Select Committee on Foreign Affairs Minutes of Evidence

APPENDIX 5

Memorandum submitted by the Hong Kong Human Rights Monitor

TRADE UNIONS

  144. Article 27 of the Basic Law guarantees Hong Kong people the right and freedom to form and join trade unions and to strike.14 Article 18 of the Bill of Rights Ordinance 1991 also guarantees the right to freedom of association which includes the right to form and join trade unions for the protection of the worker's interests. In general, the HKSAR government is not averse to the formation of trade unions and similar activities but enforcement of workers' rights can be questionable. It is not uncommon for employment contracts to stipulate that walking off the job is a breach of contract that could lead to summary dismissal.15 The possibility for challenging such action has recently been dampened by the HKSAR's repeal of a pre-handover amendment to the Bill of Rights Ordinance which had allowed the application of rights provisions between private individuals.

  145. In the last session of the legitimate Legislative Council prior to the handover, three private member's bills introduced by Legislators Lee Cheuk-yan and Lau Chin-shek were passed to counter reservations made by the colonial government to ILO Convention No. 87.16 The bills, inter alia, made it a statutory requirement for:

—  employers to consult the trade union representative on matters relating to their workers' interests where the employer has a workforce of over 20 and more than 15 per cent of his/her employees are members of that union;

—  workers to be covered by a collective agreement negotiated by the trade union representative where the employer has a workforce over 50 and where more than 50 per cent of that workforce are represented by that union;

—  workers to have a right to make civil claims against acts of anti-union discrimination17 and to place on the employer an evidential burden to show that he did not so discriminate; and

—  the Labour Tribunal to hear anti-union discrimination cases and to be able to grant remedies including compensation, punitive damages and reinstatement.

  146. One of these laws, the Trade Unions (Amendment) (No. 2) Ordinance was amended by the HKSAR government to make it a requirement for unions to notify the Registrar of Trade Unions within a month of joining a foreign labour organisation. The Chief Executive would have to grant permission before unions became members of any foreign organisation apart from those concerning workers, employers and relevant professional organisations. The Chief Executive also would have to approve any contribution or donation of funds to or from foreign trade unions and the use of trade union funds for political purposes was prohibited.18

  147. The HKSAR Government claimed that the Bill relating to collective-bargaining would require employers to consult their employees on "sensitive commercial decisions" which would "adversely affect Hong Kong's economic competitiveness and attractiveness to overseas investments to the detriment of the employment opportunities of the entire workforce".19 Of the anti-union discrimination clauses, the Government held that it was inappropriate for the Labour Tribunl to involve itself in staffing matters taken by private companies and any reinstatement would "sour employer-employee relations".20 At the Government's request, both these laws were repealed by the appointed provisional legislature.

FREEDOM OF EXPRESSION

  148. Hong Kong people have for the most part enjoyed their right to free expression. However, this freedom has come increasingly under threat especially in the run-up to the handover and beyond. The Chinese authorities have flexed their muscles in various incidents in the last few years and this has resulted in shock-waves across the territories.

Arrest and detention of Xi Yang

  149. The arrest and detention of Hong Kong based reporter, Xi Yang, sent a clear message to the Hong Kong press. Xi Yang, a journalist for the Hong Kong newspaper, Ming Pao, was sentenced to 12 years' imprisonment in March 1994 by a Chinese court for allegedly "stealing financial secrets" in violation of the State Security Law. His "crime" was that he had gathered information for an article on central bank economic strategies and interest rates for loans. Xi Yang's journalistic activities were carried out in the normal way, but his misfortune was that the Chinese Government were unhappy about the evidence that he had gathered. Xi Yang was released in January 1997. It is widely believed that the detention of Xi Yang was politically motivated to threaten Hong Kong journalists.

  150. In March 1996, Raymond Wong, the Vice-Chairperson of the News Executive Association, informed the Information Policy Panel of the Legislative Council that at least 10 reporters from a Hong Kong television station had been detained for periods as long as six hours by the Chinese Authorities.21

Statements made by chinese officials on press freedom

  151. In May 1996, the Director of Hong Kong and Macau Affairs, Lu Ping, commented that although press freedom was fully protected in the Basic Law, Hong Kong journalists would not be permitted to write about Hong Kong or Taiwanese independence, nor should they advocate "two Chinas". In another press conference, he went on to say that "If someone advocates, it is not a matter of press freedom; it is an action".

  152. In July 1997, China's Information Minister suggested that after the transfer of sovereignty, local journalists should look to the press in China for "guidance" on what is proper to report.

  153. The Deputy Director of Xinhua (the de facto Chinese embassy of Hong Kong) made a statement that, with regard to the peaceful 4 June demonstrations in commemoration of Tiananmen:

"it is up to the laws passed by the post-1997 Government to determine if these events continue. But I can tell you one thing: This is certainly not a patriotic activity. It also disturbs public order".

  154. In an interview with the Asian Wall Street Journal in 1997, the Chinese Vice-Premier Qian Qi-chen said that local activities to commemorate the 4 June crackdown would be prohibited on the grounds that such activities would "directly interfere with the mainland". With regards to press freedom, the Vice Premier warned that the press, "could put forward criticisms, but not rumours and lies" and that they "cannot put forward personal attacks on Chinese leaders".

  155. Most recently, there have been threats to the editorial independence of Radio Television Hong Kong (RTHK). Under a framework agreement between RTHK and the colonial government this independence was guaranteed to RTHK despite its governmental role. Originally there was a plan to let RTHK become an independent corporation like the BBC but in 1994 the Government reversed its position after China strongly opposed the plan in the Sino-British Joint Liaison Group (JLG).

  156. In March 1998, a member of the provisional legislature, Mr Wong Siu-yee attacked RTHK's independence. He criticised RTHK for not toeing the government line and for allowing its journalists to criticise China and Mr Tung Chee-hwa "from dawn to dusk". This was followed by another attack by Mr Xu Simin, a Hong Kong delegate to the Chinese People's Political Consultative Congress (CPPCC) who criticised the HKSAR government for spending public money to enable RTHK to attack the PRC and Tung. Mr Tung's reply to these statements, that also intimated that RTHK was and should be treated like a government department, was "slowly, slowly".22 Local outcry to this response prompted the Acting Chief Executive, Ms Anson Chan (Chief Secretary for Administration), to state publicly that criticism of the Hong Kong government should take place in Hong Kong, not Beijing, in order to avoid the impression of inviting intervention from Beijing on domestic affairs.

  157. Mr Tung's reaction and his subsequent silence has been particularly disturbing in the light of recent reassurances by the Secretary for Broadcasting, Culture and Sport on 27 November 1997 that RTHK's editorial independence would not be reviewed. However the local press has since reported that in a meeting between Mr Tung and the Information Secretary for Technology and Broadcasting (a newly created post to handle broadcasting matters) Designate there were discussions on how to "cure" RTHK. These reports have not been responded to by either Mr Tung or the Policy Secretary.

  158. More recently, Mr Tung has also made statements warning that Hong Kong is no place for anti-Beijing activities.

PRIVACY

  159. Section 33 of the Telecommunications Ordinance allows the Governor or any other public officer authorised by him to order that any message or class of messages being transmitted be intercepted, detained or disclosed to the Governor or public officer if the "public interest" so requires.

  160. Article 17(1) of the ICCPR states:

"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation."

  161. Section 33 clearly breaches Article 17(1) as well as Article 14 of the Bill of Rights in that it allows for the arbitrary interference with an individual's privacy. The "public interest" is undefined in the Ordinance. In practice, the police and other institutions in Hong Kong very freely resort to interception methods such as wire-tapping. There is little, if any, regard for the individual's right to privacy.

  162. In the last days before the handover, a private member's bill was introduced and passed by the legitimate Legislative Council which contained legislation on the interception of communications. After being substantially watered down by various amendments, the bill left section 33 of the Telecommunications Ordinance intact but only disallowed any other interception of communications unless such other interceptions were carried out under the authority of a warrant issued by a High Court judge. In making his or her decision, the High Court judge was to consider strict criteria derived from the principle that interceptions must only be carried out as a last resort measure. Further, absolute care was to be taken to safeguard any information gathered from the interception. Although the statute received the signature of the outgoing governor, the bill provided that the date for its provisions to take effect was to be appointed by the Secretary for Security. To date, no such appointment has taken place and it looks likely that this statute will remain shelved indefinitely.

  163. In December 1996 the Data Protection (Privacy) Ordinance was brought into force. This is modelled on the UK Data Protection Act, but extends to all data, not just data held on computer. Shortly after it came into force the well-known pro-democracy politician Emily Lau made a data request to China's unofficial de facto embassy in Hong Kong, the New China News Agency ("Xinhua"). By law Xinhua was required to reply within 40 days stating whether or not it held any data on her. Xinhua replied after 10 months that it did not hold any data. Apart from being incredible, the response was eight months later than allowed by law. The Privacy Commissioner, the official responsible for enforcement of the data protection laws, referred the case to the Department of Justice for consideration of prosecution. The Department announced that it would not prosecute, and when questioned about the case Mr C H Tung described the eight months' delay as a "technical breach" of the law. This is one of the most serious examples so far of the erosion of the rule of law.

EXEMPTION OF MAINLAND BODIES FOR HKSAR LAWS

  164. Another incident reinforces the strong suspicion among Hong Kong people that important political figures with close ties to Chinese Authorities are immune from the enforcement of the law. It involves a Chinese People's Political Consultative Committee member Sally Aw Sian in the Hong Kong Standard fraud case. Three other defendants are alleged to have conspired with Sally Aw Sian to inflate the circulation of their newspaper. Although Sally Aw Sian is named in the charge sheets of other defendants involved in the alleged conspiracy, she has not been prosecuted. The Secretary for Justice owes the public an explanation.

  165. The non-prosecution of Xinhua and of Sally Aw Sian casts doubt on whether Tung's Government is determined to enforce Hong Kong laws fairly with respect to Mainland bodies in Hong Kong or people with close ties to those bodies.

  166. Article 22 of the Basic Law provides, "All offices set up in the Hong Kong Special Administrative Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region." Legislative history reveals that this article is deliberately included in the Basic Law to ensure that no Mainland bodies would be immune from local legal restraints.

  167. The most recent development went beyond unfair administration of the law—Tung Chee-hwa's Government has just enacted a law to exempt retrospectively these Mainland bodies from the scrutiny of at least 500 Hong Kong statutes. His Government rushed the law through the Provisional Legislative Council although he has been constantly reminded of the legal implications and there is no urgency to enact such a law. Despite strong opposition from the legal profession, human rights organisations, and many other people in Hong Kong, on grounds that the law is inconsistent with the Basic Law and is damaging to Hong Kong's autonomy, Tung's Government was undeterred, claiming the enactment as "technical".

  168. Despite Tung Chee-hwa's frequent assurances that he is committed to the rule of law, his Government seems to be more interested in the rule by law. His Government fails repeatedly to enact laws in conformity with international human rights standards or in line with the rights guaranteed in the Basic Law. Legislation proposed by his Government often unnecessarily restricts the rights and freedoms of the Hong Kong people. Such legislation also erodes the autonomy of Hong Kong as promised in the Joint Declaration and, to a lesser extent, guaranteed in the Basic Law.

  169. Equally unfortunate, the British Government has washed its hands and resorts to misrepresent the situation in Hong Kong. It concludes in its first half-yearly report on Hong Kong after the hand-over that the rule of law in Hong Kong is "assuring", a clear misjudgment and misrepresentation of the real situation. Such misleading statements not only indicate a lack of commitment by the British Government to ensure the full implementation of the Joint Declaration, but also provide the SAR Government with the necessary pretences to cover up its gradual erosion of the much needed legal protections.

Recommendations for action

  170. We call on the committee in its report, if any, to:

(1)  highlight the shortcomings in the rule of law and the democratic process documented in this report;

(2)  condemn the fundamentally flawed electoral process for the 1998 Legislative Council elections;

(3)  press for faster progress towards genuine democracy in Hong Kong;

(4)  condemn the erosion of the right to free trade union and other labour rights by the SAR Government.

ble to trace their lineage to inhabitants of the area when the British first occupied the New Territories in 1899.

2 Section 16, Legislative Council (Amendment) Bill 1997.

3 See National Democratic Institute, The Promises of Democratisation in Hong Kong—the New Election Framework, NDI Hong Kong Report No. 2 (October 1977) pp. 10-12.

4 Ibid.

5 This includes the Democratic Party, the Frontier and Citizens Party, as well as independent candidates.

6 At the time, the UK Government sought to justify functional constituencies on three grounds:

When the UK Government ratified the ICCPR and extended it to Hong Kong, they reserved the right not to apply Article 25(b) of the ICCPR insofar as it may require the establishment of an elected Executive or Legislative Council in Hong Kong.

Articles VIII(3) of the Letters Patent, Hong Kong's then constitution, was amended to provide that: "Nothing in this Article shall be construed as precluding the making of laws which, as regards the election of the Members of the Legislative Council, confer on persons generally or persons of a particular description any entitlement to vote which is in addition to a vote in respect of geographical constituency".

The ICCPR recognises that different states are at different stages of political development and this has to be taken into account in the context of Hong Kong.

7 Concluding Observations of the Human Rights Committee at its 55th session, 1 November 1995, paragraph 19.

8 Majority vote goes democrats' way, South China Morning Post, 3 August 1997.

9 Schedule 2, Legislative Council (Amendment) Bill 1997.

10 Article 67.

11 These Articles guarantee the right to life, protection against torture or cruel, inhuman or degrading treatment, against slavery, against imprisonment for not fulfilling a contractual obligation, against being found guilty of a criminal offence where the act committed is not a criminal one, the protection of the right of recognition as a person before the law, and protection of the right to freedom of thought, conscience and religion.

12 (1991) HKPLR 261.

13 The Hong Kong Human Rights Monitor, Briefing Paper for the United Nations Human Rights Committee, October 1995.

14 This is also guaranteed by Article XIII of the Sino-British Joint Declaration 1984.

15 US Department of State Hong Kong Report on Human Rights Practices for 1997, 30 January 1998.

16 Trade Unions (Amendment) (No. 2) Ordinance 1997, Employees' Rights to Representation, Consultation and Collective Bargaining Ordinance and Employment (Amendment) (No. 4) Ordinance 1997.

17 Under the current legislation, only a criminal prosecution could be brought and no remedies such as reinstatement or compensation can be made.

18 The three bills were initially suspended by the Provisional Legislature post-handover by the Legislative Provisions (Suspension of Operation) Bill 1997, then repealed on 29 October 1997 by the Provisional Legislature.

19 See Information Paper for the Bills Committee from the Hong Kong Education and Manpower Bureau (July 1997).

20 Ibid.

21 1996 Annual Report of the Hong Kong Journalists Association, pp. 19-20.

22 Tung Sparks Autonomy Fears, South China Morning Post, 5 March 1998.

April 1998

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Prepared 7 August 1998