1. An eye for Hong Kong 2009-2010 debbie tsui Hong Kong Human Rights Monitor 5 March 2010 For ANNI’s third regional consultation workshop

2. Flow Background Info about Hong Kong Part 1: Most Significant Issues on human rights in HK in 2009 & the first quarter of 2010 Part 2: Latest developments regarding the establishment of a human rights commission in HK in 2009

3. Background Information about Hong Kong

4. WHERE is Hong Kong?

5. WHO are Hong Kong People? Population: 7millions in 2009 5% are Ethnic Minority 50% among the ethnic minority are Foreign Domestic Workers Need for the Race Discrimination Ordinance Every 100 Hong Kong people 95: Ethnic in Chinese 5 : Ethnic Minority groups 2.5 out of 5: Foreign Domestic Worker

6. Populations-Ethnic Composition

7. BRIEF HISTORY British Colony from 1841 Sino-British Joint Declaration in 1984 British declared handover on 1 July 1997 People’s Republic of China resumed its exercise of sovereignty over HK effect on 1 July 1997  Hong Kong Special Administrative Region

8. BRIEF HISTORY Stipulated in the Basic Law of HK “One Country, Two systems” Principles HK’s previous capitalist system and its way of life would remain unchanged for a period of 50 years High degree of autonomy Freedom and rights promised Basis for human rights protection

9. International Human Rights Conventions applicable in HK ICCPR (Domestic Law: Bills of Rights Ordinance, BORO) ICESCR CERD CEDAW DISABILITY CAT CRC ILO

10. Part 1: Most Significant on human rights issues in HK in 2009 & 2010

11. (1) Concerns on breaking One Country Two Systems Rule of law & Judiciary Independence regarded as the last guarantor of the principles & the freedoms promised by the Basic Law Increasing number of judicial reviews challenging the Government’s decisions which violated human rights in recent years  act as balance on the power of unelected government and for human rights protection Chinese officials’ criticisms: “ Rule by Judges”

12. (1) Concerns on breaking One Country Two Systems Fundamental problem: the Standing Committee of the National People's Congress (NPCSC) can reinterpret the Basic law inevitably weaken the judicial independence Example: Constitutional crisis in 1999: NPCSC overturned the ruling of the Court of Final Appeal on the right of abode for children from HK parents born in mainland by re-interpretation of law in 26 June 1999 The court then upheld the ultimate authority of Beijing’s reinterpretation of the Basic Law.

13. (1) Concerns on breaking One Country Two Systems Hence when the first Chief Justice of the HKSAR Andrew Li, who has been maintaining the rule of law and the judiciary independence in Hong Kong judicial system for the 12 years since the handover, suddenly announced for early resignation for orderly succession in Sept 2009, it sparked the concerns if the judiciary independence would be maintained. Source: South China Morning Post, “Surprise as top judge goes early” 3 Sept 2009 South China Morning Post, “A judicial achiever who steadied the ship” 3 Sept 2009

14. (1) Concerns on breaking One Country Two Systems the Central Authority tended to interfere in HK matters in a greater extent and affect the human rights protection in HK Example: Chinese officials kept promoting the concept of "cooperation among the administrative, judicial and legislative areas” in different occasions. Example(1): “10 point agreement” & “second ruling team” by a pair of Central Gov Liaison officials pushed for interference in HK Affairs

15. 1(A) A pair of Beijing officials pushed for interference in HK Affairs “10-point agreement” between the Central Gov Liaison Office & HK Gov reported in March 2009 to set up a body in order to activate the role of local deputies to the National People’s Congress and Chinese People’s Political Consultative Conference involving in HK Affairs = institutionalize a body under the Central Authority to interfere in HK internal affairs  breach the high degree of autonomy Source: South China Morning Post, “Is it one city but two governing team? ” 19 April 2009

16. 1(A) A pair of Beijing officials pushed for interference in HK Affairs “Second ruling team in HK” Reported in April 2009 Argument by the head of the Liaison office’s research There’s a second ruling team comprising of central government officials and party cadres after 1997 handover to exercise constitutional powers vested on the central authority over HK but claimed the team would not interfere in the internal matters Source: South China Morning Post, “2 governing teams remark causes concern” 18 April 2009

17. 1(A) A pair of Beijing officials pushed for interference in HK Affairs “Second ruling team in HK” Worries: the second ruling team would weaken the power of the HK government lead to the implementation of mainland’s political policy and culture of “supervising administration behind the screen”  breach the principle of One country Two systems.

18. 1(A) A pair of Beijing officials pushed for interference in HK Affairs Both the Liaison Office and HK gov denied the 10 point agreement & second ruling team which the Central Authority’s breaking the principle of One Country Two Systems Without substantial and further clarifications

19. 1(A) A pair of Beijing officials pushed for interference in HK Affairs representing the Central Authority’s conceptual change? the attempt of a subordinate body to seek more power in involving HK affairs? explicitly pushing for Central Government’s interference with HK affairs in a greater extent?

20. 1(A) A pair of Beijing officials pushed for interference in HK Affairs but it provides proof for the Central Authority’s interference in HK affairs. E.g. rumors: meddled in HK politics after mass demonstration on 1 July 2003  contravened the Basic Law  the principle of One Country Two systems  the principle of high degree of autonomy.

21. 1(B) The Diaoyu (Fishing) Islands Incident Central Authority and Liaison Office’s interference in the Diaoyu Islands Incident in May 2009 the first time the HK Gov blocked the protest ship for defending Chinese sovereignty over the Diaoyu Islands since 1996.

22. 1(B) The Diaoyu (Fishing) Islands Incident Blocked by the Marine Department & the police 1 st : illegal to take the ship to the Diaoyu Islands because the ship was registered for fishing only 2 nd : for not meeting fire standards. The additional equipment was installed then. 3 rd : blocked & forced to head back to marine police headquarters for investigations.

23. 1(B) The Diaoyu (Fishing) Islands Incident The Government’s “explanation” for safety purpose as the Japanese Navy had sank Taiwan protest ship in the previous year the ship was registered as a fishing boat only (If so, why didn’t the Government block before?)

24. 1(B) The Diaoyu (Fishing) Islands Incident WHY block? the Central Authority was unwilling to put the warming Sino-Japanese ties at risk Source: South China Morning Post, “Diaoyu protest ship halted for its own safety” May 2009.

25. 1(B) The Diaoyu Islands Incident Liaison Office took part in halting the protests met with the protest group a few days before the sail asked the group to sail to the Diaoyu Islands from Taiwan and promised to pay for the airfares The group turned down the officials’ request and insisted sailing from Hong Kong. When the officials failed to convince the protest group, the sailing of the protest group from Hong Kong was prohibited by Hong Kong Government consequently. Source: South China Morning Post, “Protesters’ ship stopped on its way to Diaoyu Islands for second time in two days.’ 4 May 2009.

26. (2) Calling for genuine universal suffrage HK people has been urging for universal suffrage for years Article 45 & 68 of the Basic Law : Chief Executive and all LegCo members would be ultimately selected by universal suffrage in accordance with the principle of gradual and orderly progress Unknown timetable and procedures triggered discussion in the civil society and protests

27. (2) (A) Political Reforms failed to in consistent with the ICCPR and democratization In Nov 2009, the Government released the public consultation paper for political reforms discussed the methods for election of the Chief Executive and for the LegCo in 2012

28. (2) (A) Political Reforms failed to in consistent with the ICCPR and democratization Under the framework of NPCSC’s interpretation in 2007 which undermined HK’s democratization No universal suffrage for the election of Chief Executive and all LegCo members in 2012 the half-and-half ratio between LegCo members returned from functional constituencies(FCs) and geographical constituencies through direct election remained unchanged HK MAY implement universal suffrage for the CE in 2017 and for the LegCo in 2020.

29. (2) (A) Political Reforms failed to be in consistent with the ICCPR & democratization the Government’s proposal & Criticisms claimed it enhanced the democratic elements of the elections such as increasing 5 LegCo members both in district constituencies and functional constituencies tended to adopt plurality-at-large for the electorate base of the 5 new FCs Would favor the pro-Beijing politicians & twist the result of the District Council Election Would take away the one-third veto power on amendments to the Basic Law by the pan-democrats would have serious impact on the human rights protection promised by the Basic Law.

30. (2) (A) Political Reforms failed to in consistent with the ICCPR and democratization Criticisms: Duplicate of the 2005 proposal which failed to get endorsement by two-third of all Legco members Lack substantial contributions to democracy development for … No route for CE & LegCo election by universal suffrage maintaining the strict limits for the nomination of the candidates for CE election by remaining the same proportion

31. (2) (A) Political Reforms failed to in consistent with the ICCPR and democratization Criticisms: not abolishing functional constituencies(FCs), which has been criticized by the UNHRC since 1995 that: (1) maintaining unreasonable restrictions; (2) violating the principle of universal and equal, (3)giving undue weight to the business community, (4) discriminated between voters on the basis of property and functions Reference: Para. 19 of the UNHRC’s concluding Observations on the UK Government’s 4th periodic report relating to Hong Kong (1995)

32. (2) (A) Political Reforms failed to in consistent with the ICCPR and democratization Twist the universal definition of universal suffrage provided by the ICCPR according to their political interests Chief Secretary Henry Tang said the Basic Law did not require the abolition of the FCs seats and implied the FCs could be retained for universal suffrage while one person could cast two votes. A pro-Beijing politician Maria Tam Wai-chu even said the definition of universal suffrage should be determined by the Central Authority Ignorance of the UN’s recommendation that all interpretations of the Basic Law including on electoral and public affairs issues should be in compliance with the ICCPR. (Para. 18 of the UNHRC’s concluding Observations on HKSAR (2006))

33. (2) (A) Political Reforms failed to be in consistent with the ICCPR & democratization The proposal & speech implies… the Government ignores its obligations on implementing international human rights standards and covenants & repeatedly calls by the UN that the whole electoral system violated the requirements of the ICCPR and urged for immediate steps to ensure the electoral system be put in conformity with the ICCPR since 1995. the Government lacks sincerity on implementing universal suffrage Does not proactively fight for and reflect the HK People’s urges for universal suffrage to the Chinese Authority.

34. (2) (B) Police’s political neutrality in doubt – March for universal suffrage on 1 Jan 2010 In response to the Government’s proposal, there was a 30,000 protest for genuine universal suffrage (and against the sentencing of Liu Xiaobo, the key drafter of the Chart 08 manifesto for democratic reform on mainland for 11 years for subversion on Christmas Day) which was intended to end outside the Liaison Office, the symbolic representative of Beijing on 1 Jan 2010.

35. (2) (B) Police’s political neutrality in doubt – March for universal suffrage on 1 Jan 2010 The police organized about 1,000 police to monitor the demonstration on the way and had tight security outside the Liaison Office. It was reported that the police abused their power by unreasonably blocking the march on the way, unnecessarily interfered in the protest activities like distributing leaflets, needlessly visual recording the protestors with close-shot and setting the protest area distant from Liaison Office by layers of railings and human chains protecting the building. The police’s inflexible, unreasonable and strict handling led to the protestors’ discontent. Some of the radical activists broke through the cordon and charged towards the building followed by hundreds protestors for a direct acknowledgement of their demands. Dex Voeux Road outside the Liaison Office was forced to close for an hour. South China Morning Post, “Multitudes march for universal suffrage”. 2 Jan 2010

36. (2) (B) Police’s political neutrality in doubt – March for universal suffrage on 1 Jan 2010 Since then, the Police had tight security outside the Liaison Office and sent out disproportional force whenever there were protests regardless of the scale. Later the Police arrested two of the post-80s generation activists for assaulting police and disorder in public places respectively. It was regarded as white terror and the police’s political neutrality was in doubt. (Post-80s refers to generation born between 1980 and 1989)

37. (2) (b)De-facto referendum faced attacks by Central Authority and Pro-Beijing politicians 2 of the pan-democrats political parties launched the de- facto referendum by resignation of the pan-democratic LegCo members To call for… the introduction of genuine universal suffrage the abolition of FCs triggered.

38. (2) (b)De-facto referendum faced attacks by Central Authority and Pro-Beijing politicians The Central Authority suppressed the de-facto referendum on universal suffrage. For instance, strong criticisms were made by the State Council’s Hong Kong and Macau Affairs Office and the pro-Beijing politicians such as accusing the referendum for seeking independence, unconstitutional, inconsistent with the city’s legal status and challenge to the Basic Law and the central government etc. The pro-Beijing political parties would boycott the by- elections and vote down the funding. Also urges the citizens not to vote One of the lawmakers tabled a private member’s bill to limit the conditions under which a lawmaker can resign.

39. (2) (b)De-facto referendum faced attacks by Central Authority and Pro-Beijing politicians However, their arguments are not justified. Even the Basic Law does not have referendum mechanism, people can still launch a de-facto referendum as the Basic Law does not prohibit people from doing what the Law does not state. It is the freedom of speech to interpret the by-elections as referendum and make it as a way for fighting for universal suffrage instead of independence. Moreover, both voting down the funding and limit on resignations would breach Article 25 of the ICCPR, which protected every citizens’ right and opportunity, without any of the distinction and unreasonable restrictions to vote and to be elected.

40. (2) (b)De-facto referendum faced attacks by Central Authority and Pro-Beijing politicians The HK Government’s response: will arrange the by-elections according to the law The by-elections are merely by-elections as the Basic Law does not provide for any referendum mechanism. The so-called referendum does not have any legal basis and wont be recognized by the Government.

41. (2) (b)De-facto referendum faced attacks by Central Authority and Pro-Beijing politicians The HK Government’s response: Chief Executive Donald Tsang said he might not vote in the by-elections as they had been “deliberately engineered” His speech discouraged the HK people to vote and pressurized the civil servants not to vote the Government lost its political neutrality on election matters

42. (2) (b)De-facto referendum faced attacks by Central Authority and Pro-Beijing politicians The reason for suppression on the de-facto referendum by the Central Authority & HK Gov Unwilling to implement universal suffrage which gives back power to people Stress on “Stability”, “Harmony” tightening control over HK by undermining the democratization process

43. (3)Oxfam HK regarded as ill-intention by the Central Authority In mid Feb 2010 notice by the Ministry of Education on a mainland China University’s website asked the mainland tertiary students not to join Oxfam Hong Kong ’s volunteer training programmes because it was a NGO that had been trying hard to infiltrate China and its head was a key member of the opposition. The education institutions were asked to raise their alert and realized Oxfam Hong Kong had ulterior motives for the recruitment.

44. (3)Oxfam HK regarded as ill-intention by the Central Authority The programme mentioned in the notice was run for recruiting 10 to 15 social work graduates as interns serving migrant workers since 2007. Oxfam HK announced to halt the programme and waited for the clarifications by the Ministry. Despite its new Chairperson was a member of the Democratic Party in Hong Kong, he was regarded as moderate and had been invited to National Day Celebrations. Its council member was a spokesperson for the anti- express rail link alliance but the charity had rejected supporting the alliance.

45. (3)Oxfam HK regarded as ill-intention by the Central Authority The news shocked the civil society because Oxfam HK was not radical and was regarded as overly cautious in its selection of mainland partners for cooperation. It seemed to have a good relationship with the central government revealed by its size of operations since 1987. The incident sparked the worries of the fate of foreign NGOs in mainland China and its suppression on human rights advocacy and activists. Source: South China Morning Post, “Oxfam calls halt after warning”, 24 Feb 2010

46. (4) CERD Hearings in Aug 2009. The HK Government had submitted its report to the UN Committee on the Elimination of Racial Discrimination as part of China’s report on the implementation of ICERD in 2008 Hearings in Aug 2009 Gov delegation & NGOs delegation In the concluding observation, the Committee expressed concerns and made recommendations on a number of issues which covered the concerns raised by NGOs. Race Discrimination Ordinance, domestic migrant worker, refugees and torture claimants and the education for the ethnic minority school children

47. (4) CERD Hearings in Aug 2009. Race Discrimination Ordinance Committee expressed concerns on the narrow definition of the RDO which entered into full operation in July 2009 Still kept the serious defects concerned by the UN Committee(follow-up & early warning procedures), NGOs and lawmakers  (1) weak definition of indirect discrimination with regard to language; (2) excluding immigration status and nationality among the prohibited grounds of discrimination (i.e. excluding the mainlanders and asylum seekers); (3)not covering all Government functions and exercise of powers, which is the source of institutional discrimination

48. (4) CERD Hearings in Aug 2009. The Committee also recommended adopting race equality plan instead of the administration guidelines strengthening the EOC for implementation of the RDO. The Government again denied the flaws of the RDO.

49. (4) CERD Hearings in Aug 2009. Foreign Domestic Workers The committee also expressed concerns on the “two-week rule”, “live-in” requirement, deprived working conditions and the exclusion of foreign domestic worker in the Minimum Wage Bill which exploited their labor rights and discriminated them on the ground of race and non-citizen status. The Government again claimed the existing law and mechanism already protected the migrant workers’ working rights. The Government was required to hand in detailed information for the Committee’s follow-up.

50. (4) CERD Hearings in 2009 Refugee & asylum seekers The Committee expressed concerns on the lack of refugee law and screening procedure of asylum seekers. It recommended the adoption of refugee law by extending the 1951 refugee convention and its 1967 protocol to Hong Kong and a comprehensive screening procedure of asylum seekers with ensuring their rights to information, interpretation, legal assistance and judicial remedies. The Government refused to adopt refugee law again and responded it would present a legislative framework on handling the torture claims within the 2009/10 legislative session.

51. (4) CERD Hearings in 2009 Ethnic Minority School Children The Committee recommended the development of teaching Chinese as a second language education policy for the non-Chinese speaking students in consulting with teachers and the communities. However the Government refused such policy for its early integration policy and resources on current supplementary programmes.

52. (4) CERD Hearings in 2009 Refusals Despite the NGOs’ calling on meeting discussing follow-up actions regarding the Concluding Observation, the Government rejected by claiming there were number of ways including LegCo meeting and Human Rights forums for discussion. All of these showed that the Government lacked sincerity and expressed unwillingness on implementing of the Convention and the Committee’s recommendations.

53. Part 2: Latest developments regarding the establishment of a human rights commission in HK in 2009

54. 2(A) The government reiterates it has no intention of setting up a human rights commission in its reports to UPR In its report to the United Nations for the UPR of China, Hong Kong and Macao SAR in February and June 2009, the HK Government… rejected the need for hrc despite repeated calls by UN again claimed the existing framework is operating well Without any research on the effectiveness of the current system

55. Human Rights Protection Bodies Equal Opportunities Commission(EOC) Office of the Ombudsman Office of the Privacy Commissioner for Personal Data Independence Police Complaints Council (IPCC) Commissioner for Covert Surveillance

56. (2) The independence and transparency of the Equal Opportunities Commission (EOC) is in doubt EOC 4 discrimination laws on sex, family status, disability and race

57. (A)Public criticisms on the operation and performance of the EOC The performance of the EOC was criticized as lavish spending and lax supervision in the Director of Audit’s report published in April 2009. It was also criticized as taken a passive role in anti- discrimination and human rights work by the non- governmental organizations. The NGOs also urged EOC Chair Mr. Raymond Tang to resign for harming the credibility of the EOC.

58. (B)Suggest turning EOC Chair into a part-time and nominal position In response to public criticisms of the EOC (lax supervision, lavish spending, inactive) the government suggested turning EOC Chair into a part-time position again in June 2009 despite the full time nature of the Chair is stated in the Sex Discrimination Ordinance. Disappointingly, the EOC agreed with the Government’s suggestion. It showed that EOC Chairperson and the members were insensitive to the possible undermining effect on the independence and creditability of the EOC.

59. (B)Suggest turning EOC Chair into a part-time and nominal position The NGOs objected to the Government’s suggestion and worried that it aimed at restricting the autonomy and independence of the EOC by weakening the power of EOC Chair in a way inconsistent with the Paris Principles instead of solving the problems of mal-administration. worried part-time EOC Chair may become a nominal Chair as he/she may not be able to devote much time and effort on anti-discrimination work and daily operation. His/her full time work may undermine the independence and credibility of the EOC. the rank and salary for part-time EOC Chair will be lower and result in weakening the power of EOC Chair. It may hinder the negotiation between Chair and Government officials

60. (B)Suggest turning EOC Chair into a part-time and nominal position The NGOs pointed out the root causes for the EOC’s mal- administration was the non-transparent and nepotic selection process which rejected independent persons with human rights and anti-discrimination work background and lacked the participation of civil society. As a result, the nepotic Chair and members without background and commitment on anti-discrimination and human rights work were appointed and were found to hold a passive position on anti-discrimination work.

61. (B)Suggest turning EOC Chair into a part-time and nominal position the EOC’s operation was kept in dark & public had no ways to monitor its work. The NGOs also urged the Government to enhance the transparency and the operation of the EOC by filling the Membership of the EOC with high-quality independent persons in line with the Paris Principles. Eventually the Government decided to keep EOC Chair on full-time basis.

62. (C) Selection process and hiring criteria of EOC Chair in dark The Government released the recruitment advertisement for EOC Chair in Sept 2009. However, the selection process and composition of the selection board and hiring criteria setting were kept in dark. The Government again ignored the urges from NGOs to involve public in EOC Chair selection including arranging public forums. Source: Government’s Press release on open recruitment of the Chairperson of the EOC begins, 2 sept 2009. http://www.info.gov.hk/gia/general/200909/03/P200909020216.htm

63. (C) Selection process and hiring criteria of EOC Chair in dark Selection board the selection process and criteria for board members utterly lacked public participation and monitoring Questionable independence: 2 out of the 5 board members ‘re government officials. Could easily intervene the decision making on choosing the most suitable candidate and may recruit candidate who were close to government.

64. (C) Selection process and hiring criteria of EOC Chair in dark Selection Board-representation the composition of the board was not in compliance with the principle of pluralism stated in the Paris Principles. The members were all male and lacked human rights and anti-discrimination background; particularly none were from NGOs and service providers for unprivileged groups.

65. (C) Selection process and hiring criteria of EOC Chair in dark Hiring criteria heavily criticized as recruiting a CEO instead of EOC Chair Emphasis on experience in public administration and management instead of human rights and anti- discrimination background and commitment As a way to weaken the EOC as an anti- discrimination watchdog?

66. (D) The EOC’s Independence in doubt : New Chair In early Jan 2010, it was the first time in the EOC 13- year history that leadership vacuum was formed as Mr. Raymond Tang completed his five year term while the government did not announce its appointment on a new Chair. The NGOs expressed concerns that the power vacuum would lead to paralyzation on decisions making of anti- discrimination work and reflection on the Government’s unwillingness on the promotion of anti-discrimination. Source: South China Morning Post, ” EOC without leadership as chief bows out”, 12 Jan 2010

67. (D) The EOC’s Independence in doubt : New Chair The government did not reveal any news on new EOC Chair till 14 Jan 2010. The Government announced Mr. WK Lam, a former top government official, would take up the job of EOC Chair for 3-year term, which’s a shorter term than former Chairperson. The NGOs expressed concerns on the selection process in dark, failure to meet the requirement for watchdog chief stated in Paris Principles and adverse impact on the independence and the stability of the EOC.

68. (D) The EOC’s Independence in doubt : New Chair It was not the first time that the Government made the position of watchdog chief as a revolving door for government officials. It would undoubtedly harm the independence and competence of the watchdog and so does the credibility of the chief. For instance, conflicts of interest would be present as the chief may fail to perform the role as watchdog because he/she would return to government later. Worries on letting former government officials to take over the control and weaken the power of independent watchdog were also expressed. The NGOs thus urged Mr. Lam to promise he would not return to Government after being a watchdog chief.

69. (D) The EOC’s Independence in doubt : New Chair Apart from being former top government official, human rights violations such as unreasonable regulation which restricted freedom of speech (prohibition on displaying political matters on clothes) and let the police strip search a female audience without breaking any rules did occur when Mr. Lam was the CEO for the Equestrian Company. The NGOs questioned Mr. Lam’s human rights record.

70. (D) The EOC’s Independence in doubt : New Chair Mr. Lam expressed the stance in LegCo hearing that make the EOC operation more transparent abandon the previous low-key approach More dialogue with the NGOs It was unsure if the new chief would be performing the role of watchdog independently, proactive on anti-discrimination work and willing to cooperate with the civil society. Source: South China Morning Post, “anti-bias watchdog vows to be more open”. 11 Feb 2010

71. Hong Kong Human Rights Monitor Date: 5 March 2010 Editor: debbie tsui © Hong Kong Human Rights Monitor Website: http://www.hkhrm.org.hkhttp://www.hkhrm.org.hk Email: info@hkhrm.org.hk Phone: +852 2811-4488