Joint Submission to the UN Human Rights Committee

Joint Shadow Report by Hong Kong NGOs coordinated by the Hong Kong Human Rights Monitor to the UN Human Rights Committee for its hearings of the HKSAR report under the ICCPR

12 March 2013

Contents

Paragraphs Issues 1-5 A.Universal Suffrage (Articles 1, 2, 3, 25 & 26)

6-10 B. The Rule of law (Articles 2, 14 & 26)

11-18 C.Sexual Orientation & Equality (Articles 2, 3, 23 & 26)

19-20 D.Transgender Persons (Articles 2, 3, 7, 10, 23 & 26)

21-22 E. Race Discrimination Ordinance (Articles 1, 2, & 26)

23-26 F. Equal Opportunities Commission (Articles 2, 3, 20, 26 & 27)

27-34 G. Press Freedom (Article 19)

35-36 H. Archive Law (Articles 2 & 19)

37 I. Stalking Law (Articles 19 & 21)

38 J. Parody and Copyright Law (Article 19)

39 K. Charity Law (Articles 19, 22 & 25)

40-45 L. Freedom of Assembly and Police Powers (Articles 2, 17, 19 & 21)

46-49 M. Academic Freedom (Articles 7 & 19)

50 N."National Education" vs. Civic Education (Article 19)

of 30 Joint Submission 51-53 O. National Security Law under the Article 23 of the HKSAR Basic Law (Articles 2, 4, 9, 14, 17, 18, 19, 21, 22, 25 & 26)

54-56 P. Restriction on Freedom of Movement (Articles 12 & 19)

57-59 Q. Legal Aid (Articles 2 & 14)

60 R. Sex Workers (Articles 2, 3, 9, 10, 14 & 26)

61-63 S.Refugees and CAT Claimants (Articles 6, 7 & 13)

64-65 T. Ethnic Minorities (Articles 2, 20, 25 & 26)

66-69 U. Migrant Domestic Workers (Articles 2, 7, 8, 12 & 26)

70-71 V. Split Families (Articles 2, 23, 24 & 26)

72 W. Persons with Disabilities (Articles 1, 2, 25 & 26)

of 30 Joint Submission A. Universal Suffrage (Articles 1, 2, 3, 25 & 26)

1. The Basic Law stipulates:

"The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures."1

The Standing Committee of the National People’s Congress decided in 2007 that universal suffrage may be implemented for the Chief Executive in 2017, and for the Legislative Council in 2020.2 The decision3 also made it clear that when universal suffrage for the Chief Executive is implemented by 2017, the nominating committee must be formed with reference to the current provisions regarding the Election Committee in Annex I to the Basic Law.4 In the past, the Election Committee has been based on restricted franchise system, akin to functional constituency elections, and has not represented the general public.

2. More importantly, there are calls from the business and privileged sectors to prevent the Chief Executive elections ("CE elections") in 2017 from being elected by genuine universal and equal elections. The problems include unreasonable restrictions on who could be validly nominated and placed on the ballot to be voted on by the general electorate. Such unreasonable restrictions include: * a cap on the number of candidates; * exclusion of candidates with any political or party affiliations; * tight control of the composition and membership of the Nominating Committee; * unreasonable nomination requirements including - a high nomination threshold; and/or - nomination thresholds consisting of a certain percent in each of the sectors of the Nomination Committee; and/or - preliminary elections or other forms of vetting by the nominating committee; so as to screen potential candidates for the CE elections.

3. A related matter is whether to give regular Hong Kong permanent residents the right to nominate forward candidates, for example nomination

1 Basic Law, Article 45. 2 The interpretation has deprived Hong Kong people the rights to universal and equal suffrage in the 2007-2012 Chief Executive elections and in the 2008 to 2016 LegCo general elections. 3 “Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2012 and on Issue Relating to Universal Suffrage”. Available at: http://www.basiclaw.gov.hk/en/materials/doc/2007_12_29_e.pdf 4 The Election Committee is composed of 1200 members from the following 4 sectors (300 members each): (1) industrial, commercial and financial sector, (2) the professions, (3) Labour, social services, religious and other sectors, and (4) Members of the Legislative Council, representatives of district-based organizations, Hong Kong deputies to the National People’s Congress, and representatives of Hong Kong members of the National Committee of the Chinese People’s Political Consultative Conference. The nomination threshold ratio was 1/8 in 2012.

of 30 Joint Submission after collecting a certain number of signatures, for the Nominating Committee's consideration. The HKSAR government’s denial of voters’ nominations infringes on the right to universal and equal suffrage.

4. A functional constituency system does not amount to direct, universal and equal suffrage. There have been calls to continue functional constituencies, by requiring potential candidates to be nominated by their respective sector or constituency before being put forward for the general electorate to cast their vote. This plan would not result in universal and equal suffrage.

5. We urge the Committee to clearly denounce unreasonable restrictions, such as vetting and pre-screening potential candidates, especially in the Chief Executive elections, and to denounce modified forms of functional constituencies, as these are inconsistent with the Covenant, especially articles 2, 3, 25 and 26, and we urge the Committee to clarify the right to universal and equal suffrage and to participate in public as regards eradicating these unreasonable hurdles.

 Recommendation # 1: We ask the Committee to require the HKSAR government to implement universal suffrage in a way consistent with all Covenant rights, especially the equal right to nominate and be nominated to run for elections, and to run for elections and be elected.5 No distorting elements and pre-screening. nor unreasonable thresholds, should be adopted in the nomination process or mechanism in all the Chief Executive and Legislative Council Elections.

B. The rule of law (Articles 2, 14 & 26)

6. At times, the rule of law in the HKSAR has been under pressure from individuals with influential political backgrounds and from certain media favouring the Mainland authorities. For example, senior Chinese leaders including Xi Jin-ping, current China president have asked judges to cooperate with the Chief Executive during his trip as vice president to Hong Kong in 2008.6 Recently Ms. Elsie Leung, the HKSAR first Secretary for Justice who is also currently a Deputy Chairperson of the Committee for the Basic Law, alleged that the legal profession in Hong Kong, including judges, had a poor understanding of and misunderstood the Central-HKSAR relationship in Oct 2012,7 which suggests that she may be more interested in supporting the Central PRC government then she is in supporting the

5 “take the necessary measures to ensure enjoyment by all its citizens of the rights provided for in article 25 of the ICCPR, taking due account of the Committee's general comment No. 25 (1996) on article 25 (Participation in public affairs and the right to vote)” (CCPR/C/AZE/CO/3) 6 Ambrose Leung and Fanny W. Y. Fung, “Xi tells Tsang to 'govern sensibly'”, South China Morning Post, 8 July 2008. 7 See Hong Kong Bar Association, “HKBA Press Statement in Response to Recent Remarks Made by Ms Elsie Leung” http://hkba.org/whatsnew/press-release/HKBA%20Press%20Statement %20dated%2010%20Oct%20(Eng).pdf

of 30 Joint Submission HKSAR Judiciary and legal profession, which is what she is supposed to do as HKSAR Secretary of Justice.

7. Mr Justice Kemal Bokhary, who retired as a permanent judge of the Court of Final Appeal, on his last day in the job on 24 Oct 2012 warned that clouds heralding a “storm of unprecedented ferocity” were gathering over the rule of law in Hong Kong and voices disrespecting Hong Kong’s autonomy are growing louder and louder.8

8. Zhang Xiaoming, the deputy director of State Council’s the Hong Kong and Macau Affairs Office and the current head of Chinese Liaison Office in Hong Kong, wrote an article commenting on the implementation of “one country, two systems”. It was published in pro-Beijing newspaper Wen Wei Po on 22 November 2012 and was included in a study guide to the report of the 18th national congress of the Communist Party of China, which made people worry as to whether the Central authorities intend to beef up the role they play in Hong Kong affairs. In his article, Zhang insisted that the central authorities had powers than that deal with HKSAR’s foreign affairs and defence. He emphasized that the Standing Committee of the National People’s Congress had legitimate power to interpret the Basic Law9 . He was critical of those who “defy the power of the Standing Committee of the National People’s Congress (SCNPC) to interpret Basic Law provisions on the grounds that, under the common-law system, it is up to the courts to interpret legislation; hold the alarmist view that it would harm the independence of Hong Kong’s judiciary for the SCNPC to interpret Basic Law provisions; and have, until now, asserted that the courts of the SAR may hold SCNPC Basic Law interpretation in contravention to the law”.10

9. Unfortunately, the HKSAR government as a whole has also failed to discharge its duties to defend the judiciary against attacks. Worst of all, the government has on multiple occasions threatened to triggering interpretation of the Basic Law by the political organ, the Standing Committee of the National People’s Congress, on important issues with serious implication of human rights.

10. The Department of Justice (DoJ) even filed the Respondents’ cases in foreign domestic worker’s rights of abode appeal in accordance with the Court of Final Appeal on 12 Dec 2012.11 The DoJ suggested the Court consider seeking the SCNPC’s interpretation on Article 158(3) of the Basic Law in order to clarify the legal effect of SCNPC’s interpretation in 1999, which might solve the problems of right of abode of babies born in Hong Kong to mainland couples. However, it triggered lawyers, legal academics and NGO’s strong criticisms against the damage caused to judicial independence, and the pressurizing of the Court to overturn its 2001 decision that the opinions of the “Preparatory Committee of the HKSAR” of the

8 Candy Chan, “Parting shots” The Standard (Hong Kong: 25th October 2012) P01 9 Joshua But, “Fury at claim of foreign ‘interference’” South China Morning Post (Hong Kong: 23rd November 2012) EDT1, EDT3 10 “Editorial: Tightened Control” Ming Pao Daily News (Hong Kong: 26th November 2012) D08 11 HKSAR Government press statement, “SJ on foreign domestic helper's case” 13 December 2012

of 30 Joint Submission National People’s Congress were not binding. The seeking of the SCNPC’s interpretation would set a very bad precedence as it implied the SCNPC could interpret other laws such as human rights as right of abode of mainlanders as being an internal affair.12

 Recommendation # 2: We ask the Committee to require the HKSAR government to fulfil its duty to protect and respect the independence, integrity, ability, credibility, transparency and jurisdictions of the judiciary and make sure that the judiciary is free from improper political influences.

 Recommendation # 3: We ask the Committee to urge the HKSAR and Mainland authorities not to use, or threaten to use, interpretation of the Basic Law by the Standing Committee for any purposes, thereby weakening or even undermining the rule of law and the Common Law system in Hong Kong.

C. Sexual Orientation and Equality (Articles 2, 3, 23 & 26)

11. Hong Kong has no laws that ban discrimination on the basis of age, sexual orientation, gender identity, or other types of discrimination in the private sector, despite the recommendation of the Committee 14 years ago.13. Furthermore, the government does not provide adequate non-discrimination public education or publicity, and self-regulation in the private sector is simply inadequate.14

12. The demand of sexual orientation discrimination legislation has boosted in recent years. For instance, there were marches supporting equality and protection for LGBTI individuals. The Chairperson of the Equal Opportunities Commission called for the enactment of sexual orientation discrimination legislation. A recent study by the University of Hong Kong showed that the over 60% of Hongkongers feel that Hong Kong should have legislation to protect people of different sexual orientations.15 On 7 November

12 South China Morning Post, “Right of abode appeal to Beijing a bad precedent”. The Standard, “'Ask Beijing' call dismays lawyers”. 14 December 2012. 13 Para. 15, CCPR/C/79/Add.117. The same recommendation / expression of concern has been made by the Committee on the Rights of the Child (CRC/C/CHN/CO/2, at para 31) and twice by the Committee on Economic, Social and Cultural Rights (E/C.12/1/Add.107 at para 78(a) and E/C.12/1/Add.58 at para 15(c)). 14 The government reported in ICESCR third report that they promote equal opportunities on ground of sexual orientation through public education and publicity measures, and by setting up Sexual Minorities Forum and Gender Identity and Sexual Orientation Unit. However, the Forum and the Unit is hardly functioning. The Forum even has cease holding meetings since December 2010. The Unit setup a system for receiving discrimination complaints on the basis of sexual orientation, but has so far refused to acknowledge any discrimination cases. 15 Chung, R. and others (Nov. 2012) Opinion on the rights of sexual orientation in Hong Kong [sic.]. Retrieved from http://hkupop.hku.hk/english/report/LGBT_CydHo/content/resources/report.pdf (in Chinese). 63.8% of people think that Hong Kong should have legislation to protect people of different sexual

of 30 Joint Submission 2012, Legislator Cyd HO of the Labour Party moved a motion debate in the Legislative Council to urge "the Government to expeditiously launch public consultation on enacting legislation to safeguard equal opportunities for and the basic rights of people of different sexual orientations."16 The motion was vetoed17 by the Functional Constituencies (10 for, 17 against and 8 abstentions) despite enjoying wide support from the Geographical Constituencies (24 for, 8 against and 4 abstention) in the LegCo (altogether 31 for, 25 against and 12 abstentions) 18.

13. LGBTI individuals still face severe discrimination. One research showed that over 50% of participants faced discrimination.19 Another research showed that 78% of the Hong Kong working population thinks that LGBTI individuals face discrimination or negative treatment.20 The HKSAR government’s steps purported to “address discrimination” have failed to be “appropriate” means of addressing such discrimination contrary to the government’s claim.21

14. The Gender Identity and Sexual Orientation Unit (“GISOU”), set up in May 2005, has failed to help those discriminated against in the private sphere and is now the subject of a complaint to the Office of the Ombudsman for maladministration. The "Code of Practice Against Discrimination in Employment"22 drafted by GISOU is not legally binding and the “Enquiries and Complaints Hotline”23 has only conciliated 24 complaints in 6 years and does not operate transparently.

15. The Sexual Minorities Forum (“SMF”), which the HKSAR government considers “promot[es] equal opportunities for people of different sexual orientation”,24 has failed in this role. This has led to the withdrawal of

orientation. Another result of the research shows that 75.8% people think that people of different sexual orientation face discriminations. 16 Agenda of the Legislative Council meeting on 7 November 2012. http://www.legco.gov.hk/yr12- 13/english/counmtg/agenda/cm20121107.htm 17 Annex II of the Basic Law states “The passage of motions, bills or amendments to government bills introduced by individual members of the Legislative Council shall require a simple majority vote of each of the two groups of members present: members returned by functional constituencies and those returned by geographical constituencies through direct elections and by the Election Committee”. 18 Voting result of the motion on “Equal rights for people of different sexual orientations” in the Legislative Council meeting on 7 November 2012. page 5 http://www.legco.gov.hk/yr12- 13/chinese/counmtg/voting/v20121107.pdf 19 Women Coalition of HKSAR conducted a research named Research on Discrimination Situation of Hong Kong Sexual Minority Women (2010) during Oct to Dec 2009, 53% of interviewees faced discrimination against their sexual orientation. The top three areas of most sever discrimination is Education (31%), Provision of goods, facilities or services (26%) and Employment (20%). 20 Chung, R. (2012) Hong Kong LGBT Climate Study 2011-12. Retrieved from http://hkupop.hku.hk/english/report/LGBT2011_12/content/resources/eng_presentation.pdf. A majority (60% - 85%) of the Hong Kong working population find various employment practices that discriminate against those who are or appear to be LGBT ‘never acceptable’. 78% of the Hong Kong working population think that LGBT individuals face discrimination or negative treatment. 21 See para. 363, State Party Report on the HKSAR (CCPR/C/CHN-HKG/3. 22 Available at http://www.cmab.gov.hk/en/issues/sexual.htm 23 Data available here: http://www.cmab.gov.hk/en/issues/equal_hotline.htm 24 Common Core Document at para 112.

of 30 Joint Submission 19 LGBTI groups in protest, specifically because: GISOU invited a Christian-based pseudo-medical association, whose stated aim is to “help people who have experienced unwanted same-sex attractions resolve their psychological self-contradiction of the mind”25 to participate in the forum; the SMF only met 11 times in 9 years; the SMF’s last meeting was in December 2010, the minutes of which are still unpublished (contrary to the assertion of the HKSAR government in the Common Core Document para 8626); and no further meeting has been scheduled to date.

16. The Government is using its inadequate public education and publicity measures to disguise the fact that it has not taken substantial steps to remedy discriminations. Self-regulation, even in Government departments and schools, has yielded little result. While the Government has issued a Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation, a directive which bounds only the Government but not the private sector, compliance remains low within the Government and its contractors.

 Recommendation # 4: We ask the Committee to urge the HKSAR government to ensure the Code published be strictly adhered to by all government bureaux, departments and agencies as well as their contractors, until an anti-discrimination law in this area is enacted. A liaison officer is created at each of the government departments to facilitate and promote LGBTI and diversity policies and practices.

 Recommendation # 5: We ask the Committee to urge the HKSAR government to take immediate steps toward enacting sexual orientation and gender identity discrimination legislation.

17. The Immigration Department has an unpublished policy of grating extended tourist visa to the spouse of an expatriate non-permanent-resident same-sex couple.27 Unlike a dependency visa where the opposite-sex spouse can legally work in Hong Kong and apply for permanent residency after residing in Hong Kong for seven years.28

 Recommendation # 6: We ask the Committee to urge the HKSAR government to exercise administrative discretionary to allow those same-sex couples who have formalised their relationships abroad, by marriage or civil equivalent to be reunited in Hong Kong.

25 http://www.newcreationhk.org/eng/ministry.html 26 See http://www.cmab.gov.hk/en/issues/equal_forumdoc.htm. 27 South China Morning Post, “Gay partners given 'relationship visa” July 10 2011. http://www.scmp.com/article/973056/gay-partners-given-relationship-visa 28 Incidentally, same-sex formalised partners of residents are denied housing, hospital and social security benefits, the ability to work, permanent residence after 7 years and the freedom to leave and re-enter within the term of residence.

of 30 Joint Submission 18. In a Judicial Review in July 2007, the Court of Final Appeal in Hong Kong held that a provision in the Crimes Ordinance which set the age of consent between consenting male adults at 21, was unconstitutionally discriminatory against gay men as the age of consent for heterosexual sex to be 16. So far the HKSAR government has failed to amend the Ordinance to bring them in line. The police still actively take actions against men having sex with men who are above 16 but below 21. Another provision of the Ordinance also stipulates that the maximum penalty for a man having sex with a girl under the age of 16 years is 5 years imprisonment, while that for a man participating in buggery with another man under 21 years of age, is life imprisonment.

 Recommendation # 7: We ask the Committee to recommend the HKSAR government to take immediate measures to amend the Crimes Ordinance for removing any discrepancies in the age of consent and the maximum penalty for all sexual orientations and to come up with and publish a plan with a proper timeline for such timely amendments.

D. Transgender Persons (Articles 2, 3, 7, 10, 23 & 26)

19. Currently, people who undergo sex reassignment surgery are allowed to change gender stated on identity card but not on birth certificate. Therefore, transgender people cannot marry in their acquired sex. A transgender woman W sought judicial review on her right to marry her boyfriend. The High Court Judgment dismissed the review and stated “no relevant comment on the question of transsexual marriage in Hong Kong was made” by the Concluding Observations of the UN committee. It becomes a ground for the Court to rule in favour of the government. Though the UN Human Rights Committee expressed concern that Ireland had not recognized a change of gender by transgender persons by permitting birth certificates to be issued to these persons (in the context of articles 2,16,17,23 and 26 of ICCPR). The judgment stated that “[t]he observation, unfortunately, was not accompanied by any reasoning or reference to any legal materials.” 29

 Recommendation # 8: We ask the Committee to recommend the HKSAR government to amend the 29 W v REGISTRAR OF MARRIAGES . Paragraph 211-2, HCAL 120/2009. Date of judgment: 5 October 2010. "In particular, the Human Rights Committee has, apparently, never made any similar observations regarding the position in Hong Kong, despite the periodic submission of human rights reports. The last one, by the Central Government on Hong Kong's behalf, was submitted in 2005, and the related hearing was held on 20 and 21 March 2006. The Committee's concluding observations, adopted on 30 March 2006, were published as CCRP/C/HKG/CO/2 on 21 April 2006. Likewise, the United Nations Human Rights Council conducts a Universal Periodic Review on the human rights situation of all UN Member States. Hong Kong's last report was submitted as part of the Mainland's report in March 2008. The related hearing took place on 9 February 2009 and the relevant report of the Working Group on the Universal Periodic Review was adopted by the Human Rights Council in June 2009. No relevant comment on the question of transsexual marriage in Hong Kong was made." The appeal by W was dismissed by the Court of Appeal on 25 November 2011, CACV 266/2010

of 30 Joint Submission legislation to protect the transgender people including the right to marry in their acquired gender.

 Recommendation # 9: We ask the Committee to recommend the HKSAR government to take immediate steps to recognise medically certified female-to-male transsexuals in their acquired gender without the need for them to have undergone the construction of some form of penis.

20. There have been a number of cases of improper treatment of transgender prisoners known to LGBTI NGOs since 2009. Some of them were housed in a psychiatric centre as they were identified as gender variants. Male-to-Female transgender prisoners were incarcerated as males, forced to have their hair cut short to conform with other male inmates, and refused access to hormone replacement treatments and female underwear although they already have had breast implant surgery. Such improper measures were cruel, inhumane and degrading.

 Recommendation # 10: We ask the Committee to recommend the HKSAR government to develop proper policy and procedures, and to enact corresponding Prison Rules, to ensure treatment of transgender prisoners with humanity and respect and to prevent all forms of cruel, inhumane and degrading treatments of transgender prisoners, and to provide them with proper remedies for any violations.

E. Race Discrimination Ordinance (Articles 1, 2 & 26)

21. There are only four equal opportunities laws in Hong Kong: (i) on sex; (ii); disabilities; (iii) family status; and (iv) race. These laws all have limited effectiveness as they are basically complaints-driven, and none of the laws impose positive obligations on the government to promote equality and to eradicate discrimination.

22. The Race Discrimination Ordinance (RDO) is seriously flawed. While the other three pieces of legislation have the provisions stating that discrimination by the government in the performance of its functions and the exercise of its powers is unlawful, such a provision is absent in the RDO. Moreover, the RDO excludes indirect discrimination on the basis of language and discrimination on the basis of immigration status and nationality. The United Nations Committee on the Elimination of Racial Discrimination has recommended the government rectify such flaws in the RDO in its concluding observations for the 2009 session.

 Recommendation # 11: We ask the Committee to urge the HKSAR government to amend the RDO to rectify these flaws. Short of an amendment of the RDO, the

of 30 Joint Submission government should substantially improve its weak and inadequate Administrative Guidelines and seek to give the improved Administrative Guidelines on the promotion of racial equality a statutory status.

 Recommendation # 12: We ask the Committee to urge the HKSAR the government to introduce comprehensive anti- discrimination laws on age, sexual orientation, and gender identity, and other types of discrimination, in accordance with the government’s Covenant obligations. We urge the Committee to ask the HKSAR government to ensure that this legislation impose positive obligations on the government to promote equality and to eradicate discrimination.

F. Equal Opportunities Commission (Articles 2, 3, 20, 26 & 27)

23. The Equal Opportunities Commission (EOC), which is responsible for monitoring and executing the anti-discrimination ordinances, adopts a rather passive role.

24. We urge the EOC to review its role and assume a more proactive role in community capacity building, policy advocacy and conducting formal investigations into policies that may be violating the Ordinance. Such reviews should involve stake holders including DPOs and NGOs, being involved on ways to select and appoint its chairperson and members and means to ensure its independence from especially the government.

25. The government should ensure that all EOC appointees are dedicated to promotion equality and to eradicating discrimination, and that EOC appointments are not made for political, convenient or other improper purposes. It is improper for the EOC chairperson or member to also be a cabinet member or to hold another government role, as this would compromise the EOC’s actual or perceived independence. Furthermore, it is improper for the EOC and other independent watchdog groups to serve as “rest stations” for retired civil servants of for other political appointees who are “taking a break” before returning to the government. The government should also assist the EOC’s reviews and in implementing proposals with a view to strengthening EOC in line with the Paris Principles.

 Recommendation # 13: We ask the Committee to urge the HKSAR to appoint an EOC chairperson and EOC members who are dedicated to promoting equality and to eradicating discrimination, and that appointments not be made for political, convenient or other improper purposes.

 Recommendation # 14: We ask the Committee urge the

of 30 Joint Submission HKSAR government not to compromise the EOC’s actual or perceived independence, and urge the HKSAR government not to use the EOC and other independent watchdogs as rest stations for retired civil servants or for political appointees for “taking a break” before returning to the government.

 Recommendation # 15: We ask the Committee to urge the HKSAR to ensure that it fully complies with the Paris Principles by having a strong EOC.

26. While the Equal Opportunities Commission has been mandated to enforce the 4 equal opportunities Ordinances in force in the HKSAR, there is no statutory body to enforce the Hong Kong Bill of Rights Ordinance (BORO). Thus, there is no governmental body to assist victims whose guaranteed BORO rights have been violated, and victims must sue on their own in civil litigation for BORO remedies.

 Recommendation # 16: We ask the Committee to urge the HKSAR government to establish a statutory independent Human Rights Commission in line with the Paris Principles to enforce the BORO and to perform other functions to promote and protect human rights in the HKSAR.

G. Press Freedom and Freedom of Information (Article 19)

27. There is no Freedom of Information Act in Hong Kong. The government maintains that its March 1995 administrative code on access to information introduced in is effective. Even the government appointed Ombudsman severely criticised that Code in 2010.30 Under the Code, people of Hong Kong are not provided reasonable information and documents,

 Recommendation # 17: We ask the Committee to urge the HKSAR government to enact freedom of information legislation to ensure access to government information and documents.

28. The government impinged on press freedom by using government production teams to cover news in Hong Kong, which leaves the private press and Hong Kong people less access to the dissemination of official and other

30 Chapter 5, “Direct Investigation Report: Effectiveness of Administration of Code on Access to Information”, Office of the Ombudsman Hong Kong, January 2010. The report noted that certain government departments displayed "considerable misunderstanding of the provisions and unfamiliarity with the procedural requirements of the Code after well over a decade of implementation." The ombudsman also noted that some departments had failed to give reasons for not releasing information or given reasons that were not cited in the code, and others had misused reasons specified in the code.

of 30 Joint Submission information. 31 The government has failed to permit reasonable access to independent journalists, and at more times than warranted permits only pool coverage (a photographer and a camera man to represent the entire press corps).32

 Recommendation # 18: We ask the Committee to urge the HKSAR government to allow full independent media access to all government events.

29. The Hong Kong Police and the Fire Services Department have implemented a new system for releasing information about spot news incidents following the digitalisation of their communication systems. Now journalists must rely on short announcements released through the aforesaid two departments that highlight the nature, place and time of a case, without giving any meaningful details.33

 Recommendation # 19: We ask the Committee to urge the police, the Fire Services Department and other law enforcement agencies to release full details of crimes and other incidents of public interest in real time, with only personal information blanketed out.

30. Hong Kong police impose greater and unjustified restrictions on the media through a tougher approach towards journalists covering public demonstrations and visits of Mainland Chinese leaders. A reporter was detained for about 15 minutes for shouting out a question to the visiting Chinese president, Hu Jintao in June 2012, enough to prevent him from carrying out his legitimate journalistic duties. Another incident involved an attempt to prevent a cameraman from filming during a visit by vice-premier Li Keqiang in August 2011.

 Recommendation # 20: We ask the Committee to urge the HKSAR government to ensure that police officers respect press freedom during their operations and in designing and taking measures.

31. After two rounds of public consultation, the government has decided to mandate Radio Television Hong Kong (RTHK) to provide public service broadcasting (PSB) for Hong Kong. However, the government required it to remain as a governmental department contrary to the

31 According to HKJA research, the government released 233 press releases, videos and photographs of such events in 2011, including three releases from the Legislative Council. Further, there were 15 exclusive government interviews with senior officials. It should be noted that journalists submitted interview requests with some of these officials before the official footage was released, but these requests were turned down. 32 From 1 July (the first day of Mr. C.Y. Leung’s Administration) to 8 September 2012, the government organised 37 pooled interviews; 29 activities ‘covered’ by official footage with no press interviews. 33 E.g., in October 2011, details of serious cases had not been released, including instances of serious attacks with choppers within a period of ten hours and three indecent assaults in the same neighbourhood.

of 30 Joint Submission requirements in the UNESCO definition of PSB and to public opinions and programming staff’s views. The government even appointed a government administrative officer from outside RTHK and with no media experience to head RTHK.

 Recommendation # 21: We ask the Committee to urge the government to transform the RTHK as the independent public service broadcaster according to the requirements in the UNESCO definition and for the protection of organizational autonomy and editorial independence of RTHK.

32. Offices of media bodies like Singtao Corporation and inmediahk.net were attacked in 2012. While all authorities should refrain from interfering with media bodies and workers, special efforts should be made by the Government, including the police, to offer protection to media bodies and workers so that they could discharge their duties without fear and favour. Such protection includes prompt independent investigation into cases of external pressure on the media bodies or their workers. However, the government added pressure to tame the media by issuing writs to critical commentators. In early February, the Chief Executive of HKSAR sent a legal letter in his personal capacity to the Hong Kong Economic Journal demanding an apology and a withdrawal of the comment. The newspaper apologised to its readers instead if they were misled.

 Recommendation #22: We ask the Committee to urge the HKSAR government to protect media bodies and their workers, and to ensure prompt independent investigation into cases in which improper pressures are placed on media bodies or their workers.

33. The HKSAR government has unreasonably delayed the result on granting 3 applications submitted in early 2010 for free-to-air TV licenses for approximately 3 years. In May 2012, the government confirmed the former Broadcasting Authority had completed the assessment of the licensing applications. It had submitted recommendations to the Chief Executive in Council for final decision according to the Broadcasting Ordinance. However the Chief executive in Council vetted the applications. It is believed that the delay is due to political considerations so as to better control public opinion as the current 2 free TV are regarded as self-censorship and pro- establishment.

 Recommendation # 23: We ask the Committee to urge the HKSAR government to ensure the TV licensing regime is consistent with article 19 of the ICCPR.

34. Hong Kong is a city with a significant population of ethnic minorities, including 130,000 Filipinos,130,000 Indonesians and tens of thousands of Pakistanis. However, there is no broadcasting channel in their

of 30 Joint Submission languages available. Radio Television Hong Kong (RTHK), a broadcasting institution funded and controlled by government, mainly provides services in Cantonese and English. Instead of allowing full community broadcasting, RTHK recently launched the “Community Involvement Broadcasting Services” Scheme which only provides very limited airtime and types of programme for community organizations.

 Recommendation # 24: We ask the Committee to urge the HKSAR government to reform the Broadcasting Ordinance and the Telecommunications Ordinance for opening airwaves and granting licenses of community radio.

H. Archive Law (Articles 2 & 19)

35. Records are created to conduct business and serve as evidence of transactions whilst archives are records selected for permanent preservation because of their enduring value. Public archives and records are also proof of birth and citizenship, confirm death and ownership, verify rights and obligations. Without archives law, the Code on Access to Information is almost useless and ineffectual and the usefulness of any future Access to Information legislation would be greatly reduced.

36. The government refuses to enact an archive law and claims that the non-binding administrative rules and guidelines to manage and provide access to records and archives are effective. However these administrative requirements are frequently ignored by public officials without serious consequences, susceptibility to change of government policy and personnel, and they do not apply to statutory or government funded bodies. In recent years, repeated loss, unauthorized massive destruction and mishandling of public records have been widely reported, which undermines people’s right to know.

 Recommendation # 25: We ask the Committee to urge the HKSAR government to introduce an archive law to establish the legal framework and professional standards for managing public records and archives from their creation to final disposition, and to impose legal obligations on public officers and provides sanctions for non-compliance.

I. Consultation on Anti-Stalking legislation (Articles 19 & 21)

37. The government published a consultation paper on Stalking in December 2011. The paper has vague and broad definitions on stalking and suggests criminalizing stalking behaviour. We worry that the proposed law will lead to the erosion of the freedom of expression and peaceful assembly, particularly of the political opposition, unionists, journalists, netizens and

of 30 Joint Submission activists. Even without prosecution, any police intervention would already prevent the proper conduct of journalistic or demonstration activities. Such threats can largely be avoided if all amendments are only made to the specific ordinances aiming at protecting specific victims such as from domestic violence, debt collectors or real estate resumption agents. Hence, we oppose an all-embracing Stalking Ordinance.

 Recommendation # 26: We ask the Committee to urge the HKSAR government not to criminalise stalking acts generally and restrict any amendments to only expand the remits in specific ordinances, like the Domestic and Cohabitation Relationships Violence Ordinance. The Government should also ensure all legislative proposals be consistent with Covenant rights, especially those enshrined under Articles 19 and 21.

J. Parody and Copyright Law (Article 19)

38. Social and political parody and satires have played an important role in encouraging the public understanding and discussion of public affairs and in social mobilization in defence and promotion of the public interest. However, the lapsed Copyright (Amendment) Bill 2011 will be re-introduced into the Legislative Council in the new legislative term starting from Oct 2012. The bill will harm freedom of expression by criminalizing copyright infringement including derivative expression such as parody and satire. This will further enable the use of copyright as a means to crackdown on the spread of dissent online “at the right moment”. Even if such amended laws are not strictly enforced, it will still create a chilling effect hampering public discussions.

 Recommendation # 27: We ask the Committee to urge the HKSAR government to introduce legislative proposals to explicitly exempt parody and satire and to establish liberal comprehensive fair use principles in the laws on copyright. We further ask the Committee to urge the HKSAR government to refrain from any unfair notice and take down system that would hamper the proper distribution of derivative and other expression.

K. Charity Law (Articles 19, 22 & 25)

39. The Law Reform Commission issued a consultation paper in June 2011 on proposed legislative framework to regulate charitable organizations and fund-raising activities. The proposals exclude “the advancement of human rights, conflict resolution or reconciliation” from the definition of charitable purposes, and emphasizes that a trust for political purposes is not charitable. Furthermore, the power of the proposed Charity Commission covers investigation of any alleged mismanagement and misconduct of

of 30 Joint Submission charitable organizations, including to investigate the charity’s funding, property and activities and to obtain relevant information, which would lead to abuse of power and prejudice freedom of association. The ambiguous and sometimes negative position of the consultation paper on advocacy work has also cast doubts as to the room for charitable groups to advocate for positive legal and policy reforms for the promotion of its own charitable objects.

 Recommendation # 28: We ask the Committee to urge the HKSAR government to ensure that any regulations on charitable organizations should be consistent with Covenant articles 19, 22 and 25.

L. Freedom of Assembly and Police Powers (Articles 2, 17, 19 & 21)

40. The police habitually use video-recording device to record demonstrations even when there are no violations of the law and order by the participants, assuming that participants in public demonstrations have no legitimate expectation of, and the right to, privacy against monitoring, filming and recording by electronic equipment of the police force, and assume that they have the right to conduct such recording and surveillance activities, despite the Covenant and constitutional right to privacy of the protestors. Information on the internal policy and guidelines on e.g. video recording are withheld from the public so making it impossible for the public to monitor the adequacy of such policy and guidelines and monitor their proper observation by police officers. Excuses of crowd control and traffic management have been cited for such recording in spite of the prolonged extensive and sometime close up video recording of protestors.

 Recommendation # 29: We ask the Committee to urge the HKSAR government to ensure that the Police video record a specific participant in a demonstration only when a crime is thought to be in the process of being committed by him or her or there are reasonable suspicion based on objective evidence that the occurrence of a crime by that person is imminent. The policy and guidelines on video recording, footage uses, storage and destructions should be publicly available to ensure proper accountability. All footage so recorded and detailed records on the recording should be reviewed by IPCC so as to prevent abuses and complaints.

41. Protestors and petitioners are often herded into "public activities areas" often out of sight and hearings of the target of demonstration. In a case in late June 2012 when the appeal broad has ruled in favour of a location for demonstration nearer to the demonstration target, the police have defeated the Committee's intention by engulfing the demonstration in 2-metre tall water barriers in order to stifle the petition to and demonstration against the visiting Chinese Premier in Hong Kong. The police should know that such abusive uses of water-filled barriers would provoke confrontation of the protestors

of 30 Joint Submission with the police.

 Recommendation #30: We ask the Committee to urge the HKSAR government to ensure that the police stop using water-filled barriers at the immediate perimeter of a demonstration which would effectively make the demonstration invisible to the demonstration target and severely reduce the little angles of view of the protesters inside.

42. The Hong Kong police frequently used pepper spray against demonstrators during petitions, public processions and meetings in recent years, sometimes without proper warnings and/or at short range. Sometimes peaceful protestors and even journalists nearby were sprayed and hurt by such sprays obviously for no good justification. Such improper uses of force were at least reckless if not intentional, and in any case unlawful.

 Recommendation # 31: We ask the Committee to urge the HKSAR government to provide justification for using pepper spray in these circumstances and prove that the use of pepper spray in Hong Kong is safe and consistent with all Covenants rights, particularly article 19 and 21.

43. The number of protestors arrested has significantly increased in recent years.34 The regulation of the Public Order Ordinance on public assemblies and its offences of “unauthorized assembly”, “unlawful assembly” and “disorder in public places” are too vaguely, broadly and subjectively defined which could lead to arbitrary and selective prosecution of protestors. It empowers the Police Commissioner to impose restrictions and even bans on assemblies on the grounds of “national security”, “the rights of others” without further guidance in the empowering legislation are too wide and uncertain35 There were also cases of arrests and convictions of the crimes of national and regional desecration under the National Flag and National Emblem Ordinance and Regional Flag and Regional Emblem Ordinance. For instance, Koo Sze-yiu, was sentenced to a harsh sentence of 9 months of imprisonment for burning a national flag owned by him in a peaceful demonstration,36 in spite of the Committee’s expression of concern regarding laws on such matters as, … disrespect for flags and symbols in General Comment 34 on article 19 of the ICCPR.

 Recommendation # 32: We ask the Committee to urge the

34 The number of protestors arrested in demonstration is greatly increased from 57 in 2010 to 440 in 2011, and about 50 protestors were being prosecuted in 2011. 35 See the criticisms by the Court of Final Appeal in Leung Kwok Hung & Others v. HKSAR FACC Nos. 1 & 2 of 2005, of the lack of guidance in the empowering of the Commissioner of Police in the Public Order Ordinance to impose restrictions and even ban on the exercise of the constitutional rights of freedom of peaceful assembly based only on broad grounds like “ordre public and “rights of others”. 36 "Diaoyu Islands activist 'proudly' jailed for flag burning ", South China Morning Post, 8 February 2013. http://www.scmp.com/news/hong-kong/article/1145484/diaoyu-islands-activist-proudly- jailed-flag-burning

of 30 Joint Submission HKSAR government to review the Public Order Ordinance to remove all defective factors and protect freedom of assembly and to repeal the criminal offences of flag desecration in the National Flag and National Emblem Ordinance and Regional Flag and Regional Emblem Ordinance.

44. The Place of Public Entertainment Ordinance dated back to early 20th century. In 1952, the colonial government amended the ordinance, in the name of public safety, by adding the requirement of licensing for story telling, exhibition and dancing in public place. The police have used the Places of Public Entertainment Ordinance which is for regulating public entertainment to shut down peaceful protests for several times. These tactics may undermine exercise of the right to expression and assembly by the "back door" of unfortunately broadly worded regulatory legislation. For instance, the police seized a statute named the "Goddess of Democracy" from the organizers of a peaceful political rally in memory of June 4th Massacre, on grounds that those holding it, in legitimate protest, did not possess a valid "entertainment license" in May and June 2010 and some of the organisers were prosecuted. The police surrounded the "IDAHO" (International Day Against Homophobia) rally, the specifics of which had been authorized by the Commissioner of Police, and threatened to arrest the organizers if they did not stop the dancing performance, for want of an entertainment license in May 2012. The Court of First Instance endorsed the police's action on the grounds that it was in the public interest of safety. As most entertainment was conducted indoor nowadays, safety of audience was ensured by law on building and fire safety, and authority to deal with public safety is provided for under the Public Order Ordinance, there is no justification for the administration to keep additional requirements under a superfluous licensing regime.

 Recommendation # 33: We urge the Committee to express grave concerns about the police's misuse of legislation to regulate free speech in this manner, where they are unable to use the demonstration legislation (the Public Order Ordinance) as case law requires they enable, not disable, expression and assembly.

 Recommendation # 34: We urge the Committee to urge the HKSAR government to abolish the requirements of licensing in the Public Entertainment Ordinance of activities already covered by the Public Order Ordinance.

45. The Independent Police Complaint Council (IPCC) cannot fulfil its monitoring role because of its limited mandate to observe, monitor and review the complaints handled by the Complaint Against Police Office (CAPO), which is an internal unit of the police forces. IPCC’s limited access to the information of police forces further undermines its effectiveness.

 Recommendation # 35: We ask the Committee to urge the

of 30 Joint Submission HKSAR government to expand the mandate and powers of the IPCC to conduct investigation into complaints against police officers.

M. Academic freedom (Articles 7 & 19)

46. For an extended period since late 2011, Sing Ming, a politics university lecturer, was singled out for fierce personal attacks by the pro- Beijing and pro-communist news media, including calls on his university to sack him.

47. In the autumn of 2011, officials from the Central Government Liaison Office attacked public opinion surveys conducted by Dr Robert Chung of the Hong Kong University. Like Sing Ming, Robert Chung was subjected to ferocious attacks by the pro-Beijing news media, including accusation that he was a spy working for foreign governments. These attacks put tremendous pressure on university academics and had a chilling effect on the whole academia. They had the impact of discouraging and deterring academics from conducting research on politically sensitive topics or speaking out on issues within their areas of expertise.

48. The management of the universities concerned did not offer support to Sing Ming or Robert Chung, until they were cornered at a hearing on academic freedom held in the Legislative Council.

49. The HKSAR government made no attempt to defend academic freedom or the autonomy of the tertiary education institutions in these cases.

 Recommendation # 36: We ask the Committee to urge the Central Government to refrain from interfering in the local affairs of the HKSAR and to not undermine academic freedom. The HKSAR government should uphold one-country, two-systems and take active and timely steps to defend and safeguard academic freedom.

N. "National Education" vs. Civic Education (Covenants Articles 2, 18 & 19)

50. For many years, the HKSAR government has marginalised civil education and devoted its efforts and resources to promoting dubious "national education". In the community, just before the previous Human Rights Committee hearings on Hong Kong in 2005, the government decided to re-establish the human rights education working group under the Committee for the Promotion of Civic Education but in 2007 the government dismantled it after bureau re-structuring. In schools, the government attempted to boost nationalism by focusing on the positive sides of China, emphasized responsibility but not rights, required the students to recognize national identity at the expense of critical thinking. Increasing resources have been deployed to support production of indoctrination materials and trips to

of 30 Joint Submission see the positive sides of Mainland China. Echoing China President HU Jin- tao’s call in 2007 for "national education", the Hong Kong government released the amended Moral and National Education Curriculum guide in May 2012 and made the subject compulsory in primary and secondary schools. However, the curriculum guide was criticized as rollback as it displaced civic education which emphasized universal human rights. Facing strong oppositions from parents and civic society through continued public assemblies, protests, hunger strikes and strikes in university, the government shelved the curriculum guide in Oct 2012.

 Recommendation # 37: We ask the Committee to urge the HKSAR government to stop using public expenditure and organising activities for the de facto promotion of dubious "national education", even in the absence of the curriculum guide.

 Recommendation # 38: We ask the Committee to urge the HKSAR government to reinstate the emasculated civic education but with strong emphasis on elements of human rights education and genuine participatory citizenship, so students can learn about and understand the world, Mainland China and Hong Kong in such curricular context in a critical manner, in compliance with Covenants Articles 2, 18 & 19.

 Recommendation # 39: We ask the Committee to urge the HKSAR government to better include and implement human rights education in an improved civic education framework according to Plan of Action of World Programme for Human Rights Education.

O. National security law under the Article 23 of the HKSAR Basic Law (Articles 2, 4, 9, 14, 17, 18, 19, 21, 22, 25 & 26)

51. The article 23 of the Hong Kong Basic Law states that the Hong Kong Special Administrative Region “shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government”, etc. In 2003, the government withdrew the controversial National Security (Legislative Provisions) Bill under the Article 23 of the Basic Law due to intense public opposition. The bill was criticized for infringement of rights including freedom of expression and freedom of association. For instance, the definition of sedition and theft of state secrets were vague and arbitrary. The bill did not include public interest and prior publication defence on the theft of state secrets, which might restrict journalists from reporting mainland and HK affairs.

52. Since then, the debates on enacting national security legislation were occasionally re-ignited by pro-Beijing politicians as water-testing or pressure to enact legislation. Given the recent context of some Hong Kong

of 30 Joint Submission protestors waving Hong Kong colonial flags, triggered concern among former Beijing officials Zhang Xiaoming, the deputy director of the State Council’s Hong Kong and Macau Affairs office and the current head of Chinese Liaison office in Hong Kong about the rising pro-independence force by former Beijing officials. He wrote an article in the study guide to the report of the Chinese Communist Party’s 18th Congress accusing external forces of interfering in Hong Kong affairs and called for Article 23 legislation “in due course”37. These allegations caused the public to worry that Beijing will impose tighter control on Hong Kong and pushing the implementation of Article 23 in the near future.

53. We opine that the above claims are unfounded accusations and are not backed by evidence. There is no pressing need for national security legislation as Hong Kong does not face any national security threats nor poses any threat to the central government in Beijing.

 Recommendation # 40: We ask the Committee to urge the HKSAR government not to enact Article 23 legislation unless genuine universal suffrage which is consistent with the ICCPR is implemented and only when such legislation is demonstrably necessary. Any legislative proposals must be consistent with Covenant Rights.

P. Restriction on freedom of movement (Articles 12 & 19)

54. Since the Tiananmen Square Massacre in Beijing in June 1989, a number of Chinese Hong Kong permanent residents, including Legislative Councillors, who supported the Chinese democratic movement, have been blacklisted and refused entry into Mainland China by Mainland authorities. Some of them, and other Hong Kong activists, journalists and even academics, sometimes are even refused entry into Macau.

55. For instance, Ada Lee Nga-man, a reporter from Apply Daily Hong Kong was barred from entering Macau to cover a story about Hong Kong people living in Macau in November 2012 while the photographer was allowed to enter. The reason of rejection given by the Macau authority was that she might endanger Macau’s security according to Lei de Bases da Segurança Interna da Região Administrativa Especial de Macau (internal security law). She was also barred from entering Macau in 2009 when she travelled to Macau with her family for holiday purpose. It is an unacceptable abuse of the territory’s internal security law and will jeopardize reporters’ news activities in Macau

56. The Hong Kong government has, for its part, also denied entry of Mainland Chinese dissidents who have left the country, foreign artists in support of June 4th commemoration activities, and Falun Gong practitioners and members of performance group related to them, into Hong Kong. The

37 Joshua But, “Fury at claim of foreign ‘interference’” South China Morning Post (Hong Kong: 23rd November 2012) EDT1, EDT3

of 30 Joint Submission right of movement and of a person to enter his own country has been taken away by the three jurisdictions with dubious reasons or without reasons. These bans based on faith, political opinions and affiliation should be lifted.

 Recommendation #41: We ask the Committee to urge the HKSAR government to ensure, and to get the support of Mainland and Macau authorities, the right of movement of persons between the HKSAR and other parts of China, and abolish all movement bans that are based on faith, and political opinions and affiliations.

Q. Legal Aid (Articles 2 & 14)

57. In April 2010, the government revised the Land (Compulsory Sale for Redevelopment) Ordinance and lowered the threshold for compulsory sale of apartment buildings for redevelopment from owning not less than 90% of undivided shares in the lot to not less than 80%. Apartment owners (and their tenants) have been affected by the amendments and they find it very difficult to seek justice in the Land Tribunal against big developers and their agents since proceedings related to this ordinance are not covered by legal aid.

 Recommendation #42: We ask the Committee to urge the HKSAR government to expand the scope of the legal aid or Supplementary Legal Aid Scheme to include proceedings related to compulsory sale.38

58. Hong Kong is committed to the observance of the Rule of Law, and access to justice is essential to ensure that the Rule of Law is observed. The proper provision of Legal Aid is a fundamental element to access for those who cannot afford the legal cost by themselves. The current Legal Aid Department is administered, not by an independent legal aid authority, but by the Legal Aid Department under the Home Affairs Bureau. The Legal Aid Services Council in 1998 (LASC) has already pointed out that “it was an institutionally flawed arrangement for Legal Aid to be administered by Civil Servants, as there was a risk of pressure from the Government and a perception of lack of independence”39. Difficulties arise in situations of direct conflict of interests. The situation is now more worrying by the increase in the number of judicial reviews in Hong Kong in recent years, especially, when most of these cases are controversial and involve challenges to major government policies and decisions. As observed by the Bar Association, the lacking of an independent legal aid authority, has resulted in unmet needs and

38 In 2011, the government refused to expand the scope of Supplementary Legal Aid Scheme to include proceedings related to compulsory sale. 39 Hong Kong Bar Association, “Hong Kong Bar Association Submission for Legislative Council Panel on Administration of Justice and Legal Services Meeting on 24th May 2010” accessed on 11th December 2012

of 30 Joint Submission major shortfall in legal aid services to those in need because of institutional conservatism and a lack of response to societal changes under the current arrangement40.

 Recommendation # 43: We ask the Committee to urge the HKSAR government to reform the current legal aid arrangements and establish an independent legal aid authority in charge of both budget and policy as soon as possible.

59. The financial eligibility limits of the current legal aid system cannot reflect public affordability on legal expenses and have not kept up with inflation. Large numbers of people, although exceeded the financial eligibility limits, still cannot afford the litigation cost in the private sector and this has resulted in the unacceptably high number of unrepresented litigants in local courts. Both the Law Society and the Bar Association agreed that the scope of the SLAS is too limited which does not provide enough coverage to most of the cases41. For example, the Bar Association suggests that the legal aid scheme should be expanded and cover CFA cases, cases concerning professional negligence, claims against incorporated owners, claims against property developers by minority owners in compulsory sales, claims in respect of Trusts and Class actions, etc.42

 Recommendation # 44: We ask the Committee to urge the HKSAR government to conduct public consultation on the expansion of legal aid scheme as soon as possible, and expand the scope of the legal aid or Supplementary Legal Aid Scheme to ensure access of justice.

R. Sex Workers (Articles 2, 3, 9, 10, 14 & 26)

60. Police officers, during undercover operations, are allowed to solicit sex workers to perform certain sexual services including masturbation (which is, in the end, unpaid) to "collect evidence" for prosecution. Some sex workers reported physical / verbal assault by the police. Many even reported that their rights were exploited upon arrest and questioning at the police stations or offices of the Immigration Department. Such rights included: rights of remaining silent; making phone calls to friends; families and

40 Hong Kong Bar Association, “Submission of the Hong Kong Bar Association for the Meeting of the Legislative Council Panel on the Administration of Justice and Legal Services to be held on 10th July 2012” accessed on 11th December 2012 41 The Law Society of Hong Kong, “Meeting of the LegCo Panel on Administration of Justice and Legal Services on 10 July 2012 (“AJLS Panel”) – Agenda Item II – Further Expansion of Supplementary Legal Aid Scheme” accessed on 11th December 2012 42 Hong Kong Bar Association, “Submission of the Hong Kong Bar Association for the Meeting of the Legislative Council Panel on the Administration of Justice and Legal Services to be held on 10th July 2012” accessed on 11th December 2012, p. 3 – 4

of 30 Joint Submission lawyers for help; requesting an interpreter; requesting toilet facilities; break to rest during questioning; and refusing to sign the cautioned statements etc. Based on their experience, NGOs specialised on sex workers generally believe that statements given by sex workers were often given less credit by the judges.43

 Recommendation # 45: We ask the Committee to urge the HKSAR government to ensure that the rights of sex workers are effectively protected under law, without discrimination.

S. Refugees & CAT Claimants (Articles 6, 7 & 13)

61. The HKSAR government continues to refuse to put implement a comprehensive policy to assess and protect refugees and other persons that may be subject to grave human rights violations such as those contrary to Articles 6 and 7 of the Covenant. Furthermore, the government continues to submit in the courts that the "immigration reservation" originally entered by the UK in 1976 is so wide in its ambit that asylum seekers, refugees and others without the right to be in Hong Kong cannot rely on the Covenant in any respect—which means, for example, no protection against arbitrary detention or exposure to degrading treatment.. This is an extreme and worrying proposition which would affect all of the rights in the Covenant which has been accepted by the courts. While the government has enacted legislation to assess claims under article 3 of the CAT only (following lengthy litigation) not one claim in 1,939 has been found to be meritorious. The zero percent success rate has prompted concern about the fairness of the system.

62. In the Court of Final Appeal judgment on the case of Ubamaka Edward Wilson v Secretary for Security and Director of Immigration,44 the Court discussed article 3 of the Hong Kong Bill of Rights Ordinance (HKBORO),45 which is HK's replica of article 7 of the ICCPR. The court held that the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment stated in article 3 was absolute and was a universal minimum standard. The court also commented on the approach of the Secretary for Security and Director of Immigration that “a person (not having the right to be in Hong Kong) was liable to be deported to a place even where it could manifestly be demonstrated that he would be subject to cruel, inhuman or degrading treatment or punishment in that place, was a deeply 43 According to a research, the average hearing time in magistracy court to complete an individual sex worker’s case was only 3 minutes. See Laidler, K. J., Petersen, C. and Emerton R., "Bureaucratic Justice The Incarceration of Mainland Chinese Women Working in Hong Kong’s Sex Industry", International Journal of Offender Therapy and Comparative Criminology, Volume 51(1), February 2007, p. 78. 44 Ubamaka Edward Wilson v Secretary for Security and Director of Immigration. FACV No. 15 of 2011 Date of Judgment : 21 December 2012 http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp? DIS=84948&QS=%28{UBAMAKA+EDWARD+WILSON}+%25parties%29&TP=JU 45 Article 3 in Section 8 of the HK Bill of Rights Ordinance provides, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

of 30 Joint Submission unattractive submission”

63. The judgment has many implications for the current Torture Claims and refugee status determination systems. As a result, the government would need to extend the scope of the screening mechanism, not only on the grounds of torture, but at least also on the grounds of cruel, inhuman or degrading treatment or punishment (“CIDTP”).

 Recommendation # 46: We ask the Committee to urge the HKSAR government to enact a fair and comprehensive legal framework with a single integrated statutory mechanism for screening asylum claimants under the Refugee Convention, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) with regards to article 3 of the HKBORO and article 7 of the ICCPR, to protect refugees, CAT claimants and others from being sent to a country or territory where their rights will be violated, and to ensure that the HKSAR government uphold refugees’ full rights under the Covenant while those refugees are seeking protection in the HKSAR.

T. Ethnic Minorities (Articles 2, 20, 25 & 26)

64. Contrary to article 25(c), ethnic minorities in Hong Kong do not enjoy equal access to public service. The majority of ethnic minorities in Hong Kong do not speak Chinese as the first language and the defective education system in Hong Kong fails to build up their Chinese language capacity to a level sufficient to enter the public service. “Mainstream schools” in Hong Kong assumes all students, regardless of their race, have already acquired basic Chinese skills when they enter primary one, the first year of compulsory education, and fails to give effective extra support to students. Many of them also use Chinese as the medium of instructions in other subjects. Ethnic minority students cannot comprehend teachers’ instructions, thereby failing to attain a result good enough to enter the civil service. The alternative, “designated schools”, offer a curriculum which could be several years behind that of “mainstream schools” and inadequate for students to enter the public service. The Equal Opportunities Commission has also urged the government to address this issue, for example by introducing an alternative language qualification with different stages for ethnic minorities and providing extra support to students.

 Recommendation # 47: We ask the Committee to urge the HKSAR government to implement a “Chinese as a second language (CSL)” curriculum and a corresponding assessment mechanism to allow ethnic minorities to attain a satisfactory Chinese proficiency level. Short of a “CSL” curriculum, the government should provide extra support in the Chinese language learning to ethnic minorities. We

of 30 Joint Submission also urge the government to re-assess the genuine occupational requirements on Chinese reading and writing capabilities for government positions.

65. The implementation of the “naturalisation as Chinese nationals” policy by the government is irrational and discriminatory, raising concerns about whether article 24(3) is being complied with. Many applications which satisfy the requirements of the Chinese Nationality Law were rejected by the Hong Kong government with no reasons given. Many ethnic minority applicants had been dissuaded by immigration officers from even submitting an application. As the immigration officers did not have a chance to review these applications, the only discernible motivation of theirs to dissuade the applicants is by the skin colour of the applicants. An applicant was dissuaded because she was a minor. In another case, the government even made a phone call to the applicant to notify her that her application was successful two days after she was interviewed by the media, when her application had been submitted for a year. Rejected applicants cannot apply for an HKSAR passport as only Chinese nationals are eligible for the passport. They cannot enjoy the facility and protection overseas of a HKSAR passport holder and face an identity crisis as they know no other home than Hong Kong. Moreover, the children of rejected applicants will have a much slimmer chance of getting naturalised as they do not have near relatives who are Chinese nationals.

 Recommendation # 48: We ask the Committee to urge the HKSAR government to clarify the implementation of its naturalisation policy and the criteria adopted, and take measures to ensure its compliance with the Convention.

U. Migrant Domestic Workers (Articles 2, 7, 8, 12 & 26)

New Conditions of Stay / Two-Week Rule

66. Migrant domestic workers (MDWs) are frequently not able to use the judicial system effectively by the highly restrictive immigration controls, the ‘New Conditions of Stay’ (NCS) put in place in 1987, including the "Two-Week Rule", which do not apply to other migrant workers who are categorized by government as ‘professionals’. By employing the fiction that a terminated foreign domestic worker assumes the immigration status of a mere "visitor", the worker is only permitted to remain in Hong Kong for the purpose of pursuing her labour claims by paying for a succession of visas while at the same time not normally being permitted to engage in any employment whatsoever and therefore has to subsist on charitable support for her living, often for very extended periods. This results in severe pressure to compromise claims unreasonably or abandon them altogether. Employers tend to exploit this to their advantage by dragging out proceedings or proposing on settlements which are blatantly unfair. The NCS has also placed MDWs at a disadvantageous position vulnerable to various exploitations and abuses, including physical ones, by deterring victim MDWs

of 30 Joint Submission from challenging their employers or reporting their case.

 Recommendation # 49: We ask the Committee to urge the HKSAR government to remove NCS and let migrant domestic workers take up new employment while they are engaged in litigation after termination of a previous employment, and to thus eliminate substantial injustice to offer them a level playing field.

Abuses by employment agencies

67. Much of the hardship suffered by migrant domestic workers in Hong Kong is the result of the exploitative and extortionate practices of the recruitment agencies, often working in conjunction with money lending institutions which employ ethically and legally dubious practices in the relationship between agencies, the employer and the worker. The protections afforded by the law, so far as they go, are frequently evaded and circumvented. Only seven employment agencies have been prosecuted from 1 June 2010 to 31 May 2012. MDWs are often coerced or tricked into signing false statements and blank documents, and their identity papers are confiscated, to force them to pay excessive agency fees under conditions of debt bondage.

 Recommendation # 50: We ask the Committee to urge the HKSAR government to introduce legislation to tighten regulations of agencies and lending institution to prevent abuses , and to secure agreements with sending countries to stop such exploitation by plugging loopholes in current laws and .

Mandatory Live-In Arrangement

68. Since 2003, the HKSAR government instituted this policy which removes the options for employers and domestic helpers to make living arrangements outside the employer’s home. Aside from restricting the freedom of movement of MDWs, this policy increases the vulnerability of migrants to abuse, long working hours, sexual and physical offences and creates the condition for modern-day slavery.

 Recommendation # 51: We ask the Committee to urge the HKSAR government to remove this live-in mandatory requirement for MDWs.

Exclusion from Statutory Minimum Wage

69. The Minimum Wage Ordinance (MDO) implemented on 1 May 2011 excludes live-in domestic workers. Domestic workers continue to suffer from extremely low wage and lower saving ability.46 They are therefore more

46 There is a Minimum Allowable Wage (MAW) set from time to time by the Government for migrant domestic workers. The Immigration Department issues or extends visa for a MDW only if her

of 30 Joint Submission vulnerable in their retirement.

 Recommendation # 52: We ask the Committee to urge the HKSAR government to repeal the exclusion of live-in domestic workers from the Statutory Minimum Wage in the MDO.

V. Split families (Articles 2, 23, 24 & 26 )

70. A child born in Mainland, especially those who born outside wedlock, with only of his or her parents being a Hong Kong permanent resident, are in theory, recognized as Hong Kong permanent residents under the Basic Law. However, in practical terms, if the parent who is a Hong Kong permanent resident passes away, has mental problems, disappears or is jailed, making it impossible to go through the rigid application system, it is difficult, or even impossible, for a child to obtain permanent resident status. Also, even when the child in such special cases finally settles in Hong Kong and even if the child’s parent who is a Mainlander managed to travel to Hong Kong from time to time to take care of the child, the parent can only rely on the social security provided to the child, which is definitely not enough for the family of two to live in Hong Kong.

 Recommendation # 53: We ask the Committee to urge the HKSAR government to review the one-way permit procedures and the welfare provisions for children in such special cases.

71. Mainland women whose spouses are Hong Kong residents have to pay much higher charges on obstetric service in public hospitals and may even be denied of such service due to a zero-quota policy.

 Recommendation # 54: We ask the Committee to the HKSAR government to revise discriminatory policies against such China-Hong Kong families.

W. Persons with Disabilities (Articles 1, 2, 25 & 26)

72. The government maintains the outdated traditional approach and regard rights of persons with disabilities mostly as rehabilitation and welfare instead of human rights. There is no high level mechanism within the government to act as a focal point to proactively and effectively consult persons with disabilities (PWDs), and protect and promote their rights across all government policy bureaux and bodies and other public agencies.

 Recommendation # 55: We ask the Committee to urge the HKSAR government to address issues related to PWDs

monthly salary in her contract is no less than the MAW in force. The most recent MAW rate is HK$3,920 per month. The MAW is unrelated to the Statutory Minimum Wage Scheme under the MDO.

of 30 Joint Submission from a human rights perspective, and establish a high level committee headed by the Chief Secretary for Administration for this, especially for the coordination of policy formulation and implementation and for ensuring the participation and cooperation of such public bodies.

of 30 Joint Submission