAP, Sichuan Province, who was openly critical of China’s Tibet policies, disappeared on August 28, according to The Tibet Post International, which noted that local officials confirmed he had been arrested but refused to provide information on his well-being or whereabouts, both of which remained unknown.
According to a source cited by the Voice of Tibet, on August 30, public security authorities detained more than 70 monks at Jiare, Jide, Sangzhu, and Xiatang monasteries in Gongjue (Gonjo) County, Changdu (Chamdo) Prefecture, TAR, reportedly to undergo 15 days of legal education in Gongjue County.
Denial of Fair Public Trial
Legal safeguards for detained or imprisoned Tibetans were inadequate in both design and implementation. In 2009 a TAR Justice Bureau official claimed that all seven city- and prefecture-level administrative divisions in the TAR had established legal assistance centers that offered services in the Tibetan language. Prisoners had the right to request a meeting with a government-appointed attorney, but in practice many defendants, particularly political defendants, did not have access to legal representation. During the year the heads of the TAR Legal Affairs Committee, Justice Department, Procuratorate, and Public Security Department were all ethnic Han. The deputy head of the TAR Justice Department, who concurrently served as general director of the TAR Lawyers’ Association, was also ethnic Han.
The family of a Tibetan named Kalsang (also known as Gonkar) from Aba Township, Aba (Ngaba) T&QAP, Sichuan Province, who had disappeared in April 2011, reportedly learned in January that he had been secretly convicted on unknown charges and sentenced to a three-year prison term. In the time following his disappearance, his family had received no information regarding his detention, trial, or sentence, nor had they been permitted to visit him in prison.
Trial Procedures
In cases that authorities claimed involved “endangering state security” or “separatism,” trials often were cursory and closed. Authorities denied multiple requests from foreign diplomats to observe the trials of those charged with crimes related to political protests. Authorities sentenced Tibetans for alleged support of Tibetan independence regardless of whether they were alleged to have committed violent acts.
According to the Tibet Daily (the official TAR party newspaper), the TAR was implementing a policy of strengthening the CCP’s management of lawyers in the region to ensure their work was carried out “in the correct direction.” According to an April 2011 Tibet Daily article, as of 2009 there were 17 law firms and 101 attorneys in the TAR as well as 72 government law offices operating under the direct supervision of the TAR Justice Bureau. Of the 17 law firms, 11 had their own CCP committee, and six shared a CCP committee with the Justice Bureau in their prefecture. As is required throughout the PRC, a CCP development leader was assigned to law firms that had no party organization. On June 30, the TAR Justice Department conducted a ceremony in which 300 practicing TAR attorneys swore an oath to support socialism and improve their “political ideology.”
Political Prisoners and Detainees
An unknown number of Tibetans were detained, arrested, and/or sentenced as a result of their political or religious activity. Many prisoners were held in extrajudicial RTL prisons and never appeared in public court.
Based on information available from the CECC political prisoner database, as of September 1 a total of 626 Tibetan political prisoners were imprisoned, most in Tibetan areas. The actual number of Tibetan political prisoners and detainees was believed to be much higher, but the lack of access to prisoners and prisons, as well as the dearth of reliable official statistics, made a determination difficult. An unknown number of persons continued to be held under the RTL system. Of the 626 Tibetan political prisoners tracked by the CECC, 597 were ethnic Tibetans detained on or after March 10, 2008, and 29 were Tibetans detained prior to March 10, 2008. Of the 597 Tibetan political prisoners who were detained on or after March 10, 2008, a total of 308 were believed or presumed to be detained or imprisoned in Sichuan Province; 188 in the TAR, 66 in Qinghai Province, 33 in Gansu Province, one in the Xinjiang Uighur Autonomous Region, and one in Beijing Municipality. There were 140 persons serving known sentences, which ranged from 18 months to life imprisonment; the average sentence length was seven years and two months. Of the 140 persons serving known sentences, 65 were monks, nuns, or Tibetan Buddhist teachers.
On April 6, Khenpo Gyewala, abbot of the Gyegyel Zogchen Monastery and founder of a school serving local children in Zaduo (Zatoe) County, Yushu (Yushul) TAP, Qinghai Province, was sentenced to a two-year prison term on unspecified charges, according to the Dharamsala-based Tibetan Center for Human Rights and Democracy (TCHRD). The abbot had disappeared on March 8 and was held incommunicado for 20 days after students and teachers at his school protested an official prohibition on celebrating a religious festival.
According to the TCHRD, on April 29, 16 monks and laypersons from Luhuo (Draggo) County, Ganzi (Kardze) TAP, Sichuan Province, were sentenced to prison terms ranging from three years to life imprisonment. The individuals had allegedly participated in the January 23 protests in Luhuo in which demonstrators called for Tibetan freedom and the Dalai Lama’s return.
According to the TCHRD, on June 18, Yunten Gyatso, a monk from Khashi Geyphel Samtenling Monastery in Aba (Ngaba) T&QAP, Sichuan Province, received a seven-year prison sentence for disseminating photographs and information regarding the October 2011 self-immolation of nun Tenzin Wangmo. Yunten Gyatso, who was arrested in October 2011, had reportedly been severely beaten and tortured while in detention prior to sentencing.
On August 6, 17-year-old Jigme Dolma, who was severely beaten on June 24 in Ganzi County, Ganzi TAP, Sichuan Province, after she staged a protest and distributed leaflets calling for the release of political prisoners, the return of the Dalai Lama, and freedom for Tibet, received a three-year prison term for committing “splittist” activities, according to an RFA report.
Status of Freedom of Speech and Press
Freedom of Speech: Tibetans who spoke to foreign reporters, attempted to provide information to persons outside the country, or communicated information regarding protests or other expressions of discontent through cell phones, e-mail, or the Internet were subject to harassment or detention. The whereabouts of 59 individuals convicted in 2009 for “creating and spreading rumors” after the 2008 unrest remained unknown. Lhasa residents reported they avoided sensitive topics, even in private conversations in their own homes.
Freedom of Press: The government severely restricted travel by foreign journalists to Tibetan areas. The entire TAR and many Tibetan counties of Sichuan, Qinghai, and Gansu provinces were closed to foreigners through much of the year. A few foreign journalists reported they could visit the TAR by participating in highly structured, government-organized tours, where the constant presence of government minders made independent reporting difficult. Outside the TAR foreign journalists frequently were barred from entering or were expelled from Tibetan areas despite government rules, adopted in 2008, which state that foreign journalists do not need the permission of local authorities to conduct reporting.
According to a July 16 RFA report, security officers took Tashi Dondrub and Kelsang Gyatso, known also by their nicknames Mewod and Gomkul, into custody on July 14 at Palyul Monastery in Ganzi (Kardze) TAP, Sichuan Province. The two monks wrote books critical of Chinese policies in Tibet; their whereabouts remained unknown.
The government continued to jam radio broadcasts of Voice of America (VOA) and RFA Tibetan- and Chinese-language services in some Tibetan areas, as well as the Voice of Tibet. In Tibetan areas of southern Gansu Province and the Ganzi (Kardze) TAP in Sichuan Province, police confiscated or destroyed satellite dishes suspected of receiving VOA Tibetan-language television as well as VOA and RFA audio satellite channels. Some dishes were replaced with government-controlled cable television systems. Some Tibetans reported they were able to listen to overseas Tibetan-language radio and television broadcasts through the Internet.
Authorities in the TAR and Tibetan areas throughout Sichuan, Qinghai, and Gansu provinces launched several campaigns cracking down on illegal satellite dishes and publications, as well as Internet and mobile phone communications, to “ensure national security and social stability.”
Domestic journalists generally did not report on repression in Tibetan areas; the postings of bloggers who did so were promptly censored, and their authors sometimes faced punishment. Security officials placed Beijing-based Tibetan blogger and poet Woeser, a recipient of the 2011 Prince Claus Award, under de facto house arrest in early March to prevent her from attending a private award ceremony to be held at the Beijing residence of the Dutch ambassador. Woeser, who has documented Tibetan protests and self-immolations and advocated for human rights for Tibetans, environmental protection for the Tibetan Plateau, and the preservation of Tibetan culture and religion, remained under house arrest through the end of the National People’s Congress in mid-March. Woeser spent three months in Lhasa after being forced by authorities to leave Beijing in the period before and during the 18th Party Congress in November, a situation her husband, Wang Lixiong, described in an opinion piece, Unwelcome at the Party, which appeared in the New York Times newspaper on November 6.
Official media rarely referred to unrest in Tibetan areas, although some official publications targeting the overseas Chinese community published articles blaming the “Dalai clique” and other “outside forces” for instigating the Tibetan self-immolations. Journalists who worked for the domestic press were tightly controlled and could be hired and fired on the basis of political reliability. For example, on March 5, the official television channel of the TAR released a job announcement seeking 19 media employees. Applicants had to meet five conditions, the first of which was that they must support the CCP party line, principles, and policies; safeguard national unity; and be politically steadfast.
Violence and Harassment: On February 15, Tibetan writer and schoolteacher Gangkye Drubpa Kyab reportedly was taken into custody by more than 20 security officers who came to his home in Seda (Serthar) County, Ganzi (Kardze) TAP, Sichuan Province. The reason for his detention and his whereabouts were unknown.
In July 2011 Public Security Bureau (PSB) officers reportedly removed writer Pema Rinchen from his home in Luhuo (Draggo) County, Ganzi (Kardze) TAP, Sichuan Province. He was brought the next day to the county hospital for emergency treatment for injuries sustained during severe beatings while in police custody. The status and whereabouts of Pema Rinchen were unknown at year’s end.
Dhondup Wangchen, a filmmaker who was sentenced to six years in prison in 2009 on charges related to his production of a 25-minute documentary, Leaving Fear Behind, that documented human rights problems in Tibetan areas, remained in prison and was said to be suffering from hepatitis.
Internet Freedom
Cell phone and Internet service in the TAR and Tibetan areas of Sichuan, Qinghai, and Gansu provinces were curtailed during times of unrest and politically sensitive periods, such as the March anniversaries of the 2008 protests and “Serf Liberation Day” (see Academic Freedom and Cultural Events), around the Dalai Lama’s birthday in July and during the 18th Party Congress in November. In addition many Web sites were shut down and Internet cafes closely monitored during major religious, cultural, and political festivals in Tibetan areas. For example, according to an article, Monks Run Amok, that appeared on February 3 in the Global Times, a commercially focused newspaper affiliated with the official daily of the CCP Central Committee, Internet and mobile phone signals were cut off for more than 30 miles around Luhuo (Draggo) and Seda (Serthar) Counties, Ganzi (Kardze) TAP, Sichuan Province, where protests took place on January 23 and 24.
Most foreign-based, Tibet-related Web sites critical of official policy in Tibetan areas were blocked to users in China throughout the year. Tibet activists inside and outside of China were harassed by well-organized computer hacking attacks originating from China, according to a foreign-based study group. Security agencies responsible for monitoring the Internet often lacked the language skills necessary to efficiently monitor Tibetan content. As a result Tibetan-language blogs and Web sites were subject to indiscriminate censorship, with entire sites closed down even when the content did not appear to touch on sensitive topics. Some teachers and scholars in Sichuan Province reported receiving official warnings after using their iPhones to exchange what was deemed to be sensitive information in Tibetan script.
In April 2011 official media reported that the Internet Security Supervision Detachment of the Lhasa PSB required the owners of 104 Lhasa Internet cafes to attend an “Internet cafe security management” meeting, where they had to sign a “responsibility document” pledging to ensure Internet security. The stated purpose of the meeting was to “purify the Internet, safeguard national security, and ensure social stability.” Also in April 2011, law enforcement officials in Changdu (Chamdo) County, TAR, raided 15 Internet cafes, confiscating equipment used to promote illegal “separatist” or “Tibet independence” content.
Academic Freedom and Cultural Events
Authorities in Tibetan areas required professors and students at institutions of higher education to attend political education sessions in an effort to prevent “separatist” political and religious activities on campus. Ethnic Tibetan academics were frequently encouraged to participate in government propaganda efforts, such as making public speeches supporting government policies or accepting interviews by official media. Academics who refused to cooperate with such efforts faced diminished prospects for promotion. Academics in the PRC who publicly criticized CCP policies on Tibetan affairs faced official reprisal. The government controlled curricula, texts, and other course materials as well as the publication of historically or politically sensitive academic books. Authorities frequently denied permission to Tibetan academics to travel overseas for conferences and academic or cultural exchanges.
At a January 30 meeting in Lhasa chaired by TAR Party Secretary Chen Quanguo to discuss propaganda priorities for the year, TAR party and government leaders were urged to “ensure the security of Tibetan ideological and cultural fields,” continue to criticize the “Dalai clique,” investigate and prevent the influx of “toxic” cultural influences, and promote such themes as “communism, socialism, and the People’s Liberation Army are good” and “love the party and the motherland.” In an August speech, the general party secretary of the TAR Academy of Social Sciences called on scholars to fight against separatism and unite with the party in ideology and action.
In an opinion piece published in official media in January 2011, the director of the TAR State Security Bureau called for the development of Tibet’s tourism and cultural industries to combat the weakening of national identity and other “negative” effects of placing “too much emphasis on the promotion of Buddhist religious faith.” At the same time, the TAR Tourism Bureau continued its policy of refusing to hire ethnic Tibetan tour guides who had been educated in India or Nepal. Government officials stated that all tour guides working in the TAR were required to seek employment with the Tourism Bureau and pass a licensing exam on tourism and political ideology. The government’s stated intent was to ensure that all tour guides provided visitors with the government’s position opposing Tibetan independence and the activities of the Dalai Lama. Some ethnic Tibetan tour guides in the TAR complained of unfair competition from government-sponsored “help Tibet” tour guides brought from inland China, apparently for their greater political reliability, and put to work after receiving a crash course on Tibet.
Policies promoting planned urban economic growth, rapid infrastructure development, the influx of non-Tibetans to traditionally Tibetan areas, expansion of the tourism industry, forced resettlement of nomads and farmers, and weakening of Tibetan-language education at the middle and high school levels continued to disrupt traditional living patterns and customs.
From May to August, authorities in Lhasa launched another in a series of “strike hard” campaigns. According to official reports, in the early days of the campaign, police raided 160,000 apartments and 13,800 hotels. Although ostensibly an anticrime operation, police searched private homes, guest houses, hotels, bars, and Internet cafes for photographs of the Dalai Lama and other politically forbidden items. Police examined the cell phones of Lhasa residents to search for “reactionary music” from India and photographs of the Dalai Lama. Even certain ringtones were reportedly deemed subversive and could lead to detention.
On March 28, the TAR marked its fourth annual observance of “Serf Emancipation Day,” commemorating the day in 1959 that China’s rulers formally dissolved the Kashag, the Tibetan government. During the official celebration, government officials and representatives from rural villages and monasteries were required to denounce the Dalai Lama.
There were continued reports of government shutdowns of privately run Tibetan schools. A school in Zaduo (Dzatoe) County in Qinghai Province’s Yushu (Yushul) TAP was shut down in February. The Voice of Tibet reported that on April 2, authorities forcibly closed a privately run Tibetan school in Laima Village, Ganzi County, Ganzi (Kardze) TAP, Sichuan Province, and arrested its principal, Yama Ciren, and a Tibetan-language teacher. The RFA reported that in May Chinese authorities closed an orphanage school in Luqu (Luchu) County in Gansu Province’s Gannan (Kanlho) TAP, detaining the two teachers in charge of the school, Sangye Dondrub and Jamyang. The school’s previous director, Atsun Tsondru Gyatso, had reportedly disappeared in January 2011.
According to an August 9 Voice of Tibet report, local authorities shut down an organization established in 2011 by Tibetans and monks from the Baishiya Monastery in Ganjia Village, Gannan (Kanhlo) TAP, Gansu Province, to promote use of the Tibetan language.
Observers continued to express concern that development projects and other central government policies disproportionately benefited non-Tibetans and resulted in a considerable influx of ethnic Han and Hui people into the TAR. Infrastructure upgrades such as improved roads, more frequent air service, and the TAR-Qinghai railway, which made travel more affordable, increased the frequency with which non-Tibetans from other parts of the PRC visited the TAR. According to the official Xinhua News Agency, in 2006 there were 180,000 ethnic Han with household registration in the TAR. According to an official TAR report, by 2011 this number had increased to 245,000. Many people from outside the TAR who had spent years living in the TAR maintained their official registration in another province and thus were not counted as TAR residents. The government continued to significantly improve public services provided to the migrant population in the TAR, particularly in the areas of education and health care, and provided financial support to new businesses established by migrants. During a public security inspection on August 18, the TAR party chief, Chen Quanguo, visited ethnic Han business owners in Lhasa and offered them assurances that he was working to improve public security in the TAR to better protect their businesses.
Even in areas officially designated as “autonomous,” Tibetans generally lacked the right to play a meaningful role in the protection of their cultural heritage and unique natural environment and faced arrest and intimidation if they protested against mining or other industrial activities that they believed were harmful to the environment or sacred sites. In 2010 a total of 15 Tibetans, including five monks from nearby Lingka Monastery, were detained and several others injured when armed riot police and PSB officials were dispatched to suppress hundreds of Tibetans who attempted to disrupt operations at the controversial Xietongmen (Shethongmon) copper-mining project near Rikaze (Shigatse), TAR. The detained monks, Khenpo Kelsang, Jamyang Tsering, Tsewang Dorje, Rigzin Pema, and Jamyang Rigsang, reportedly were taken to detention centers in Xietongmen (Shethongmon) and Rikaze (Shigatse). Their well-being remained unknown at year’s end.
On August 15, approximately 1,000 Tibetans marched to a mining site in Mangkang (Markham) County, Changdu (Chamdo) Prefecture, TAR, to protest the large operation, which they believed to be environmentally hazardous. Security personnel responded by firing tear gas and live rounds, causing the death of Tibetan Nyima, and arrested six others, including five who were identified as Dawa, Atsong, Phuntsog Nyima, Jamyang Wangmo, and Kelsang Yudron. Their whereabouts and condition remained unknown.
Tibetan and Mandarin Chinese are official languages in the TAR, and both languages appeared on some, but not all, public and commercial signs. Inside official buildings and businesses, including banks, post offices, and hospitals, signage in Tibetan was frequently lacking, and in many instances forms and documents were available only in Mandarin. Mandarin was widely spoken and was used for most official communications. In many rural and nomadic areas, children received only one to three years of Tibetan-language education before continuing their education in a Mandarin-language school. According to a February 20 article posted on ChinaTibetNews.com, a TAR Department of Education official announced at a conference that the illiteracy rate in the TAR had fallen to 1 percent by the end of 2011. Official figures published in June by the Qinghai Province Statistical Bureau indicated that the illiteracy rate in Tibetan areas of the province dropped to 13.69 percent in 2010, compared with 25.12 percent in 2000. Many observers questioned these figures, and some contended that the actual illiteracy rate in the TAR was approximately 40 percent and as high as 50 percent in Tibetan areas of Gansu and Sichuan Provinces.
The Tibetan-language curriculum for primary and middle schools in Tibetan areas was predominantly translated directly from the standard national Mandarin-language curriculum, offering Tibetan students little insight into their own culture and history. Few elementary schools in Tibetan areas used Tibetan as the primary language of instruction. In Kangding (Dartsedo), Ganzi (Kardze) TAP, Sichuan Province, elementary schools did not offer instruction in Tibetan. Despite guarantees of cultural and linguistic rights, in middle and high schools--even some officially designated as Tibetan-language schools--Tibetan was usually used only to teach classes on Tibetan language, literature, and culture, and all other classes were taught in Mandarin. Of more than 15 middle and high schools in Aba (Ngaba), T&QAP, Sichuan Province, only three taught primarily in Tibetan. Early in 2011 the TAR government began an effort to strengthen free compulsory bilingual preschool education in rural areas by establishing 217 bilingual kindergartens. Qinghai Province and Ganzi (Kardze) TAP and Aba (Ngaba), T&QAP, Sichuan Province, announced similar programs in 2011.
On March 14, approximately 4,000 students in Gangca (Kangtsa) County, Haibei TAP, Qinghai Province, demonstrated against the increased use of Mandarin Chinese as the language of instruction in schools. This was the largest such protest since 2010, when thousands of Tibetan middle and primary school students from four Tibetan prefectures in Qinghai Province demonstrated for several days for similar reasons. In August authorities sentenced Tashi Tsering and Choeyang Gonpo to three years in prison, reportedly for organizing the March protest.
According to various reports, between 500 and “several thousand” students at a medical college in Gonghe (Chabcha) County, Hainan TAP, Qinghai Province, staged a demonstration on November 26, reportedly protesting a written pamphlet and related questionnaire they were asked to fill out that contained inflammatory statements about self-immolation, the Dalai Lama, and bilingual education. Local PAP officers reportedly responded with force, injuring as many as 20 students. On December 12, Phayul cited overseas sources who reported that eight of the students received five-year sentences for their alleged roles in the November 26 protest and that the school remained under strict surveillance.
Proficiency in Mandarin was essential to qualify for higher education and obtain a government job in the PRC. China’s most prestigious universities provided no instruction in Tibetan or other ethnic minority languages. “Nationalities” universities, established to serve ethnic minority students and ethnic Han students interested in ethnic minority subjects, offered Tibetan-language instruction only in courses focused on the study of the Tibetan language or culture. Since Tibetan-language instruction was not offered in other higher-education subjects, there was a dearth of technically trained and qualified ethnic Tibetans, and jobs in Tibetan areas that required technical skills and qualifications were typically filled by migrants from other areas of China. Tibetan Buddhist monks, in some cases leading scholars on Tibetan studies, were barred from teaching at universities due to their religious office and lack of academic credentials recognized by the Ministry of Education.
According to overseas Tibetan sources cited by Phayul, three popular Tibetan singer-performers were arrested, reportedly in connection with the political content of their lyrics. Ugyen Tenzin was arrested in Ganzi (Kardze) TAP, Sichuan Province, in February, and Lo Lo was arrested in Yushu (Yushul) TAP, Qinghai Province, on April 19. A third performer, Chogsel, was reportedly taken into custody on July 29 at an Internet cafe in Xining, Qinghai Province, and accused of “inciting separation within nationalities” through his music. According to sources cited by RFA, popular singer Amchok Phuljung was taken into custody on August 3 in Ma’erkang (Barkham) County, Aba (Ngaba) T&QAP, Sichuan Province, reportedly in connection with the May release of his latest album, which included songs praising the Dalai Lama. At year’s end his whereabouts remained unknown, although one local contact claimed he was being held at Ma’erkang Detention Center.
Freedom of Religion
See the Department of State’s International Religious Freedom Report at www.state.gov/j/drl/irf/rpt.
Freedom of Movement
The law provides for freedom of internal movement, foreign travel, emigration, and repatriation; however, in practice the government severely restricted travel and freedom of movement of ethnic Tibetans, particularly Tibetan Buddhist monks and nuns.
In-country Movement: Freedom of movement for all Tibetans, but particularly for monks and nuns, declined severely throughout the TAR, as well as in Tibetan areas of Qinghai, Gansu, and Sichuan provinces. Anecdotal evidence indicated this was less of a problem in Yunnan Province’s sole TAP, Diqing (Deqen) TAP, where Tibetans made up 40 percent of the population and rarely protested against government policies. The PAP and local PSBs set up roadblocks and checkpoints on major roads, in cities, and on the outskirts of cities and monasteries, particularly around sensitive dates. Tibetans traveling in monastic attire were subject to extra scrutiny by police at roadside checkpoints.
Following the May 27 self-immolation in Lhasa, TAR, of two young Tibetans from Tibetan areas of Sichuan and Gansu provinces (the first instances of self-immolation in Lhasa in recent years), Tibetans from outside the TAR, particularly monks and nuns, were largely banned from traveling to the TAR without first obtaining special official travel documents. Many Tibetans reported encountering difficulties in obtaining the required travel documents. This not only made it impossible for Tibetans to make pilgrimages to sacred religious sites in the TAR but also obstructed land-based travel to India through Nepal. In addition many nonlocal Tibetan monks, nuns, and laypersons who had resided in the TAR for as long as 15 years were expelled. For example, in December a young Tibetan artist in Chengdu reported that government officials had recently ejected him from the TAR after discovering that he was originally from Sichuan Province’s Ganzi (Kardze) TAP. The artist had worked for two years at a famous TAR monastery painting and restoring sacred thangka paintings. Even outside the TAR, Tibetan monks and nuns reported that it remained difficult to travel outside their home monasteries, with officials frequently denying permission for visiting monks to stay temporarily at a monastery for religious education.
Nonethnic Tibetans, particularly ethnic Han Tibetan Buddhists, were allowed only temporary visits to Tibetan Buddhist monasteries. Implementation of this restriction was especially rigorous in the TAR and Sichuan Province’s Ganzi TAP. Local religious affairs authorities often prohibited ethnic Han or foreign Tibetan Buddhists from staying in monasteries for long-term study.
Foreign Travel: Many Tibetans, particularly prominent religious and cultural figures, scholars, and activists, as well as those from rural areas, continued to report increased difficulties obtaining new or renewing existing passports. Some Tibetans reported they were able to obtain passports only after paying substantial bribes or making promises not to travel to India. In other cases Tibetan students with scholarships to foreign universities were precluded from study abroad because authorities refused to issue them passports. Some Tibetans who left the PRC for India without proper documentation reported being able to return on a limited basis and then allowed to leave again for India through Nepal.
Chinese authorities reportedly detained hundreds of Tibetans who attended an important “Kalachakra” Buddhist teaching conference in India convened by the Dalai Lama on December 31, 2011, to January 10, 2012. Detainees, many of whom had traveled to India legally with valid travel documentation, were reportedly detained as they reentered China or in the months following their return and forced to attend “political education” sessions while in detention. According to sources cited by RFA, on May 26, Chinese border officials forcibly sent back to Nepal nine Tibetan pilgrims who had attended the Kalachakra and were attempting to return to China. Chinese authorities reportedly beat the pilgrims severely and detained them for a week before handing them over to Nepalese officials.
Tibetans continued to encounter substantial difficulties and obstacles in traveling to India for religious, educational, and other purposes. According to reports, ethnic Tibetan government and CCP cadres in the TAR and Ganzi (Kardze) TAP, Sichuan Province, were not allowed to send their children to study abroad. Tight border controls sharply limited the number of persons crossing the border into Nepal and India. During the year 241 Tibetan refugees transited Nepal through the Tibetan Reception Center, run by the Office of the UN High Commissioner for Refugees in Kathmandu, en route to permanent settlement in India, down from 739 in 2011 and 874 in 2010.
The government restricted the movement of Tibetans in the period before and during sensitive anniversaries and events and increased controls over border areas at these times. There were reports of arbitrary detentions of persons, particularly monks and nuns, returning from India and Nepal without travel documents issued by Chinese embassies and consulates. Detentions generally lasted for several months, although in most cases authorities did not bring formal charges against detainees. Travel became increasingly difficult and communications were sometimes cut off, particularly in Sichuan’s Aba (Ngaba), T&QAP, as the series of self-immolations that began at Kirti Monastery in March 2011 continued.
There were reports of Chinese authorities deporting Tibetans who attempted to reenter China from Nepal without Chinese “travel documents.” In March public security and border police arrested five Tibetans and held them in a detention center in Rikaze (Shigatse) Prefecture, TAR, for approximately four months, according to the Voice of Tibet. On August 23, Chinese armed police reportedly delivered the five to Nepalese authorities at Zhangmu (Dram) Port on the Nepal-China border. The five were then transferred to the immigration office in Kathmandu and required to pay a fine before being released.
The government regulated travel by foreigners to the TAR. In accordance with a 1989 regulation, foreign visitors must obtain an official confirmation letter issued by the government before entering the TAR. Most tourists obtained such letters by booking tours through officially registered travel agencies. Apart from those who entered from Nepal, foreign tourists were permitted to enter the TAR only by airplane or rail, and generally only in groups of four or more people, all of whom must be of the same nationality. It was rare for foreigners to obtain permission to enter the TAR by road.
In what has become an annual practice, foreign tourists were banned from the TAR in the period before and during the March anniversary of the 1959 Tibetan uprising and the dual anniversaries in July of the founding of the CCP and the “peaceful liberation” of Tibet. Unlike in prior years, however, the ban on foreign tourists remained in place through much of the rest of the year, with some exceptions granted under highly restricted conditions. During the times that foreign tourists were permitted to enter the TAR, the requirement that they remain with organized tour groups was enforced more strictly than in the past. Foreign tourists also faced restrictions traveling to Tibetan areas outside the TAR, particularly Aba (Ngaba) T&QAP and Ganzi (Kardze) TAP in Sichuan Province, although the government never issued publicly available formal prohibitions on travel to these areas. Anecdotal evidence suggested that the decline in the number of foreign tourists to the TAR was more than offset by an increase in domestic visitors to the TAR. Unlike foreign tourists, ethnic Han tourists do not need special permits to visit the TAR, nor are they subject to rules governing the size of their group or the means of transport used to enter the TAR.
Officials continued to restrict severely the access of diplomats and journalists to Tibet. Foreign officials were able to travel to the region only with the permission of the TAR Foreign Affairs Office and even then only on closely chaperoned trips arranged by that office. Such permission was difficult to obtain. U.S. government officials submitted more than 10 requests for diplomatic access to the TAR between May 2011 and December 2012, but none was granted, and U.S. diplomatic personnel have not been permitted to visit since spring 2011. Foreign diplomats who legally traveled in some Tibetan areas outside the TAR, such as Sichuan Province’s Ganzi (Kardze) TAP and Aba (Ngaba) T&QAP, were repeatedly approached by local police and sometimes forced to leave without reasonable explanation. With the exception of a few highly controlled trips, authorities repeatedly denied requests for international journalists and observers to visit the TAR and other Tibetan areas.
Discrimination and Societal Abuses
Women
Rape and Domestic Violence: There was no confirmed information on the incidence of rape or domestic violence in Tibetan areas, although a Tibetan resident of a Tibetan area of Sichuan Province said that gender-based violence, including rape, was common among Tibetan herders and often went unreported.
Reproductive Rights: Family planning policies permitted ethnic Tibetans and members of some other minority groups to have more children than ethnic Han. Some ethnic Tibetans who had permanent employment in urban areas, or were CCP members or served as government officials, were limited to two children, as were some ethnic Han living in Tibetan areas. Depending upon the county, rural Tibetans in the TAR were sometimes encouraged to limit births to three children. Unlike other areas in the PRC where gender ratios were skewed by sex-selective abortion and inadequate health care for female infants, the TAR did not have a skewed gender ratio.
Sex work in Tibetan areas is not uncommon, and lack of knowledge about HIV transmission and economic pressure led many female sex workers to engage in unprotected sex. Other female sex workers were aware of the risks in unprotected sex but often agreed to forego protection in exchange for higher pay.
Discrimination: There were no formal restrictions on women’s participation in the political system, and women held many lower-level government positions. Women were underrepresented at the provincial and prefectural levels of government, however. According to an official Web site, female cadres in the TAR accounted for more than 30 percent of the TAR’s total cadres. There was believed to be little gender wage gap in companies owned by Tibetans that employed Tibetans. However, Tibetan women employed by companies owned by ethnic Han frequently earned less than male or female ethnic Han employees in the same job.
Children
According to official policy, primary education was compulsory, free, and universal. According to official TAR statistics, 99.2 percent of children between the ages of six and 13 attended school, and 90 percent of the TAR’s primary school students attended lower middle school, for a total of nine years of education. In 2003 the UN special rapporteur on the right to education reported that official PRC education statistics did not accurately reflect attendance and were not independently verified.
Societal Violence
Feuds among Tibetan herders and the resulting violence, in some cases including killings, was a serious problem. Some Tibetans in Ganzi (Kardze) TAP, Sichuan Province, commented that lack of police protection in cases of violence among Tibetans was also a serious issue.
According to RFA, on October 5, Tibetan Buddhist monks led as many as 200 Tibetan villagers to attack ethnic Hui Muslims at the construction site of a new mosque in Langmusi Township, Luqu County, Gannan TAP, Gansu Province. Local sources cited by the Web site Molihua.org claimed that more than 12 Hui Muslims were injured in the brawl, six of them seriously.
In December 2011 a fight broke out between ethnic Han and ethnic Tibetan students at the Chengdu Railway Vocational High School in Chengdu, Sichuan Province. Reportedly the culmination of tensions relating to ethnic bullying and anger at preferential treatment given to minority students, the brawl resulted in an unknown number of injuries.
Ethnic Minorities
Although TAR census figures showed that, as of November 2011, Tibetans made up 90.5 percent of the TAR’s permanently registered population, official figures did not include a large number of long-, medium-, and short-term ethnic Han residents, such as cadres (government and party officials), skilled and unskilled laborers, military and paramilitary troops, and their respective dependents. According to a Lhasa city official, 260,000 of the 450,000 individuals living in downtown Lhasa during the year belonged to this “floating” population.
Migrants to the TAR were overwhelmingly concentrated in urban areas. Government policies to subsidize economic development often benefited ethnic Han more than ethnic Tibetans, causing resentment. In many predominately ethnic Tibetan cities across the Tibetan Plateau, as many as 60 to 80 percent of the small businesses, restaurants, and retail shops were owned and managed by ethnic Han or Hui migrants. Ethnic Tibetans continued to make up nearly 98 percent of those registered as permanent residents in rural areas, according to official census figures.
The government continued its campaign to resettle Tibetan nomads into urban areas across the TAR and other Tibetan areas. Officials also offered nomads monetary incentives to kill or sell their livestock and move to newly created Tibetan communities in rural areas. There were reports of compulsory resettlement where promised compensation was either inadequate or not paid. According to a December 29 Xinhua report, more than 408,000 households in the TAR, including 2.1 million farmers and herders, were covered by a resettlement project that provided funds for the construction of permanent housing. The official press claimed that such resettlement programs were the “foundation for fighting the Dalai clique,” and that resettled farmers and herders would “pray to Buddha less and study culture and technology more.”
Improving housing conditions, health care, and education for Tibet’s poorest were among the stated goals of resettlement, although there was a pattern of settling herders near townships and roads and away from monasteries, which were the traditional providers of community and social services. A requirement that villagers build houses according to official specifications within two or three years often forced resettled families into debt to cover construction costs.
Although a 2010 state media report noted that ethnic Tibetans and other minority ethnic groups made up 70 percent of government employees at the provincial level in the TAR, the top CCP position of TAR party secretary continued to be held by an ethnic Han, and the corresponding position in approximately 90 percent of all TAR counties was also held by an ethnic Han. Also within the TAR, ethnic Han continued to hold a disproportionate number of the top security, military, financial, economic, legal, judicial, and educational positions. Tibetans holding government and CCP positions were often prohibited from openly worshipping at monasteries or otherwise practicing their religion. Of Qinghai Province’s six TAPs, five were headed by ethnic Han party secretaries and one by an ethnic Tibetan party secretary. Gansu Province’s one TAP, Sichuan Province’s two TAPs, and Yunnan Province’s one TAP were headed by ethnic Han party secretaries. There were several ethnic Tibetan party secretaries at the county level in Tibetan areas of Qinghai, Sichuan, Gansu, and Yunnan provinces.
Economic and social exclusion was a major source of discontent among a varied cross section of ethnic Tibetans, including business operators, workers, students, university graduates, farmers, and nomads. Some ethnic Tibetans continued to report discrimination in employment, and some job advertisements in the TAR expressly noted that ethnic Tibetans were not welcome to apply. Some claimed that ethnic Han were hired preferentially for jobs and received higher salaries for the same work. The problem intensified after May, as many Tibetans from outside the TAR were expelled from the TAR, creating more job and business opportunities for non-Tibetans in the TAR. Some Tibetans reported that it was more difficult for ethnic Tibetans than ethnic Han to obtain permits and loans to open businesses. Restrictions on international nongovernmental organizations (NGOs) that provided assistance to Tibetan communities resulted in the elimination of many beneficial NGO programs and the expulsion of most foreign NGO workers from the TAR and other Tibetan areas.
Government propaganda against alleged Tibetan “proindependence forces” contributed to growing Chinese societal discrimination against ordinary Tibetans. Sources reported that security personnel targeted individuals in monastic attire for arbitrary questioning and other forms of harassment on the streets of Lhasa and other cities and towns. Many Tibetan monks and nuns chose to wear nonreligious garb to avoid such harassment when traveling outside their monasteries and around China. Some Tibetans in Chengdu reported that taxi drivers refused to stop for them and hotels refused to give them rooms.
HONG KONG
EXECUTIVE SUMMARY
Hong Kong is a Special Administrative Region (SAR) of the People’s Republic of China (PRC). The 1984 Sino-British Joint Declaration on the Question of Hong Kong and the SAR’s charter, the Basic Law of the SAR (the Basic Law), specify that Hong Kong will enjoy a high degree of autonomy except in matters of defense and foreign affairs. On March 25, a Chief Executive Election Committee composed of 1,193 members selected C.Y. Leung as Hong Kong’s third chief executive (CE). The fifth-term Legislative Council (LegCo) was elected September 9 from a combination of directly elected seats and limited franchise or “small circle” functional constituencies. Security forces reported to civilian authorities.
The most important human rights problems reported were the limited ability of citizens to participate in and change their government, an increase in arbitrary arrest or detention and other aggressive police tactics hampering the freedom of assembly, and a legislature with limited powers in which certain sectors of society wield disproportionate political influence.
Other areas of reported concern include limitations on freedom of the press and self-censorship, denial of visas for political reasons, alleged election fraud, trafficking in persons, and societal prejudice against certain ethnic minorities.
The government took steps to prosecute and punish officials who committed abuses.
Section 1. Respect for the Integrity of the Person, Including Freedom from:
a. Arbitrary or Unlawful Deprivation of Life
There were no reports that the government or its agents committed arbitrary or unlawful killings.
b. Disappearance
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Basic Law prohibits torture and other forms of abuse, but there were some reports that government officials employed them. In the first half of the year, the police force’s Complaints Against Police Office received 1,139 complaints -- a 10-fold increase over the same period last year. Of those, four were substantiated as reported, one not fully substantiated, nine unsubstantiated, two false, 17 no fault, 134 not pursuable, 574 withdrawn, and 398 pending investigation and endorsement by the Independent Police Complaints Council (IPCC). There were 22 allegations of assault by police officers on persons not in custody, of which one was found unsubstantiated, five not pursuable, and three were withdrawn. Thirteen allegations were pending investigation as of June. There were also 141 allegations of assault by police officers against persons in custody. Of those, two were found to be false, four no fault, 26 not pursuable, and 66 pending investigation as of June.
Prison and Detention Center Conditions
Prison and detention center conditions generally met international standards, and the Correctional Services Department (CSD) permitted visits by independent human rights observers. Nevertheless, the nongovernmental organization (NGO) Society for Community Organization (SoCO) called on the government to enact legislation to better protect prisoners. SoCO voiced its concerns to the LegCo’s Public Complaints Office, alleging “widespread use of solitary confinement in prisons,” and a “lack of labor-protection legislation for inmates who work.”
Physical Conditions: During the year the CSD managed 24 penal institutions (comprising minimum, medium, and maximum security prisons; a psychiatric center; and training, detention, rehabilitation, and drug addiction treatment centers) with a certified accommodation capacity of 11,544 places. As of June 30, the total prison population was 9,436, of which 8,521 were adults 21 years old or older (6,854 males and 1,667 females). Of the 8,521 adults, 1,193 (including 997 males and 196 females) were remanded persons. As of June 30, a total of 61 (50 male and 11 female) young offenders under age 16 were admitted to penal institutions, including prison, training centers, detention centers, and drug addiction treatment centers. Among them, 26 (including 22 males and four females) were remanded persons.
The average occupancy rate for all penal institutions was 82 percent. The CSD admitted overcrowding was a problem in certain types of penal institutions, such as remand (pretrial detention) facilities and maximum-security institutions.
Prisoners generally had access to potable water.
There were no reports of any deaths in police custody in the first six months, but there were eight reported deaths of persons in custody of the CSD. Inquest results had not been reported by year’s end.
The average length of pretrial incarceration (remand) of persons in CSD custody whose trial was concluded in the first half of the year was 93 days.
Administration: Prisoners and detainees were able to send and receive letters, receive regular visits, manifest their religious beliefs or practices, and attend available religious services in correctional institutions. According to the CSD, every prisoner has unrestricted access to internal and external complaint channels. Authorities permitted prisoners and detainees to submit complaints to judicial authorities without censorship, request investigation of credible allegations of inhumane conditions, and initiate legal action against any alleged inhuman conditions. Judicial authorities investigated credible allegations of inhuman conditions and documented the results of such investigations in a publicly accessible manner. The government investigated and monitored prison and detention center conditions, and there was an external Office of the Ombudsman. There were no reports of any problems regarding recordkeeping or the use of alternatives to sentencing for nonviolent offenders.
Monitoring: The government permitted human rights groups to conduct prison visits. In the first six months of the year, there were 19 media visits and 217 visits by justices of peace (all 217 of which were unannounced). Justices of the peace may make suggestions and comments on matters such as physical environment facilities, overcrowding, staff improvement, training and recreational programs and activities, and other matters affecting the welfare of inmates. There were no requests from any human rights organizations to visit any prison.
d. Arbitrary Arrest or Detention
The law prohibits arbitrary arrest or detention, but a number of incidents during the year resulted in an increased occurrence of arbitrary arrest and detention.
Role of the Police and Security Apparatus
Civilian authorities maintained effective control over the Hong Kong Police Force, and the government had effective mechanisms to investigate and punish abuse and corruption.
There were no reports of impunity involving the security forces during the year.
Human rights activists and some legislators expressed concern that all IPCC members were appointed by the CE and that the IPCC’s lack of power to conduct independent investigations limited its oversight capacity. The IPCC cannot compel officers to participate in its investigations, and the media reported cases of police officers declining to do so.
The IPCC received six complaints against officers who handled the annual July 1 rally on the anniversary of Hong Kong’s handover to the PRC and the visit of President Hu Jintao the previous day. IPCC Chairman Jat Sew-tong said the allegations involved neglect of duty, improper behavior, and offensive language. Police also detained a reporter for 15 minutes at the Kai Tak cruise terminal after the reporter shouted a question at President Hu about the 1989 Tiananmen Square massacre.
Arrest Procedures and Treatment While in Detention
Suspects generally were apprehended openly with warrants based on sufficient evidence and issued by a duly authorized official. They must be charged within 48 hours or released, and the government respected this right in practice. Interviews of suspects are required to be videotaped. The law provides accused persons with the right to a prompt judicial determination, and authorities respected this right effectively in practice. Detainees were informed promptly of charges against them. There was a functioning bail system, and authorities allowed detainees ready access to a lawyer of their choice, as well as to family members.
Arbitrary Arrest: In December the IPCC released a report investigating complaints arising from PRC Vice Premier Li Keqiang’s August 2011 visit to Hong Kong, during which the police were criticized for detaining a number of students and their rough treatment of other individuals. The report recommended punishing 12 police officers through disciplinary hearings, verbal warnings, or advice. This led to further criticism because the IPCC chairman publicly stated that police officers had been told “to prevent any embarrassment” for Li and ensure events he attended were “conducted in a smooth and dignified manner.” Observers viewed these comments as implicit instructions to prevent protesters from airing their views for the sake of a PRC official visitor’s trip. Critics also claimed the punishments were too lenient and only indicated the police would continue giving way on human rights issues.
e. Denial of Fair Public Trial
The law provides for an independent judiciary, and the government generally respected judicial independence in practice. The judiciary provided citizens with a fair and efficient judicial process. The courts may interpret those provisions of the Basic Law that address matters within the limits of the SAR’s autonomy. The courts also interpret provisions of the Basic Law that touch on central government responsibilities or on the relationship between the central authorities and the SAR. However, before making final judgments on these matters, which are not subject to appeal, the courts must seek an interpretation of the relevant provisions from the Standing Committee of the PRC’s National People’s Congress (NPC/SC). The Basic Law requires that courts follow the NPC/SC’s interpretations, although judgments previously rendered are not affected. As the final interpreter of the Basic Law, the NPC/SC also has the power to initiate interpretations of the Basic Law.
The NPC/SC’s mechanism for interpretation is its Committee for the Basic Law, composed of six mainland and six Hong Kong members. The CE, LegCo president, and chief justice nominate the Hong Kong members. Human rights and lawyers’ organizations expressed concern that this process, which can supersede the Court of Final Appeal’s power of final adjudication, could be used to limit the independence of the judiciary or degrade the court’s authority.
Trial Procedures
The law provides for the right to a fair public trial, and an independent judiciary generally enforced this right in practice. Trials were by jury except at the magistrate and district court level. An attorney is provided at the public’s expense if defendants cannot afford counsel. Several activists complained that legal aid did not provide attorneys who were interested in committing significant attention to their pro bono clients. Otherwise, defendants have adequate time and facilities to prepare a defense. Defendants can confront and question witnesses testifying against them and present witnesses to testify on their behalf. Defendants and their attorneys have access to government-held evidence relevant to their cases. Defendants have the right of appeal.
Defendants enjoy a presumption of innocence except in official corruption cases. Under the law a current or former government official who maintained a standard of living above that commensurate with his or her official income, or who controls monies or property disproportionate to his official income, is guilty of an offense unless he can satisfactorily explain the discrepancy. In practice the courts upheld this ordinance. Court proceedings were conducted in either Chinese or English, the SAR’s two official languages.
Political Prisoners and Detainees
There were very limited reports of political prisoners or detainees.
Civil Judicial Procedures and Remedies
There is an independent and impartial judiciary for civil matters and access to a court to bring lawsuits seeking damages for, or the cessation of, human rights violations. However, activists regularly raised concerns about the independence of Hong Kong’s courts, which are endowed with a high degree of autonomy under the Basic Law.
In October former secretary for justice and national people’s congress standing committee basic law committee vice chair Elsie Leung Oi-sie criticized Hong Kong’s legal profession, including judges, for lacking an understanding of the Beijing-Hong Kong relationship, leading to “mistaken rulings.” The Bar Association and the Law Society in turn issued strong defenses of the city’s independent judiciary and warned about repeatedly seeking Beijing’s interpretations over Basic Law disputes.
In December Justice Secretary Rimsky Yuen set off another wave of criticism when he requested that the Court of Final Appeal ask the NPC Standing Committee to clarify the meaning of a 1999 interpretation of Article 24 of the Basic Law, which deals with permanent residency. Legal experts and prodemocracy leaders immediately condemned his position, expressing fears for Hong Kong’s judicial independence.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law prohibits such actions, and the government generally respected these prohibitions in practice.
The law provides that no personal data may be used for a purpose other than that stated at the time of its collection without the data subject’s consent. Specific exemptions allowed SAR authorities to transfer personal data to permit prevention, detection, or prosecution of a crime when certain conditions were met. Data may be transferred to a body outside of the SAR for purposes of safeguarding the security, defense, or international relations of the SAR or for the prevention, detection, or prosecution of a crime, provided conditions set out in the ordinance were met. The Office of the Privacy Commissioner for Personal Data worked to prevent the misuse, disclosure, or matching of personal data without the consent of the subject individual or the commissioner.
The use of covert surveillance and the interception of telecommunications and postal communications can be granted only to prevent or detect “serious crime” or protect “public security.” The law establishes a two-tiered system for granting approval for surveillance activities, under which surveillance of a more intrusive nature requires the approval of a judge, and surveillance of a less intrusive nature requires the approval of a senior law enforcement official. Applications to intercept telecommunications must involve crimes with a penalty of at least seven years’ imprisonment, while applications for covert surveillance must involve crimes with a penalty of at least three years’ imprisonment or a fine of at least HK$1 million ($129,000).
In November the media reported that law enforcement’s requests to Google for users’ data increased sharply, citing a Google report that said law enforcement had made 192 requests to the company for users’ data during the first half of the year, a jump of 56 percent when compared with the 123 requests in the same period in 2011. The yearly number surged 85 percent from 213 to 394 for the 12 months to June compared with the previous year. Law enforcement asked for the information to use in criminal investigations and said the increase was due to an increase in technology-related crime. A spokesman for the Office of the Privacy Commissioner said it had received more complaints on data access requests and had issued guidance on the procedures. Prodemocracy LegCo member James To called for a probe by the privacy commissioner into the rise and possible “abnormal surveillance,” adding that exemptions from the Personal Data (Privacy) Ordinance for obtaining data for preventing or remedying serious improper conduct should be reviewed.
Between January 1 and August 31, the privacy commissioner investigated 1,168 complaints. Of these, five cases were found to have violated the law, one was successfully prosecuted leading to fines, 524 were resolved or rejected after preliminary inquiries, 38 resolved or rejected after formal investigations, and 262 withdrawn or found not pursuable. The remaining complaints were under consideration.
Section 2. Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The law provides for freedom of speech and press, and the government generally respected these rights in practice. An independent press, an effective judiciary, and a generally supportive government combined to ensure freedom of speech and of the press. Nevertheless, throughout the year there were complaints lodged by free media groups about what they viewed as increasing challenges in this area.
Freedom of Press: A Hong Kong Journalists’ Association survey published in June found that 87 percent of reporters, photographers, editors, and management surveyed said that media freedoms had deteriorated in the past several years. Approximately 36 percent said they or their supervisors practiced self-censorship, and 93 percent responded that government controls over the information flow hindered media coverage. More than 67 percent held that the Central Government Liaison Office interfered with press freedom.
Journalists and press freedom activists complained that the assignment of Wang Xiangyang, a mainlander and a Chinese People’s Political Consultative Congress member, as editor in chief of the South China Morning Post was another sign that press freedom was deteriorating. Media watchers cited Wang’s June 7 decision to reduce reports about the suspicious June 6 death of Tiananmen Square dissident Li Wangyang to a short blurb as evidence of pressure from Beijing’s liaison office in Hong Kong, a troubling sign, they alleged, for press freedom.
In an October University of Hong Kong survey, 24 percent of those interviewed said they were dissatisfied with the state of Hong Kong’s press freedom, the highest rate since the survey started in September 1997. Respondents were particularly concerned about the media’s lack of confidence in criticizing the central and local governments.
Censorship or Content Restrictions: Reports of media self-censorship continued during the year. Most media outlets were owned by businesses with interests on the mainland, which led to claims that they were vulnerable to self-censorship with editors deferring to the perceived concerns of publishers regarding their business interests.
Free speech activists alleged that political pressure from Beijing forced the Digital Broadcasting Corporation (DBC), run by founder Albert Cheng King-hon, known for challenging the Central and Hong Kong governments, to close over an alleged “bookkeeping” issue. In late October organizers estimated 70,000 protesters gathered outside government headquarters to protest the Hong Kong government’s refusal to keep the station open and to protest Beijing’s political interference. Activists claimed the Central Government Liaison Office had pressured DBC’s largest shareholder to shut the company to silence Cheng and his supporters for being “too provocative.” Cheng criticized the Hong Kong government for refusing to intervene to keep the station running. Financially strapped and without a Hong Kong government bailout, DBC went off the air in late October.
Internet Freedom
There were no government restrictions on access to the Internet; there was some monitoring of the Internet. Democratic activists claimed central government authorities closely monitored their e-mails and Internet use. The Internet was widely available and used extensively.
Academic Freedom and Cultural Events
A proposed “moral and national education” curriculum set off street protests in July that continued into August and September. Opponents argued the plan would gloss over difficult periods in Chinese history, such as the Great Leap Forward, Cultural Revolution, and Tiananmen Square massacre, and “brainwash” schoolchildren to love the Chinese Communist Party. Protest organizers claimed that the public outcry was the largest student class boycott since 1989 and eventually gathered 120,000 demonstrators at government headquarters. Chief Executive C. Y. Leung announced on October 8 that the government would shelve the curriculum guide on national education. He pledged not to reintroduce the guide during his five-year tenure because the row had “divided society and hindered school operations.”
In general there were no restrictions on academic freedom and cultural events. Some scholars suggested Hong Kong-based academics practiced some self-censorship in their China-related work to preserve good relations and research and lecturing opportunities in the mainland. Falun Gong-affiliated cultural groups also reportedly encountered problems due to government pressure (see section 2.d.).
b. Freedom of Peaceful Assembly and Association
Freedom of Assembly
The law provides for freedom of assembly and association, and the government generally respected these rights in practice. The government routinely issued the required “Letter of No Objection” for public meetings and demonstrations, and the overwhelming majority of protests occurred without serious incident. Government statistics indicated that an average of seven to eight “public events” occurred every day. However, activists and pandemocratic legislators expressed concern that the government took a more restrictive view of protests at the Central Government Liaison Office, which saw several clashes with protesters end in arrests. Activists alleged police acted under instructions from Beijing, which police denied.
From January to June 2011, the most recent period for which data was available, 3,817 public order events (public meetings and public processions) were held. Hong Kong’s major gatherings are held in June and July and are, therefore, not counted in these statistics. The number of protesters arrested during the year increased from 57 in 2010 to 440 in 2011. Authorities claimed these figures reflected the growth in “radical protests.”
Demonstrators continued to claim that their ability to protest had become increasingly difficult due to Hong Kong Police Commissioner Andy Tsang. According to organizers, 400,000 persons participated in the annual July 1 demonstration, denouncing Beijing’s growing interference and the selection of C.Y. Leung as CE. Police estimates put the number at 63,000. Following complaints during the march, police admitted using pepper spray canisters with more powerful jets at close range against protesters and even some journalists during President Hu Jintao’s July visit.
Activists and some lawmakers expressed concern about the lack of guidelines as to whether a person arrested on assault charges related to public demonstrations would be charged under the Police Force Ordinance (PFO) or the Offences Against the Person Ordinance (OAPO). Both criminalize assault on a police officer on duty, but while the PFO carries a maximum penalty of six months’ imprisonment and a HK$5,000 ($644) fine, the OAPO carries a maximum penalty of two years’ imprisonment. Some activists also alleged that police faced no penalty for making arrests that ultimately were not prosecuted or were dismissed by the courts, allowing them to use arrest to intimidate and discredit protesters. The Civil Human Rights Front NGO alliance reported that law enforcement charged an increasing number of protest participants under the tougher OAPO.
Freedom of Association
The law provides for this right, and the government generally respected it in practice. From January to June, 1,170 societies were newly registered, and no application was refused.
c. Freedom of Religion
See the Department of State’s International Religious Freedom Report at www.state.gov/j/drl/irf/rpt/.
d. Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons
The law provides for freedom of movement within the SAR, foreign travel, emigration, and repatriation, and the government generally respected these rights in practice, with some prominent exceptions.
Under the “one country, two systems” framework, the SAR continued to administer its own immigration and entry policies and make determinations regarding claims under the UN Convention Against Torture (CAT) independently. As of September 30, there were approximately 5,300 torture claims pending Immigration Department processing. Additionally, there were 132 individuals categorized as refugees and 657 pending asylum claims. Of all the torture claims processed in Hong Kong, the Immigration Department found only one claim as substantiated (in December 2009). Applicants were increasingly upset over the bureaucracy’s slow processing of their cases and complained of very limited subsidies.
The government cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing protection and assistance to internally displaced persons, refugees, returning refugees, asylum seekers, stateless persons, and other persons of concern.
There continued to be cases in which persons traveling to the SAR for reasons that did not appear to contravene the law were refused entry by the Immigration Department. The Immigration Department, as a matter of policy, declined to comment on individual cases. Activists, some legislators, and others contended that the refusals, usually of persons holding views critical of the mainland, were made at the behest of the PRC authorities. The Security Bureau countered that, while the Immigration Department exchanges information with other immigration authorities including the mainland, it makes its decisions independently.
In March 2011 the High Court overturned the Immigration Department’s 2010 decision to deny visas to six technicians of the Shen Yun Performing Arts company, a Falun Gong-affiliated music and dance troupe. Nevertheless, the local Falun Gong leadership claimed that Shen Yun has not performed in Hong Kong since the decision because the government has pressured performance venues to not allow Shen Yun the use of their spaces.
In September 2011, in a landmark decision on the controversial issue of the right of abode for foreign domestic workers, the Court of First Instance granted Filipina domestic helper Evangeline Banao Vallejos, who lived in Hong Kong for 26 years, the right to apply for permanent residency. On March 28, however, the Court of Appeal overturned the ruling, preventing foreign domestic workers from having the right to apply for permanent residency. Vallejos will appeal at the Court of Final Appeal in February 2013.
On March 30, approximately 300 activists protested to highlight the challenges refugees faced in Hong Kong. They urged reform of the legal system and denounced the practice of returning foreigners to their home countries, where possible torture awaited. The march followed the September suicide of a Pakistani who took his own life after the government rejected his application for protection. Of approximately 3,000 claims that have passed through Hong Kong’s refugee screening system, the government has not recognized a single case with refugee status.
On November 27, the Court of Appeal ruled against five refugees, deciding they did not have the right to work in Hong Kong because they had no right to enter or remain. The two Pakistanis, two Sri Lankans, and one Burundian claimed they were unable to go anywhere else or to engage in any economic activity in Hong Kong or in other places. They launched their case to challenge what they said was an unlawful blanket immigration policy barring recognized refugees and torture claimants from working in the city. One of the Sri Lankans is the only torture claimant recognized by the Immigration Department and cannot be expelled, while the other four appellants are refugees validated by the United Nations High Commissioner for Refugees, but not recognized as such by the Hong Kong government.
Foreign Travel: Most residents easily obtained travel documents from the SAR government. However, PRC authorities did not permit some human rights activists and most prodemocracy legislators to visit the mainland. Eleven legislators were denied “Home Return Permits” to visit the mainland.
Emigration and Repatriation: Government policy is to repatriate undocumented migrants who arrived from the mainland, and authorities did not consider them for refugee status. As of July 31, 2,551 immigration offenders and illegal immigrants were repatriated to the Mainland. The government did not recognize the Taiwan passport as valid for visa endorsement purposes, although convenient mechanisms existed for Taiwan passport holders to visit. Beginning in September Taiwan visitors were able to register online and stay for a month if they held a mainland travel permit.
Protection of Refugees
Access to Asylum: The SAR has a firm policy of not granting asylum or refugee status and has no temporary protection policy. The government’s practice was to refer refugee and asylum claimants to a lawyer or the UNHCR.
The government recognizes a legal obligation to grant nonrefoulement protection under the CAT, as the CAT has applied to Hong Kong since 1992. In 2009 the Immigration Department introduced an “enhanced screening mechanism” for torture claims to meet the “high standards of fairness” for required by Hong Kong’s courts. Claimants had access to legal counsel from the Duty Lawyer Service, whose lawyers received training in refugee and torture claims from the Hong Kong Academy of Law. There was also a system to appeal decisions by the Immigration Department, with reviews conducted by experienced magistrates. Several observers, including the Bar Association and the Law Society, suggested processing refugee and CAT claims simultaneously to avoid duplicate filings.
Access to Basic Services: The government, in collaboration with a local NGO, offered in-kind assistance, including temporary accommodation, food, clothing, appropriate transport allowance, counseling, medical services, and other basic necessities, to asylum seekers and torture claimants while their claims were being processed. As of August 31, 5,100 persons were receiving assistance.
Employment: The government defines CAT claimants and asylum seekers as illegal immigrants or overstayers in Hong Kong and, as such, have no legal right to work in the city. Those whose claims were pending have no legal right to work, and those granted either refugee status by the UNHCR or relief from removal under the CAT were permitted to work only with approval from the director of immigration. They were also ineligible for training by either the Employees Retraining Board or Vocational Training Council. Applications to attend school or university were considered on a case-by-case basis at the discretion of the director of immigration. Beginning in December, after commencement of the new Immigration (Amendment) Ordinance, a CAT claimant whose torture claim was accepted may apply to the director of immigration for securing permission to work in Hong Kong.
On September 4, four refugees and a successful torture claimant who were seeking authority to work brought suit in the Court of Appeal. Their action followed a 2011 Court of First Instance’s ruling that the government was not obligated to permit them to work and that the director of immigration had full discretion in granting such permission on a case-by-case basis. The five complainants, who remained unemployed for between seven and 12 years, challenged what they claimed was the unlawful blanket policy of the Immigration Department in prohibiting recognized refugees and torture claimants from working. They also claimed that their right to work was provided for in the Basic Law, in the Hong Kong Bill of Rights, in the International Covenant on Civil and Political Rights, and in the International Covenant on Economic, Social, and Cultural Rights.
Section 3. Respect for Political Rights: The Right of Citizens to Change Their Government
The Basic Law limits the right of residents to change their government peacefully. A portion of the LegCo was elected by a subset of voters representing “functional constituencies” (FCs) that speak for key economic and social sectors. Under this structure some individuals were able to control multiple votes for LegCo members. The constituencies that elected the 30 FC LegCo seats had fewer voters in total than the constituency for a single Geographical Constituency (GC) seat, of which there were 30 in LegCo. Beginning in September voters were able to elect five newly created FC seats in the District Council sector, known as “super seats.” These five LegCo members were returned by voters who were not otherwise represented in any FC. The government stated that the current method of selecting FC legislators did not conform to principles of universal suffrage, but it took no steps to eliminate the FCs. In addition to the five new FC seats, five additional GC seats were added, bringing the previous 60-member legislative body to 70 seats.
The Basic Law prohibits LegCo members from introducing bills that affect public expenditure, political structure, or government policy. The SAR sends 36 deputies to the mainland’s National People’s Congress (NPC) and had 199 delegates in the Chinese People’s Political Consultative Conference. The approval of the CE, two-thirds of LegCo, and two-thirds of the SAR’s delegates to the NPC are required to place an amendment of the Basic Law on the agenda of the NPC, which has the sole power to amend the Basic Law.
The CE used his authority to appoint 68 of the 534 members of the District Councils, the SAR’s most grassroots-level elected bodies, despite earlier promises to eliminate all appointed seats. The government stated that it would work on phasing out the nonelected seats in two tranches in 2016 and 2020, but pandemocrats complained that this was a violation of a previous understanding between the LegCo and the government to eliminate all appointed district councilors immediately.
Elections and Political Participation
Recent Elections: On March 25, in a process widely criticized as undemocratic, the 1,193-member CE Election Committee, dominated by pro-Beijing electors and their allies, selected former Executive Council Convenor C. Y. Leung to be Hong Kong’s Chief Executive. The PRC’s State Council formally appointed him, and President Hu Jintao swore in Leung on July 1.
The September 9 elections for a new 70-member LegCo were considered generally free and fair according to the standards established in the Basic Law. Of the 35 FC seats, 16 incumbents, all progovernment, returned uncontested. When combined with 35 GC seats, pro-Beijing and proestablishment candidates won 43 of 70 LegCo seats, while prodemocracy candidates won 27 seats.
In 2010 five legislators resigned to force a by-election they declared to be a “referendum” on political reform, particularly on achieving universal suffrage. Arguing that the pandemocrats used a loophole to abuse the electoral system and waste public money, in February the government presented draft legislation to eliminate by-elections. The bill passed on June 8 with 29 progovernment legislators voting in favor, and all pandemocrats boycotting the vote. Commencing from the fifth term of LegCo in October, a lawmaker who has voluntarily resigned from office is prohibited from standing in any by-elections in the same LegCo term within six months of resignation.
Between January and September 30, the Independent Commission Against Corruption (ICAC) received 1,732 reports concerning alleged breaches of provisions under the Elections (Corrupt and Illegal Conduct) Ordinance. Among these, examples included bribing voters, voting after giving false or misleading information to an elections officer, incurring election expenses by persons other than the candidate or his agent, publishing false or misleading statements about a candidate, publishing election advertisements that do not meet certain requirements, failure to lodge election returns, and providing others with refreshments and entertainment at elections. As of September 30, 204 were under investigation, 30 were nonpursuable, and 1,498 were unsubstantiated after investigation. During the same period, 45 individuals in two election cases were prosecuted over issues relating to the November 2011 District Council elections for offenses relating to giving false or misleading information to an electoral officer. Of these individuals 28 were convicted, 13 were waiting trial, and four were acquitted.
Political Parties: Pandemocratic parties faced a number of institutional challenges preventing them from holding a majority of the seats in the LegCo or having one of their members become CE. The voting process ensures probusiness representatives and Beijing’s allies control a majority. Additionally, the central government and its business supporters provided generous financial resources to parties that support Beijing’s political agenda in Hong Kong, ensuring these organizations will control the levers of government and all senior positions.
Participation of Women and Minorities: Six of the 31 members of the Executive Council (cabinet-level secretaries and “nonofficial” councilors who advise the CE) were women. Nine of the 35 directly elected LegCo members were women, and women held two of the 35 FC seats. Thirteen of the 44 most senior government officials (secretaries, under secretaries, and permanent secretaries) were women.
Many Hong Kongers hailed the election of the city’s first gay LegCo member in the September races as a sign of the public’s greater acceptance of lesbian, gay, bisexual, and transgender (LGBT) persons.
There is no legal restriction against non-Chinese running for electoral office or participating in the civil service, although most elected or senior appointed positions require that the officeholder have a legal right of abode only in the SAR. There were no members of ethnic minorities in the LegCo. The government regarded ethnic origin as irrelevant to civil service appointment and did not collect data on the number of nonethnic Chinese serving in the civil service, a practice that some observers criticized as preventing the government from monitoring hiring and promotion rates for nonethnic Chinese.
Section 4. Corruption and Lack of Transparency in Government
The law provides criminal penalties for official corruption, and the government generally implemented it effectively. Hong Kong continues to be viewed as relatively uncorrupt. However, there were several major arrests during the year, and many observers held that corruption in general seemed to be on the rise. An ICAC spokesman said that some prominent corruption cases widely reported in the media might have affected perception of Hong Kong.
Between January 1 and September 30, there were 936 corruption reports involving government personnel concerning alleged breaches of provisions under the Prevention of Bribery Ordinance. Of the 936 reports received, as of September 30, 378 were under investigation, 315 were nonpursuable, and 243 were unsubstantiated after investigation. During the same period, nine government personnel in nine cases were prosecuted regarding reports received in 2010 and 2011. Five were convicted, three awaited trial, and one was acquitted. Overall, corruption complaints against government departments increased by 13 percent in the first 11 months of the year compared with the same period last year, according to the ICAC.
On March 29, the ICAC arrested former chief secretary for administration Rafael Hui on charges of misconduct in public office for accepting more than HK$34 million (four million dollars) in bribes from property magnates Thomas and Raymond Kwok and two others in return for favors. At year’s end the case was continued.
In July Secretary for Development Mak Chai-kwong, in office for less than two weeks, resigned shortly before his arrest by the ICAC for abuse of government rental allowance. The ICAC also arrested Highways Department Assistant Director Tsang King-man, as well as Mak’s and Tsang’s wives for conspiracy to defraud the government of private tenancy allowances between 1985 and 1990. The two were alleged to have cheated the government of more than HK$700,000 ($90,000) by concealing their financial and proprietary interests in apartments they rented from each other’s wives. Mak also faced two counts of acting as an agent using a document with intent to deceive his principal, contrary to the Prevention of Bribery Ordinance, while Tsang faced three similar charges.
The issue of unauthorized building works (UBWs) at private residences became an increasingly larger political issue during the year, with the media highlighting a number of senior government figures who had illegal structures added to their homes without going through the legal process. According to at least one newspaper, one-third of the Executive Council’s members were involved in UBW scandals, including Laura Chan, Cheung Hok-ming, and Jeffrey Lam.
Many government ministers also had UBWs added to their homes. The media highlighted that Secretary for Food and Health Ko Wing-man knocked down an internal wall between two apartments he owned without prior permission, and his predecessor in the job, York Chow, had UBWs in his home at least until a month before leaving office in June. In another case the government’s Buildings Department had allegedly given Secretary for Commerce and Economic Development Gregory So preferential treatment to carry out work to-- ironically-- remove illegal structures at his home. In August the wife of Secretary for Development Paul Chan received removal orders from the Buildings Department to eliminate UBWs in two subdivided apartments her company owned. On November 26, Permanent Secretary for Transport and Housing and Duncan Pescod removed a glass canopy and an awning from a house he owned after media reports said they could be unauthorized structures. Pescod was the most senior non-Chinese official and the 11th official accused of having an illegal structure at a home in the past two years.
CE Leung won the March 25 selection process after reports of chief rival Henry Tang’s scandals over illegal structures at Tang’s home. After Leung’s victory, however, the media discovered illegal structures at Leung’s home. The ensuing uproar prompted prodemocracy CE challenger Albert Ho to file an election petition to overturn the selection results. Ho was unsuccessful, but on November 23, Leung issued a 14-page statement explaining details of and blaming a memory lapse for confusion over the illegal structures at his home. By year’s end the scandal had not ended with the most recent allegations claiming that Buildings Department staff was involved in a cover-up of Leung’s UBW.
On November 4, in a separate case involving a public figure and a non-UBW housing issue, Executive Council member Franklin Lam requested a leave of absence under mounting pressure to step down since it emerged that he put two apartments for sale just weeks before the government announced new measures to cool residential property prices. At year’s end the ICAC was investigating Lam’s actions.
Former chief executive Donald Tsang was also mired in a series of scandals about an alleged close relationship with local tycoons and alleged acceptance of entertainment and travel benefits. In May an independent commission to review the situation determined that it was “totally inappropriate” for the chief executive to be above anticorruption laws and it should be made a criminal offence if Hong Kong’s leader receives favors without approval.
During 2011 the ICAC received 4,010 corruption reports, an increase of 13 percent from 3,535 reports in 2010. Pursuable reports increased by 12 percent to 3,072. Of the reports, 2,664 concerned the private sector, 1,117 were related to government departments, and 229 involved public bodies. A total of 283 persons were prosecuted with convictions in 84 percent of the cases.
There are no legal protections for whistleblowers.
The SAR requires the 27 most senior civil service officials to declare their financial investments annually and the approximately 3,100 senior working-level officials to do so biennially. Policy bureaus may impose additional reporting requirements for positions seen as having a greater risk of conflict of interest.
There is no freedom of information legislation. An administrative code on access to information serves as the framework for the provision of information by government bureaus and departments and the ICAC. However, they may refuse to disclose information if doing so would cause or risk causing harm or prejudice in several broad areas: national security and foreign affairs (which were reserved to the central government); immigration issues; judicial and law enforcement issues; direct risks to individuals; damage to the environment; improper gain or advantage; management of the economy; management and operation of the public service; internal discussion and advice; public employment and public appointments; research, statistics, and analysis; third-party information; business affairs; premature requests; and information on which legal restrictions apply. Political inconvenience or the potential for embarrassment were not a justifiable basis for withholding information.
Through September the Constitutional and Mainland Affairs Bureau received 1,372 requests for information under the administrative code, of which 76 requests were withdrawn by requestors, and 74 requests covered cases in which the government bureau or department concerned did not hold the requested information. Of the 1,222 remaining requests, at the end of June, 1,118 requests were met in full (1,094 requests) or in part (24 requests). Of the remaining cases, 74 requests were still being processed and 30 were refused.
Section 5. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
A wide variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials generally were cooperative and responsive to their views. Prominent human rights activists critical of the central government also operated freely and maintained permanent resident status in the SAR.
Government Human Rights Bodies: There is an Office of the Ombudsman and an Equal Opportunity Commission (EOC), both appointed by the government but independent in their operations. Both organizations operated without interference from the government and published critical findings in their areas of responsibility. EOC Commissioner Lam Woon-kwong continued to serve as a vocal public advocate on minority rights, access to public and commercial buildings for persons with disabilities, and other issues within the EOC’s responsibility.
Section 6. Discrimination, Societal Abuses, and Trafficking in Persons
The law provides that all permanent residents are equal, and the government enforced this in practice. The EOC is responsible for enforcing the relevant laws.
Women
Rape and Domestic Violence: Rape, including spousal rape, is criminalized under the law, and police enforced the law effectively. Through August 83 rape cases and 942 indecent assault cases were reported to the police.
The government regarded domestic violence against women as a serious concern and took measures to prevent and prosecute offenses. It effectively enforced criminal statutes prohibiting domestic violence against women and prosecuted violators. From January to June, 961 cases of domestic violence were reported to the police. The law allows victims to seek a three-month injunction, extendable to six months, against an abuser. The ordinance does not criminalize domestic violence directly, although abusers may be liable for criminal charges under other ordinances. The government enforced the law and prosecuted violators, but sentences typically consisted only of injunctions or restraining orders.
The law covers molestation between married couples and heterosexual cohabitants, former spouses or cohabitants, and immediate and extended family members. It protects victims under age 18, allowing them to apply for an injunction in their own right, with the assistance of an adult guardian, against molestation by their parents, siblings, and specified immediate and extended family members. The law also empowers the court to require that the abuser attend an antiviolence program. In cases in which the abuser caused bodily harm, the court may attach an authorization of arrest to an existing injunction, and both injunctions and authorizations for arrest can be extended to two years.
The government maintained programs that provided intervention and counseling to batterers. Eight integrated family service centers and family and child protective services units offered services to domestic violence victims and batterers. The government continued its public information campaign to strengthen families and combat violence, and increased public education on the prevention of domestic violence.
Sexual Harassment: The law prohibits sexual harassment or discrimination on the basis of sex, marital status, and pregnancy. The law applies to both males and females.
Reproductive Rights: Couples and individuals had the right to decide the number, spacing, and timing of children and had the information and means to do so free from discrimination, coercion, and violence. Access to information on contraception, skilled attendance at delivery, and prenatal and postpartum care were widely available.
Discrimination: Women enjoy the same legal status and rights as men. As of March 31, women filled 35.6 percent of the civil service at all ranks and 33.2 percent at the directorate level. Women made up 64 percent of the LegCo Secretariat workforce and 54 percent of its senior “directorate” ranks, including the secretary general and assistant secretary general. Twenty-three percent of judges and judicial officers were women, while women represented 70 percent of the nonjudges and judicial officer staff of the courts.
According to gender rights activists and public policy analysts, while the law treats men and women equally in terms of property rights in divorce settlements and inheritance matters, in practice women faced discrimination in employment, salary, welfare, inheritance, and promotion. Women reportedly formed the majority of the working poor and those who fall outside the protection of labor laws. Despite the fact that the law makes it illegal to discriminate against persons of both sexes, a study by the University of Hong Kong found that women were paid 24 percent less, even after adjusting for age, education, industry, and occupation, than men.
The law establishes the EOC to work towards the elimination of discrimination and harassment as well as to promote equal opportunity between men and women. There was a Women’s Commission that served as an advisory body for policies related to women, and a number of NGOs were active in raising problems of societal attitudes and discrimination against women.
Children
Birth Registration: All Chinese nationals born in Hong Kong or abroad to parents, of whom at least one is a PRC-national Hong Kong permanent resident, acquire both PRC citizenship and Hong Kong permanent residence, the latter allowing right of abode in the SAR. Children born in Hong Kong to non-Chinese parents, at least one of whom is a permanent resident, acquire permanent residence and qualify to apply for naturalization as PRC citizens. Registration of all such statuses was routine.
Child Abuse: Through June 706 cases of crimes against children were reported to police: 296 involved physical abuse (referring to victims younger than 14 years old), and 410 involved sexual abuse (referring to victims younger than 17 years old). The law mandates protection for victims of child abuse such as battery, assault, neglect, abandonment, and sexual exploitation, and the government enforced the law. The law allows for the prosecution of certain sexual offenses, including against minors, committed outside the territory of the SAR.
The government provides parent-education programs, including instruction on child abuse prevention, in all 50 of the Department of Health’s maternal and child health centers. It also provided public education programs to raise awareness of child abuse and alert children about how to protect themselves. The Social Welfare Department provided clinical psychologists for its clinical psychology units and social workers for its family and child protective services units. The police maintained a child abuse investigation unit, and in collaboration with the Social Welfare Department, ran a child witness support program. A law on child-care centers helped prevent unsuitable persons from providing child-care services.
Sexual Exploitation of Children: The media reported on a growing number of boys engaged in “compensated dating,” which was already a concern among minor girls. The majority of cases involved teenage girls, both above and below the age of consent, who advertised escort services that might include sex, either to support themselves or for extra pocket money. Some women and girls involved in the trade reported being beaten or abused by clients. In response to this trend, police continued monitoring Internet chat rooms and Web sites used by both individuals and syndicates to advertise services, with officers assigned to gather evidence against the operations and determine the techniques used by syndicates to recruit the girls.
The legal age of consent for heterosexuals is 16. Under the law a person having “unlawful sexual intercourse” with a victim under 16 is subject to five years’ imprisonment, while having unlawful sexual intercourse with a victim under 13 results in imprisonment for life.
The law makes it an offense to possess, produce, copy, import, or export pornography involving a child under 18 years old, or to publish or cause to be published any advertisement that conveys or is likely to be understood as conveying the message that any person has published, publishes, or intends to publish any child pornography. The penalty for creation, publication, or advertisement of child pornography is eight years’ imprisonment, while possession carries a penalty of five years’ imprisonment.
International Child Abductions: The SAR is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. See the Department of State’s country-specific information at http://travel.state.gov/abduction/country/country_495.html.
Anti-Semitism
The Jewish community numbered approximately 5,000 to 6,000 persons and reported few acts of anti-Semitism during the year. There were concerns within the Jewish community about some religious sermons in the otherwise moderate Muslim community.
Trafficking in Persons
See the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip.
Persons with Disabilities
The law prohibits discrimination against persons with physical, sensory, intellectual, and mental disabilities in employment, education, access to health care, and the provision of other state services, and the government effectively enforced these provisions. The government generally implemented laws and programs to ensure that persons with disabilities have access to buildings, information, and communications, although some restrictions were reported.
Further, although the central government has signed the UN Convention on the Rights of Persons with Disabilities, the SAR still adheres to its own Disability Discrimination Ordinance, which human rights groups argue is much narrower and does not oblige the government to promote equal opportunities.
The Social Welfare Department, directly or in coordination with NGOs and employers, provided training and vocational rehabilitation services to assist persons with disabilities. As of September a total of 16,774 persons were participating in these various programs.
As of March 31, the government employed 3,391 civil servants with disabilities in a total workforce of 159,195, or 2.13 percent of the government workforce. Persons with disabilities filled 2 percent of LegCo secretariat positions, 1 percent of judicial positions, and 2 percent of nonjudicial positions in the judiciary.
Instances of discrimination against persons with disabilities persisted in employment, education, and the provision of some public services. The law calls for improved building access and sanctions against those who discriminate.
Despite inspections and the occasional closure of noncompliant businesses, access to public buildings (including public schools) and transportation remained a serious problem for persons with disabilities. Persons with disabilities protested that the government discriminated against them. They claimed persons with severe disabilities who lived with their families could qualify for social security only by moving out of their families’ homes and living alone or if every member of their families quit their jobs. The government firmly refuted this claim, noting the government instituted a disability allowance scheme for the severely disabled (those with “100 percent loss of earning capacity”) to help persons with disabilities meet special needs arising from their condition. Additionally, as with all Hong Kongers facing financial hardship, persons with disabilities may apply for Comprehensive Social Security Assistance (CSSA).
From September 17 to28, a group of NGOs attended UN Committee on Human Rights of Persons with Disabilities hearings and submitted a report accusing the government of failing to address limited education and employment opportunities, along with accessibility issues and limited legal protection for the disabled. According to the group, support for children with special needs in the education system is half-hearted, with schools not providing adequate guidance or support that special-needs students require to move into mainstream education. Further, only 20 percent of high school graduates with disabilities applied to university.
According to the EOC, Hong Kong trailed other developed economies in providing equal opportunities for students with disabilities, despite having operated an integrated education policy since 1997. Particularly lacking were adequate resources, training of educators, and government support, EOC Policy and Research Committee Convenor John Tse Wing-ling noted. A Hong Kong Institute of Education Center for Special Educational Needs and Inclusive Education study released in November showed that 43 percent of teachers were unwilling to accept students with special education needs, while two-thirds of teachers and more than half of principals did not see excluding such students as discriminatory.
National/Racial/Ethnic Minorities
Although 95 percent ethnic Chinese, the SAR is a multiethnic society with persons from a number of ethnic groups recognized as permanent residents with full rights under the law. Discrimination based on race is prohibited by law, and the EOC oversees implementation and enforcement of the law. The Race Relations Unit, which is subordinate to the Home Affairs Bureau, served as secretariat to the Committee on the Promotion of Racial Harmony and implemented the committee’s programs. The unit also maintained a hotline for inquiries and complaints concerning racial discrimination. The code of practice (along with selected other EOC materials) was available in Hindi, Thai, Urdu, Nepali, Indonesian, and Tagalog, in addition to Chinese and English.
The Race Relations Unit sponsored a cross-cultural learning program for non-Chinese speaking youth through grants to NGOs.
The government had a policy to integrate non-Chinese students into Hong Kong’s schools. The government also provided a special grant for designated schools with a critical mass of non-Chinese students to develop their own programs, share best practices with other schools, develop supplementary curriculum materials, and set up the Chinese-language support centers to provide after-school programs. However, activists expressed concern that there was no formal government-provided course to prepare students for the General Certificate for Secondary Education exam in Chinese, a passing grade from which is required for most civil service employment. Activists also noted that government programs encouraging predominantly Chinese schools to welcome minority students backfired, turning whole schools into “segregated institutions.” These schools did not teach Chinese to the nonethnically Chinese students. Students who did not learn Chinese had significant difficulty entering university and the labor market, leading to a cycle of problems including unemployment and poverty, according to reports from the government and NGOs.
The EOC established a working group on Education for Ethnic Minorities in 2010, which presented a set of recommendations to the Education Bureau in March and July 2011. According to activists and the EOC, the Education Bureau stressed that it was a parental decision to choose between mainstream and designated schools. It agreed that support measures in both types of schools should be strengthened to enhance non-Chinese students in learning Chinese, but it expressed reservation about the proposed development of an alternative Chinese curriculum on the grounds of low recognition by international universities. A number of high-profile South Asian professionals complained that while several Caucasian foreign-born residents were able to secure a SAR passport, the Immigration Department had prevented the South Asian professionals from doing so, and they alleged racial discrimination.
Minority group leaders and activists complained that government requirements that all job applicants speak Chinese kept nonnative Chinese speakers out of civil service and law enforcement positions. During the year police recruited the first nonethnic Chinese police constable since 1997. Despite the fact that both English and Chinese were official languages, reports indicated that little more than one-third of government departments regularly issued their press releases in both.
Activists and the government disputed whether new immigrants from the mainland should be considered as a population of concern under antidiscrimination legislation. While concerns were raised that new immigrants do not qualify to receive social welfare benefits until they have resided in the SAR for seven years, the courts upheld this legal standard. Such immigrants can apply on a case-specific basis for assistance.
Societal Abuses, Discrimination, and Acts of Violence Based on Sexual Orientation and Gender Identity
There are no laws criminalizing consensual same-sex sexual activity. In 2005 the Court of First Instance ruled that maintaining an age of consent for male-male relations at 21 years old rather than 16 years old violated the Bill of Rights Ordinance. There were no specific laws governing age of consent for female-female relations.
Gay rights groups continued to complain that the government’s sponsoring of seminars on “homosexual conversion therapy” demonstrated the government’s antigay rights views. According to gay rights groups, the seminars’ contents explained homosexuality as deriving from “unhealthy parent-children relationships,” “experience of sexual abuse or same-sex sexual behavior,” or “serious emotional harm caused by the opposite sex.”
In May Secretary for Constitutional and Mainland Affairs Raymond Tam said that a law against sexual orientation discrimination “will only lead to arguments, divisions, and conflicts,” and the time was not yet “ripe to take the legislative route.” On November 7, the LegCo voted down a motion moved by prodemocracy lawmaker Cyd Ho, urging the government to launch a public consultation on enacting a law to safeguard equal opportunities for and the basic rights of persons of different sexual orientations. Every prodemocracy member except for one (who abstained) voted for the motion, while only five pro-Beijing members supported it.
The pro-Beijing Democratic Alliance for Betterment and Progress of Hong Kong (DAB) and members of the probusiness Liberal Party said they opposed the motion as “mainstream society does not accept gays.” DAB’s LegCo member, Starry Lee, held that legislations might “not help change the attitude of the public, and it may even lead to discrimination and narrow room for discussion.”
Following the motion’s defeat, and coinciding with “Pink Season,” the largest LGBT festival in Asia, an estimated 4,000 persons marched from Victoria Park to Central November 10, up from 2,500 in 2011, according to organizers. Pink Season was supported by the Hong Kong Tourism Board, which was striving to make Hong Kong a “LGBT-friendly tourist destination.”
While Hong Kong has legislation that bans discrimination on the grounds of race, sex, disability, and family status, there is no law that prohibits companies from discriminating on grounds of sexual orientation. A May survey of 1,002 persons by NGO Community Business found that 27 percent of respondents said LGBT persons should “keep their sexual orientation to themselves.” Almost 80 percent said LGBT persons faced discrimination in the community and at work. LGBT professionals are permitted to bring partners to Hong Kong only on a “prolonged visitor visa.” Successful applicants, however, cannot work, obtain an ID card, or qualify for permanent residency.
The government claimed public education was sufficient to protect the rights of the LGBT community, and legislation was not necessary. While acknowledging that same-sex partners did not enjoy the same rights as heterosexual married couples, the Society for Truth and Light--the bill’s major opponent and which has long opposed any kind of legislation--said rather than introducing a law, government departments should “change their policies.” The society claimed any bill could make it “illegal to disagree with homosexuality.”
The Federation of Parent-Teacher Associations of Yau Tsim and Mong Kok districts claimed legislation might mean it would be illegal for schools, including religiously affiliated institutions, to “teach that homosexuality was wrong, as it would be seen as discriminatory.”
Other Societal Violence or Discrimination
There were no reports of societal violence or discrimination against persons with HIV/AIDS or against other groups not covered above.
Section 7. Worker Rights
a. Freedom of Association and the Right to Collective Bargaining
The law, including related regulations and statutory instruments, protects the right of workers to form and join independent unions without previous authorization or excessive requirements, and conduct legal strikes. However, the law does not provide for the right to collective bargaining. Trade unions must register with the government’s Registry of Trade Unions and must have a minimum membership of seven persons for registration. Unions could affiliate, and workers were not prevented from unionizing. In the first three quarters of the year, 11 new trade unions registered while one was deregistered at the union’s request.
The law allows the use of union funds for political purposes provided a union has the authorization of the majority of its voting members at a general meeting.
The law provides for the right to strike, although there are some restrictions on this right for civil servants. According to the Employment Ordinance (EO), an employer cannot fire, penalize, or discriminate against an employee who exercises his union rights and cannot prevent or deter the employee from exercising his union rights. Additionally, under the EO an employee who is unreasonably and unlawfully dismissed (including on the grounds of the employee exercising his trade union rights) is entitled to remedy in the form of an order for reinstatement or reengagement but subject to mutual consent of the employer and the employee.
The law provides for reinstatement and or compensation not exceeding HK$150,000 ($19,230) for unreasonable and unlawful dismissal. In the first three quarters of the year, there was one strike recorded involving 150 workers.
The Workplace Consultation Promotion Division in the Labor Department facilitated communication, consultation, and voluntary negotiation between employers and employees. Tripartite committees for each of the nine sectors of the economy included representatives from some trade unions, employers, and the Labor Department. During a labor dispute, the Labor Relations Division in the Labor Department facilitates conciliation so that dispute could be settled with minimum friction and disruption.
Worker organizations were independent of the government and political parties. However, according to prodemocracy labor activists, only progovernment unions were able to participate substantively in the tripartite process, while the democratic Hong Kong Confederation of Trade Unions was consistently excluded. Antiunion discrimination did not occur in practice.
Although there was no legislative prohibition against strikes, and the right and freedom to strike are enshrined in article 27 of the Basic Law, in practice most workers had to sign employment contracts that typically stated that walking off the job was a breach of contract, which could lead to summary dismissal. Various sections of the EO prohibit firing an employee for striking and void any section of an employment contract that would punish a worker for striking. As in past years, thousands of workers participated in the annual May 1 Labor Day march calling for a raise in the minimum wage and better worker protections. According to the government, there were no reports of any workers being fired for participating in a strike during the year.
Firefighters staged a sit-in protest at the government headquarters in August to demand their working hours be cut from 54 hours to 48 per week. The government countered with an offer of 51 hours instead.
Local trade unions and NGOs escalated efforts to advocate for legislation that would provide for collective bargaining rights, but as of year’s end there was no progress on a bill addressing this concern.
b. Prohibition of Forced or Compulsory Labor
The law prohibits all forms of forced or compulsory labor, and the government effectively enforced such laws. There were concerns that some migrant workers faced high levels of indebtedness assumed as part of the terms of employment, creating a risk they could fall victim to debt bondage. The SAR prohibits the collection of employment-related debt, but prosecution was hampered by looser restrictions in some countries that send workers. Some locally licensed employment agencies were suspected of colluding with Indonesian agencies to profit from a debt scheme, and some local agencies illegally confiscated the passports, employment contracts, and automatic teller machine cards of domestic workers and withheld them until their debt had been repaid. The government conveyed its concerns about these cases to a number of foreign missions. In January a local agency was fined HK$5,000 ($641) for overcharging a domestic worker and was also ordered to pay compensation of HK$2,626 ($337) to the job seeker concerned. In March its license was revoked.
There also were reports that some employers illegally forbade domestic workers from leaving the residence of work for nonwork-related reasons, effectively preventing them from reporting exploitation to authorities. SAR authorities claimed they encouraged aggrieved workers to lodge complaints and make use of government conciliation services, as well as actively pursued reports of any labor violations.
Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip.
c. Prohibition of Child Labor and Minimum Age for Employment
There were laws to protect children from exploitation in the workplace. Regulations prohibit employment of children under the age of 15 in any industrial establishment. Other regulations limit workhours in the manufacturing sector for persons 15 to 17 years old to eight hours per day and 48 hours per week between 7 a.m. and 7 p.m. and prohibit overtime in industrial establishments with employment in dangerous trades for persons less than 18 years old.
Children 13 and 14 years old may work in certain nonindustrial establishments, subject to conditions aimed at ensuring a minimum of nine years of education and protection of their safety, health, and welfare.
The Labor Department effectively enforced these laws and regularly inspected workplaces to enforce compliance with the regulations. In the first nine months of the year, the Labor Department conducted 100,231 inspections, in which no irregularities were detected.
d. Acceptable Conditions of Work
The SAR’s first statutory minimum hourly wage, HK$28 ($3.60), came into force in May 2011. Approximately 760,000 Hong Kong residents live under the locally defined poverty line (annual income of about HK$47,213 ($6,053) for an individual, HK$75,598 ($9,692) for a two-person unit, HK$100,168 ($12,842) for a three-person family).
On November 9, the government announced the establishment of the Commission on Poverty, which is tasked with setting a poverty line as a tool for gauging the poverty situation and assessing the effectiveness of possible policies to address it.
In practice wages were often set by employers and employer associations. Additionally, some activists claimed that employers used employment contracts that defined workers as “self-employed” to avoid employer-provided benefits such as paid leave, sick leave, medical insurance, workers’ compensation, or Mandatory Provident Fund payments. According to the Labor Department, there were cases in which employers faced heavy court fines for such behavior. The department held that it was seeking to promote public awareness, consultation, conciliation services, and tougher enforcement to safeguard employees’ rights.
There is no law concerning working hours, paid weekly rest, rest breaks, or compulsory overtime for most employees. For certain groups and occupations, such as security guards and certain categories of drivers, there are regulations and guidelines on working hours and rest breaks. According to the General Household Survey conducted by the Census and Statistics Department during the year, approximately 17 percent of employees worked 60 hours or more per week. The law stipulates that employees are entitled to 12 days of statutory holidays and employers must not make payment in lieu of granting holidays.
The minimum wage for foreign domestic workers was HK$3,920 per month ($506). The government’s Standard Employment Contract requires employers to provide foreign domestic workers with housing, worker’s compensation insurance, travel allowances, and food or a food allowance in addition to the minimum wage, which together provided a decent standard of living. Foreign domestic workers could be deported if dismissed. After leaving one employer, workers have two weeks to secure new employment before they must leave the SAR. Activists contended this restriction left workers vulnerable to a range of abuses from employers. Workers who pursued complaints through legal channels may be granted leave to remain; however, they were not able to work, leaving them either to live from savings or to depend on charitable assistance.
The government contended that the “two-week rule” was necessary to maintain effective immigration control and prevent migrant workers from overstaying and taking unauthorized work. Regarding maximum hours and rest periods, the government stated that the rules on these issues cover local and migrant workers. However, in its explanation of why live-in domestic helpers (both local and foreign) would not be covered by the statutory minimum wage, the government explained that “the distinctive working pattern--round-the-clock presence, provision of service-on-demand, and the multifarious domestic duties expected of live-in domestic workers--made it impossible to ascertain the actual hours worked so as to determine the wages to be paid.”
Domestic workers were often required to live with their employers (who do not always provide separate accommodation for the worker), which made it difficult to enforce maximum working hours per day or overtime.
During the first nine months of the year, two employers were convicted for wage default and failure to pay the sum awarded by the Labor Tribunal relating to the employment of foreign domestic workers. From January to June, 83 foreign domestic workers filed criminal suits, 36 of which were against employers for maltreatment including rape (five), indecent assault (nine), and injury and serious assault (22).
Laws exist to ensure health and safety of workers in the workplace, and these laws were effectively enforced.
The Occupational Safety and Health Branch of the Labor Department is responsible for safety and health promotion, enforcement of safety management legislation, and policy formulation and implementation. In the first three quarters, Labor Department conducted 87,967 workplace inspections. In the first half of the year, there were 965 convicted summonses, resulting in fines totaling HK$7.78 million ($1 million). In addition to prosecuting offenses under the safety legislation, the Labor Department also issued 1,225 improvement notices requiring employers to remedy contraventions of safety laws within a specified period and 485 suspension notices directing removal of imminent risks to life and limb in workplaces.
In the first half of the year, the Labor Department recorded 19,433 occupational injuries, including 6,145 classified as industrial accidents. In the same period, there were seven fatal industrial accidents. Employers are required to report any injuries sustained by their employees in work-related accidents. Labor activists raised the issue of the increase in deadly industrial accidents, mainly due to construction and infrastructure projects in Hong Kong.
There are no laws restricting work during typhoon or rainstorm warning signals. Nevertheless, the Labor Department issues a Code of Practice on work arrangements in times of severe weather, including the recommendation that employers have only essential staff come to work during certain categories of typhoon or rainstorm warnings. Both pro-Beijing and pandemocratic unions called for a review of protections for workers during inclement weather, including legal protections.
MACAU
EXECUTIVE SUMMARY
Macau is a Special Administrative Region (SAR) of the People’s Republic of China (PRC) and enjoys a high degree of autonomy, except in defense and foreign affairs, under the SAR’s constitution (the Basic Law). Chief Executive Fernando Chui Sai-on took office in 2009, after his selection by a 300-member Election Committee. Security forces reported to civilian authorities.
Three prominent human rights abuses reported during the year were: limits on citizens’ ability to change their government, constraints on press freedom, and failure to enforce laws regarding working conditions and workplace abuses.
Trafficking in persons remained a problem, although authorities were building capacity to pursue trafficking cases. There were concerns that national security legislation, passed in 2009 in accordance with Article 23 of the Basic Law, could compromise various civil liberties, but by year’s end prosecutors had brought no cases based on the 2009 legislation.
The government took steps to prosecute and punish officials who committed abuses. There was no impunity for government officials.
Section 1. Respect for the Integrity of the Person, Including Freedom from:
a. Arbitrary or Unlawful Deprivation of Life
There were no reports that the government or its agents committed arbitrary or unlawful killings.
b. Disappearance
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits such practices, and there were no reports that government officials employed them.
There were seven cases involving police mistreatment by off-duty officers in the first half of the year; five involved assault and two were intimidation cases. At year’s end the Procuratorate was still investigating the cases. The Commission for Disciplinary Control of the Security Forces and Services of Macau (CFD) received two complaints of police mistreatment but dismissed both cases due to lack of evidence. During the first half of the year, the Commission against Corruption (CAC) received one complaint of police mistreatment, which it determined was legally unsubstantiated.
The government reported that one detainee died while in police custody during the year. At year’s end the Procuratorate was still investigating the death, which police alleged was a suicide. In addition, in the first half of the year policed received three complaints alleging offences committed by police officers against persons in custody. Although none of these complaints resulted in disciplinary proceedings, police transferred two of them to the Procuratorate, which rejected one, while the other remained pending. Neither the CFD nor the CAC received any complaints alleging assault by police officers against persons in custody in the first half of the year.
In the first half of the year, local authorities received one complaint that police officers abused a person not in their custody. They did not forward the case to the Procuratorate or initiate disciplinary proceedings. In the same period, the CFD also recorded one allegation of a police offence against persons not in custody, which remained pending. The CAC did not receive any allegations of police offenses against persons not in custody in the first half of the year.
Prison and Detention Center Conditions
Prison and detention center conditions generally met international standards, and the government permitted monitoring visits by independent human rights observers.
Physical Conditions: The SAR has a maximum prison capacity of 1,341 persons, and the occupancy rate was approximately 81 percent during the year. In the first half of the year, the number of inmates who were 16 (the age of criminal responsibility) and older was 1,092; of these, 917 were men and 175 women. Offenders between the ages of 12 and 16 were subject to an “education regime,” which could include incarceration depending on the offense. During the first half of the year, authorities held 26 youths in the Youth Correctional Institution. Press reports indicated that at times bed shortages forced as many as six to seven female inmates to sleep on the floor. The SAR reported that prisoners had access to potable water.
Administration: Ombudsmen are able to serve on behalf of prisoners and detainees. The government’s recordkeeping procedures were adequate. The government increased its use of alternative sentencing for nonviolent offenders. Authorities allowed prisoners and detainees reasonable access to visitors and permitted religious observance. The law allows prisoners and detainees to submit complaints to judicial authorities without censorship and to request investigation of alleged deficiencies, and judges and prosecutors made monthly visits to prisons to hear prisoner complaints.
Monitoring: According to the government, no independent human rights observers requested or made any visit to the SAR’s only prison, the Macau Prison. Judges and prosecutors visited the Macau Prison monthly and the Youth Correctional Institution (for offenders between the ages of 12 and 16) every three months.
Improvements: The authorities expanded the women’s section of the prison with a further 100 beds.
d. Arbitrary Arrest or Detention
The law prohibits arbitrary arrest and detention, and the government generally observed these prohibitions.
Role of the Police and Security Apparatus
Civilian authorities maintained effective control over the Public Security Police (general law enforcement) and Judiciary Police (criminal investigations), and the government has effective mechanisms to investigate and punish official abuse and corruption. There were no reports of impunity involving the security forces during the year.
Arrest Procedures and Treatment While in Detention
Authorities detained persons openly with warrants issued by a duly authorized official based on sufficient evidence. Detainees were allowed access to a lawyer of their choice or, if indigent, to one provided by the government. Detainees were allowed prompt access to family members. Police must present persons in custody to an examining judge within 48 hours of detention. The examining judge, who conducts a pretrial inquiry in criminal cases, has wide powers to collect evidence, order or dismiss indictments, and determine whether to release detained persons. According to the government, courts should try defendants within the “shortest period of time.” The Procuratorate’s investigations should end with charges or dismissal within eight months, or six months when the defendants are in detention; the pretrial inquiry stage must be concluded within four months, two months if there are detained defendants. By law the maximum limits for pretrial detention range from six months to three years, depending on the charges and progress of the judicial process. Judges often refused bail in cases where sentences could exceed three years.
Law enforcement officials received three complaints accusing police officers of offenses toward persons in custody in the first half of the year. Officials brought disciplinary proceedings against the officers in both cases; one case was closed, and one awaited the initiation of criminal proceedings at year’s end. There was one complaint in the first half of the year that a police officer assaulted a person in custody.
e. Denial of Fair Public Trial
The law provides for an independent judiciary, and the government generally respected judicial independence in practice. During the year the president of the Court of Final Appeal, the SAR’s highest court, reminded attorneys to respect article 8 of the lawyers’ code of ethics, which stipulates that lawyers should not publicly discuss through mass media or comment upon, or encourage others to discuss or comment upon, cases in front of the courts to avoid possible influences on judicial independence.
The courts may rule on matters that are the responsibility of the PRC government or concern the relationship between central authorities and the SAR, but before making their final judgment, which is not subject to appeal, the courts must seek an interpretation of the relevant provisions from the National People’s Congress (NPC) Standing Committee. When the Standing Committee makes an interpretation of the provisions concerned, the courts, in applying those provisions, “shall follow the interpretation of the Standing Committee.”
Trial Procedures
The law provides for the right to a fair trial, and an independent judiciary generally enforced this right. A case may be presided over by one judge or a group of judges, depending on the type of crime and the maximum penalty involved.
Under the law defendants enjoy a presumption of innocence, have access to government-held evidence relevant to their cases, and have a right to appeal. The law provides that trials are to be public and by jury except when the court rules otherwise to “safeguard the dignity of persons, public morality, or to ensure the normal functioning of the court.” Defendants have the right to be present at their trials, confront witnesses, and consult with an attorney in a timely manner. Public attorneys are provided for those who are financially incapable of engaging lawyers or paying expenses of proceedings. The law extends these rights to all residents. There were no reports of defendants lacking adequate time or facilities to prepare their defense. There were no reports of defendants being compelled to testify or confess guilt.
The judiciary provided citizens with a fair and efficient judicial process; however, due to an overloaded court system, a period of up to a year often passed between the filing of a civil case and its scheduled hearing.
Political Prisoners and Detainees
There were no reports of political prisoners or detainees.
Civil Judicial Procedures and Remedies
There is an independent and impartial judiciary for civil matters, and citizens have access to a court to bring lawsuits seeking damages for, or cessation of, a human rights violation.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law prohibits such actions, and the government generally respected these prohibitions in practice. The Office for Personal Data Protection acknowledged a continuing increase in complaints and inquiries regarding data protection.
Section 2. Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The law provides for freedom of speech and of the press, and the government generally respected these rights in practice.
The law criminalizes treason, secession, subversion of the PRC government, and theft of “state secrets,” as well as “acts in preparation” to commit these offenses. The crimes of treason, secession, and subversion specify the use of violence, and the government stated that the law would not infringe on peaceful political activism or media freedom.
Freedom of Press: The independent media were active and expressed a wide range of views, and international media operated freely. Major newspapers were heavily subsidized by the government and tended to closely follow the PRC government’s policy on sensitive political issues, such as Taiwan; however, they generally reported freely on the SAR, including criticism of the government.
Violence and Harassment: Some journalists who wrote disparagingly of the government complained about disciplinary actions, such as temporary suspension, delayed promotion, and assignment to cover less important stories.
Censorship or Content Restrictions: Activists raised concerns over media self-censorship, particularly because news outlets and journalists worried that certain types of critical coverage might limit government funding. Activists also reported that the Macau government had co-opted senior media managers to serve in various consultative or election committees, which also resulted in self-censorship. Journalists expressed concern that the government’s limiting of news releases about its own activities and its publishing of legal notices only in preferred media outlets influenced editorial content. In September, following public pressure, the government withdrew portions of a controversial media bill that would establish a “press accountability board” with a nebulous mandate for enforcing journalistic ethics.
Internet Freedom
There were no government restrictions on access to the Internet or reports that the government monitored e-mail or Internet chat rooms.
At least 40 percent of the population had an Internet subscription. As of October, according to the Statistics and Census Service, there were 227,682 Internet subscribers in a population of 576,700. This total did not take into account multiple Internet users for one subscription, nor did it factor in those who have access to the Internet through mobile devices.
The law criminalizes a range of cybercrimes and empowers police, with a court warrant, to order Internet service providers to save and then provide a range of data. Some legislators expressed concern that the law granted police the authority to take these actions without a court order under some circumstances.
The media reported that several Web sites, among them Facebook, YouTube, and Skype, which are blocked on the mainland, were blocked on the government-provided free WiFi service. The government denied any intention to restrict access, stating that the main problem was available bandwidth and pointing out that the mobile version of Facebook was available. Twitter, which is banned on the mainland, was available on the service. Activists reported they freely used Facebook and Twitter to communicate. However, activists also reported that the government had installed enterprise-grade software capable of censoring, decrypting, and scanning secured transmissions on its free WiFi service without notifying users.
Academic Freedom and Cultural Events
There were no government restrictions on academic freedom or cultural events.
b. Freedom of Peaceful Assembly and Association
Freedom of Assembly
The law provides for freedom of assembly, and the government generally respected this right in practice. The law requires prior notification, but not approval, of demonstrations that involve the use of public roads, public places, or places open to the public. In cases in which authorities tried to restrict access to public venues for demonstrations or other public events, the courts generally ruled in favor of the applicants. Police may redirect march routes, and organizers have the right to challenge such decisions in court.
Activists reported that police routinely attempted to intimidate demonstrators by ostentatiously taking videos of them and advising bystanders not to participate in protests. Activists also stated that authorities gave orders to demonstrators verbally rather than through written communication, which made it difficult to challenge their decisions in court. Some organizers complained that police set up “restricted security zones” without notifying participants, which led to the arrest of at least one protester for intruding a restricted area. The Workers’ Self-Help Union reported that officers harassed its members during demonstrations and while members were gathering petition signatures.
On June 4, approximately 700 persons participated in a vigil to remember the 1989 Tiananmen Square massacre. Organizers stated that it was the largest number of participants in the annual commemoration in 10 years. On October 1, at least 2,000 protesters demonstrated, calling for more public housing, less corruption, and more public assistance. Organized by the SAR’s seven labor unions, participants in the protests were described by observers as more diverse than in previous gatherings. On December 20, approximately 1,100 people participated in an annual demonstration demanding government attention to social livelihood issues.
Freedom of Association
The Basic Law and the civil code provide for freedom of association. No authorization is required to form an association, and the only restrictions are that the organization not promote racial discrimination, violence, crime, or disruption of public order, or be military or paramilitary in nature. During the first half of the year, the Identification Bureau registered 383 new associations. Of these, it did not issue “proof of adoptable name of association” in 33 cases because the intended group names were the same or similar to registered organizations.
c. Freedom of Religion
See the Department of State’s International Religious Freedom Report at www.state.gov/j/drl/irf/rpt.
d. Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons
The law provides for freedom internal movement, foreign travel, emigration, and repatriation, and the government generally respected these rights in practice. The law prohibits forced exile of permanent residents. Persons denied entry into the SAR have the right to contact their consulate or other representative of their country, to have assistance with language interpretation, and to consult a lawyer. The Immigration Department cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing protection and assistance to internally displaced persons, refugees, returning refugees, asylum seekers, stateless persons, and other persons of concern.
The Internal Security Law grants police the authority to deny entry to, or to deport, nonresidents whom they regard under the law as unwelcome, as a threat to internal security and stability, or as possibly implicated in transnational crimes. Legislators and activists alleged that police used this law during the year to deny entry to a Hong Kong prodemocracy activist, a politician, an artist, and a journalist, including on occasions when the purpose of travel was merely tourism or personal business. In the artist’s case, he claimed that Macau’s Cultural Affairs Bureau had invited him to attend an event, but immigration authorities nevertheless denied him entry. Police declined to discuss the circumstances of individual cases.
According to the International Trade Union Confederation’s annual survey of violations of trade union rights, the government denied entry into Macau of labor leaders or democratic activists from Hong Kong. It continued to ban Hong Kong Legislative Council member Lee Cheuk-yan, a prominent labor leader, from entering the SAR. The government maintained that the commander of the Public Security Police “based on the public interest…may refuse entry of any nonresident whose status is found to be inappropriate.”
Protection of Refugees
Access to Asylum: The law provides for the granting of asylum or refugee status, and the government has established a system for providing protection to refugees. In theory persons granted refugee status would ultimately enjoy the same rights as other SAR residents. However, the UNHCR reported that the SAR had not granted any asylum seekers refugee status through year’s end. Pending eventual final decisions on their asylum claims, the government registered asylum seekers and provided protection against their expulsion or return to their countries of origin. Persons with pending applications were eligible to receive government support, including basic needs such as housing, medical care, and education for children.
The government has the responsibility to conduct refugee status determinations, but this process appeared to stall during the year, according to the UNHCR. Five applications for refugee status were pending, but their determination would likely take several years to process. One Afghan asylum seeker was in his ninth year of waiting. Paul Pun Chi, secretary general of the Caritas social welfare organization, stated that the process was “long and drawn out” and that the procedures and isolation it entailed pushed applicants into a “hopeless situation.”
In December 2011 the Court of Second Instance overturned Chief Executive Chui’s June 2010 decision to uphold a Macau Refugees Commission ruling denying, on procedural grounds, refugee status to the family of a Kurdish human rights activist from Syria. The court’s unanimous verdict strongly criticized the commission for claiming there was no evidence of Syrian discrimination directed at Kurds and for ignoring a UNHCR report that sided with the asylum seekers. The court returned the case to the commission for reassessment, where it was pending at year’s end.
Section 3. Respect for Political Rights: The Right of Citizens to Change Their Government
The law limits citizens’ ability to change their government. Only a small fraction of citizens play a role in the selection of the chief executive, who was chosen in 2009 by a 300-member Election Committee consisting of 254 members elected from four broad societal sectors (which have a limited franchise) and 46 members chosen from among the SAR’s legislators and representatives to the NPC and Chinese People’s Political Consultative Conference.
Elections and Political Participation
Recent Elections: The most recent election, held in 2009 for 12 directly elected seats in the 29-member Legislative Assembly, was generally free and fair.
In August the government approved a bill to increase the number of indirectly elected seats from 10 to 12 and of directly elected seats from 12 to 14. Most observers assessed the move as preserving the status quo rather than as a real political reform. The legislation also increases the number of Election Committee members from 300 to 400. Critics viewed this change as nothing more than expanding the size, rather than broadening the representativeness of the pro-Beijing-dominated body.
There are limits on the types of bills that legislators may introduce. The law stipulates that legislators may not initiate legislation related to public expenditure, the SAR’s political structure, or the operation of the government. The political adjustments in August were permitted only because the National People’s Congress Standing Committee gave its approval. Proposed legislation related to government policies must receive the chief executive’s written approval before it is introduced. The Legislative Assembly also has no power of confirmation over executive or judicial appointments.
A 10-member Executive Council functions as an unofficial cabinet, approving draft legislation before it is presented in the Legislative Assembly. The Basic Law stipulates that the chief executive appoint members of the Executive Council from among the principal officials of the executive authorities, members of the legislature, and public figures.
Political Parties: The SAR has no laws on political parties; politically active groups therefore registered as societies or companies. These groups were active in promoting their political agendas, and those critical of the government did not face restrictions. Such groups participated in protests over government policies or proposed legislation without restriction.
Participation of Women and Minorities: There were four women in the
29-member Legislative Assembly. Women also held a number of senior positions throughout the government, including the secretary for justice and administration, the second-highest official in the SAR government. In January the chief executive appointed the first female judge to the Court of Final Appeal. Fifteen of the SAR’s 36 judges were women. The Public Administration and Civil Service Bureau stated that women made up 40 percent of the SAR government, 47 percent of the judiciary, and 57 percent of the senior staff of the Legislative Assembly. There were two members of ethnic minorities in the Legislative Assembly. One Executive Council member was from an ethnic minority, as was the police commissioner general.
Section 4. Corruption and Lack of Transparency in Government
The law provides criminal penalties for official corruption, and there were few reported instances of officials engaging in corruption.
The CAC investigated the public and private sectors and had the power to arrest and detain suspects. The ombudsman bureau within the CAC reviewed complaints of maladministration or abuse by the CAC. There was also an independent committee outside the CAC, called the Monitoring Committee on Discipline of CAC Personnel, which accepted and reviewed complaints about CAC personnel. In June prosecutors opened a case against two prominent Hong Kong businesspersons charged with bribing public officials and money laundering. The SAR’s former public works chief, already in jail on graft convictions, was sentenced to an additional 29 years for corruption and money laundering in relation to dealings with these business persons.
By law the chief executive, his cabinet, judges, members of the Legislative Assembly and Executive Council, and executive agency directors are required to disclose their financial interests upon appointment, promotion, and retirement and at five-year intervals while in the same position.
The law does not provide for public access to government information. However, the executive branch published online, in both Portuguese and Chinese, extensive information on laws, regulations, ordinances, government policies and procedures, and biographies of government officials. The government also issued a daily press release on topics of public concern. The information provided by the legislature was less extensive.
Section 5. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
A number of domestic and international groups monitoring human rights generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials often were cooperative and responsive to their views.
Section 6. Discrimination, Societal Abuses, and Trafficking in Persons
The law stipulates that residents shall be free from discrimination based on race, gender, disability, language, or social status, and many laws carry specific prohibitions against discrimination; the government effectively enforced the law. The law does not address discrimination based on sexual orientation or gender identity.
Women
Rape and Domestic Violence: The law criminalizes rape, including spousal rape, and the government effectively enforced the law. In the first half of the year, police received nine complaints of rape. Police and courts acted promptly on rape cases, arresting four individuals accused of rape.
Although there is not a specific law on domestic violence, laws that criminalize the relevant behaviors, including “mistreatment of minors or spouses,” were used effectively by the government to prosecute domestic violence. Various nongovernmental organizations (NGOs) and government officials considered domestic violence against women to be a growing problem. Domestic violence falls under several crimes in the criminal code, including the crime of mistreatment of minors, persons with incapacity, or spouses. These crimes are punishable with imprisonment ranging from one to five years. If mistreatment leads to serious physical injuries or death of the victim, the penalties may be increased to imprisonment of two to eight years in cases involving physical injury and five to 15 years in those resulting in death. During the first half of the year, 164 complaints of crimes related to domestic violence were reported to police. Of these, 123 involved spousal abuse. In February the Women’s General Association of Macau released a survey reporting that 80 percent of the women in its shelter had suffered physical, psychological, or sexual abuse. In November the government released the results of its public consultations it conducted in 2011 on a draft bill to combat domestic violence.
The government made referrals for victims to receive medical treatment, and medical social workers counseled victims and informed them of social welfare services. During the first half of the year, the Social Welfare Bureau handled 24 domestic violence cases. The government funded NGOs to provide victim support services, including medical services, family counseling, and housing, until their complaints were resolved. The government also supported two 24-hour hotlines, one for counseling and the other for reporting domestic violence cases.
NGOs and religious groups sponsored programs for victims of domestic violence, and the government supported and helped fund these organizations and programs. The Bureau for Family Action, a government organization subordinate to the Department of Family and Community of the Social Welfare Institute, helped female victims of domestic violence by providing a safe place for them and their children in addition to advice regarding legal actions against perpetrators. A range of counseling services was available to persons who requested them at social service centers. Two government-supported religious programs also offered rehabilitation programs for female victims of violence.
Sexual Harassment: There is no law specifically addressing sexual harassment, unless it involves the use of a position of authority to coerce the performance of physical acts. Harassment in general is prohibited under laws governing equal opportunity, employment and labor rights, and labor relations. There were no complaints of discrimination filed with police, the Public Administration and Civil Service Bureau, or the Labor Affairs Bureau (LAB) in the first half of the year. The CAC received one complaint of gender discrimination, which was dismissed as legally unsubstantiated.
Reproductive Rights: Couples and individuals have the right to decide the number, spacing, and timing of their children as well as the information and means to do so free from discrimination or coercion. Access to contraception, prenatal care, and skilled attendance at delivery and in postpartum care were widely available.
Discrimination: Equal opportunity legislation mandates that women receive equal pay for equal work; however, observers estimated that there was a significant difference in salary between men and women, particularly in unskilled jobs. The law allows for civil suits, but few women took cases to the LAB or other entities. Discrimination in hiring practices based on gender or physical ability is prohibited by law, and penalties exist for employers who violate these guidelines. No complaints of discrimination were filed with police, the LAB, or the CAC.
Children
Birth Registration: In accordance with the Basic Law, children of Chinese national residents of Macau born in or outside the SAR and children born to non-Chinese national permanent residents inside the SAR are regarded as permanent residents. There is no differentiation between these categories in terms of access to registration of birth.
Child Marriage: The minimum age of marriage is 16. Children between the age of 16 and 18 who wish to get married must get approval from their parents or guardians.
Sexual Exploitation of Children: The law specifically provides for criminal punishment for sexual abuse of children and students, statutory rape, and procurement involving minors. The criminal code sets 14 as the age of sexual consent and 16 as the age for participation in the legal sex trade. Child pornography is prohibited by law. During the first half of the year, there were five complaints of sexual abuse of children and nine complaints of sexual acts with minors filed with police. Law enforcement authorities arrested three individuals for sexual abuse of children and eight individuals for sexual acts with minors.
International Child Abductions: The SAR is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
Anti-Semitism
The Jewish population was extremely small, and there were no reports of anti-Semitic acts.
Trafficking in Persons
See the Department of State’s annual Trafficking in Persons Report at www.state.gov/j/tip.
Persons with Disabilities
The law prohibits discrimination against persons with physical, sensory, intellectual, and mental disabilities in employment, education, access to health care, or the provision of other state services, and the government generally enforced these provisions in practice. The law mandates access to buildings, public facilities, information, and communications for persons with disabilities. The government enforced the law effectively. The government built and reconstructed public facilities such as the ferry terminal and overpasses for persons with disabilities. New buses accommodated spaces for passengers with wheelchairs. The Social Welfare Institute was primarily responsible for coordinating and funding public assistance programs to persons with disabilities. There was a governmental commission to rehabilitate persons with disabilities, with part of the commission’s scope of work addressing employment. There were no reports of children with disabilities encountering obstacles to attending school.
National/Racial/Ethnic Minorities
Although the government has made efforts to address the complaints of individuals of Portuguese descent and the Macanese minority, members of these two groups continued to claim they were not treated equally by the Chinese majority. While they participated in political and cultural circles, some activists claimed businesses refused to hire employees who were not ethnically Chinese.
Societal Abuses, Discrimination, and Acts of Violence Based on Sexual Orientation and Gender Identity
There are no laws criminalizing sexual orientation and no prohibition against lesbian, gay, bisexual, and transgender (LGBT) persons forming organizations or associations. There were no reports of violence against persons based on their sexual orientation.
LGBT rights activists organized the SAR’s first gay rights protest in December. During the Macau Rainbow Equality Parade, 12 participants protested against the government’s decision to remove protection to same-sex cohabitants in its draft antidomestic violence bill. The SAR’s civil society groups alleged that the government discriminated against the local LBGT community when it failed to invite them to participate during public consultation on the bill or provide input into its decision to remove same-sex partners from the bill.
Other Societal Violence or Discrimination
The law prohibits discrimination against persons with HIV/AIDS and limits the number of required disclosures of an individual’s HIV status. Employees outside medical fields are not required to declare their status to employers. There were anecdotal reports that persons whose status became known, as well as organizations supporting them, faced some forms of discrimination. There were no reported incidents of violence against persons with HIV/AIDS.
Section 7. Worker Rights
a. Freedom of Association and the Right to Collective Bargaining
The law, including related regulations and statutory instruments, provides workers the right to form and join unions or “labor associations” of their choice without previous authorization or excessive requirements. However, in order to register as an official union, the government requires an organization to provide the names and personal information of its leadership structure. There is no law specifically defining the status and function of labor unions, nor are employers compelled to negotiate with them. According to the law, employees or job seekers shall not be prejudiced, deprived of any rights, or exempted from any duties on the basis of their membership in an association.
Workers in certain professions, such as the security forces, are forbidden to form unions, take part in protests, or strike. Such groups had organizations that provided welfare and other services to members and that could speak to the government on behalf of their members.
Under the law migrant workers enjoy treatment equal to that of local workers, including the same rights, obligations, and remuneration. All workers, including migrants, have access to the courts in cases of unlawful dismissal, if an employer fails to pay compensation, or a worker believes that his/her legitimate interests have been violated. The law also seeks to protect migrant workers from unfair dismissal by stipulating compensation based on the number of years or days of the work relationship.
Workers have the right to strike, but there is no specific protection in the law from retribution if workers exercise this right. The government asserted that striking employees are protected from retaliation by provisions of the law that require an employer to have justified cause to dismiss an employee.
The law provides that agreements between employers and workers shall be valid, but there is no specific statutory provision giving workers the right to collective bargaining. Independent lawmakers continued to push for the government to introduce a trade union and collective bargaining law.
Workers who believed they were dismissed unlawfully could bring a case to court or lodge a complaint with the Labor Department or the CAC, which also has an Ombudsman Bureau that handles complaints over administrative illegalities. The bureau made recommendations to the relevant government departments after its investigation.
There were no reports that the government failed to respect strike provisions during the year. Although strikes, rallies, and demonstrations were not permitted in the vicinity of the chief executive’s office, the Legislative Assembly, and other key government buildings, some protests occurred near government headquarters.
While laws exist protecting worker rights, the government did not respond to official complaints on working conditions or abuse, nor did the government punish employers that withheld pay when employees made such complaints. In addition, the LAB could charge the union a fee to process such complaints. Union leaders also claimed that the government maintained a “blacklist” of labor “agitators.”
Even without formal collective bargaining rights, companies often negotiated with unions, although the government regularly acted as an intermediary. Pro-PRC unions traditionally have not attempted to engage in collective bargaining. Migrant workers do not have the right to bargain collectively.
b. Prohibition of Forced or Compulsory Labor
The law prohibits forced or compulsory labor, and there were no reports that such practices occurred. See the Department of State’s annual Trafficking in Persons Report at www.state.gov/j/tip.
c. Prohibition of Child Labor and Minimum Age for Employment
A chief executive’s order prohibits minors under the age of 16 from working, although minors between the ages of 14 and 16 can be authorized to work in “exceptional circumstances” if they obtain a health certificate to prove they have the “necessary robust physique to engage in a professional activity.” The decree does not define “exceptional circumstances.” Some children reportedly worked in family-operated or small businesses. Local laws do not establish specific regulations governing the number of hours these children can work, but International Labor Organization conventions were applied. The law governing the number of working hours (eight hours a day, 40 hours a week) was equally applicable to adults and minors, but minors cannot work overtime hours.
Minors are forbidden from certain types of work, including but not limited to domestic work, any employment between 9 p.m. and 7 a.m., and at places where admission of minors is forbidden. Employers are required to conduct an assessment of the nature, extent, and duration of risk exposure at work before commencing labor relations. The Labor Department enforced the law through periodic and targeted inspections, and violators were prosecuted. Employers are also obligated to provide professional training and working conditions appropriate to a minor’s age to prevent situations that undermine his/her education and that can endanger his/her health, safety, and physical and mental development.
d. Acceptable Conditions of Work
Local labor laws establish the general principle of fair wages and mandate compliance with wage agreements. There is no mandatory minimum wage except for government-outsourced security guards and cleaners and foreign domestic workers. The law also sets maximum hours, rest days, statutory holidays, and premium pay rules. Employers can dismiss staff “without just cause” provided that they provide economic compensation, indexed to an employee’s length of service. Local law requires employers provide equal pay for equal work, regardless of gender.
All local workers, whether under a term contract or an indefinite contract, are entitled to such benefits as specified working hours, weekly leave, statutory holidays, annual leave, and sick leave. The law does not define “temporary contract” or “short-term contract.” It states only that a labor contract may be either for a defined term or of indefinite duration. Cases of labor-related malpractices are referred to the LAB.
Labor legislation provides for a 48-hour workweek (many businesses operated on a 40-hour workweek), an eight-hour workday, paid overtime, annual leave, and medical and maternity care. Although the law provides for a 24-hour rest period each week, workers frequently agreed to work overtime to compensate for low wages. The Labor Department provided assistance and legal advice to workers upon request.
Local custom favored unwritten labor contracts of indefinite duration, except in the case of migrant workers, who were issued written contracts for specified terms. Labor groups reported that employers increasingly used temporary contracts to circumvent obligations to pay for such workers’ benefits as pensions, sick leave, and paid holidays. The short-term nature of the written contracts made it easier to dismiss workers through nonrenewal.
The Labor Department enforced occupational safety and health regulations, and failure to correct infractions could lead to prosecution. The law includes a requirement that employers provide a safe working environment.
According to official statistics, at the end of April, there were 99,503 nonresident workers, who accounted for approximately 29 percent of the population. They came mostly from the Mainland, Hong Kong, Indonesia, the Philippines, and Vietnam. Most of them worked in the restaurant and hotel industry, but others found employment as domestic servants, in the gaming and entertainment sectors, or in construction and retail trade. They often complained of discrimination in the workplace. The Macau Lawyers Association claimed that foreign workers were often paid less than their Macau counterparts.
Nonresident worker associations and the International Labor Organization expressed concern about the Law on the Employment of Nonresident Workers, which requires foreign workers who left their jobs for any cause not held to be just to depart the SAR for six months before they could start new employment. Labor officials responded that the law, meant to deter “job hopping,” was not implemented if a worker could demonstrate a just cause, such as abuse, nonpayment of wages, or contract violation, for wishing to terminate a contract. However, the lack of coordination between the LAB, which handled complaints, and the Immigration Department meant that workers filing complaints could be dismissed, deprived of their immigration status, and forced to depart before their complaints could be resolved.
TAIWAN
EXECUTIVE SUMMARY
Taiwan is governed by a president and a parliament selected in multiparty elections. In March 2008 voters elected as President Ma Ying-jeou of the Kuomintang Party (KMT) in an election that international observers considered to be free and fair. Ma was reelected to a second four-year term in 2012 in an election that was also considered to be free and fair. Security forces reported to civilian authorities.
Principal human rights problems reported during the year were corruption and violence against women and children.
During the first seven months of the year, authorities indicted 576 officials, including 40 high-ranking officials, on corruption charges. There were no reports of impunity.
SECTION 1. RESPECT FOR THE INTEGRITY OF THE PERSON, INCLUDING FREEDOM FROM:
a. Arbitrary or Unlawful Deprivation of Life
There were no reports the authorities or their agents committed arbitrary or unlawful killings.
b. Disappearance
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The constitution stipulates that no violence, threat, inducement, fraud, or other improper means should be used against accused persons, and there were no reports authorities employed these means.
Prison and Detention Center Conditions
Prison and detention center conditions generally met international standards, and authorities permitted visits by independent human rights observers.
Physical Conditions: As of October there were 58,873 adults (53,872 men and 5,001 women) and fewer than 1,000 juveniles imprisoned. Prisons operated at 121 percent of designed capacity. The number of inmates who died of sickness or senility in prison or in pretrial detention centers totaled 89 in 2011 and 81 in the first 10 months of 2012. Prisoners had access to potable water, and there were no complaints of inadequate heating, ventilation, lighting, or bad food from prisoners. Prison ombudsmen were available to respond to complaints.
Administration: All prisoners and detainees have access to visitors. During the active investigation phase of their cases, a small number of detainees, on a court order, may be deprived of the right to have visitors. All prisoners and detainees are permitted religious observance. Prisoners are able to meet with religious leaders, who visit on a regular basis, and may request additional meetings with religious leaders as well. According to article 41 of the criminal code, a person convicted of minor offenses and sentenced to a prison term of less than six months may choose to perform community service instead of serving time in prison. There were no reports of inaccurate or insufficient recordkeeping.
Authorities permit prisoners and detainees to submit complaints to a prison appellate committee consisting of wardens, anticorruption officials, and outsiders. Prisoners may also submit complaints to judicial authorities without censorship, although in practice, all correspondence is screened entering and leaving the facilities. Nonviolent offenders may be fined or given suspended sentences as an alternative to prison sentences.
When a prisoner makes allegations of inhumane conditions, prison authorities investigate the claims and release the results of their investigation to the judicial authorities and occasionally to the press. Authorities investigated and monitored prison and detention center conditions.
Monitoring: The authorities allowed independent nongovernmental monitors to investigate prison conditions. In July a team of two foreign doctors and one foreign scientist visited former president Chen Shui-bian in prison. In its report the team expressed concern for Chen Shui-bian’s deteriorating physical and mental health, concluded that the stress of continued confinement would lead to further deterioration, called for a more complete medical evaluation of Chen, and recommended Chen’s release on medical parole. Subsequently, several human rights activists visited Chen Shui-bian in prison. A growing number of observers claimed Chen was being mistreated, noting that he was limited to half an hour of exercise daily outside of his cell, increased in August to an hour daily, and was not allowed to leave his cell to work as other prisoners do. Taipei Mayor Hau Lung-bin, a member of the ruling KMT, called for an assessment of Chen’s health condition by an impartial board of medical doctors. Authorities stated that Chen Shui-bian’s treatment had been adequate and that his condition did not warrant release on medical grounds.
d. Arbitrary Arrest or Detention
The constitution prohibits arbitrary arrest and detention, and the authorities generally observed these prohibitions.
ROLE OF THE POLICE AND SECURITY APPARATUS
The National Police Administration (NPA) of the Ministry of Interior (MOI) has administrative jurisdiction over all police units, although city mayors and county magistrates appoint city and county police commissioners. Civilian authorities maintained effective control over the NPA, and the authorities have effective mechanisms to investigate and punish abuse and corruption. There were no reports of impunity involving security forces during the year.
ARREST PROCEDURES AND TREATMENT WHILE IN DETENTION
A warrant or summons is required by law, except when there is ample reason to believe the suspect may flee, or in urgent circumstances, as specified in the code of criminal procedures. Indicted persons may be released on bail at judicial discretion. By law prosecutors must apply to the courts within 24 hours after arrest for permission to continue detaining an arrestee. The authorities generally observed these procedures, and trials usually took place within three months of indictment. Prosecutors may apply to a court for approval of a pretrial detention of an unindicted suspect for a maximum of two months, with one possible two-month extension. Courts may request pretrial detention in cases in which the potential sentence is five years or more and when there is a reasonable concern that the suspect could flee, collude with other suspects or witnesses, or tamper or destroy material evidence.
While courts are required to appoint counsel after an indictment is filed, the law does not specify what lawyers could or should do to protect the rights of indigent criminal suspects during initial police questioning. The Judicial Yuan (JY) and the NPA operate a program to provide legal counsel during initial police questioning to qualifying indigent suspects who have a mental disability or have been charged with a crime punishable by three or more years in prison. Detained persons may request the assistance of the Legal Aid Foundation (LAF), which provides professional legal assistance through its 21 branch offices to persons who would not otherwise have legal representation. The LAF is a nongovernmental organization (NGO) that is funded by the JY, in accordance with the Legal Aid Act of 2004. The LAF provided these services to all individuals. During regular consultations with police and when participating in police conferences, LAF officials remind police of their obligation to notify suspects of the existence of such counseling. The prosecutor proposes and a court decides whether a suspect should be detained incommunicado or held under house arrest. Suspects and prisoners may be prohibited from receiving visitors, but they are entitled to meet and consult with legal counsel.
e. Denial of Fair Public Trial
The constitution provides for an independent judiciary; however, the judicial system suffered from some corruption. Although the authorities made efforts to eliminate corruption and diminish political influence in the judiciary, some residual problems remained. During the year judicial reform advocates pressed for greater public accountability, reforms of the personnel system, and other procedural reforms. Some political commentators and academics also publicly questioned the impartiality of judges and prosecutors involved in high-profile and politically sensitive cases.
On September 3, a new judge evaluation committee composed of 11 judges, prosecutors, lawyers, and opinion leaders published its first evaluation report, suggesting that the JY punish two judges for dereliction of duty. On October 8, a similar prosecutor evaluation committee composed of three prosecutors, one judge, three lawyers, and four opinion leaders published its first evaluation report, suggesting that the Ministry of Justice dismiss a prosecutor for incompetence and refer the case to the JY for disciplinary action.
The 2009 trial of former president Chen Shui-bian and his wife Wu Shu-jen heightened public scrutiny of preindictment and pretrial detention, prosecutorial leaks, other possible prosecutorial misconduct, and transparency in judicial procedures (see section 4).
TRIAL PROCEDURES
The constitution provides for the right to a fair trial, and an independent judiciary generally enforced this right. Judges, rather than juries, decide cases; all judges are appointed by and answer to the JY. A single judge, rather than a defense attorney or prosecutor, typically interrogates parties and witnesses.
Trials are public, although court permission may be required to attend trials involving juveniles or potentially sensitive issues that might attract crowds. A defendant’s access to evidence held by the prosecution is determined by the presiding judge on a case-by-case basis. All defendants are presumed innocent until proven guilty and have the right to an attorney.
The law states that a suspect may not be compelled to testify and that a confession shall not be the sole evidence used to find a defendant guilty. All convicted persons have the right to appeal to the next higher court level. Persons sentenced to terms of imprisonment of three years or more may appeal beyond that level. Defendants have the right to be informed promptly of the charges, communicate with an attorney of choice or have one provided, prepare a defense, confront witnesses against them, and present witnesses and evidence.
POLITICAL PRISONERS AND DETAINEES
There were no reports of political prisoners or detainees.
CIVIL JUDICIAL PROCEDURES AND REMEDIES
There is an independent and impartial judiciary for civil matters. Administrative remedies are available in addition to judicial remedies for alleged wrongs, including human rights violations.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The constitution prohibits such actions, and the authorities generally respected these prohibitions in practice.
SECTION 2. RESPECT FOR CIVIL LIBERTIES, INCLUDING:
a. Freedom of Speech and Press
The constitution provides for freedom of speech and press, and the authorities generally respected these rights in practice. An independent press, an effective judiciary, and a functioning democratic political system combined to protect freedom of speech and press.
Responding to public calls for the protection of former President Chen Shui-bian’s freedom of speech, the Taipei Prison removed its earlier ban and allowed Chen to write a special column for Chinese-language weekly magazine Next.
Censorship or Content Restrictions: In 2009 the Taipei city government barred primary and middle schools in the city from subscribing to the newspaper Apple Daily and added that anyone wishing to borrow the newspaper from Taipei public libraries must provide identification proving the applicant was 18 years or older. The ban remained in effect.
INTERNET FREEDOM
There were no official restrictions on access to the Internet or credible reports that the authorities monitored e-mail or Internet chat rooms without judicial oversight. According to a survey conducted by Taiwan’s Institute for Information Industry, an NGO, 81.8 percent of households had access to the Internet at the end of 2011.
ACADEMIC FREEDOM AND CULTURAL EVENTS
There were no restrictions on academic freedom or cultural events.
b. Freedom of Peaceful Assembly and Association
FREEDOM OF ASSEMBLY
In 2009 the authorities charged two professors who were organizing student demonstrations for failing to obtain permits in advance as required by the assembly law. In February the High Court’s final ruling found one of the professors not guilty, as he was not the architect of the demonstrations. The trial of the other professor remained pending, since the Constitutional Court had not ruled on the constitutionality of the assembly law.
FREEDOM OF ASSOCIATION
The law provides this right, and the authorities generally respected it in practice.
c. Freedom of Religion
See the Department of State’s International Religious Freedom Report at www.state.gov/j/drl/irf/rpt/.
d. Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons
The constitution provides for freedom of internal movement, foreign travel, emigration, and repatriation, and the authorities generally respected these rights in practice.
PROTECTION OF REFUGEES
Access to Asylum: The law does not provide for the granting of asylum or refugee status, and the authorities have not established a system for providing protection to refugees. All People’s Republic of China (PRC) citizens unlawfully present are required by law to be returned to the PRC. Eight PRC nationals who had sought asylum between 2008 and 2010 were still residing in the country with financial assistance and subsidies provided by the National Immigration Agency.
SECTION 3. RESPECT FOR POLITICAL RIGHTS: THE RIGHT OF CITIZENS TO CHANGE THEIR GOVERNMENT
The constitution provides citizens the right to change their government peacefully, and citizens exercised this right in practice through periodic, free, and fair elections based on universal suffrage.
Elections and Political Participation
Recent Elections: In January the presidential election was held in tandem with the legislative election for the first time. The KMT presidential candidate Ma Ying-jeou won reelection, and his party retained a majority in the legislature. Observers regarded the elections as free and fair.
Participation of Women and Minorities: There were 38 women in the 113-member Legislative Yuan. Eight of the 48 Executive Yuan (cabinet) members were women. The mayor of Kaohsiung, the island’s second largest city, was a woman. Two of the 15 Constitutional Court justices were women. At least half of the at-large seats won by a political party were required to be filled by women.
Representatives of the indigenous population participated in most levels of the political system. They held six reserved seats in the Legislative Yuan, half of which were elected by plains tribes and half by mountain tribes. Indigenous persons accounted for approximately 2 percent of the population. Indigenous person more than doubled their proportion of the population in legislative seats.
SECTION 4. CORRUPTION AND LACK OF TRANSPARENCY IN GOVERNMENT
The law provides criminal penalties for corruption by officials, and the authorities generally implemented these laws effectively. There were allegations of official corruption during the year.
In June authorities accused Executive Yuan Secretary General Lin Yi-shih of seeking bribes amounting to NT$83 million ($2.86 million) from private individuals when he previously served as a legislator. In July Lin resigned and then was arrested and detained. In late August the Taipei District Court ruled to extend his detention for two additional months. At year’s end the Special Investigation Division continued investigating the case and possible other cases in which Lin might have been involved.
In July the Supreme Court ruled that cases involving former president Chen Shui-bian and his wife Wu Shu-jen on charges of corruption, money laundering, forgery, and embezzlement should be retried following a 2011 High Court not guilty verdict. The Supreme Court also denied the Chens’ appeal of a previous sentence for money laundering and forgery. The High Court subsequently announced that Wu would serve a combined sentence of 19 years and two months and pay a fine of NT$158 million ($5.44 million) for six charges, including money laundering, bribery, influence peddling, and perjury. By year’s end she had not begun serving her sentence because of her poor health. The High Court also announced that Chen, incarcerated since 2010 on separate corruption charges, would serve a total combined sentence of 18 years and six months in prison and pay a fine amounting to NT$156 million ($5.37 million) for money laundering and corruption in three cases.
In August police detained Hsu Jui-shan, chief secretary of the Criminal Investigation Bureau, after he was found covering up an illegal gambling den and for having a financial interest in the den’s operations.
In August police detained former national fire agency director-General Huang Chi-min on suspicion of accepting bribes from contractors while in office. The investigators seized 18 gold bars worth nearly NT$23 million ($792,000) in Huang’s residence and office.
In August former president Lee Teng-hui, indicted in June 2011 for corruption and money laundering, made his first court appearance for a pretrial procedure. The court required further pretrial procedures before the case went to trial. At year’s end a trial date had not been determined.
The law requires civil servants to account for the sources of abnormal increases in their assets and makes failure to do so a punishable offense. The law also requires that ranking government officials, including officials holding specified sensitive positions, and elected officials declare their property to the Control Yuan, which makes the disclosures public. Those failing to declare property are subject to a fine ranging from NT$200,000 ($6,900) to 4 million ($138,000) and can be punished with a prison term of no more than one year for repeatedly failing to comply with this request. The Ministry of Justice (MOJ) and its newly established subordinate Agency against Corruption are in charge of combating official corruption.
All government information shall be made available to the public upon request with the exception of national secrets, professional secrets, personal information, and protected intellectual property. According to the law, within 15 days of receiving a request for government information, the receiving government agency shall determine whether to approve such a request. The time may be extended for no longer than 15 days, if necessary. The agency may charge a fee--which it sets--based on the purpose of the request. The fees may be reduced or waived if the request is for academic research or for the public interest. Government employees are subject to punishment or reprimand if they violate the relevant provisions set forth in the law when performing their duties. The law provides that registered citizens, companies, and groups may submit information requests and may appeal denied requests. These privileges are extended on a reciprocal basis to citizens of foreign countries.
SECTION 5. GOVERNMENTAL ATTITUDE REGARDING INTERNATIONAL AND NONGOVERNMENTAL INVESTIGATION OF ALLEGED VIOLATIONS OF HUMAN RIGHTS
A wide variety of domestic and international human rights groups generally operated without restriction, investigating and publishing their findings on human rights cases. The authorities often were cooperative and responsive to their views.
SECTION 6. DISCRIMINATION, SOCIETAL ABUSES, AND TRAFFICKING IN PERSONS
The constitution prohibits discrimination based on race, gender, disability, language, sexual orientation or gender identity, or social status.
Women
Rape and Domestic Violence: Rape, including spousal rape, is a crime, and violence against women, including rape and domestic violence, remained a serious problem. Because victims were socially stigmatized, many did not report the crime, and the MOI estimated that the total number of sexual assaults was 10 times the number reported to police.
The law provides protection for rape victims. Rape trials are not open to the public unless the victim consents. The law permits a charge of rape without requiring the victim to press charges.
The law establishes the punishment for rape as not less than five years’ imprisonment, and courts usually gave those convicted prison sentences of five to 10 years. According to the MOI, as of September there were 10,951 reports filed for rape or sexual assault. As of September, courts indicted 1,814 persons and convicted 1,685 persons. According to the MOJ, the average prosecution rate for rape and sexual assault over the past five years was approximately 50 percent, and the average conviction rate of cases prosecuted was approximately 90 percent.
As of September there were 86,240 cases of domestic violence reported. In the same period, authorities prosecuted 2,592 persons for domestic violence, convicted 1,948 persons, and issued 10,111 protection orders to domestic violence victims. Typically, courts sentenced persons convicted in domestic violence cases to less than six months in prison. Social pressure not to disgrace their families discouraged abused women from reporting incidents to the police. The law allows prosecutors to take the initiative in investigating complaints of domestic violence, without waiting for a spouse to file a formal lawsuit.
The law requires all cities and counties to establish violence prevention and control centers to address domestic and sexual violence, child abuse, and elder abuse. These centers provided victims with protection, medical treatment, emergency assistance, shelter, legal counseling, education, and training on a 24-hour basis.
Sexual Harassment: Sexual harassment in the workplace is a crime punishable by fines of NT$100,000 to NT$1 million (approximately $3,400 to $34,000) and imprisonment for up to two years. All public employers and larger private employers are required to enact preventive measures and establish complaint procedures to deter sexual harassment. Women’s groups complained that, despite the law and increased awareness of the issue, judicial authorities remained dismissive of sexual harassment complaints.
Reproductive Rights: Individuals and couples had the right to decide the number, spacing, and timing of their children and had the information and means to do so free from discrimination, coercion, and violence. Unmarried persons, however, are prohibited by law from obtaining fertility treatments. Access to contraception and skilled attendance during childbirth and the postpartum period were widely available. Medical authorities gave women equal treatment for diagnosis and treatment for sexually transmitted infections.
Discrimination: The law prohibits discrimination based on gender. The law provides for equal treatment with regard to salaries, promotions, and assignments. The law entitles women to request up to two years of unpaid maternity leave and forbids termination of employment because of pregnancy or marriage. Central and local agencies, schools, and other organizations are required to develop enforcement rules and set up gender equality committees to oversee the implementation of the law. One NGO claimed that the authorities were not doing enough to raise public awareness of this issue.
Women’s advocates noted that women continued to be promoted less frequently, occupied fewer management positions, and worked for lower pay than did their male counterparts. Women made up 50 percent of workforce. According to the Council for Labor Affairs (CLA), salaries for women averaged 82 percent of those for men performing comparable jobs.
Gender-biased Sex Selection: The ratio of males to females at birth was between 1.085 and 1.108. According to the Control Yuan, women over age 35 who already have two children had the highest such ratio. In 2010 Taiwan banned medical institutions from conducting gender-biased sex selection. Authorities put under surveillance clinics and hospitals with higher rates of imbalance, and doctors who facilitate gender-biased sex selection can be fined. There were no reported cases of such sanctions being applied.
Children
Birth Registration: Citizenship is derived from one’s parents or by birth within the island’s territory. The MOI and its subordinate Children’s Bureau are responsible for the protection of the rights and welfare of children, and the law included provisions to protect them.
Child Abuse: Child abuse continued to be a widespread problem. According to the MOI’s Domestic Violence and Sexual Assault Prevention Commission, authorities reported 19,936 child abuse cases involving 16,330 victims in the first eight months of 2012. Central and local authorities, as well as private organizations, continued efforts to identify and assist high-risk children and families and to increase public awareness of child abuse and domestic violence.
The law stipulates that persons discovering cases of child abuse or neglect must notify the police or welfare authorities. Child welfare specialists must notify the local authorities within 24 hours, and authorities must take appropriate measures within 24 hours. Regulations encourage officials to respond to investigation requests within four days. The MOI Children’s Bureau and NGO specialists monitored cases to ensure that requirements were met. An official hotline accepted complaints of child abuse and offered counseling. Courts are required to appoint guardians for children whose parents are deemed unfit.
Child Marriage: The legal minimum age of marriage for men is 18 and for women is 16. The rate of marriage under the age of 18 for boys was 0.4 percent and for girls 2 percent.
Sexual Exploitation of Children: The minimum age for engaging in consensual sexual relations is 18. Persons who engage in sex with children under age 14 face sentences of three to 10 years in prison. Supreme Court 2010 rulings for offenses involving sexual assault on children under age seven resulted in a minimum sentence of seven years in prison. Those who engage in sex with minors between ages 14 to 16 receive a mandatory prison sentence of three to seven years. Solicitors of sex with minors older than 16 but younger than 18 face up to one year in prison or hard labor, or a fine of up to NT$3 million ($103,300).
The extent to which child prostitution occurred was difficult to measure because of increased use of the Internet and other sophisticated communication technologies to solicit clients.
Advertisements related to prostitution were prohibited, and police enforced the law in practice. Under the law citizens arrested abroad for having sex with minors can also be indicted and convicted of patronizing underage prostitutes in foreign countries, although no such cases have occurred in the past four years. The law also prohibits child pornography, and violators are subject to a minimum sentence of six months and a fine.
As of September, courts had indicted 325 persons and convicted 232 persons of violating the Child and Youth Sexual Transaction Prevention Act, which criminalizes child prostitution and the possession and distribution of child pornography. Convicted violators’ names may be made public, but this was not routinely practiced.
International Child Abductions: Due to its unique political status, Taiwan is not eligible to become a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. For information see the Department of State’s report on compliance at www.travel.state.gov/abduction/resources/congressreport/congressreport_4308.html, as well as country-specific information at www.travel.state.gov/abduction/country/country_3781.html.
Anti-Semitism
The size of the Jewish community is very small, estimated at 100 to 200 individuals who meet regularly, and consists predominately of expatriates. There were no reports of anti-Semitic acts.
Trafficking in Persons
See the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip.
Persons with Disabilities
The law prohibits discrimination against persons with physical, sensory, intellectual, and mental disabilities in employment, education, air travel and other transportation services, access to health care, or the provision of other state services. The law sets minimum fines for violations, and authorities enforced the law effectively. The authorities enacted and effectively implemented laws and programs to ensure access to buildings, information, and communications. Primary and secondary schools and higher education were available for children with disabilities. However, there were reported sexual assaults in educational and mental health facilities from time to time.
The MOI and the CLA are responsible for protecting the rights of persons with disabilities. The law stipulates that the authorities must provide services and programs to members of the population with disabilities. The government provided free universal medical care to persons with disabilities. NGOs continued to assert that more public nursing homes were needed and that current programs, such as home care services, had to be expanded to meet the growing needs of those with disabilities, an increasing number of which were elderly persons.
The law stipulates that new public buildings, facilities, and transportation equipment must be accessible to persons with disabilities, and this requirement was generally met. Disabled rights groups raised the issue of older facilities not catering to the needs of disabled students and claimed that 50 percent of primary and secondary schools were not barrier-free. Children with disabilities attended school, and officials noted no patterns of abuse during the year. There were, however, some isolated cases. In September a foundation filed a lawsuit against 32 public servants for neglecting sexual assaults alleged to have occurred in a school for children with disabilities in 2011; a prosecutor was investigating the case.
National/Racial/Ethnic Minorities
As of July foreign-born spouses, primarily from China, Vietnam, Indonesia, or Thailand, accounted for 3 percent of the population, and an estimated 3.1 percent of all births were to foreign-born mothers. Foreign spouses were targets of discrimination both inside and outside the home.
The authorities offered free Chinese-language and child-raising classes and counseling services at community outreach centers to assist foreign-born spouses’ integration into society. The LAF provided legal services to foreign spouses and operated a hotline to receive complaints. The MOI also operated its own hotline with staff conversant in Vietnamese, Cambodian, Thai, Indonesian, English, and Chinese.
PRC-born spouses must wait six years to apply for Taiwan residency, whereas non-PRC spouses may apply after three years. PRC spouses are also permitted to work in Taiwan immediately on arrival.
Indigenous People
There are 14 identified non-Chinese groups of indigenous people, accounting for approximately 2 percent of the population. The law protects the civil and political rights of these indigenous persons, stipulating that the authorities should provide resources to help indigenous individuals develop a system of self-governance, formulate policies to protect their basic rights, and promote the preservation and development of their language and culture. According to the law, the government shall establish a committee for demarcation and management of indigenous lands, although by year’s end the government had not established the committee. The government and the private sector shall consult with indigenous people and obtain their consent or participation, and share with indigenous people benefits generated from land development, resource utilization, ecology conservation, and academic research in indigenous areas. However, the provision had not been put into practice. Critics complained that the authorities did not do enough to preserve aboriginal culture and language.
Indigenous people participated in decisions affecting their land through the political process, as there is a quota in the legislature for aboriginal participation. Six of the 113 seats in the legislature are reserved for aboriginal tribal representatives, who are elected by aboriginal voters. In August dozens of Pingpu aborigines staged an annual rally in front of the presidential office in protest of the government’s denial of their aboriginal status. The population of the Pingpu tribe, more than one million, dwarfs the size of the nine recognized tribes combined. Traditional aboriginal tribes have long claimed that the Pingpu tribe is an historical invention consisting mainly of ethnic Chinese pretending to be ethnically aboriginal in the hopes of gaining tribal privileges (land use, early retirement pensions, quota-based representation, among others). The government denied the request of the Pingpu tribe for tribal recognition.
Societal Abuses, Discrimination, and Acts of Violence Based on Sexual Orientation and Gender Identity
There are no laws prohibiting consensual same-sex sexual activity. According to lesbian, gay, bisexual, and transgender (LGBT) rights activists, violence against LGBT persons with HIV/AIDS was a problem, but instances of police pressure on LGBT-friendly bars and bookstores continued to decrease during the year. LGBT rights activists alleged that restrictions on doctors providing fertility treatments to unmarried persons unfairly resulted in discrimination against LGBT persons, who are not permitted to marry. Employers convicted of discriminating against job seekers on the basis of sexual orientation face fines of up to NT$1.5 million ($51,650).
Authorities canceled plans to begin teaching LGBT issues in the elementary and junior school curriculums, in accordance with the 2004 Gender Equity Education Act, because of a “lack of social consensus.”
Other Societal Violence or Discrimination
There was reported discrimination, including employment discrimination, against persons with HIV/AIDS. In September school authorities asked an elementary school teacher in Taipei to be tested for HIV/AIDS after the Education Bureau received an anonymous letter. Some parent groups said teachers should present a test report and any carriers should be transferred from their teaching jobs. The Teachers Association suggested that authorities work with parent groups and the association to come up with a set of regulations.
An amendment of the AIDS Prevention and Control Act allows a foreign spouse with HIV to remain in Taiwan, if he/she can show the infection came from the spouse or from medical treatment received in Taiwan. The amended law, renamed the HIV Prevention and Patients’ Rights Protection Act, also stipulates that citizens with HIV cannot be denied access to education, medical services, housing, or other necessities.
SECTION 7. WORKER RIGHTS
a. Freedom of Association and the Right to Collective Bargaining
The law, including related regulations and statutory instruments, protects the right to join independent unions, conduct legal strikes, and bargain collectively. However, the right to strike is highly regulated and some workers are excluded from collective bargaining.
Although teachers are prohibited from striking, they had formed 37 unions and one federation of teachers’ unions as of the end of July following a new law passed in 2011 allowing them to associate. Industrial workers also enjoyed expanded freedoms under the new law, forming 66 new industrial unions as of the end of July. The law also allows foreign workers to form and join unions.
In addition to ensuring the right to associate, the law protects associated labor and prohibits discrimination, dismissal, or other unfair treatment of workers for union-related activities. Violators must reinstate the dismissed employee and face fines of NT$30,000-NT$150,000 ($1,030-$5,170). County or city government departments of labor fined several employers for retaliation during the year. Although labor unions may draw up their own rules and constitutions, labor union registrations require approval from the local competent authority or the CLA, and the authorities have the power to order unions to cease part or all of their operations if they break a law or violate their charter. In May the Taipei city government turned down an application to establish a labor union submitted by research and teaching assistants from National Taiwan University because many organizers were part-time graduate students without contracts or labor insurance.
At the end of June, approximately 30 percent of the 11.3 million-person labor force belonged to one of the 5,108 registered labor unions. Many of these members were also members of one of the 10 island-wide labor federations.
Teachers, civil servants, and defense industry employees are not afforded the right to strike. Workers in industries such as utilities, hospital services, and telecommunication service providers are allowed to strike only if they promise to maintain basic services during the strike. Authorities may prohibit, limit, or break up a strike during a disaster.
The law divides labor disputes into two categories: “rights disputes” and “adjustment disputes.” Workers are allowed to strike only in adjustment disputes, which include issues such as compensation and working schedules. The law forbids strikes in rights disputes, which could include collective agreements, labor contracts, regulations, and other issues. Rights disputes must be settled through arbitration or judicial process. The law requires mediation of labor disputes when the authorities deem disputes to be sufficiently serious or to involve unfair practices. The law also prohibits labor and management from disturbing the “working order” while mediation or arbitration is in progress. On average the mediation process took 20 to 50 days and arbitration took 45 to 80 days.
Three legal strikes (Prince Motor, Hua Long Man-Made Fiber Co., and Veteran Electronic Co.) over unpaid wages occurred during the year to December 5. As of November two of these strikes were resolved, and one remained in arbitration. In addition, 19,204 labor disputes occurred in the first ten months of the year, down 5.3 percent from the same period in 2011. Of these, 13,352 cases were related to wage and severance disputes. Labor unions charged that during employee cutbacks, labor union leaders were sometimes laid off first or dismissed without reasonable cause.
b. Prohibition of Forced or Compulsory Labor
The law prohibits all forms of forced or compulsory labor. However, there were reports that such practices occurred. There was evidence of forced labor in such sectors as household-care giving, farming, fishing, manufacturing, and construction (see section 7.d.).
The law criminalizes forced labor, and public awareness campaigns included worker education pamphlets, foreign worker hotlines, and Ministry of Education programs on trafficking as part of the broader human rights curriculum. At the end of September, police and judicial agencies had removed 109 victims from forced labor, including sexual exploitation.
Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip.
c. Prohibition of Child Labor and Minimum Age for Employment
The Labor Standards Law stipulates age 15, when compulsory education ends, as the minimum age for employment. Children under 16 years of age are not permitted to do heavy or hazardous work, and their working hours are limited to eight hours per day on normal working days only.
County and city labor bureaus effectively enforced minimum-age laws by ensuring the implementation of compulsory education. According to the Council of Labor, employers that violate minimum-age laws face fines of up to NT$20,000 ($689). As of July there were no documented cases of violations of these laws, but labor activists and scholars urged the relevant agencies to strengthen the supervision of those firms hiring workers under age 16.
d. Acceptable Conditions of Work
The law provides standards for working conditions and health and safety precautions for an estimated 6.6 million of 8.4 million salaried workers. Those not covered include management employees, health-care workers, gardeners, bodyguards, teachers, doctors, lawyers, civil servants, local government contract workers, employees of farmers’ associations, and domestic workers.
A 5 percent increase in the minimum wage to NT$18,780 per month ($647), or NT$103 per hour ($3.55), took effect in January. There is no minimum wage for workers in categories not covered by the law.
The average manufacturing wage was more than double the legal minimum wage, and the average wage for service industry employees was even higher. The average monthly wage increased 2.7 percent to NT$45,642 ($1,572) in 2011. According to labor statistics, however, workers’ real wages were lower than they were 10 years ago. Authorities estimate the poverty income level to be 60 percent below the average disposable income of the median households in a designated area. By this definition the poverty income level was NT$14,794 ($509) per person in Taipei, NT$11,832 ($407) per person in New Taipei City, NT$10,244 ($353) per person in Taiwan Province, and NT$11,146 ($384) per person in Kaohsiung City.
Foreign household caregivers and domestic workers do not enjoy a minimum wage or overtime pay, limits on the workday or workweek, or minimum breaks or vacation time. As of the end of September, there were 200,882 foreign household caregivers and domestic workers registered under the Employment Services Act. NGOs and academics urged the CLA to provide basic labor protections such as minimum wage, overtime, and a mandatory day off for foreign household caregivers and domestic workers.
Legal working hours were 336 hours per eight-week period (an average of 42 hours per workweek). The law mandated a five-day workweek for the public sector, and, according to the CLA, more than half of private-sector enterprises also implemented a five-day workweek. According to local labor laws, only employees in “authorized special categories” approved by the CLA were exempt from the five-day workweek. These categories include flight attendants, insurance salespersons, real estate agents, nursery school teachers, ambulance drivers, and hospital workers. In practice, however, violations of the five-day workweek maximum were common. The law stipulates a fine for violating legal work maximums of NT$300,000 ($10,300) for violations and mandates that the names of the offending companies be broadcast to the public. In response to public pressure, the CLA conducted a review of the authorized special categories in an effort to reduce their scope. In March it extended protection to most medical personnel, although not including medical staff working in emergency rooms, delivery rooms, operating rooms, or recovery rooms. The Taiwan Confederation of Trade Union and other labor groups asked the authorities to end the “authorized special category” system.
The law provides standards for health and safety. Labor federations and NGOs alleged, however, that the CLA did not effectively enforce workplace health and safety laws and regulations. In the first half of the year, the CLA’s 292 inspectors conducted 45,079 inspections, an increase of 7.6 percent from the same period of 2011. The law covered approximately 310,000 enterprises. Labor NGOs and academics argued that the labor inspection rate was far too low to serve as an effective deterrent against labor violations and unsafe working conditions, especially for labor in small and medium factories. Labor groups repeatedly urged the CLA to strengthen its inspection regime.
Regulations require intensified inspection and oversight of foreign labor brokerage companies. NGOs reported that some labor brokers and employers regularly collected high fees or loan payments from foreign workers, using debts incurred in the source country as a tool for involuntary servitude. At the end of July, 441,507 documented migrants worked in Taiwan; of these, 186,458 were from Indonesia, 85,466 from the Philippines, 71,434 from Thailand, and 98,145 from Vietnam. A total of 37,469 undocumented foreigners worked in Taiwan. NGOs asserted that foreign workers were often unwilling to report employer abuses for fear the employer would terminate the contract and deport them, leaving them unable to pay back debt accrued to brokers or others.
A 2012 NGO report documented abusive conditions for migrant workers on Taiwan flagged fishing vessels operating out of Singapore. The report claimed that employers provided the migrant workers, mostly Filipino, substandard food and little medical care, forced workers to work 18-20 hours a day, and did not allow them to break their contracts without hefty penalties. In addition, the workers were not able to leave their posts because the ships stayed at sea for months at a time.
An employer may deduct only labor insurance fees, health insurance premiums, income taxes, and meal and lodging fees from the wages of a foreign worker. Violators face fines of NT$60,000 to NT$300,000 ($2,070 to $10,300) and loss of hiring privileges. Critics, however, complained that violations continued and that the CLA did not effectively enforce statutes and regulations intended to protect foreign laborers from unscrupulous brokers and employers.
In addition to a CLA-operated Foreign Worker Direct-Hire Service Center that allows local employers to rehire their foreign employees, the CLA opened a direct-hire web platform to allow local employers to hire foreign workers online without having to go through a broker. NGOs, however, argued that complicated procedures and restrictions on use of both the Service Center and the online service prevented widespread implementation, and they advocated lifting restrictions on transfers between employers. In a move praised by both local employers and foreign workers, in January the Legislative Yuan passed a bill to prolong the time limit in which foreign workers could stay in Taiwan from nine years to 12 years.
The service center also permitted the direct rehiring of foreign workers engaged in manufacturing, fisheries, construction, and other industries.
The National Immigration Agency is responsible for all immigration-related policies and procedures for foreign workers, foreign spouses, immigrant services, and repatriation of undocumented immigrants. The CLA is responsible for work permits and services related to occupation. The CLA also provides mediation services and may permit the transfer of employees in situations where the employee has suffered exploitation or abuse.
Except for victims of trafficking in persons or employer abuse, foreign workers deemed to have worked illegally faced heavy fines, mandatory repatriation, and a permanent ban on reentering Taiwan.
According to data released by the Bureau of Labor Insurance, there were 26,703 cases of occupational injury or sickness during the first nine months of 2012, down from 26,760 cases during the same period in 2011. There were 233 occupational deaths during this period, down from the 243 cases reported during the same period in 2011.