Committee on the Elimination of Racial Discrimination
Reports submitted by States parties under article 9of the Convention
Information received from the Government of the People’s Republic of China, including the Hong Kong Special Administrative Region, on the implementation of the concluding observations of the Committee on theElimination of Racial Discrimination(CERD/C/CHN/CO/10-13) **
[13 September 2010]
Replies of China to the concluding observations of the Committee on the Elimination of Racial Discrimination
The Chinese Government wishes to transmit the following information in response to paragraphs 12, 15, 19 and 30 of the concluding observations made by the Committee on the Elimination of Racial Discrimination in August 2009 in connection with the report of China (including the Hong Kong and Macao Special Administrative Regions) on its implementation of the International Convention on the Elimination of All Forms of Racial Discrimination. (Part One contains information submitted by the Central Government; the information in Part Two, dealing with the Hong Kong Special Administrative Region, was provided by the regional government.)
The Committee, taking into account that the National Human Rights Action Plan is set to end in 2010, notes the lack of information regarding the extension of the duration of this Plan.
The Committee encourages the State party to extend the Action Plan beyond 2010, to consider including specific provisions on the elimination of racial discrimination and to promote its full implementation.
The National Human Rights Action Plan (2009–2010) was adopted with broad participation from all relevant departments of the Chinese Government and all groups within society. The Plan contains provisions for the protection of the rights of ethnic minorities, including: promotion of the status of ethnic minorities; protection of their right to participate in the management of State affairs and to manage their own internal affairs, in accordance with the law; promotion of their educational and occupational development; enhancement of the training opportunities available to them; ensuring their right to study, use and develop their own spoken and written languages; promotion of the cultural development of minorities; promotion of the economic and social development of minority areas; and improvement of ethnic minorities’ living standards.
To determine how to implement the Action Plan effectively, the Chinese Government established an inter-agency meeting mechanism for the National Human Rights Action Plan. Headed by the State Council Information Office and the Ministry of Foreign Affairs, the mechanism involves the relevant legislative and judicial authorities and functional departments of the State Council. It has responsibility for the overall coordination of the implementation, supervision and evaluation of the Plan. The meeting mechanism tasks the relevant departments and units with the preparation of reports on the status of implementation of the Plan, and also organizes staff from the relevant units as well as experts and scholars to conduct research and investigations. In December 2009, the inter-agency mechanism held a meeting to conduct a midterm appraisal of the Plan’s implementation which was attended by over 200 officials, experts and scholars from more than 50 Government departments and mass organizations. The meeting thoroughly reviewed the Plan’s implementation, evaluating its outcomes through November 2009; in practice, implementation of the National Human Rights Action Plan in the political, economic, cultural and “social construction” spheres by legislative and law enforcement bodies, the justice system, and executive and administrative entities was relatively satisfactory: performance relating to all tasks and indicators was excellent, with achievement rates of roughly 50 per cent for most targets and some rates as high as 65 per cent; these results are being disseminated nationwide.
During 2009 and 2010, the Chinese Government adopted a series of important policy measures aimed at increasing internal demand, revising structures, promoting expansion and improve the living standards, actively and appropriately addressing the international financial crisis, ensuring equitable and speedy economic and social development, and effectively protecting people’s right to life, their right to development and their economic, social and cultural rights. This has further safeguarded the rights of China’s ethnic minorities. The State Council convened the first working meeting on national ethnic minority culture and issued and put into effect Opinions on Further Developing Minority Cultural Undertakings; it also launched a series of policy measures aimed at promoting such undertakings and assisting the development of ethnic minorities. On 5 January 2010, the Central Committee of the Communist Party of China and the State Council jointly convened the Fifth Forum on Work in Tibet and Xinjiang, and adopted a set of policy measures to promote the overall development and long-term political stability of Tibet, Xinjiang and the Tibetan areas of Sichuan, Yunnan and Qinghai Provinces. China has adopted a variety of measures to promote the rapid economic and social development of minority areas and raise the living standards of minority populations. In 2009, the Central Government invested 1.24 billion yuan in assistance for basic infrastructure, the reconstruction of deteriorated housing stock, improvement of minorities’ basic living conditions, production development and increasing income. Statistics indicate that during the period from January to September 2009, the total output of the Tibet Autonomous Region stood at 30.63 billion yuan, or an increase of 11.4 per cent; average disposable urban household income rose by 8.5 per cent over the corresponding period of the previous year, while the average cash income for rural families increased by 11.5 per cent. In the Xinjiang Uighur Autonomous Region total output was 282.493 billion yuan, or an increase of 6.4 per cent; average rural cash income was 2,983 yuan, or an increase of 14.6 per cent – the highest in the country.
The National Human Rights Action Plan, which is the Chinese Government’s policy document for the promotion and protection of human rights, runs through 2010. After its conclusion, the inter-agency meeting mechanism will hold a special final evaluation meeting to conduct a full-scale evaluation of the Plan’s implementation.
While acknowledging the information provided by the State party on the revision of its legislation regarding administrative detention and “re-education through labour”, the Committee is concerned at reports that in practice effective judicial control of these measures is limited and that the application of these laws may disproportionately affect members of ethnic minorities.
The Committee calls upon the State party to take effective measures with a view to ensuring that the application of administrative detention and “re-education through labour” is used restrictively and subject to full judicial control in line with international human rights standards, and that these practices are not disproportionately applied to members of ethnic minorities. It requests the State party to provide, in its next periodic report, information, including disaggregated statistics by ethnic group, on cases in which these measures were administered, and on appeals lodged, if any. In this regard, the Committee also draws the attention of the State party to the Universal Periodic Review procedure and in particular recommendation 31 of the Working Group, which enjoyed the support of the State party (A/HRC/11/25). In light of the section in the National Human Rights Action Plan regarding the prohibition of illegal detention, it also encourages the State party to consider the complete abolition of such laws, as recommended by the Committee against Torture (CAT/C/CHN/CO/4, para. 13).
The Chinese Constitution stipulates: “All nationalities in the People’s Republic of China are equal. The State protects the lawful rights and interests of the minority nationalities and upholds and develops ties of equality, unity and mutual assistance among all of China’s nationalities. Discrimination against or oppression of any nationality are prohibited, as are any action injurious to ethnic unity or causing ethnic divisions.” In practice, China’s public security authorities handle cases in strict accordance with the relevant laws and regulations, and there are no instances of administrative detention or re-education through labour being applied “disproportionately” to members of ethnic minorities.
Concerning administrative detention
In order to protect the legitimate interests of citizens, to give expression to those provisions of the Constitution dealing with respect for and protection of human rights, and to effectively prevent abuse of administrative detention, the Administrative Punishments Law of the People’s Republic of China and the Law of the People’s Republic of China on Administrative Punishments for Public Security contain clear, specific and workable provisions regarding the institution, modalities of operation, scope of application and extent of administrative detention. They also give citizens full entitlement to a remedy while establishing a judicial control mechanism with Chinese characteristics.
1.The scope of application of administrative detention is clearly spelled out. Administrative detention is a form of administrative punishment entailing temporary restriction of personal freedom; it is applied mainly to individuals who have committed administrative violations the circumstances of which are relatively serious. Legislation such as the Law of the People’s Republic of China on Punishment in respect of Public Security Management contains clear provisions establishing the scope of application of administrative detention, and the public security authorities may not exceed the limits of their authority in imposing such detention.
2.The authorities who may impose and enforce administrative detention are strictly limited. China’s legislation contains clear provisions for the protection of citizens’ right to personal liberty and prohibits any unlawful restrictions thereon. Article 9 of the Administrative Punishments Law provides that “administrative punishments that restrict personal freedom may be established only by law”; article 16 of the same Law provides that “the power to administer administrative penalties involving restriction of freedom of person shall be exercised only by the public security authorities”.
3.Discretion in imposing administrative detention is strictly limited. The Law on Punishment in respect of Public Security Management establishes three categories of punishment — 1 to 5 days, 5 to 10 days and 10 to 15 days — for acts that violate public security management; these greatly limit and regulate the powers of the public security authorities when administering punishments and also help to reduce and prevent any arbitrariness or unfairness, thus reflecting the principle of appropriate punishment.
4.Strict procedures for the handling of cases have been established. In order to prevent any infringement of citizens’ rights through abuse of power, the Administrative Punishments Law contains thorough, rigorous and concrete provisions governing administrative detention procedures. For example, evidence that is collected by means that are patently unlawful cannot serve as the basis of punishment. There are likewise clear provisions stipulating that before the public security authorities can impose a punishment for a public security violation, they must inform the perpetrator of the violation of the nature of the punishment, the reason for the punishment and the legal basis thereof; they must also inform said individual of his or her rights under the law. Perpetrators of public security violation have the right to make a statement and to defend themselves, and the public security authorities must give the views of the individual in question a full hearing. The authorities must also accept the facts and reasons as adduced by the perpetrator or established through evidence. The public security authorities may not increase the penalty imposed on the perpetrator as a result of the latter’s statement or defence. Once a case has been investigated, the public security authorities shall issue a decision regarding punishment in respect of an individual who has rightly been held in administrative detention pursuant to the law. The public security authorities shall issue a statement of administrative punishment in respect of the person liable to punishment, which shall be transmitted to the person in question. The authorities imposing the punishment of administrative detention shall promptly notify the family of the person so punished.
5.The four types of situation in which administrative detention may not be administered are clearly spelled out, thus affording protection to vulnerable groups. In order to protect perpetrators of violations of security management who are minors, elderly persons or pregnant or nursing women, the Law on Punishment in respect of Public Security Management clearly stipulates that perpetrators of public security management violations falling into one of the following categories and who should be placed in administrative detention under the terms of this Law shall not be so detained: persons between the ages of 14 and 16 years; those between the ages of 16 and 18 years who are first-time offenders; persons over the age of 70; and pregnant women and women nursing children under the age of 1 year.
6.Better remedies are now available to persons placed in administrative detention, and a judicial control mechanism with Chinese characteristics has been established. In order to ensure that detainees may exercise their right to a remedy fully and more effectively, China’s legislation entitles them to apply for administrative review. At the same time, under the provisions of the Administrative Procedure Law, the Law on Administrative Review and the Law on Punishment in respect of Public Security Management, persons liable to administrative detention who do not accept their punishment may apply to the People’s Government public security authorities at the same level or at one level above for administrative review. Under the law, a people’s court may undertake an independent administrative review and conduct an investigation in order to determine whether or not the decision to impose administrative detention was lawful, and to effectively prevent and immediately correct the irregularity relating to the administrative detention. Furthermore, the Law on Punishment in respect of Public Security Management also stipulates that a person who rejects a punishment decision imposing administrative detention and applies for an or brings administrative proceedings, or members of the person’s family, may provide a guarantor or post a bond and appeal to the public security authorities to defer the administrative detention. If after investigation it is determined that such deferment will not entail any risk to society, the deferment may be granted. In the case of criminal detention, the injured party may apply to the State for compensation under the relevant provisions of the State Compensation Law.
Concerning re-education through labour
China’s system of re-education through labour is an administrative measure for reform through compulsory education. It is an effective means of providing education and correction to individuals whose offences are not serious enough to warrant criminal punishment or individuals who unlawfully and maliciously engage in violations of public security. Under the Pilot Methods for Re-education through Labour, individuals who are ordered to undergo re-education through labour and refuse to comply with their sentence may apply to have their case re-examined, while under the Law on Administrative Review and the Administrative procedure Law, they may apply to the People’s Government at the same level or to the Re-education through Labour Management Committee at the next highest level for an administrative review, or they may lodge an appeal with a people’s court. If the Management Committee orders re-education through labour unlawfully, thereby violating a citizen’s legitimate rights, the injured party may, in accordance with the State Compensation Law, apply to the State for compensation.
China’s re-education through labour system has long played a major role in preventing and reducing crime and maintaining public order. In recent years, as China’s efforts to build a democratic legal system undergo continuous improvement and development, the relevant departments have been studying the experience gained through practice with a view to reforming and improving the re-education through labour system. The Standing Committee of the National People’s Congress has included legislation governing re-education through labour (the draft Law on Education and the Correction of Illegal Acts) in its legislative programme; the relevant departments are in the process of studying the draft and will give careful consideration to the Committee’s views.
Despite the delegation ’ s assurance that lawyers can exercise their profession freely and in accordance with the Lawyers Law, the Committee notes with concern reports on the harassment of defence lawyers taking up cases of human rights violations, especially those introduced by members of ethnic minorities. In this regard, it also notes that the National Human Rights Action Plan expresses the intention of the State party to revise or amend any laws incompatible with the Lawyers Law.
The Committee calls upon the State party to take all appropriate measures to ensure that lawyers can exercise their profession freely, in law and in practice, and to promptly and impartially investigate all allegations of harassment, intimidation, or other acts impeding the work of lawyers. In line with the chapter on the right to a fair trial in the National Human Rights Action Plan, it recommends that the State party revise all laws and regulations that are inconsistent with the Lawyers ’ Law and international standards.
The Chinese Government attaches great importance to protecting the right to engage in the legal profession and is taking pains to expand the role of lawyers in the protection of human rights through the participation of lawyers in legal proceedings, by guaranteeing that the service of a lawyer is available to all on an equal basis, and by doing its utmost to systematically promote fairness in the judicial process and protect the legitimate rights of the parties to proceedings, criminal suspects and defendants. The Criminal Procedure Law, the Civil Procedure Law, the Administrative Procedure Law and the Lawyers Law give lawyers involved in court proceedings many rights, such as legal protection and inviolability of the person while practising in accordance with the law, and protection of their own right to a defence when acting as legal representative or defence counsel, thus facilitating their work. Amendments made to the Lawyers Law in 2007 afford lawyers further protection of their rights while exercising their profession by providing for rights such as the right to meet with clients, the right to review files and the right to inspect evidence, thereby ensuring that lawyers can carry out their duties as defenders more effectively and providing strong guarantees that they can play their professional roles fully.
The amended Lawyers Law and Criminal Procedure Law do reflect a number of differences in certain areas: in practice, these reflect different understandings of the provisions cited above. China’s legislature and related departments attach great importance to this question and are studying it closely in order to find a satisfactory resolution through appropriate means.
Efforts are constantly being made in the context of China’s legislative and judicial practice to enhance all systems for the participation of lawyers in legal proceedings and to guarantee lawyers’ exercise of their rights; there is no instance of harassment, intimidation or other impeding of the work of any lawyers, including lawyers belonging to ethnic minorities, who practise in accordance with the law.
Information provided by the Hong Kong Special Administrative Region in response to the recommendations contained in paragraph 30 of the concluding observations of the Committee on the Elimination of Racial Discrimination adopted on 25 August 2009
[Original: Chinese and English]
1.Following consideration of the tenth to thirteenth periodic reports of the People’s Republic of China, including the Hong Kong Special Administrative Region (HKSAR) (the section of the report on HKSAR hereinafter referred to as the HKSAR Report), the Committee on the Elimination of Racial Discrimination (hereinafter the Committee) adopted the concluding observations on 25 August 2009. Paragraph 40 thereof requested the State party to “provide, within one year of the adoption of the present conclusions, on its follow-up to the recommendations contained in paragraphs 12, 15, 19 and 30 above”.
2.The recommendation under paragraph 30, reproduced as follows, concerns the HKSAR.
“The Committee recommends that effective measures be taken to ensure that domestic migrant workers are not discriminated against. It calls upon repealing of the ‘ two-weeks rule ’ as well as the live-in requirement and that the State party adopt a more flexible approach to domestic migrant workers in relation to their working conditions and work requirements, including employment rules and practices with discriminatory purposes or effects. The Committee also draws attention to its general recommendation No. 30.”
3.In accordance with the request of the Committee, this report sets out the HKSAR’s follow-up and response to the above recommendation.
4.The HKSAR Government attaches great importance to protecting the rights and benefits of foreign domestic helpers (FDHs). As explained in paragraph 78 of the HKSAR Report, the labour laws of the HKSAR, including the two major pieces of legislation viz. the Employment Ordinance (Chapter 57 of the Laws of Hong Kong) (EO) and the Employees’ Compensation Ordinance (Chapter 282) are applicable to local workers and FDHs alike. FDHs have the same access to the free consultation and conciliation services provided by the Labour Department (LD) and the justice system in case of any employment disputes. Furthermore, the anti-discrimination ordinances (including the Sex Discrimination Ordinance and Race Discrimination Ordinance) also apply to FDHs, protecting them against discrimination on the grounds of sex and race, etc. FDHs are also eligible to apply for the Legal Aid Scheme provided by the Government and are subject to the same eligibility criteria as local residents.
5.In addition to the statutory rights applicable to local workers, FDHs have long been provided with additional rights and benefits (such as free accommodation with reasonable privacy, free food (or food allowance in lieu), free medical treatment, free return passage to and from Hong Kong and their place of origin, etc., to be provided by the employer) under the Standard Employment Contract (the Contract) prescribed by the HKSAR Government for FDHs to forestall exploitation against them. Local workers do not usually enjoy these additional rights and benefits.
6.The equal statutory rights and benefits of FDHs and the additional protection under the Contract vindicate that there is no discrimination against FDHs. We are of utmost sincerity to take them as an integral part of our valued labour force.
7.The following paragraphs elaborate on the working conditions and requirements of FDHs, in response to the Committee’s concerns.
Working conditions and requirements
Leave and working hours
8.The Government appreciates that consistently long working hours may affect employees’ health and social life. The EO has thus laid down the minimum requirements on rest days, statutory holidays and paid annual leave arrangements (for details see Annex) for employees, which are equally applicable to local workers and FDHs.
9.In addition to the rest days, statutory holidays and paid annual leave provisions under the EO, the Contract for FDHs has additional provision of “home leave” for FDHs. Under Clause 13 of the Contract, where the employer and the FDH agree to renew the contract, the FDH is entitled to, before the new contract commences, return to his home country at the expenses of the employer for not less than seven days.
10.At present, for the workforce in general, there is no mandatory standard/ maximum working hours stipulated in Hong Kong. Indeed, views of employers, employees and various sectors of the community on the subject have been divergent. As the issue would have far-reaching socio-economic implications for Hong Kong, the HKSAR Government has been cautious in dealing with it. At this stage, the HKSAR Government has no plan to stipulate mandatory standard/maximum working hours. Thus, there is no question of discrimination against FDHs.
11.Notwithstanding the above, the Government has spared no efforts in promoting the importance of provision of proper rest periods to all workers, and in this relation has published the Guide on Rest Breaks to encourage employers and employees to work out suitable rest break arrangements through candid communication.
12.Employees and their employers are free to negotiate on the terms and conditions of their employment, including the hours of work and compensation for overtime work, leave and holiday arrangements, provided that such terms and conditions must not be worse than the requirements under the EO, as well as the Contract in the case of FDHs.
13.The live-in requirement forms the cornerstone of Hong Kong’s policy of importing FDHs. It has been the HKSAR Government’s established policy that, as in many other jurisdictions in the world, priority in employment should be given to local workforce, and importation of workers should only be allowed where there is confirmed manpower shortage in a particular trade that cannot be filled by the local workers. Against this principle, FDHs have been imported since the early 1970s to meet the shortfall of local live-in domestic workers. For the purpose of meeting this shortfall, the current regime for importing FDHs has been far less restrictive than that for other low-skilled workers. For instance, under the Supplementary Labour Scheme (SLS) which imports workers at technician level or below into Hong Kong, to ensure priority of local workers in employment, each application has to undergo a four-week open recruitment exercise in Hong Kong before it would be further processed and considered by the HKSAR Government. Indeed, some labour unionists have demanded that should the live-in requirement be removed, the FDHs should be subject to the same restrictive importation regime as the SLS.
14.This live-in requirement has been made known to the FDHs before their admission into Hong Kong, and specified in the Contract which is signed by both the employer and the FDH beforehand.
15.We have explained our position on the “two-week rule” under paragraph 142 of the HKSAR Report. As a general policy, if the employment of imported workers or FDHs, who are admitted to Hong Kong for employment by a specified employer for a specified period, is prematurely terminated, the worker or FDH is allowed to remain in the HKSAR for the remainder of the permitted limit of stay, or for two weeks from the date of termination, whichever is shorter. The rationale behind this “two-week rule” is to allow sufficient time for the workers to prepare for their departure, and to maintain effective immigration control by deterring overstaying and unauthorized employment after termination of contract. We maintain that the rule remains necessary to serve these legitimate purposes.
16.We note the concerns expressed on the possible abuses by employers and employment agencies, and wish to emphasize that this policy, laid down to ensure effective immigration control, does not preclude imported workers or FDHs from working in Hong Kong again after returning to their place of domicile. The cost of return passage is fully borne by the employer. Also, suitable flexibility is allowed for special cases (e.g. the employer is in financial difficulty; the family will emigrate; or there is evidence that the FDH has been abused) in which the HKSAR Government may exercise discretion to permit FDHs whose contracts have been prematurely terminated to change employment without having to return to their place of domicile. In the event that an FDH has to stay in Hong Kong to settle labour dispute, he/she may apply for extension of stay in Hong Kong. Flexibility will be exercised to extend the FDH’s stay on visitor condition to enable him/her to wait for the conclusion or determination of the case.
17.Notwithstanding the above, the HKSAR Government will take into account general recommendation No. 30 in monitoring the “two-week rule” and “live-in” requirements.
Rigorous enforcement of labour rights
18.At the same time, the LD will continue to rigorously enforce the labour laws to protect the labour rights of all workers (including migrant workers such as the FDHs). The LD takes a very serious view against underpayment of wages and employers’ failure to grant rest days and other holidays, and is committed to combating malpractices (including overcharging) of local employment agencies. It does not tolerate any abuse, and spares no effort in clamping down on offenders, by investigating promptly into any complaints lodged by FDHs, or by FDH groups and non-governmental organizations (NGOs), and taking out prosecution where there is sufficient evidence. In 2009 and 2010 (up to end-May), the LD has secured 175 convicted summons against employers who underpaid FDHs, among which two employers were sentenced to imprisonment and two to community service order. During the same period, the LD has conducted 1,316 inspections to the local employment agencies placing FDHs, and has revoked licenses of two such agencies for overcharging and one has been convicted for unlicensed operation.
19.We will also continue to foster close collaboration and cooperation with FDH groups and NGOs on all fronts to safeguard the rights and benefits of FDHs.
Provisions under EO on rest days, statutory holidays and paid annual leave
The minimum requirements under EO on rest days, statutory holidays and paid annual leave, applicable to all employees (including FDHs) are set out below.
All employees employed under a continuous contract (including FDHs who are imported into Hong Kong for employment under a two-year continuous contract) are entitled to no less than one rest day (i.e. a period of not less than 24 hours) in every period of seven days.
Alternative arrangements if employees are asked to work on rest days
An employer must not compel an employee to work on a rest day except in the event of emergency. For any rest day on which the employee is required to work, the employer should substitute some other rest day within 30 days after the original rest day.
Offences and penalties
An employer who without reasonable excuse fails to grant rest days to his employees, or compels his employees to work on their rest days, is liable to prosecution and, upon conviction, to a fine of HK$ 50,000.
All employees (including FDHs), irrespective of length of service, are entitled to the 12 statutory holidays prescribed under EO.
Alternative arrangements if employees are asked to work on statutory holidays
If the employer requires the employee to work on a statutory holiday, the employer should grant the employee an alternative holiday within 60 days before or after the concerned statutory holiday. Subject to mutual agreement between the employer and employee, the employer may also grant the employee a substituted holiday within 30 days before or after the concerned statutory holiday or alternative holiday.
An employer must not make any form of payment to the employee in lieu of granting a statutory holiday. In other words, “buy-out” of a statutory holiday is not allowed.
Offences and penalties
An employer who without reasonable excuse fails to grant statutory holidays, alternative holidays or substituted holidays to an employee is liable to prosecution and, upon conviction, to a fine of HK$ 50,000.
(C)Paid annual leave
An employee is entitled to annual leave with pay after having been employed under a continuous contract for every 12 months. An employee’s entitlement to paid annual leave increases progressively from seven days to 14 days according to his length of service.
Offences and penalties
An employer who without reasonable excuse fails to grant annual leave to an employee, or who fails to pay annual leave pay to an employee, is liable to prosecution and, upon conviction, to a fine of HK$ 50,000.