HKSAR Government strongly objects to unfounded and misleading concluding observations of UN Committee on Economic, Social and Cultural Rights
The Committee considered the HKSAR's fourth report at its meetings on February 15 and 16, 2023. A ten-member delegation led by the Permanent Secretary for Constitutional and Mainland Affairs, Ms Gracie Foo, attended the meetings in Geneva, Switzerland. As part of the Chinese delegation, the delegation of the HKSAR Government held dialogues with the Committee in an open, respectful, co-operative and responsible manner during the two-day meetings. The HKSAR Government delegation answered the Committee's questions in a positive manner, addressed the Committee's concerns and made detailed explanations and clarifications on the Committee's misunderstandings over the human rights situation and social development in Hong Kong. The HKSAR Government delegation also proactively submitted supplementary written materials on the Committee's main issues of concern to enable the Committee to gain a better understanding of how the relevant provisions of the ICESCR as applied to the HKSAR were implemented. The HKSAR Government strongly deplores and resolutely rejects the concluding observations the Committee issued on March 6 (Geneva time), which insisted on making inaccurate, biased and misleading statements on various aspects of the situation in Hong Kong.
The National Security Law
The HKSAR Government spokesperson said, "The recommendations of the Committee to review the National Security Law on various aspects are not only totally unfounded, but also utterly perplexing."
"The Committee has turned a blind eye to the fact that the fundamental rights and freedoms of Hong Kong residents have already been guaranteed at the constitutional level by the Basic Law. Article 4 of the National Security Law has also clearly stipulated that human rights shall be respected and protected in safeguarding national security in the HKSAR; the rights and freedoms which the residents of Hong Kong enjoy under the Basic Law and the provisions of the International Covenant on Civil and Political Rights and the ICESCR as applied to Hong Kong, shall be protected in accordance with the law. Any measures or enforcement actions taken under the National Security Law must observe the above principle. After the implementation of the National Security Law, Hong Kong residents continue to enjoy various rights and freedoms, including the right and freedom to form trade unions, academic freedom, artistic freedom, and enjoyment of rights in the cultural and scientific fields etc, mentioned in the concluding observations. The National Security Law does not affect the legitimate exercise of the freedom of expression by Hong Kong residents, including criticising government policies or policies and decisions made by officials, as well as publishing satiric content through different types of media as mentioned in the concluding observations."
"We also strongly object to the Committee's groundless smearing against the law enforcement actions taken by the HKSAR Government during the 2019 Serious Violence. All law enforcement actions taken by Hong Kong law enforcement agencies are based on evidence and strictly in accordance with the law in respect of the acts of the persons or entities concerned, and have nothing to do with their political stance, background or occupation."
"Moreover, the Committee completely took no notice of the fact as clearly pointed out by the delegation during the meeting that the implementation of the National Security Law had reversed the previous chaotic situation and serious violence, and restored stability and increased public confidence in Hong Kong, thereby allowing the city to resume its normal operation and return to the path of development."
Due Administration of Justice and Rule of Law
The spokesperson pointed out that, "according to Articles 2, 19 and 85 of the Basic Law, the HKSAR shall be vested with independent judicial power, including that of final adjudication; the courts shall exercise judicial power independently, free from any interference. Article 92 of the Basic Law also clearly stipulates that judges and other members of the judiciary of the HKSAR shall be chosen on the basis of their judicial and professional qualities. All judges and judicial officers are appointed by the Chief Executive on the recommendation of an independent commission composed of local judges, persons from the legal profession and eminent persons from other sectors. All judges and judicial officers so appointed will continue to abide by the Judicial Oath and administer justice in full accordance with the law, without fear or favour, self-interest or deceit. Establishing the mechanism for safeguarding national security in the HKSAR will not undermine the independent judicial power. Our judicial system continues to be protected by the Basic Law. When adjudicating cases of endangering national security, as in any other cases, judges remain independent and impartial in performing their judicial duties, free from any interference."
"On the Committee's comments on judicial proceedings, apart from providing that the principle of the rule of law shall be adhered to, Article 5 of the National Security Law also provides for the presumption of innocence, the prohibition of double jeopardy, and the right to defend oneself and other rights in judicial proceedings that a criminal suspect, defendant and other parties in judicial proceedings are entitled to under the law. Article 41 of the National Security Law provides that, unless circumstances arise rendering it inappropriate to do so, the trial shall be conducted in an open court. Article 42 of the National Security Law provides that, when applying the laws in force in the HKSAR concerning matters such as the detention and time limit for trial, the law enforcement and judicial authorities of the HKSAR shall ensure that cases concerning offence endangering national security are handled in a fair and timely manner. As guaranteed by the Basic Law and the Hong Kong Bill of Rights, all persons charged with a criminal offence not only have the right to choice of lawyers for timely protection of their lawful rights and interests, but they are also entitled to a fair trial by the judiciary."
As regards the Committee's recommendation to abolish the National Security Department Reporting Hotline, the spokesperson pointed out that, "the National Security Department Reporting Hotline was launched in November 2020, and has facilitated members of the public to provide or report national security related information. The recommendation to abolish the hotline is unjustified."
Right to Form and Join Trade Unions
In response to the Committee's erroneous statement on the retrogression of trade union rights, the spokesperson rebutted, "the HKSAR Government reiterates that Hong Kong residents enjoy the right and freedom to form and join trade unions. Such right and freedom is clearly protected by Article 27 of the Basic Law and under local legislation, including the Trade Unions Ordinance. Trade union rights in Hong Kong are strong and intact as ever, which is evidenced by the marked increase in the number of registered trade unions from 2019 to 2022. It is crystal clear that the free exercise of the right and freedom of association in the Hong Kong has not been jeopardised in any way."
As for the Committee's presumptuous claims that members of trade unions had been arrested arbitrarily, the spokesperson emphasised that, "one must draw a clear difference between legitimate trade union activities protected under our law and unlawful acts that have nothing to do with the exercise of trade union rights. It is the duty of Hong Kong law enforcement authorities to take legitimate actions against unlawful behaviours, which should not be wrongfully alleged as an affront to trade union rights. We reiterate that the HKSAR Government is dedicated to defending and protecting the right and freedom of association in Hong Kong."
On the Committee's misleading statement on the erosion of academic freedom, the spokesperson emphasised that, "academic freedom is an important social value treasured in Hong Kong as well as the cornerstone of its higher education sector. The HKSAR Government attaches great importance to upholding academic freedom and institutional autonomy, as manifested by the fact that both are enshrined by Articles 34 and 137 of the Basic Law. These specific and clear safeguards have not been altered in any way and remain in full force."
Human Rights Protection
In response to the Committee's recommendations of establishing an independent human rights institution in accordance with the Paris Principles, the spokesperson said, "human rights are guaranteed constitutionally by both the Constitution and the Basic Law, and is underpinned by the rule of law and an independent judicial power. The framework provides solid protection of human rights in Hong Kong. This is buttressed by the existing statutory organisations of the Equal Opportunities Commission, the Office of the Privacy Commissioner for Personal Data and The Ombudsman, as well as legal aid services. The HKSAR Government will ensure that the existing mechanism continues to effectively protect fundamental rights and freedoms in Hong Kong, and does not see any need for the establishment of an additional human rights institution."
Discrimination against LGBTI
Regarding the Committee's recommendation for a comprehensive anti-discrimination ordinance to protect sexual minorities from discrimination, the spokesperson said, "through the four anti-discrimination ordinances, i.e. the Sex Discrimination Ordinance (Cap. 480), Disability Discrimination Ordinance (Cap. 487), Family Status Discrimination Ordinance (Cap. 527) and Race Discrimination Ordinance (Cap. 602), people of Hong Kong are protected under the law from the most common forms of discrimination and harassment on the grounds of sex, marital status, pregnancy, breastfeeding, disability, family status and race. At the same time, the HKSAR Government regularly reviews existing anti-discrimination ordinances to ensure that they meet changing social needs and will introduce legislative proposals to address social mischiefs as necessary in the light of local circumstances. The need for consolidating a comprehensive anti-discrimination ordinance is considered not pressing. As regards introduction of legislation to prohibit discrimination on grounds of sexual orientation and gender identity, different parts of the world formulate relevant policies according to their local social contexts. Hong Kong society is divided on the issue and given the complex and controversial nature of the matter, the HKSAR Government has to listen to opinions from all quarters and fully consider the actual situation of the Hong Kong society."
As regards the Committee's recommendations to enhance public awareness in combating discrimination against the LGBTI community, "the HKSAR Government is committed to promoting the message of inclusiveness, mutual respect and non-discrimination for people of different sexual orientations and transgender persons through various channels, including broadcasting promotional videos on different media platforms, providing funding support to worthwhile community projects which aim at promoting equal opportunities to persons of different sexual orientations or gender identities via the Equal Opportunities (Sexual Orientation) Funding Scheme, and setting up a 24-hour hotline to provide support particularly for sexual minorities and their families and to raise the public's understanding towards sexual minorities," said the spokesperson.
On the Committee's concerns on gender disparities, the spokesperson said, "the HKSAR Government is committed to facilitating the integration of gender perspectives in the design, implementation, monitoring and evaluation of all legislation, policies and programmes. The HKSAR Government is also working closely with the Women's Commission, which advises the Government on policies and initiatives that are of concern to women. By adopting a three-pronged strategy, namely the provision of an enabling environment, empowerment of women through capacity building and public education, the work of the Women's Commission has helped promote women's development in Hong Kong."
"As regards women's employment, women and men in general enjoy the same rights to participate in the labour force and in choice of jobs. These rights are protected and ensured by the Sex Discrimination Ordinance. Over the years, female participation in the Civil Service has continued to increase steadily. The number of female directorate officers in the Civil Service has increased from 526 in 2018 to 565 in 2021, making up nearly 41 per cent of top positions (directorate officers). As at December 31, 2022, 12 (or 67 per cent) out of the 18 Permanent Secretaries (the most senior rank civil servants) were females."
Youth Employment Services and Equality in Employment
As a global phenomenon, unemployment rates of young people (particularly those with relatively low educational attainment and limited work experience) are consistently higher than that of adults. Hong Kong is no exception. Regarding the Committee's concerns on the youth unemployment rate, the spokesperson said, "the HKSAR Government implements the Youth Employment and Training Programme and runs the Youth Employment Resource Centres to provide comprehensive training and employment support services to young people, with a view to enhancing their employability. We will continue to review and enhance the provision of employment services to young people."
"The HKSAR Government encourages employers to 'Count on Talent, Not Age in Employment' and use consistent selection criteria to assess the abilities of job seekers and employees, and has issued practical guidelines on eliminating age discrimination in employment to employers."
Safeguarding rights of foreign domestics helpers working in Hong Kong
Regarding the Committee's concerns about the working conditions of the foreign domestic helpers (FDHs) and the protection accorded to them, the spokesperson reiterated that, "FDHs are offered statutory protection under the Employment Ordinance (EO) as well as additional benefits in accordance with a Government-prescribed Standard Employment Contract. We do not tolerate any exploitation or abuse of FDHs. Under the EO, offences such as overcharging commission from job-seekers and underpayment of wages are subject to a maximum penalty of HK$ 350,000 and imprisonment for three years. Government authorities have conducted regular and surprise inspections of employment agencies. We investigate each and every complaint case and prosecute cases where there is sufficient evidence. FDHs who consider their employments rights infringed should report to Government authorities promptly."
"The 'two-week rule' is essential for maintaining effective immigration control (including preventing illegal employment). It does not obstruct FDHs from applying to work in Hong Kong again after returning to their places of origin and has allowed sufficient flexibility to cater for exceptional circumstances. As for the 'live-in requirement', it underpins the long-established Government policy that priority in employment should be given to the local workforce and importation of workers will only be allowed when there is proven manpower shortage in specific trades that cannot be filled by local workers. It is along this policy objective that live-in FDHs have been imported since the 1970s to meet the shortage of local live-in domestic helpers."
Minimum Wage Ordinance
On the Committee's concerns on the minimum wage, the spokesperson pointed out that, "save for exceptions specified in Minimum Wage Ordnance which include persons to whom the Employment Ordinance does not apply, specified student employees and live-in domestic workers, Statutory Minimum Wage (SMW) applies to all employees, irrespective of whether they are monthly-rated, weekly-rated, daily-rated, hourly-rated, piece-rated, permanent, casual, full-time, part-time or other employees. Employees in the informal economy and in non-standard forms of employment are protected by SMW."
In response to the Committee's claim on the lack of measures against human trafficking, the spokesperson stressed that, "human trafficking is never tolerated in Hong Kong. Proactive and multi-pronged efforts have been made by the HKSAR Government to combat trafficking-in-persons (TIP) and to enhance the protection and well-being of FDHs in Hong Kong."
"Hong Kong has a well-established legislative framework with over 50 legal provisions against various TIP conducts. This forms a comprehensive package of safeguards comparable to composite TIP laws in other jurisdictions. Some of the severe offences even attract penalty of up to life imprisonment."
Protection for elderly persons
"On the Committee's concerns on protection for elderly persons, the HKSAR Government attaches great importance to elderly services. The estimated recurrent expenditure on elderly services in the 2022-23 financial year is about HK$14 billion, representing an increase of over 80 per cent as compared to that of the 2017-18 financial year."
"The HKSAR Government announced the Elderly Services Programme Plan (ESPP) in 2017 to enhance the medium to long-term planning for elderly services. Amongst the 20 recommendations of the ESPP, 12 have been completed or are on-going, while work for the other eight has commenced. Besides, the Government will regularise the Scheme on Community Care Service Voucher for the Elderly in 2023 and increase the number of vouchers in phases from 8 000 to 12 000 in 2025-26. On residential care services, the target is to provide an additional 6 200 subsidised residential care service places by end-2027," the spokesperson said.
In response to the Committee's concerns on the Long Term Housing Strategy, "the HKSAR Government has adopted a series of housing-related key strategies and targets to increase public housing supply by enhancing quantity, speed, efficiency and quality, thereby shortening the waiting time for Public Rental Housing (PRH). These include constructing the Light Public Housing; introducing a Pilot Scheme to encourage private developers' participation in building subsidised sale flats; and implementing the PRH Advance Allocation Scheme, etc, so as to address the housing needs of the community."
"In addition, the HKSAR Government launched a three-year Cash Allowance Trial Scheme in late June 2021 with a view to relieving the pressure on livelihood of grassroots families which have been waiting for PRH allocation. The relevant legislation implementing tenancy control on subdivided units (SDUs) was brought into force in January 2022 to provide protection to SDU tenants in various aspects."
"As regards the Committee's concerns about the eligibility threshold for public housing, given the limited PRH resources, the HKSAR Government has formulated an objective set of eligibility criteria to allocate resources to families most in need of help. The income and asset limits of the applicants PRH are regularly reviewed under a well-established mechanism to ensure that the policy objectives are met," said the spokesperson.
Relaxation of anti-epidemic measures
On the Committee's false remarks on the impact of the relaxation of anti-epidemic measures on our healthcare system, the spokesperson said "the HKSAR Government tackles the COVID-19 epidemic situation under the principles of adopting science-based and targeted anti-epidemic measures, as well as the proper management of risks and citizen-focused facilitation. Targeted adjustments were made in a stepwise and progressive manner. Since the latter half of 2022, the HKSAR Government has rolled out a series of measures orderly, including lifting all hotel quarantine and nucleic acid testing requirements for inbound persons after their arrival at Hong Kong in September and December 2022 respectively, ceasing the quarantine arrangement for close contacts and removing the Vaccine Pass requirement in December 2022, cancelling arrangement of issuing isolation orders in January 2023, etc. The lifting of mask-wearing requirement on 1 March 2023 marked a formal end of all social distancing measures."
"After three years of fighting against the epidemic, the public healthcare system has been strengthened with enhancement in resource utilisation, ability and capacity. Meanwhile, vaccination rate has increased substantially and infected persons will be prescribed COVID-19 oral drugs on a need basis. Since the significant improvement and relaxation in anti-epidemic measures starting from the second half of 2022, there is no sign of resurgence of domestic infections that would add pressure to the public healthcare system, as reflected by a continuous downward trend in overall figures in hospital admission, hospitalisation, critical/serious and death cases. In fact, the COVID-19 case fatality rate dropped significantly from 0.76 per cent in the first half of 2022 to 0.17 per cent in the second half of 2022. The crude COVID-19 mortality rate in Hong Kong is lower than that of many developed western economies."
"In addition, under the COVID-19 epidemic, the Hospital Authority maintained normal psychiatric in-patient and specialist out-patient clinic services and continued to provide services to suitable psychiatric patients through teleconsultation. The Government also initiated or continued various targeted measures to enhance the public's mental health amid the epidemic, including the 'Mental Health Initiatives Funding Scheme' launched in July 2021, the 'Shall We Talk' mental health promotion and public education initiative that continued to operate during the epidemic and the 'COVID-19 Grief Support Hotline' set up from March to April 2022 at the height of the fifth wave of the epidemic."
The Committee has requested the HKSAR to submit the fifth report under the ICESCR by March 2028. The Government will report to the Committee in respect of the recommendations in its concluding observations in detail. In the interim, the HKSAR Government will provide the necessary information in accordance with the Committee's request by March 2025.
Ends/Tuesday, March 7, 2023
Issued at HKT 1:22
Issued at HKT 1:22