Hong kong human rights monitor

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Shadow Report to the United Nations Committee on

the Elimination of Racial Discrimination

Regarding the Report of the Hong Kong Special Administrative Region

of the People's Republic of China

July 2001

Room 603, 18 Lyndhurst Terrace, Car Po Commercial Building, Central, Hong Kong

Phone: (852) 2811-4488 Fax: (852) 2802-6012

Email: contact@hkhrm.org.hk Home page: http://hkhrm.org.hk

Chairperson: Rev. Chu Yiu Ming Deputy Chairpersons: Philip J. Dykes Q.C., S.C. & Raymond Tsui Secretary: Winnie Kwok Treasurer: Lai Wing Yiu

Founder members: Johannes Chan John Kamm Phillip Ross Ho Hei Wah Andrew Byrnes Charles Mok Paul Harris Christine Loh

Director: Law Yuk Kai Research Officer: Nancy Stafford

Table of Contents

Part One - General 2

1.1 Background 2

1.2 How Serious is Racial Discrimination in Hong Kong? 5

1.3 Reservations 8

1.4 Failure to implement recommendations 9

Part Two – Information in relation to Articles 1 to 7 of the Convention 10

Article 1 10

1.1 Distinctions between citizens and non-citizens 10

1.1(a) Urine Tests on and Searches of Nepalese Passengers 12

1.1(b) Cancellation of visa-free stays for people from sub-Indian Continent 13

1.1(c) Operation "Hoover" – Inappropriate Questioning of Thai Females 13

1.1(d) The Case of Lin Qiaoying 14

1.1(e) Discrimination against Mainland Chinese 14

Article 2 15

2.1 Education instead of Legislation 16

2.2 Social Economic and Cultural protections 18

2.3 Two – week rule 19

2.4 Policy of promoting understanding and elimination of racial discrimination 20

2.4(a) Absence of Human Rights Commission 20

2.4(b) Limited Powers of Ombudsman in Hong Kong 21

2.4(c) Limitations on the Equal Opportunities Commission 22

2.5 Government sponsored discrimination 23

2.5(a) Wan Chai Bars 24

2.5(b) Mainland "Immigrants" 25

2.5(c) Code of Practice on Employment 25

2.5(d) Denial of Charitable Status 26

2.6 Meaningless rhetoric and bogus consultation 26

Article 3 29

Article 4 30

4.1 Current Legislation 30

4.1(a) Offences against the Person Ordinance 31

4.1(b) Societies Ordinance 31

4.1(c) Television Ordinance 31

4.1(d) Telecommunications Ordinance and Film Censorship Ordinance 32

4.1(e) Government practices 32

Article 5 33

5.1 Treatment before the Courts 34

5.2 Security of person 34

5.3 The Right to Vote 35

5.3(a) Foreign Domestic Helpers' Right of Abode and the Right to Vote 36

5.3(b) Right of Abode 37

5.3(c) Standing for Election and Access to Public Service 39

5.4 Nationality 40

5.5 Citizenship issues for Vietnamese migrants 41

5.6 Employment 42

5.7 Equal pay for equal work 42

5.8 Housing 43

5.9 Medical Services 44

5.10 Education of South and South East Asian Children 45

5.11 Equal treatment before tribunals 46

5.12 Right to leave the country 46

5.13 Mother-tongue teaching 47

5.14 Absence of Legal Remedies Against Private Businesses 48

5.15 Problems with Access to Public Transportation 48

5.16 Legislative Councilor Choy So Yuk's Proposal to Impose 20% Service Charge for Foreign Domestic Helpers' Use of Public Facilities 49

Article 6 49

Article 7 50

Part One - General

1.1 Background

The International Convention on the Elimination of All Forms of Racial Discrimination (the "ICERD" or the "Convention") was extended to Hong Kong in 1969 by the British Government. In 1991, the People's Republic of China notified the United Nations Secretary-General that the Convention would continue to apply to the Hong Kong Special Administrative Region ("HKSAR") with effect from 1 July 1997, the date of Handover of Hong Kong to China. However, even though the HKSAR has been covered by the Convention for 32 years, it has failed to enact legislation prohibiting racial discrimination in the private sector. In 1991, 22 years after the application of the Convention to Hong Kong, the Government enacted the Bill of Rights Ordinance (BORO)1 but this only prohibits discrimination by the Government and public authorities. It is also unclear if the BORO is applicable to branches of Chinese central authorities in Hong Kong.

Not only has the Government refuse to enact legislation, but it has also engaged in efforts to block or defeat several private member bills introduced by Anna Wu in 1995, Elizabeth Wong in 1997, and Christine Loh in 1998.
In the concluding observations of the most recent reporting by the Hong Kong Government to the Committee on Economic Social and Cultural Rights ("CESCR"), the CESCR stated:

"It is the Committee's view that the HKSAR's failure to prohibit race discrimination in the private sector constitutes a breach of its obligations under article 2 of the Covenant. The Committee calls upon the HKSAR to extend its prohibition of race discrimination into the private sector."2 (emphasis added)

Despite this admonishment, the Government continues to consider legislation unnecessary.
It was not until 1997 that the Hong Kong Government first carried out a consultation exercise to invite public comment on the issue of racial discrimination.3 The Government's stated objective was to "establish whether racial discrimination exists in Hong Kong and if so, its nature, extent and possible options for addressing such problems as may be found to exist."4
This consultation exercise was pretentious and flawed. First, the consultation exercise, though purportedly a treaty-compliant measure, was in essence a denial of the treaty obligation to legislate to prohibit racial discrimination by private actors and a refusal to adopt the recommendations on this issue by various treaty bodies, including those by the Committee on the Elimination of Racial Discrimination (the "Committee"). This consultation appears to have been a measure to appease the Committee on the eve of its consideration of the Government's report.
Second, the consultation exercise was an effort to employ a "majority" voice to drown out the voice of ethnic minorities. It is fundamentally wrong to let the majority decide whether the rights of minorities should be protected by legislation or not. Moreover, minorities who do not speak English or Chinese may not have understood the consultation process, or had the ability to submit comments in one of the two 'official' languages of Hong Kong. Yet, the Government relies on the outcome of this consultation to justify the failure to enact anti-race discrimination legislation for the private sector.
Third, although the Government conceded that racial discrimination does exist, to the extent that the survey disclosed racial discrimination, such discrimination was ignored, downplayed, or attributed to factors other than racial discrimination, such as economic or class discrimination (e.g. discrimination against migrant domestic workers).
In January 2001, the HAB released a survey on the characteristics of the ethnic minorities.5 The objectives of this survey were twofold. First, to establish the size, distribution and demographic profiles of Hong Kong's ethnic minorities. Second, to identify the special needs of the minority groups and the difficulties they are facing.6 This survey was also flawed.
First, the report defines ethnic minorities as "persons who are non-Chinese"7 and therefore does not address the problems faced by new arrivals from the Mainland. These Mainland Chinese are considered under the CERD as an identifiable minority based on place of origin, an interpretation endorsed by the Hong Kong Government and NGOs.
Second, while the respondents were asked numerous questions, including if they had encountered 'difficulties' (a term not defined), they were not asked if they had experienced racial discrimination. Moreover, when a response indicated they had 'difficulties' with housing, job, transport, medical, education, etc. it does not appear that the type of difficulty was identified, just whether there was difficulty.
Even though the Chief Executive has admitted that race discrimination is a problem in Hong Kong,8 the Government has consistently refused to acknowledge the need for anti-discrimination legislation in Hong Kong, stating that education is preferable to legislation. It was encouraging on 25 April 2001 when Mr. WK Lam, Secretary for Home Affairs said that the Government would reassess the public view toward this type of legislation. He stated, "we are now planning to proactively engage the community, including the ethnic minorities, in another round of active dialogue on this issue."9 Moreover, on 9 May 2001, Mr. John Dean, Principal Assistant Secretary for Home Affairs, stated that "under the covenant (sic) we have to prohibit racial discrimination, and you cannot prohibit something without legislation."10 Unfortunately, on 15 June 2001, the Chief Executive, Mr. Tung Chee-hwa, told the Legislative Council that laws to tackle racial discrimination are not the best solution to the problem.11 At this time, there is not a clear understanding of what the Government's position on this matter is. This is appalling that Hong Kong has been a party to the ICERD for over 30 years and still does not have either implementing legislation or a commitment therefore.
The Hong Kong Human Rights Monitor is concerned because: (1) the Government deliberately does not propose to make a decision on race legislation until early next year,12 and (2) it continues to believe that the views of the public, specifically the business sector, can abrogate their obligations under the Convention.
For many years, the Government has claimed that equal opportunities legislation prohibiting racial discrimination would in fact lead to racial disharmony. It was reported that members of the pre-handover Executive Council felt that the issue of racial discrimination was too politically sensitive.13 The Government continues to claim that such legislation may lead to disruption in social harmony. Similar predictions by the Government in respect to equal opportunities legislation on gender, disability and family status have been proven wrong. All available information from countries, which have enacted legislation prohibiting racial discrimination, indicates that legislation has a positive effect in reducing disharmony through its educative effect as well as by protecting those racial minorities who have been unfairly treated. If the Government truly fears disharmony, that would indicate that the current race problem runs much deeper than the Government is admitting to and is, in fact, more of a reason to legislate. Moreover, the Government does not point to any evidence to support its contention, beyond the Chief Executive's recent unfounded assertion that legislation has not helped in the US or the UK.
Likewise, opponents of race discrimination legislation state that it would result in an enormous influx of court cases. Again if this is true it only compounds the need for legislation. Additionally, similar arguments by the Government in respect of legislation regarding gender, disability and family status were again proved to be unfounded.

1.2 How Serious is Racial Discrimination in Hong Kong?

Despite the Government's pretences, numerous surveys by academics, the press, the Human Rights Monitor and other NGO's provide incontrovertible evidence that racial discrimination is a serious problem in Hong Kong. The following is a summary of the results of these surveys:

  1. A survey by Amnesty International and Oxfam Hong Kong on Human Rights14

  • Among the interviewees, only 56.9% of the secondary school students, 73.8% of the student-teachers and 89.6% of the teachers felt that Vietnamese refugee children in Hong Kong should have the right to education.

  • 50.8% of the students, 61.3% of the student-teachers and 84.5% of the teachers agreed that domestic helpers, who are overwhelmingly non-Chinese, should have medical compensation from their employers and access to legal aid.

  1. Joint survey by the University of Hong Kong and Society for Community Organization15

  • 70% of female migrants from Mainland China are unemployed.

  • most of the employed migrants are subject to unfair treatment at the workplace.

  • 75% of those employed are required to work more than 63 hours per week.

  • approximately 80% of those employed earn HK$6000 or less per month.

  • respondents also complained of difficulties in having their Mainland Chinese qualifications (in nursing, for example) recognized in Hong Kong.

  1. Chinese University Poll (conducted by Professor Kenneth Chau Kin-Lam)16

  • New migrants from the Mainland are generally seen as uneducated and dirty.

  • 80% of those surveyed thought that new arrivals had a low level of education.

  • 75% believed that immigrants' concept of the rule of law was very weak.

  • 60% thought mainland migrants would take up locals' jobs.

  • 30% had no intention of getting acquainted with newly arrived migrants.

  1. Survey by Caritas Community Center17

  • More than half of the members of a migrant family are required to have lived in Hong Kong for seven years before the family could be eligible to live in public housing.

  • This survey on 1000 newly arrived immigrants found that more than half of these migrants' families lived in rooms of 100 sq. ft. or less as a result of this harsh rule.

  • Some families of 3 to 4 members are living in rooms of 30 to 40 sq. ft.

  1. South China Morning Post Investigation18

  • Discriminatory bar practices in Wan Chai district Bars were found by the newspapers' investigators to be operating on a colour-code: Chinese and Indian customers were being charged an admission charge substantially higher than Caucasians, who were often allowed to go into these clubs for free.

  • Bar management generally stated that Chinese and Indians cause more fights and get drunk faster than Westerners, therefore, they were charged a cover.

  1. Chinese University survey "The Images of Asia-Pacific in Hong Kong"19

  • 2% of interviewees think that Vietnamese people living in Hong Kong should be deported.

  • 5% of interviewees think that Indonesians living in Hong Kong should be deported.

  • Interviewees were also found to be least willing to develop social relationships with Thais, Filipinos, Vietnamese and Indonesians. They are much more willing to associate with Canadians, Japanese, Australians, and Americans.

  1. Pilot Survey by Human Rights Monitor20

  • Respondents: 17 Europeans, 84 Filipinos, 22 others21

  • 98 out of 123 (approx. 80%) respondents (minorities) supported anti-discrimination legislation.

  • 67% had been witnesses/victims of racial discrimination.

  • Racial discrimination was witnessed/experienced in such diverse areas as employment (hiring, firing, advancement), admission to facilities, sale/delivery of goods or services, Government services, and home purchase or rental.

  1. Survey of discriminatory practice in real estate rental business22

  • Ethnic Caucasians, Chinese and Pakistanis posed as customers with the same exact requirements, salary and family size in search of rental housing in Hang Fa Chuen and Prosperous Gardens (Yau Ma Tei).

  • Caucasians and Chinese customers were shown more and better flats, while Pakistani customers were shown fewer flats of worse quality.

  1. Hong Kong Transition Project Survey23

  • 837 respondents were randomly selected for a telephone survey regarding their experience with age, race, religious, sexual orientation, gender, disability, class, language, regional, national origin or political discrimination.

  • The survey included 82% classifying themselves as Hong Kongers, 6% as Expatriates, 7% as Mainlanders or other professionals, with the remainder as other.

  • 8% of the respondents reported experiencing some form of racial discrimination.

  1. Baseline Research on Racial and Gender Discrimination24

  • Objectives: To determine if there is discrimination against foreign domestic helpers, and if so, determine how significant it is and what are the indicators and patterns of such discrimination.

  • 2,500 foreign domestic helpers were interviewed

  • at least 25% experienced violations of contract (15.2%, primarily Indonesians, paid under the minimum wage of HK$3,670 per month, 22.1%, primarily Indonesians, did not get their mandatory weekly rest day, 26% did not receive all of their statutory holidays.)

  • over 25% experienced verbal/physical abuse, with a significant incidence of sexual abuses.

  • Mean average years with their employer 2.6 years

1.3 Reservations

On 29 December 1981, the People's Republic of China (the "PRC") acceded to the Convention. On 10 June 1997, the PRC notified the United Nations that the Convention would continue to apply to Hong Kong effective 1 July 1997. The PRC made the following declaration:

"1. The reservation made by the Government of the People's Republic of China to Article 22 of the Convention will also apply to the Hong Kong Special Administrative Region.25

2. The Government of the People's Republic of China on behalf of the Hong Kong Special Administrative Region interprets the requirement of Article 6 concerning "reparation and satisfaction" as being fulfulled (sic) if one or other of these forms of redress is made available and interprets "satisfaction" as including any form of redress effective to bring the discriminatory conduct to an end."26

As the UN Human Rights Committee has stated with regard to reservations to the International Covenant on Civil and Political Rights, "it is desirable for a State entering a reservation to indicate in precise terms the domestic legislation or practices which it believes to be incompatible with the Covenant obligation reserved; and to explain the time period it requires to render its own laws and practices compatible with the Covenant, or why it is unable it render its own laws and practices compatible with the Covenant. ... Reservations should be withdrawn at the earliest possible moment."27
Human Rights Monitor believes that the same considerations should apply as well to reservations made to the ICERD. As such, Human Rights Monitor requests your Committee to urge the Government to withdraw such reservations at the earliest possible date. The Government should also be requested to explain the reasons why the reservation is necessary and to clarify the time by which the Government will bring Hong Kong's laws and practices in conformity with the Convention and will withdraw the reservation. Your Committee is requested to comment on the validity of the reasons proposed by the Hong Kong Government and the proper course of action to be adopted by the Government, if the Government can provide any valid concern.

1.4 Failure to implement recommendations

The Government has failed to implement the suggestions and recommendation made during consideration of the prior report for the region. Particularly:

  • Recommendation to give full effect to the provisions of the Convention in domestic legislation.

  • Recommendation to give special attention to the situation of foreign workers and the "two-week rule".

  • Recommendation to adopt specific legislation prohibiting racial discrimination, in line with the provisions of the Convention.

The Government has received recommendations by:

  1. your Committee (1997);28

  2. the Human Rights Committee (1995 and 1999);29 and

  3. the Committee on Economic, Social and Cultural Rights (1994, 1996 and 2001)30

regarding legislation to prohibit racial discrimination in the private sector. However, even given that this is the UN designated International Year of Mobilization against Racism, Racial Discrimination, Xenophobia and Related Intolerance, the Government, in response to a Legislative Council question regarding the CESCR breach (on failure to enact such legislation), refused to commit to legislation.
Human Rights Monitor urges your Committee to condemn the HKSAR Government for the failure to legislate to prohibit race discrimination in the private sector.

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