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HKSAR Government welcomes constructive dialogue with UN Human Rights Committee

     A spokesperson for the Constitutional and Mainland Affairs Bureau said today (March 28) that the United Nations Human Rights Committee (the Committee) had issued its concluding observations on the third report of the Hong Kong Special Administrative Region (HKSAR) in the light of the International Covenant on Civil and Political Rights (ICCPR).

     "We are pleased that the Committee appreciates the constructive dialogue it has with the delegation who provided replies and detailed additional information to written and oral questions formulated by the Committee," the spokesperson said.

     The concluding observations were published on March 28 (Geneva time), after the Committee's hearing of the report on March 12 and 13. A nine-member delegation led by the Permanent Secretary for Constitutional and Mainland Affairs, Ms Chang King-yiu, attended the hearing in Geneva.

     "In the concluding observations, the Committee commended Hong Kong in a number of important areas, including the ratification of the Convention on the Rights of Persons with Disabilities and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict; the enactment of the Immigration (Amendment) Ordinance 2012 to underpin an enhanced screening mechanism for torture claims to ensure high standards of fairness; and the enactment of the legislative amendments to the Domestic Violence Ordinance and the Personal Data (Privacy) Ordinance," the spokesperson said.

     The concluding observations also included the Committee's concerns and recommendations in certain areas, which the spokesperson said should be viewed in the proper context.

     "Unlike international laws, the recommendations made by the United Nations' treaty monitoring bodies are of an exhortatory nature rather than legally-binding. We appreciate the Committee's goodwill in making those recommendations. But the HKSAR Government has the ultimate responsibility for the governance and well-being of our people and must act as we, as the authorities on the spot, judge to be right in the prevailing circumstances. This being our highest priority, we must sometimes respectfully differ with the Committee as to what can or should be done.

     "This notwithstanding, the HKSAR Government respects the Committee's views. We implement the Committee's recommendations, where they are feasible and practicable in the light of Hong Kong's unique circumstances," the spokesperson added.

     In relation to the power of interpretation of the Basic Law, the spokesperson said: "the ultimate power of interpretation of the Basic Law is vested in the Standing Committee of the National People's Congress (NPCSC). This power is contained in Article 158 of the Basic Law and is part of our constitutional order. The Government's position is that interpretation of the Basic Law by the NPCSC should only be sought as a last resort."

     Regarding the Committee's concerns regarding the constitutional development in the HKSAR, the spokesperson said: "the Basic Law clearly states that universal suffrage of the Chief Executive (CE) and of all members of the Legislative Council (LegCo) is the ultimate aim of Hong Kong's constitutional development. The HKSAR Government is committed to attaining the goal of implementing universal suffrage for the CE and LegCo in accordance with the Basic Law and the relevant interpretation and decisions of the NPCSC. According to the decision adopted by the NPCSC in December 2007, the election of the fifth CE of the HKSAR in the year 2017 may be implemented by the method of universal suffrage. And after the CE is elected by universal suffrage, the election of the LegCo of the HKSAR may be implemented by the method of electing all the members by universal suffrage. The HKSAR Government will launch a comprehensive consultation on the election methods of the CE in 2017 and the LegCo in 2016 and initiate the constitutional procedures at an appropriate juncture."

     The Committee has repeated its recommendation to establish an independent human rights institution in Hong Kong. On this, the spokesperson said: "we note the Committee's concern and recommendation in this regard. However, we consider that Hong Kong's current human rights framework, underpinned as it is by the rule of law, an independent judiciary, a comprehensive legal aid system, our three human rights institutions - namely the Equal Opportunities Commission, the Ombudsman, and the Office of the Privacy Commissioner for Personal Data, and a free and vigilant media, provides sufficient protection of human rights in the HKSAR. There is therefore no obvious need to establish another human rights institution to duplicate the functions of or replace the existing mechanism. Moreover, the aforementioned human rights institutions already cover the core human rights issues of common concern. Whether they operate separately or under a single statutory platform such as a 'human rights institution' does not adversely affect or lessen the protection of human rights afforded to the people of Hong Kong."

     The Committee is also concerned about equal opportunities for all, in particular the sexual minorities and ethnic minorities.

     "Sexual orientation is a controversial subject in Hong Kong. Our position remains that no person should be discriminated against on any grounds, including sexual orientation. The Administration has instituted comprehensive public education and publicity programmes, with a view to fostering in the community a culture of mutual understanding, tolerance and mutual respect. These include sponsoring worthwhile community projects through the Equal Opportunities (Sexual Orientation) Funding Scheme; promoting the Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation to public and private sector organisations; studying the measures adopted by overseas jurisdictions, maintaining a hotline for enquiries and complaints; Announcement in the Public Interest on television and radio, and advertisement at train stations and bus stops, on the Internet and via other media; and exchanging views with sexual minority groups to better understand the specific problems they encounter with a view to mapping out targetted measures to tackle such problems. The Administration will continue to listen to different views from various sectors," the spokesperson said.

     On education, the CE has announced further measures to enhance the support for ethnic minority students in learning the Chinese Language, including exploring an incentive grant scheme to enhance the professional competencies of teachers, setting appropriate learning targets for students' acquisition of the Chinese Language, and refining the summer-bridging programme for non-Chinese speaking students to better support their Chinese learning through parent-school cooperation alongside collaboration with ethnic minority communities and non-governmental organisations (NGOs). The Administration would make further endeavours taking into consideration stakeholders' views including NGOs'.

     On the Committee's observation relating to the Court of Final Appeal (CFA)'s recent judgment in Ubamaka Edward Wilson v Secretary for Security & Anor (FACV 15/2011, December 21, 2012), the spokesperson said that, "the Government fully respects the CFA judgment in the Ubamaka case and will continue to act in accordance with the law in the exercise of powers and discretion and the discharge of duties in relation to immigration control."

     The Committee is also concerned about measures to combat human trafficking. On this, the spokesperson said, "Hong Kong has a solid framework of legislation to underpin our robust efforts to combat human trafficking. Although there is no sign or evidence that Hong Kong is a source or destination for human trafficking or a place of origin for exporting illegal immigrants, our law enforcement agencies and relevant departments will continue to maintain close co-operation with partners and counterparts locally and overseas to combat human trafficking."

     Regarding the Committee's concerns regarding separated families between the Mainland and Hong Kong, the spokesperson said, "pursuant to Article 22(4) of the Basic Law, for entry into the HKSAR, people from other parts of China must apply for approval. Mainland residents must apply for one-way permits (OWP) from the Mainland authorities to settle in Hong Kong. Under the policy objective of family reunion, the Mainland authorities have since May 1997 implemented a point-based system, setting out open and transparent eligibility criteria. The Mainland authorities have from time to time refined the OWP scheme; the HKSAR Government will continue to reflect to the relevant Mainland authorities the views of the various sectors as appropriate."

     In response to the Committee's comment on Police's handling of public order events, the spokesperson said: "Hong Kong residents enjoy the freedom and rights of assembly and procession which are protected under the Basic Law and the Hong Kong Bill of Rights Ordinance. All people and organisations enjoy the freedom and rights equally. The operational policy of the Police is to endeavour to strike a balance by facilitating all lawful and peaceful public meetings and processions on the one hand, and on the other hand, reducing the impact of such activities on other members of the public or road users and ensuring public order and public safety.

     "Regarding the Police complaints handling system, the Independent Police Complaints Council (IPCC) Ordinance clearly sets out the statutory role, functions and powers of the IPCC, as well as the obligations of the Police to comply with the requirement made by IPCC under the Ordinance. Where IPCC members have doubts about the investigation of a particular complaint, they may invite the complainants, complainees and any other person who may provide information or other assistance to interviews. If IPCC is not satisfied with the result of an investigation, it may ask the Complaints Against Police Office to clarify any doubts or reinvestigate the complaint."

     Regarding the Committee's concern about any discrimination or exploitation that may be suffered by migrant domestic workers and the lack of adequate protection and redress provided for them, the spokesperson pointed out that: "the HKSAR Government is fully committed to protecting the well-being of its workforce, including foreign domestic helpers (FDHs) who constitute the majority of our migrant workers. All FDHs enjoy the same and full statutory labour rights and benefits as other local workers. Indeed, Hong Kong is one of the few places in the region that grant equal statutory labour rights and benefits to migrant workers. Migrant workers can also access the whole range of free services provided by the Labour Department, and can seek redress through the legal system, including provision of legal aid as long as the eligibility criteria applicable across the board are met. In addition, FDHs are accorded further protection through a mandatory Standard Employment Contract, which requires employers to pay FDHs not lower than the prevailing Minimum Allowable Wage, and to provide FDHs with free accommodation with reasonable privacy, free food (or food allowance in lieu), free medical treatment, free return passage, etc. These benefits are usually not available to local workers.

     "As for the Committee's suggestion of repealing the 'two-week rule', such rule is required for maintaining effective immigration control and eliminating chances of FDHs overstaying in Hong Kong or working illegally after termination of contracts. This policy does not preclude the FDH from applying to work in the HKSAR again after returning to his/her places of origin. Furthermore, an FDH whose contract is prematurely terminated may be allowed to change employer in Hong Kong without returning to his/her place of origin first if they meet the relevant criteria, including his/her employer is unable to continue with the contract because of migration, external transfer, death, or financial reasons or there is evidence that the FDH has been abused or exploited.

     "The live-in requirement is the cornerstone of our policy on importing FDHs. As with many other jurisdictions in the world, the HKSAR Government's established policy is to accord priority to local workforce in employment; importation of workers should only be allowed where there is genuine manpower shortage in a particular trade or occupation that could not be filled locally. Under this general principle, FDHs were allowed to work in Hong Kong to meet the shortfall of local live-in domestic workers. Such live-in requirement is made clearly known to the FDHs before their admission into the HKSAR, and specified in the Standard Employment Contract signed by the FDHs before they assume duty."

     On the Committee's concern about the practice of corporal punishment at home, the spokesperson said that legislating against corporal punishment at home is highly controversial and we note that such legislation is not a standard arrangement in some overseas jurisdictions. This notwithstanding, every year the Administration organised territory-wide and district-based publicity campaigns and public education programmes to arouse public awareness of the importance of family solidarity and prevention of domestic violence, including child abuse. It is hoped that through different public education and publicity programmes, parents will better understand their parenting responsibilities, parenting skills and the harm of corporal punishment that might inflict on their children.

     In respect of domestic violence, the spokesperson noted the Committee's appreciation of a variety of measures and programmes implemented by the Administration to combat domestic violence. "We can assure the Committee that the Administration will continue to combat domestic violence by adopting a multi-disciplinary model as well as providing a spectrum of preventive, supportive and remedial services to the victims and their families," the spokesperson said.

     Under Article 39 of the Basic Law, the provisions of the ICCPR as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR. ICCPR is one of the seven international human rights treaties applied to Hong Kong which carry reporting obligations.

     Hong Kong's next report in the light of the ICCPR is due in 2018 and will contain the Government's detailed response to the Committee's recommendations. "In the interim, we will as requested by the Committee provide information on a number of areas in a year's time," the spokesperson said.

     The Constitutional and Mainland Affairs Bureau will upload the Committee's concluding observations onto its website and distribute copies to the judicial, legislative and administrative authorities.

     A press release and media summary of the hearing is available at the website of the United Nations Office in Geneva (www.unog.ch/unog/website/news_media.nsf/(httpNewsByYear_en)/02260CDFADFAE6F2C1257B2D004A66AA?OpenDocument).

Ends/Thursday, March 28, 2013