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人权事务委员会审议中国香港报告

时间:2013-03-15      来源:联合国人权高专办      作者:admin      点击:
香港特区代表团承诺,2017年或实现行政长官普选,2020年将实现立法会普选。

联合国人权高专办网站3月13日讯 人权事务委员会今天结束了对中国香港特别行政区提交的关于该地区如何落实《公民权利和政治权利国际公约》规定的第三份定期报告的审议。

 

中国香港特别行政区政制及内地事务局常任秘书长张琼瑶在呈递报告时强调了香港政府对种族歧视、加强法律援助、性取向等方面的人权问题的承诺。《种族歧视条例》于2009年开始全面实施,条例旨在保障所有人在被雇佣时不受到基于种族的歧视。她还提到2009年12月增强的酷刑筛查机制。在政制发展方面,特区政府全面致力于在2020年之前落实普选行政长官和立法会。

 

委员会专家在讨论过程中提出了关于建立独立人权委员会或机构的问题。应采取哪些措施强化平等机会委员会及其独立性?委员会还就选举进程问题要求代表团概括涉及《公民权利和政治权利国际公约》第二十五条的普选概念。有专家提问特区政府将采取何种措施在私营领域对抗基于性取向的歧视。还有人要求澄清香港监狱中死亡案件的细节。另有一位专家就中国香港特别行政区贩运人口问题提问,他表示之前并未听说过该地贩运人口的实际案件,而去年却发现12名贩运人口问题受害者。

 

中国香港特别行政区代表团由来自律政司、政制及内地事务局、保安局、警务处和中国常驻联合国日内瓦办事处的代表组成。

 

人权事务委员会主席奈杰尔•罗德利在初步结论性意见中表示,中国香港特别行政区明显具有很高的自由度并尊重法治。他对香港当局在处理寻求庇护者问题上表现出的认真态度感到欣慰,因为使人遭受酷刑是有悖《公约》规定的。《公约》还要求保护儿童的身体健康。虽然实现普选的问题尚未解决,但他对代表团做出的在2017年实现行政长官普选和2020年实现立法会选举的承诺感到鼓舞。

 

中国香港特别行政区政制及内地事务局常任秘书长在总结发言中表示,香港特区政府在消除种族歧视的工作有所改进,并加强了针对酷刑投诉的筛查机制。特区政府认识到保护人民权利的重要性并将继续反对歧视。政府经验表明,应就争议性问题与反对群体积极对话以取得共识。代表团希望与委员会保持有意义的关系,并期待其继续提出建议。

 

委员会将于3月28日(星期四)会议闭幕时发布关于中国香港特别行政区报告的结论性意见和建议。

 

委员会将于今天下午4点再次举行公共会议讨论工作方法。

 

 

报告

 

点击此处阅读中国香港特别行政区第三次定期报告(CCPR/C/CHN-HKG/3)。

 

 

陈述报告(英文)


LIU ZHEMIN, 
China’s Permanent Representative to the United Nations Office at Geneva, said the Hong Kong Special Administrative Region of China enjoyed a high degree of autonomy. It had independent legislative power and the experience of the past 16 years had proven the success of the “one country-two systems” model. China was not yet a party to the International Covenant on Civil and Political Rights. The Chinese Government had already transferred to the Committee previous periodic reports of the Hong Kong Special Administrative Region of China and they had successfully gone through the review of the Committee. The Hong Kong Special Administrative Region of China attached great importance to the review of the third periodic report and the head of the delegation would make a detailed review of the report. 

NIGEL RODLEY, Chairperson of the Committee, said it would be good if China could one day be a party to the Covenant and looked forward to a constructive dialogue.

CHANG KING-YIU, Permanent Secretary of the Department for Constitutional and Mainland Affairs of the Hong Kong Special Administrative Region of China, highlighted issues which showed the Government’s commitment to human rights in the areas of racial discrimination, enhancement of legal aid services and sexual orientation. The racial discrimination ordinance was enacted into full operation in 2009, protecting individuals against discrimination on the basis of race in the areas of employment and advertising, among others. The screening mechanism for torture was enhanced in December 2009. The mechanism was further underpinned by legislation enacted in December 2012. Each claimant was given reasonable time to establish and submit a claim. An appeals mechanism with an independent body could hold an oral hearing if it believed the appeal could not be justly determined otherwise. Torture claimants had the right to legal aid throughout the entire screening process. A claimant could not be removed to another country where it was believed the claimant could be subject to torture. Assistance was offered so that claimants would not become destitute during the process. 

Since the implementation of the screening mechanism, 99 per cent of claimants had applied for publicly-funded legal assistance and all had been provided with it. 


In May 2011, the Government increased the financial eligibility limits so those who benefited from legal aid increased by about 40 per cent in 2012 as compared to 2011. In 2012, the scope of the supplementary legal aid scheme was expanded to cover a wider range of issues. 

In terms of constitutional development, universal suffrage may be implemented for electing the Chief Executive in 2017. After that, universal suffrage may be implemented for electing all members of the Legislative Council. The implementation of the 2012 constitutional reform package had enhanced the democratic elements of the two electoral methods. As a result, with 35 legislators returned from the geographical constituencies, and the five returned from the new functional constituencies, close to 60 per cent of all seats in the Legislative Council had an electorate base of over 3 million voters. 

Subject to the passage of the amendment bill by the Legislative Council, there would be no more appointed seats in the next terms of the District Councils when it commenced in 2016. 

The Government was fully committed to attaining universal suffrage for both the Chief Executive and the Legislative Council elections. 

Sexual orientation was a controversial subject in Hong Kong Special Administrative Region of China. However, the Government’s position was that no person should be discriminated against on any grounds, including sexual orientation. Public education and publicity programmes were being undertaken in this regard. 

LAU KONG-WAH, Undersecretary for Constitutional and Mainland Affairs of the Hong Kong Special Administrative Region of China, answering a question about the role of the incumbent Chairperson of the Equal Opportunities Commission, said the recruitment process was carried out in a rigorous, open and objective matter. He said any candidate with disabilities was automatically given an interview for the job. 

He also addressed concerns about complaints against the police. Since the Independent Police Complaint Council had become independent, it had been exercising its statutory powers to monitor and review the handling and investigations of complaints against the police. From 2009 to March 2012, the Complaint Council had seen 15,000 investigation reports. Disciplinary actions were taken against some 800 police officers in respect of 600 cases. The number of members serving the Independent Police Complaint Council had been increased by over 30 per cent from 18 to 24 in late 2010, widening public participation and ensuring the Complaint Council would continue to perform its oversight functions effectively. 

With regard to concern about human trafficking, he reaffirmed that Hong Kong Special Administrative Region of China was not a source, transit point or destination for transnational human trafficking activities. 

The Government was also committed to protecting the well-being of migrant workers, including foreign domestic helpers, by giving them the same statutory employment protection as local workers and they also had a mandatory standard contract prescribed by the Government, providing minimum wage, suitable accommodation and free medical treatment. 

Questions by the Experts

CORNELIS FLINTERMAN, the Committee Expert acting as Rapporteur for the Report, welcomed the delegation from the Hong Kong Special Administrative Region of China. After the consideration of the previous report in 1997, the Committee had recommended that the Hong Kong Special Administrative Region of China set up an independent human rights commission or institute. The Government had concluded that the existing mechanisms worked well enough and there was no need to establish a new one. However, the human rights ombudsman himself had said that there were gaps in the Government’s protection of human rights which could be filled by an institute. There were no powers for the ombudsman to modify policies or to investigate police forces. Rejecting a human rights institute seemed to be based on an incomplete understanding of the Paris Principles, which included the responsibility of a national institute to submit opinions, reports and proposals to the Government concerning the protection and promotion of human rights. 

Mr. Flinterman also asked about the Equal Opportunities Committee, which lacked enforcement powers. The Committee should be independent. What steps would be taken to strengthen the Committee and increase its independence? How was the recruitment process carried out?

Concerning the electoral process, Mr. Flinterman said the Committee had recommended in 2007 universal suffrage. However, no year was mentioned for this goal. Would it be possible for the Government to outline its concept for universal suffrage in relation to article 25? There were deep concerns about the delays to attaining universal suffrage so he was pleased to hear that the Government was committed to obtaining this by 2017 and not 2020. 

An Expert took note of the ordinances regarding racial and gender discrimination in the Hong Kong Special Administrative Region of China. Regarding racial discrimination, he said immigration law denied the right of permanent residency for domestic workers even after they had lived in the Hong Kong Special Administrative Region of China for seven years. The Government seemed to not want to integrate Chinese immigrants from mainland China. Had the Hong Kong Government taken any steps to address these issues? 

Regarding sexual orientation, an Expert said the Committee was pleased by the strong wording to eliminate discrimination. But when the discrimination happened in the private sphere the ordinance did not apply. 

Concerning language, less than one per cent of graduates in the Hong Kong Special Administrative Region of China belonged to ethnic minorities. Chinese was the dominant language. Would this be addressed?

Although there was a duty lawyer scheme, ethnic minorities were often persuaded to give few details and the lawyers often told them to drop their charges. Did the Government plan to address these areas of concern?

Another Expert asked about the political participation of women. Less than 20 percent of candidates in legislative elections in 2007 and 2008 were women. Maybe the Government should ask itself why this had happened. 

An independent body had been recommended by the Committee to investigate torture claims. However, the body’s recommendations were not binding and if the victim did not make the complaint personally, the case would not be investigated. There were reports of excessive use of force by police like spraying people in the face with pepper spray or unjustified strip searches of detainees. And yet the Government said there were no claims of torture since 2005. Was the definition of torture too narrow?

An Expert asked about protection against torture for those being removed from the Hong Kong Special Administrative Region of China. He said the Covenant also required protection against cruel, inhuman and degrading treatment. Given the unusual position of the Hong Kong Special Administrative Region of China as a region which was part of a country not yet party to the Covenant, how would it respond to these cases?

Another Expert asked about domestic violence statistics. Did these statistics include ethnic minorities, women with disabilities, migrant workers and those with sexual orientation differences? She also asked if women and girls were educated about domestic violence. 

Regarding those detained in psychiatric institutions, how many institutions of this sort were there? Were there only 800 patients in these institutions as had been stated by the Government?

Another Expert asked the delegation about deaths in prison. There were 101 cases of death with 73 by natural causes and the rest either accidents or suicide. Seventy-three seemed a high number for natural causes of death. What were the reasons for these deaths?

In terms of torture or harsh treatment, the Committee was told that the crime of torture was only a crime if it was inflicted with intent. But what did that mean? Was there confusion on the part of the delegation between what was intentional and the aspect of proportion? If no complaints of torture were registered between 2005 and 2012, it would seem people were dissuaded from lodging complaints. 

What happened to people in preventive detention and how long could they be held in detention? 

An Expert asked about human trafficking in Hong Kong. He had heard there was practically no trafficking of persons. However, 12 persons were identified last year who were victims of trafficking. 

Response by the Delegation

In response to these questions and comments and others, the delegation said specific statistics would be provided at a later time in response to some of the questions. 

In terms of universal suffrage, a green paper published in 2006 for electing the chief executive and legislative council said consideration should be given to policies of the State of the Hong Kong Special Administrative Region of China, facilitating a capitalist economy and gradual and orderly progress. The Government had stated it would start comprehensive consultations to achieve universal suffrage by 2017 for the election of the Chief Executive and 2020 for Legislative Council elections. 

Regarding a question on the interpretation of law, the delegation pointed out that Hong Kong was constitutionally directly under China. As to the rule of law and basic law in the Hong Kong Special Administrative Region, the mechanism for interpreting the law rested in China. 

On the proposal of a human rights commission in the Hong Kong Special Administrative Region of China, a delegate said what mattered was how the Government safeguarded human rights in law. The ordinances were buttressed by the rule of law and an independent judiciary. 

Concerning asylum seekers, if a deportee could establish that he would face torture or cruel or degrading treatment once sent back to his home country, the court ruled that this would constitute grounds for stopping the immigration. High thresholds of proof needed to be passed in court in order to block removal or deportation actions. 

With regards to female participation in advisory or board committees, the goal of 33 percent had been reached and women in civil service went from 33.7 per cent in 2006 to 35.7 per cent currently; 47 per cent of senior civil servants were women. 

Regarding reports of torture or ill treatment, the delegation said the force used by police must be reasonable in the circumstances. A minimal use of force should be used by police and then stopped once the action was over. 

The claim that some lawyers might encourage ethnic minorities to plead guilty was unfounded, said the delegation. This would rarely happen due to lawyers’ professional code of conduct. 

The delegation then turned to the question of language. Census enumerators in the last population census were equipped to deal with ethnic groups in 11 different languages. Posters and advertisements were placed in ethnic newspapers. These measures were introduced so that ethnic minorities would not be brushed aside during the population census. 

Regarding legal aid and interpretation services for ethnic minorities, the Department had published help in 10 different languages. The leaflets in various languages could be downloaded from the Government’s legal aid website. 

Questions by the Experts

Regarding constitutional development, an Expert was still puzzled by a reservation on universal suffrage. The Chairman asked for clarification about the timing of the elections involving universal suffrage. 

Responses by the Delegation

Local council elections were already conducted under a 1 person/1 vote arrangement. For the legislative elections, the Chief Executive should be elected by 2017. And 2020 would be the target for electing all members of the Legislative Council by universal suffrage. 

Answers to the List of Questions Previously Submitted by the Committee

Regarding legal issues, the delegation addressed the reservation under article 25 B concerning universal suffrage. From the Government’s perspective the reservation allowed for a gradual and orderly movement towards universal suffrage. Otherwise, legal challenges could be brought against efforts towards this goal. 

Regarding foreign domestic helpers, their stay was subject to certain conditions, such as having to live in the household employing them. There was an ongoing court case brought by a helper who had been in the country for more than seven years, arguing the person should be allowed to establish permanent residency. A judgement would be handed down in about a month’s time. 

In terms of treason and sedition, the Committee had called for a review of the definition of these offences. In light of article 23 of the Basic Law and at the suggestions of the Committee, the definition of these offences would be reviewed.

The Social Welfare Department had set up a central information system to monitor the trends of domestic and sexual violence and these figures included ethnic minorities, sexual minorities, sex workers and women with disabilities. Social workers were trained to deal with these groups. A publicity programme was launched on a yearly basis to combat domestic violence. When victims reported a dispute to the police, these reports would be counted every single time, whereas the Social Welfare Department would only count a complaint from a family once. This would account for the gap in statistics.

Regarding strip searches, a delegate rejected the claim that this was a common practice. The issue was examined in 2007 and agreement was reached on why and how strip searches should be carried out. The police force had clear guidelines on these searches and usually these searches involved drug cases. All searches would be approved by duty officers of a higher rank and searches would be carried out by same-sex officers. 

On the subject of deaths in prisons, there were 101 cases between 2005 and 2010. Most took place in high security or psychiatric prisons where prisoners had received life sentences. Heat stroke and head injuries by accident were found to be causes in some of the cases. In the past few years there were 26 cases of early release of sick persons from jail. 

From 2010 to 2012 the Immigration Department received 136 claims of torture from Sri Lanka. Thirty-seven cases were rejected. Cases were considered individually. If there were substantial risks of torture in the home country, the claimant would not be removed.

Regarding human trafficking, from 2006-2011, 23 people were convicted. A legal and comprehensive framework dealt with wide ranging offences related to trafficking in human persons and there were liaisons between non-governmental organizations, Interpol and departments within the Hong Kong Special Administrative Region of China to combat these crimes. Relating to child pornography, any sign of child sex tourism would be immediately escalated to a child crime bureau. Similar efforts were underway to protect foreign domestic workers. 

Public education programmes would be increased to eliminate discrimination against people based on sexual orientation. 

There were two mental hospitals and three psychiatric observation units within hospitals. In terms of complaints, hospitals had a two-tier system for dealing with cases. The second tier allowed for appeals. 

Questions by the Experts

Concern was expressed about the judicial independence of the Hong Kong Special Administrative Region of China. 

Another question concerned whether the Hong Kong Special Administrative Region of China allowed for the attainment of temporary protection of asylum seekers in a mass influx situation. 

Relating to human trafficking, an Expert said he was confused by the statement that the Hong Kong Special Administrative Region of China was not a source of or traffic point of trafficking and yet it was undertaking a wide range of activities to combat the problem. Why was the Government opposed to the Palermo Protocol? What was the definition of human trafficking in the criminal code? Was it restricted to women and children?

The Expert asked about restrictions of freedom of expression with police imposing heavy restrictions on freedom of assembly. He was pleased that the report said the police had made improvements in dealing with freedom of assembly. What were these improvements? Would the use of force and video recording of demonstrations also be re-examined and improved?

Regarding children who committed suicide, what were the findings of a panel started in 2008 to review child fatality? What was being done to stop children from committing suicide? With corporal punishment of children, the Expert said he was pleased that the Government was providing remedial services such as public education and counselling. However, what were the practices under the law protecting children in this regard? What steps would be taken to deal with the lack of legal prohibition of corporal punishment of children in the home? 

An Expert asked about foreign domestic helpers and the problem of the live-in requirement, which made them vulnerable to physical and sexual abuse and economic exploitation. In practical terms, it would appear these workers were prevented from making complaints because they risked being sent back home. Why could they not be given more freedom and better protection?

Concerning the Falun Gong movement, it was treated as a lawful organization in the Hong Kong Special Administrative Region of China. However, the practitioners were not popular in some sectors of society and there were allegations that the police used more restrictions on gatherings organized by this group. It was also suggested that they faced discrimination in trying to rent public places for meetings and also that police did not protect them on an equal basis. 

Clarification was asked regarding a mental health ordinance disallowing the right to vote for those regarded as being incapable of managing or administering their property or affairs. 

What further steps would the Government take to look at the definitions of sedition and treason? The legislation on these offences seemed currently vaguely worded. What were the details on anyone convicted of these offences?

Regarding video-taping practices by police of public demonstrations, was there a monitoring mechanism so that the rights to privacy could be protected? 

A question was raised about press censorship and the Government’s funding of public radio and television. 

Another Expert said he was pleased with the level of constructive dialogue between the delegation and Committee. He asked about the political participation of ethnic minorities. What was their level of proportional representation in legislative and district councils? What actions would be taken to improve their representation? After the 1997 handover, proficiency in Chinese and English was made mandatory for a position in public office. Many ethnic minorities could not read or write Chinese effectively and so that had led to their invisibility in the social arena. He said the language proficiency requirements should be reviewed to make sure they were really necessary for a job in the public service. 

He also asked about 15,000 ethnic minority students attending designated schools where their learning opportunities were limited due to their poor Chinese proficiency. This limited their access to higher education. How did the Government intend to address the separation of ethnic minorities and Chinese in schools?

Regarding the one-country, two systems model, legislative autonomy was granted for the Hong Kong Special Administrative Region of China. But regarding the right of asylum, was the law governed by the Hong Kong Special Administrative Region of China or by the People’s Republic of China?

Responses by the Delegation

In the delegation’s view, it was unlikely that any interpretation of chapter three of the Basic Law would infringe on the basic rights and freedoms of people of the Hong Kong Special Administrative Region of China. 

In the past 50 years, there had not been one prosecution under the offences of sedition and treason. 

Regarding protection of asylum seekers, the delegation said the 1951 Refugee Convention and 1967 protocols had never been applied to the Hong Kong Special Administrative Region of China. He said that was because the small and economically strong region was vulnerable to immigration abuses. 

In terms of human trafficking, there was a solid legal framework to protect people which went beyond the protection of only women and children. 

Police respected the right to peaceful assembly but balances had to be considered between the right to demonstrate, ensuring public safety and guaranteeing the safety of visiting dignitaries. 

Police had taken steps to facilitate the work of journalists and the media based on the principles of mutual respect and understanding. Only designated officers were allowed to handle videotapes of public gatherings. 

A review examined the deaths of children in 2006 and 2007. The panel published a final report in 2011, confirming the review mechanism. In May 2011, 20 professionals were appointed to review child deaths occurring from 2008 and the group would share its results in the future. 

The Social Welfare Department annually launched a programme to strengthen the family, promote family functioning and prevent family breakdown with a focus on stress management for parents and parenting courses. Eleven family service units had been set up across the territory to protect and counsel the victims and family members in cases of abuse. Specific legislation was not provided to restrict corporal punishment, but neither did any exist in such countries as Canada, Australia, and the United Kingdom. 

Foreign domestic helpers were required to live in the homes of their employers because it was part of the established labour policies. The Government would not tolerate any abuse of these workers and convicted employers were given such punishments as fines or imprisonment. The Government maintained ties with foreign consulates to help prevent the abuse of these workers.

The Hong Kong Special Administrative Region of China was a free and open society under the two systems-one country model. In article 27 of the basic law, all people including Falun Gong practitioners enjoyed the right to gather peacefully. There was no record of restricting Falun Gong practitioners with respect to immigration matters or in the right to hold gatherings. 

A person was not disqualified from voting due to a disability. This rule applied to those found by the court to be incapable by reason of mental incapacity of being unable to manage their property and affairs. Two medical signatures had to confirm the disqualification for voting. 

Regarding the delay of granting free television licenses, the delegation did not accept there had been an undue delay. The Chief Executive in the Executive Council had to analyze the variety and quality of the proposed programmes and it was committed to have a decision as soon as possible. Regarding Radio Television Hong Kong public service, it was given editorial independence and this was guaranteed in its charter. 

Figures were not available for the participation of ethnic minorities in Government employment; however, race was not a relevant consideration for the suitability of a candidate. 
Regarding schooling for ethnic minorities, this was a difficult subject in striking a balance between the majority of Chinese speakers and meeting the needs of ethnic minorities. It was the choice of the parents to put their children in a mainstream or designated school. The Chief Executive had announced that programmes would enhance support for non-Chinese students as well as enhancing professional competencies of teachers for dealing with non-Chinese speakers. Much more work needed to be done and the Government would cooperate with non-governmental organizations to this end. 

Questions by the Experts

An Expert noted that religious communities could found schools from a legislative point of view. What religions were taught in these schools?

Responses by the Delegation

Various religions included Buddhism, Daoism, Hinduism, Judaism, Sikhism, and Christianity. Figures were unavailable for how many schools had been set up to teach these religions. 

Concluding Remarks 

NIGEL RODLEY, Chairperson of the Committee, thanked the delegation for its focussed and detailed responses and for its seriousness. It was clear that the Hong Kong Special Administrative Region of China had a high degree of freedom as well as respect for the rule of law. He said it was not unusual for there to be some nervousness in cases of small populations close to large populations - especially when the large population did not have the same international commitments. So when public orders were taken to control public protests, it could be troubling to people inside and outside the Hong Kong Special Administrative Region of China. He added that it did not mean there was not a high degree of freedom but that people may not feel confident of maintaining that freedom. He was reassured by the seriousness that the authorities took towards the issue of asylum seekers and that it would be a violation of the Covenant to expose someone to torture. The physical integrity of children must be guaranteed under the Covenant. The universal suffrage issue continued to be a problem but he was reassured by the delegation’s commitment to universal suffrage for the Chief Executive elections by 2017 and for the Legislative Council elections by 2020. It had been a very constructive dialogue. 

CHANG KING-YIU, the Permanent Secretary for Constitutional and Mainland Affairs, said it had been a pleasure to attend the meeting and have the opportunity to review the progress made. The Hong Kong Special Administrative Region of China had made improvements in racial discrimination and had improved its torture complaint screening mechanism. The Hong Kong Special Administrative Region of China recognized the importance of protecting different groups in society and would continue to combat discrimination. She looked forward to a meaningful relationship with the Committee and its ongoing suggestions.

 

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