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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Hong Kong Special Administrative Region (RATIFICATION: 1997)

Other comments on C087

Observation

Direct Request

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The Committee takes note of the observations of the International Trade Union Confederation (ITUC) received on 1 September 2022 and the reply of the Government of the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China thereon, as well as the observations of Education International (EI), received on 31 August 2023, and the joint observations of the ITUC and the International Transport Workers’ Federation (ITF) received on 27 September 2023, which refer to issues examined by the Committee in the present comment. It also notes the Government’s reply to the observations made by the ITUC in 2021.

Trade union rights and civil liberties. The Committee notes that in their 2022 and 2023 observations, the ITUC, the ITF and the EI continue to denounce an acute decline in the respect for civil liberties and freedom of association, with independent trade unionists being targets of arbitrary arrests, surveillance and judicial prosecution. In particular, they allege: (i) the conviction of Mr Lee Cheuk Yan in 2022, for ten offences in relation to public protests in his capacity as General Secretary of the now disbanded Hong Kong Confederation of Trade Unions (HKCTU) and his ongoing prosecution for acts done in his capacity as the Chair of the Hong Kong Alliance in Support of the Patriotic Democratic Movement in Beijing (HK Alliance); (ii) the conviction, in September 2022, to 19 months of imprisonment of five executives of the General Union of Hong Kong Speech Therapists (GUHKST) in relation to a union publication of children’s books with stories based on the pro-democratic protests of the healthcare workers in 2019 and 2020; (iii) continued detention since February 2021 and denial of bail of Ms Carol Ng, former Chairperson of the HKCTU, and re-arrest of Ms Winnie Yu, former Chairperson of the Hospital Authority Employees Alliance (HAEA) allegedly for violations of her bail conditions; (iv) pending trial of the 47 pro-democracy activists, including Ms Ng and Ms Yu, arrested in connection with political party primary polls held in 2020, which is scheduled for November 2023; (v) the arrest of Ms Elizabeth Tang, the General Secretary of the International Domestic Workers’ Federation and former Chief Executive of the HKCTU (she was released on bail in March 2023); (vi) the questioning by national security police of 13 trade union activists in March 2023; and (vii) arrest warrants issued against eight activists abroad, including the former Chief Executive of the HKCTU, Mr Mung Siu Tat Christopher (who is wanted by the Government on an award of HKD 1 million (equal to US$128,260)), for alleged crimes under the National Security Law (NSL). The ITUC and ITF further allege that the arrests of union leaders are often followed by arrests of other activists of their organizations, and that their release on bail is subject to stringent conditions, including obligations to regularly report to the police, the search of their homes and offices and the seizure of personal property, including travel documents, considerably limiting their union role. The Committee recalls in this respect that the arrest of Mr Lee Chuck Yan, Ms Carol Ng and Ms Winnie Yu, as well as of the five GUHKST leaders, are also being examined by the Committee on Freedom of Association (CFA) (Case No. 3406), which urged the Government to take all appropriate measures to ensure that Mr Lee Cheuk Yan is not imprisoned for having exercised legitimate trade union activities and to ensure, in law and in practice, the full enjoyment of trade union rights (see 401st Report, March 2023, paragraph 322).

The Committee notes that, in its report and reply to the 2022 ITUC observations, the Government reiterates that the arrests of the above-mentioned union officials were unrelated to their position of union officials and that the appeals filed by some of the sentenced GUHKST officials were subsequently dropped. It reiterates that offences endangering national security are handled in accordance with the established procedures and in full compliance with due process, and that all law enforcement actions are based on evidence, strictly according to the law, without considering whether those concerned are trade unionists. The Government further reiterates previously provided information on legislative provisions that recognize the right to freedom of association and the right of trade unions to organize their activities and formulate their programmes, including the right to strike, but also points out the importance of respecting the law of the land in exercising the rights enshrined in the Convention. In particular, any act of protest or demonstration for which the police have not issued a notice of no objection, or in which violence or the threat of violence is used to express opinions, crosses the boundary of peaceful exercise of rights and enters the territory of unlawful activities, against which the police are obligated to take action. While taking due note of the Government’s information on the legislative and procedural guarantees relating to the right to organize and the relevant civil liberties, the Committee observes with deepconcern the reported continued decline of civil liberties and freedom of association, as a result of which, according to the ITUC and the ITF, independent trade union movement in Hong Kong is non-existent. The Committee recalls that the International Labour Conference 1970 resolution concerning trade union rights and their relation to civil liberties, emphasizes that the rights conferred upon workers’ and employers’ organizations must be based on respect for civil liberties, as their absence removes all meaning from the concept of trade union rights. Furtherrecalling the interdependence between civil liberties and trade union rights and emphasizing that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against trade union leaders and members, the Committee firmly expects the Government to ensure full respect of the above and urges it to provide its comments on the 2023 ITUC, ITF and EI observations, as well as full and detailed information on the outcome of all the proceedings along with copies of the relevant court judgments.

Articles 2, 3, 5 and 8 of the Convention. Application of the National Security Law. In its previous comment, the Committee requested the Government to provide specific information on the application in practice of the NSL and on the public consultations that the Government indicated would provide clarity on the applicable legislative principles. The Committee notes that the Government reiterates information provided previously on the benefits of the NSL in achieving safety, security and stability and on the fact that the law emphasizes the protection and respect of human rights and adherence to rule of law values. The Government also maintains that all persons are obliged to observe the requirements under the law and shall not endanger national security or public safety, public order or the rights and freedoms of others. While further noting the awareness-raising activities organized by the Government to enhance the understanding of trade union officials, teachers and civil servants on the implementation of the NSL, the Committee regrets to note that, in spite of its request as well as the request made by the Conference Committee on the Application of Standards and the CFA, no concrete consultations appear to have taken place with the social partners on the negative effects that the application of the NSL is alleged to have on the rights enshrined in the Convention.

The Committee further notes with concern the 2022 and 2023 observations of the ITUC, ITF and EI that the application of the NSL continues to result in the deregistration or disbanding of trade unions and the suppression of fundamental freedoms, and has been used to intimidate, harass, arrest, prosecute and convict trade unionists for alleged offences endangering national security. The allegations specifically refer to: (i) increased surveillance and harassment of independent trade unions, including sending inquiry letters, warning letters and summons to provide information (the Hong Kong White Collar (Administration and Clerical) Connect Union and the Hong Kong Financial Industry Employees General Union in December 2021; the Hong Kong Journalists Association (HKJA) in January 2022; the HKCTU in February and March 2022; its executives were arrested by the national security police following their failure to provide detailed information under the Societies Ordinance, and their personal property and trade union premises were searched and seized; the Environmental Education and Ecological Conservation Workers’ Union and the Hong Kong Music Industry Union in March 2022; and the Accounting Bros’ Sis Labour Union, the Construction Site Workers General Union, the Bar Bending Industry Workers Solidarity Union, the Catering and Hotels Industries Employees General Union, the New World First Bus Company Staff Union and the Citybus Limited Employees Union, all between January and August 2022); (ii) interference in trade union registration by requesting a pledge “not to endanger national security” or engage in activities “contrary to the interests of national security”, as well as by inserting clauses on endangering national security in the Social Workers Registration Ordinance (SWRO) and similar initiatives for the Trade Union Ordinance (TUO); (iii) deregistration and forced dissolution of trade unions following State media anti-union campaigns, resulting in concerns about the safety of union members (the Hong Kong Professional Teacher Union in August 2020; the HKCTU in October 2021; the HKCTU Education Foundation in May 2022; the Hong Kong Journalists Association (HKJA), as well as some media under its control; and the Community Care and Nursing Home Workers General Union and the Confederation of Tertiary Institutes Staff Unions); (iv) invocation of section 10 of the TUO by the Registrar of Trade Unions, which can lead to cancellation of trade union registration (the Hong Kong White Collar (Administration and Clerical) Connect Union and the Hong Kong Financial Industry Employees General Union in December 2021 and the HKJA in January 2022); (v) particularly harsh surveillance and repression of the education community, including obligation to swear loyalty to the Government, investigations of professional misconduct and disciplinary sanctions, leading to an environment in which teachers can no longer engage in union activities without violence or intimidation; and (vi) other restrictions and violations of civil liberties (arrest of 260 persons and prosecution of 161 of them, including three unionists for offences endangering national security; pressure to cancel demonstrations (the Hong Kong Women Workers’ Association); interrogation of HKCTU executives; freezing of bank accounts and assets; initiatives to impose stringent regulations on crowd-funding activities and to adopt further legislation regarding national security).

The Committee notes that, in its reply to the 2022 ITUC observations, the Government provides its comments on some of the above allegations. It asserts that the allegations are factually incorrect and that the isolated incidents referred to by the ITUC are associated with suspected unlawful activities not related to the exercise of trade union rights or relate to voluntary decisions of the trade unions concerned to initiate dissolution. The Committee notes in this regard that, based on the statistics supplied by the Government, as of 31 May 2023, there were 1,460 registered trade unions and federations in the country, which reflects a decline from the 1,541 registered unions in October 2021, according to Government information. Regarding the allegations of arrests and seizure of properties of union members, the Government indicates that legal sanctions are imposed only when a recipient fails to comply with a notice to provide information to the court with no valid explanation. Concerning the inclusion of a provision on national security in the TUO and the SWRO, the Government indicates that this reflects the seriousness of the offence and ensures that a person convicted of such offence temporarily loses their rights under the TUO or their registration as a social worker. It states that such offences shall include but are not limited to, “secession”, “subversion”, “terrorist activities” and “collusion with a foreign country or with external elements to endanger national security” stipulated in the NSL, and the offences of “treason” and “sedition” in the Crimes Ordinance. The Committee observes in this regard that the non-exhaustive formulation and broad scope of the provision could lead to arbitrary interpretation. Finally, the Government indicates that it has been carrying out relevant work in respect of its constitutional responsibility to enact legislation on section 23 of the Basic Law, including conducting legal research in relation to national security, and that it will take concrete measures to clearly explain the legislative principles to avoid misunderstandings.

The Committee understands from the above that, despite the Government’s assurances that the NLS retains the protection of basic civil liberties and trade union rights, numerous instances of serious violations were reported by the ITUC and the ITF in relation to the application of this law, allegedly leading to a decline in civil liberties and trade union rights, in violation of the Convention. The Committee once again recalls that the principal objective of the Convention is to protect the autonomy and independence of workers’ and employers’ organizations in relation to the public authorities, both in their establishment and in their functioning and dissolution, and that the authorities should refrain from any interference which would restrict freedom of association and assembly or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order. In line with the above, the Committee requests the Government to continue to provide information on the application of the NSL in practice and to monitor, together with the social partners, any negative effects it may have on the exercise of the rights enshrined in the Convention. The Committee expects these to be assessed and adequately addressed, including in the framework of public consultations and publications referred to by the Government, and requests the Government to provide details in this regard. The Committee also requests the Government to provide specific information on the proposed amendments to include provisions relating to national security in the TUO and the SWRO and their application in practice. The Committee further requests the Government to provide information on the number of trade unions dissolved or de-registered, voluntarily or otherwise, in the past seven years along with a detailed list of trade unionists who were prosecuted, arrested, or convicted by the authorities during the same time-period, along with the charges against them. The Committee urges the Government to take all necessary measures to ensure, in law and in practice, the full enjoyment of the rights enshrined in the Convention.

Noting the ITUC and ITF’s indication that the local legislation on national security under section 23 of the Basic Law will expire at the end of 2024 and that other legislation will be enacted to ensure the protection of national security, the Committee requests the Government to provide information in this regard.