Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Abolition of Forced Labour Convention, 1957 (No. 105) - China - Hong Kong Special Administrative Region (Ratification: 1997)

Other comments on C105

Observation

2021
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Article 1(a) of the Convention. Imposition of prison sentences involving the obligation to work as a punishment for expressing certain political views or views ideologically opposed to the established political, social or economic system. The Committee previously noted the following legislative provisions, under which penalties of imprisonment (involving compulsory prison labour, pursuant to section 38 of the Prison Rules) may be imposed in situations covered by Article 1(a) of the Convention:

– printing, publishing, selling, distributing, importing, etc., of seditious publications or uttering seditious words (section 10 of the Crimes Ordinance, Cap. 200);
– various violations of the prohibition on printing and publication (sections 18(i) and 20 of the Registration of Local Newspapers Ordinance, Cap. 268; regulations 9 and 15 of the News Agencies Registration Regulations, Cap. 268A; regulations 8 and 19 of the Newspaper Registration and Distribution Regulations, Cap. 268B; regulations 7 and 13 of the Printed Documents (Control) Regulations, Cap. 268C);
– various contraventions of regulations of public meetings, processions and gatherings (sections 17A, 17B, 17E and 18 of the Public Order Ordinance, Cap. 245).

The Committee noted that the UN Human Rights Committee expressed concern about the application in practice of certain terms contained in the Public Order Ordinance, such as “disorder in public places” (as provided for by section 17B) and “unlawful assembly” (as provided for by section 18), which may facilitate excessive restriction on civil and political rights. It also expressed concern about the increasing number of arrests of, and prosecutions against, demonstrators. The Committee also noted the Government’s indication that in August 2017 the Court of Appeal sentenced three persons to six–eight months’ imprisonment in relation to the mass demonstration in 2014 for inciting others to take part in an unlawful assembly, or for taking part in an unlawful assembly under section 18 of the Public Order Ordinance. While noting that the Government reiterated that freedom of the press, as well as freedom of opinion and expression are protected under the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap. 383), the Committee urged the Government to take the necessary measures to ensure that, both in law and in practice, no sanctions involving compulsory labour can be imposed as a punishment for holding or expressing political views.

In its report, the Government indicates that the application of the Convention remains unchanged and that no modification in law and practice has been made. It also states that from 2017 to 2020, except under the Public Order Ordinance, no convictions were recorded under any other provisions mentioned above. According to the Government’s report, four defendants were convicted under section 17A of the Public Order Ordinance for organizing, participating and inciting others to take part in an unauthorized assembly and sentenced to immediate imprisonment from seven months to one year. In this case, the magistrate pointed out that, over 9,000 protestors besieged the Police Headquarters for more than 15 hours in an unauthorized assembly, posing a threat to the personal safety of those at the scene and at the same time causing serious disruption to the traffic for which penalties with deterrence were necessary. The Government also refers to the statement made by the Chief Justice of the Hong Kong Court of Final Appeal during the Ceremonial Opening of the Legal Year 2020, that “we see clear limits in the law to the exercise of rights. The enjoyment or insistence on one’s rights does not, for example, provide any excuse to harm other people or their property, or to display acts of violence”.

The Committee further notes that on 7 January 2021 the United Nations Office of the High Commissioner for Human Rights (OHCHR) voiced deep concerns over the arrests of over 50 individuals under the new National Security Law of 2020. These latest arrests indicate that the offence of subversion under the National Security Law is indeed being used to detain individuals for exercising legitimate rights to participate in political and public life. The OHCHR and the UN independent human rights experts have repeatedly warned that offences such as subversion under the National Security Law, are vague and overly broad, facilitating abusive or arbitrary implementation (UNOHCHR, communication of 7 January 2021). The Committee also refers to its observation on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it raises concerns in relation to the application of the National Security Law.

Referring to its General Survey of 2012 on the fundamental Conventions, the Committee once again recalls that Article 1(a) of the Convention prohibits the use of “any form” of forced or compulsory labour, including compulsory prison labour, as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. The range of activities which must be protected from sanctions involving compulsory labour comprises the freedom to express political or ideological views (which may be exercised orally or through the press and other communications media), as well as various other generally recognized rights, such as the right of association and of assembly, through which citizens seek to secure the dissemination and acceptance of their views. However, certain limitations may be imposed by law on these rights and freedoms, which must be accepted as normal safeguards against their abuse (paragraphs 302 and 303). The Committee considers that it is not necessary to use prison sentences involving compulsory labour to maintain public order. Nevertheless, the protection provided for by the Convention does not extend to persons who use violence, incite to violence or engage in preparatory acts aimed at violence.

The Committee therefore urges the Government to take the necessary measures to ensure that, both in law and in practice, no sanctions involving compulsory labour can be imposed or are imposed as a punishment for peacefully holding or expressing political views, by clearly restricting the scope of the provisions under the Public Order Ordinance, the relevant provisions of the National Security Law as well as the provisions under the Crime Ordinance and other regulations mentioned above, to situations connected with the use of violence, or by repealing penal sanctions involving compulsory labour. The Committee requests the Government to continue to provide information on decisions issued under these provisions in order to assess their application in practice, indicating in particular the facts that gave rise to the conviction, and the penalties applied.

The Committee is raising other matters in a request addressed directly to the Government.