Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the International Trade Union Confederation (ITUC) and the Hong Kong Confederation of Trade Unions (HKCTU) received on 15 and 30 September 2020 respectively, concerning the application of the Convention and alleging police repression and arrests made in connection to public protests carried out in 2019, including the arrest of Mr Lee Cheuk Yan, general secretary of the HKCTU, who was later released on bail pending a court hearing. The HKCTU states that his arrest dissuaded trade unionists from staging public protests and exercising their right to peaceful assembly. The Committee also takes note of the ITUC’s allegation that the authorities have started to use the National Security Law, adopted on 30 June 2020 and to which the Committee refers in this observation, to crack down on legitimate and peaceful assemblies. The Committee takes note of the Government’s reply to the ITUC and HKCTU’s observations which indicates that the level of violence and damage caused by the public protests in 2019 and 2020 was alarming and that the Police have a statutory duty to safeguard public order and public safety. While taking due note of these indications, the Committee requests the Government to ensure that trade unionists are able to engage in their activities in a climate free of violence and intimidation and within the framework of a system that guarantees the effective respect of civil liberties. The Committee also reiterates its request to the Government to provide its comments on the 2016 ITUC observations, including the alleged arrest of Mr Yu Chi Hang, organizing secretary of the HKCTU; and the alleged dismissal of all workers (coach drivers) prior to an announced strike coupled with the hiring of replacement labour.

Articles 2, 3, 5 and 8 of the Convention. Legislative developments. National Security Law. For a number of years, the Committee has noted the proposals to implement article 23 of the Basic Law which, among others, would allow for the proscription of any local organization which was subordinate to a mainland organization, the operation of which had been prohibited on the grounds of protecting the security of the State; and had considered that those proposals could impede the right of workers and employers to form and join the organizations of their own choosing and to organize their administration and activities free from interference by the public authorities. The Committee had also noted the Government’s indication that while it had a constitutional responsibility to legislate pursuant to article 23 of the Basic Law in order to safeguard national security, it would carefully consider all relevant factors, act prudently and continue its efforts to create a favourable social environment for the legislative work. The Government further stated that it would listen to public views earnestly and explore ways to enable the society to respond positively to the constitutional requirement. In its last comment, the Committee had expressed the firm hope that the Government would ensure that any new legislation to implement article 23 of the Basic Law would take due account of its comments and be in line with the Convention. The Committee requested the Government to provide information on any developments in this regard, including on consultations held with the social partners.

The Committee notes that in its supplementary report the Government informs that on 28 May 2020, the National People’s Congress adopted a decision on establishing and improving the legal system and enforcement mechanisms for the Hong Kong Special Administrative Region (HKSAR) to safeguard national security. The Committee also takes note of the ITUC’s and HKCTU’s indication that on 30 June 2020, China’s top legislature unanimously passed the National Security Law for Hong Kong, which entered into force the same day.

The Committee takes note of the various allegations and concerns raised by the ITUC and the HKCTU with respect to the National Security Law, which include the following: (i) the law was passed just weeks after it was first announced, bypassing Hong Kong’s local legislature; (ii) the law is dangerously vague and broad and virtually anything could be deemed a threat to “national security" under its provisions; (iii) under the law “secession”, “subversion”, “terrorism” and “collusion with foreign forces” incur maximum penalties of life imprisonment; (iv) authorities have at their disposal a broad range of powers with absolutely no checks and balances to ensure the rule of law, respect for fundamental rights and due process and suspects can be removed to mainland China, handled within the mainland’s criminal justice system and tried under mainland law; (v) although the law includes a general guarantee to respect human rights, other provisions of the law could override these protections; (vi) article 62 provides the law with a prevailing status to override all other local laws of Hong Kong; and (vii) article 29 of the law poses threats to the right of trade unions in Hong Kong to freely associate and pursue solidarity activities with international organizations as it criminalises "directly or indirectly receiving instructions, control, funding or other kinds of support from a foreign country or an institution" to commit certain acts with a view to, inter alia, “seriously disrupting the formulation and implementation of laws or policies by the Government of the Hong Kong Special Administrative Region or by the Central People's Government, which is likely to cause serious consequences”.

The Committee notes that, in its reply to the ITUC and HKCTU’s observations, the Government indicates that the situation since June 2019 had evolved to such a state that the Central Authorities had no alternative but to step in and take action, with the HKSAR Government having failed for the past 23 years to enact its national security laws as required by Article 23 of the Basic Law to safeguard national security. The Committee takes note that the Government indicates that: (i) “different countries have their own national security laws and their law is no different; (ii) it is misleading to say that the adoption of the National Security Law “bypassed” article 23 of the Basic Law because, as indicated by article 7 of the National Security Law, the HKSAR still has the obligation to complete as early as possible legislation for safeguarding national security as stipulated under article 23 of the Basic Law; (iii) before adopting the law, the Standing Committee of the National People’s Congress had, through different channels, gauged the views of the HKSAR Government and various sectors of the community in Hong Kong, (iv) the establishment of the mechanism for safeguarding national security in the HKSAR will not undermine or replace the HKSAR’s existing legal system, and the judicial system continues to be protected by the Basic Law; (v) article 4 of the law mandates that human rights shall be respected and protected in safeguarding national security in the HKSAR, and that the rights and freedoms enjoyed by the HKSAR residents (including the right to freedom of association and to form and join trade unions under article 27 of the Basic Law of the HKSAR and Article 8 of the International Covenant on Economic, Social and Cultural Rights and Article 22 of the International Covenant on Civil and Political Rights as applied to Hong Kong) shall be protected in accordance with the law; and (vi) Hong Kong is an international city having close contact and communication with other countries, regions and relevant international organizations; these normal interactions and activities are protected by the Basic Law and local laws of the HKSAR; what the National Security Law seeks to prevent, suppress and punish is only the collusion with foreign and external forces to carry out activities of secession, subversion, infiltration and sabotage - for example, activities such as begging for foreign sanctions that severely damage the interests of Hong Kong are distinctly different from normal interactions (including normal associations between trade unions in Hong Kong and international organizations).”

The Committee takes due note of the Government’s indications. It recalls that Article 8 of the Convention sets out both that: (i) in exercising the rights provided for in the Convention workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land; and that (ii) the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention. In this respect, the Committee further recalls that workers’ and employers’ organizations should have the right to organize their activities in full freedom and to formulate their programmes with a view to defending the occupational interests of their members, while respecting the law of the land. This includes in particular the right to hold trade union meetings, the right of trade union officers to have access to places of work and to communicate with management, the right to organize protest action, as well as certain political activities (such as expressing support for a political party considered more able to defend the interests of members), and having close contact and communication with international organizations of workers and employers. In turn, 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 (see the 2012 General Survey on the fundamental Conventions, paragraph 115). Emphasizing that international trade union solidarity constitutes one of the fundamental objectives of any trade union movement, the Committee expects that the Government will ensure as it has stated that normal trade union interactions and activities are indeed protected by the law.

Having noted the concerns expressed by the ITUC and the HKCTU on the possible negative effects that the application of the National Security Law may have on the rights enshrined in the Convention, the Committee requests the Government, in consultation with the social partners, to monitor and provide information on the impact that the Law has already had and may continue to have on the application of the Convention.

The Committee welcomed the statistics supplied by the Government according to which, as of 31 May 2019, the number of trade unions was 914, representing an increase of 13.1 per cent in the last ten years.