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

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

The Committee takes note of the reply of the Government of the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China to the observations made by the International Trade Union Confederation (ITUC) in 2016.

The Committee also notes the ITUC observations received on 1 and 23 September 2021, referring to issues examined by the Committee in the present comment, as well as the Government’s replies thereto, some of which (those addressing the 1 September observations) were received while the Committee was already in session.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 109th Session, June 2021)

The Committee notes the discussion which took place in June 2021 in the Conference Committee on the Application of Standards (the Conference Committee) concerning the application of the Convention by China - Hong Kong Special Administrative Region. The Committee observes that the Conference Committee called on the Government to: (i) provide full information regarding the outcomes of procedures to examine the police action and arrests made in connection with protests which fall under the scope of the Convention; (ii) take all necessary measures to further guarantee the right for workers’ and employers’ organizations to organize their activities in line with the Convention and to ensure that trade union leaders and trade union members conducting lawful trade union activities are not arrested, detained or prosecuted; (iii) keep under review, in consultation with the social partners, the application of the National Security Law so that the rights of workers, employers and their organizations under the Convention are fully protected; and (iv) continue to provide up-to-date information on the impact that the National Security Law has on the application of the Convention.

Trade union rights and civil liberties. In its last comment, having taken note of allegations of police repression and arrests made in connection to public protests, the Committee requested 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 notes the Government’s indication that: (i) section 27 of the Basic Law and section 18 of the Hong Kong Bill of Rights recognize the right to freedom of association, the right to form and join trade unions and the right to strike; and (ii) the Trade Unions Ordinance seeks to promote sound trade union management and protect the rights of trade union members. The Government highlights that it attaches great importance to ensuring the right of trade unions to organize their activities and formulate their programmes to defend the occupational interests of their members. It points out, however, that in exercising the rights enshrined in the Convention, everyone shall respect the law of the land. The Government indicates that, while the right of peaceful assembly is protected under the Basic Law, such right is not absolute and may be restricted by law in the interest of national security, public safety, and public order and for the protection of the rights and freedoms of others. It further indicates that the duty of the Police is to maintain law and order as well as to prevent and detect crime. The Government further indicates that Hong Kong authorities have been handling and will continue to handle all criminal offences in a fair and impartial manner and in strict accordance with the law, without considering if those concerned are trade unionists. It adds that authorities strive to protect the rights of detainees, including the right to receive legal assistance, communicate with a relative or friend, receive copies of written records under caution, and receive food and drinks and medical attention. The Government points out that developments since the implementation of the National Security Law (NSL) have been characterized by safety, security and stability and that residents are no longer under the threat of street violence and personal intimidation. It adds that the recent arrest of members of a terrorist group plotting to set bombs in public places illustrates the genuine need for the NSL to prevent and suppress acts and activities endangering national security.

While taking due note of the Government’s indications, the Committee notes that the ITUC denounces an acute decline in the respect for civil liberties and freedom of association. The ITUC alleges that trade union rights are seriously under attack and that trade unionists are persecuted for defending the rights of workers and for carrying out legitimate trade union activities. The ITUC refers specifically to the arrest of Mr Lee Cheuk Yan, General Secretary of the Hong Kong Confederation of Trade Unions (HKCTU), noted by the Committee in its last comment, who is facing prosecution for 10 criminal offences in relation to public protests. The ITUC also alleges the arrest of 55 pro-democracy activists and politicians in connection with political party primary polls held in 2020, including three trade union leaders, Ms Carol Ng, Chairperson of the HKCTU, Ms Winnie Yu, Chairperson of the Hospital Authority Employees Alliance (HAEA) and Mr Cyrus Lau, Chairperson of the Nurses Trade Union. The Committee notes that the abovementioned arrests are the subject of a complaint made by the ITUC and examined by the Committee on Freedom of Association (CFA) (Case No. 3406). The Committee recalls in this regard that the CFA requested 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. It also urged the Government to take all appropriate measures to ensure that Mr Lee Cheuk Yan is not imprisoned for having participated in a peaceful demonstration defending workers’ interests (see 395th report, June 2021, para 173).

The Committee notes that the ITUC also alleges the arrest, on 22 July 2021 of five executives of the General Union of Hong Kong Speech Therapists (GUHKST) in relation to a publication of picture books for children with speech problems published by the union with stories based on the pro-democratic protests of the healthcare workers in 2019 and 2020. The ITUC indicates that all five union executives were put under custody pending the hearing scheduled for 24 October 2021. The Committee notes the Government’s indication that GUHKST’s chairperson and executive committee members were charged for conspiring to print, publish, distribute, display or reproduce seditious publications, which glorify unlawful acts, bring hatred against the HKSAR Government and the administration of justice, and incite other people to commit violence, which are not lawful trade union activities. The Committee recalls that the resolution adopted by the Conference in 1970 concerning trade union rights and their relation to civil liberties reaffirms the essential link between civil liberties and trade union rights, which was already emphasized in the Declaration of Philadelphia (1944), and enumerates the fundamental rights that are necessary for the exercise of freedom of association, with particular reference to: (i) the right to freedom and security of person and freedom from arbitrary arrest and detention; (ii) freedom of opinion and expression, and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers; (iii) freedom of assembly; (iv) the right to a fair trial by an independent and impartial tribunal; and (v) the right to protection of the property of trade union organizations (see the 2012 General Survey on the fundamental Conventions, paragraph 59). Expressing the firm expectation that the Government will ensure full respect of the above, and noting the ITUC’s indication that the hearing was scheduled for 24 October 2021, the Committee requests the Government to provide full and detailed information on the outcome and transmit copies of the relevant court judgments.

Articles 2, 3, 5 and 8 of the Convention. Application of the National Security Law. In its last comment, having noted the concerns expressed by the ITUC and the HKCTU on the possible negative effects that the application of the NSL could have on the rights enshrined in the Convention, the Committee requested the Government, in consultation with the social partners, to monitor and provide information on the impact that the Law had already had and may continue to have on the application of the Convention. The CFA referred to this matter in case No. 3406 mentioned above, and drew its legislative aspects to the attention of the Committee (see 395th report, June 2021, paragraph 173). The Committee notes that the Government indicates in this respect that: (i) it appreciates that at the Conference Committee both the worker and employer representatives from the HKSAR shared the view that the NSL is necessary for restoring stability; (ii) the law reverted the chaotic situation enabling the economy and people’s livelihood to revive; and (iii) developments since the implementation of the NSL have been characterized by safety, security and stability. The Government indicates that the NSL has not amended any provision of the Basic Law, that all human rights provisions of the Basic Law have remained untouched and that in fact the NSL clearly stipulates that human rights shall be respected and protected in safeguarding national security. The Government also emphasizes that all persons shall observe the requirements under the law and shall not endanger national security or public safety, public order or the rights and freedoms of others in exercising their rights. It indicates in this respect that section 2 of the NSL stipulates that the provisions in sections 1 and 12 of the Basic Law on the legal status of the HKSAR are the fundamental provisions in the Basic Law, and that no institution, organization or individual in the HKSAR shall contravene these provisions in exercising their rights and freedoms. 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. The Committee also takes note of the Government’s indication that it will draw up effective and pragmatic proposals and provisions, conduct public consultation properly, formulate appropriate publicity plans, as well as communicate more with members of the public, with a view to explaining clearly the legislative principles and details and avoiding misunderstandings.

While taking due note of the Government’s indications, the Committee notes the ITUC’s allegation that since coming into effect on 30 June 2020, the NSL has been used to intimidate and harass trade unions and that its application has resulted in the deregistration or disbanding of trade unions. The ITUC specifically alleges that: (i) in December 2020, 180,000 civil servants were requested to take an oath and sign on a declaration of loyalty, mentioned in section 6 of the NSL, making it impossible to freely express opinions or join an organization or activities deemed by the authority to be inciting discontent, aggravating social instability or undermining the capabilities of the Government. The Union for New Civil Servants protested against the oath requirement and disbanded itself in January 2021. Civil servants refusing to sign the declarations were suspended or dismissed; (ii) after the Hong Kong Education Bureau ceased recognition and working relations with the Hong Kong Professional Teachers’ Union (HKPTU), the union withdrew from the pro-democracy movement; disaffiliated from Education International and announced on 10 August 2021 its dissolution and closure of teachers’ cooperatives; (iii) the cancellation of the registration of GUHKST was gazetted on 20 August 2021; (iv) on 25 August 2021, the police served notice to Mr Lee Cheuk Yan (currently in prison), as well as 8 other executives of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China to submit under section 43 of the NSL information on activities outside Hong Kong in relation to the Alliance or face a fine and jail term from 6 months to 2 years; (v) the deregistration procedure for the Hospital Authority Employees’ Alliance (HAEA) was invoked with a notice served by the Registrar on 3 September 2021, demanding information on events it had held by 17 September 2021; (vi) in a press conference on 19 September 2021, the HKCTU announced that it would invoke the procedure to disband the trade union centre, following persistent stigmatization, vilification and attack on its trade union activities and the use of security and the judiciary to intimidate and harass its members for exercising trade union rights and civil liberties; (vii) trade unions organizing member-exclusive screenings of films were requested by the Office for Films, Newspapers and Articles Administration to provide details and approvals; (viii) the Hong Kong-based labour organization the Asia Monitor Resource Centre has declared that it will disband itself; and (ix) the support provided by the ITUC to the HKCTU is being categorized as criminal collusion under the NSL.

The Committee takes note that, in its reply to the ITUC’s allegations, the Government indicates that the allegations are factually incorrect and that trade union officials’ freedoms and right to organize activities to promote and defend the occupational interests of trade union members have been and will continue to be fully protected. With respect to the alleged request made to civil servants to take an oath or sign the declaration of loyalty, the Government indicates that this would not affect the civil rights of government employees. In relation to the allegations of the HKPTU, the Government indicates that: (i) the union had engaged in political propaganda under the guise of being a professional education organization, having published teaching resources with contents on civil disobedience; launched territory-wide class and teaching boycotts by teachers, dragging schools into politics, and promoted books that glorify violence; (ii) the Education Bureau ceased recognition and working relations because the union failed to live up to the expectation of a professional education organization; and (iii) the HKPTU initiated voluntary dissolution without any interference from the Registry of Trade Unions. In relation to the allegation concerning Mr Lee Cheuk Yan and the executives of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, the Government indicates that: (i) in order to effectively prevent and suppress offences endangering national security, law enforcement officers need to obtain relevant information about certain foreign or Taiwan political organizations and foreign or Taiwan agents; (ii) pursuant to section 43 of the NSL, the Police issued written notices to the directors of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (including Mr Lee Cheuk Yan) requesting information; (iii) the notice was not issued to Mr Lee in his capacity as a trade unionist, nor does the issuance of such notice necessarily connote wrongdoing or the commission of any offence; and (iv) it is only when the recipient fails to comply with the notice with no valid explanation provided to the court that legal sanctions are imposed. With respect to the allegations on the HAEA, the Government indicates that the Registry of Trade Unions made an inquiry in relation to its activities, which were suspected of being inconsistent with its objects or rules and that the Registry acted in an objective and prudent manner before taking legitimate action in accordance with the Trade Unions Ordinance. In relation to the ITUC’s allegation on the screening of films, the Government indicates that under the Film Censorship Ordinance, any person who intends to exhibit a film (including trade unions, at a place to which members have access) shall submit the film to the Film Censorship Authority for approval. The Government emphasizes that there is absolutely no retrogression or infringement of the right to freedom of association and that the isolated incidents quoted by the ITUC are associated with suspected unlawful activities not related to the exercise of trade union rights or voluntary decisions of the trade unions concerned without any interference from the Government.

While taking due note of the Government’s indication that it will continue to attach great importance to fulfilling its obligations under the Convention, the Committee regrets to note that in spite of its request as well as the request made by the Conference Committee and the CFA, no consultations appear to have taken place with the social partners on the negative effects that the application of the NSL is alleged to have had, and could have, on rights enshrined in the Convention. In addition, while duly noting the statistics supplied by the Government as of 31 October 2021 (1,541 registered trade unions, representing an increase of 66 per cent over end-May 2019), and observing that, according to the Government, such increase of registered trade unions would bear testimony to the free exercise of the rights and freedom of association in the HKSAR, the Committee expresses its concern at the ITUC allegations and observes that, according to publicly available information, the HKCTU, established more than three decades ago, was disbanded on 3 October 2021.

The Committee 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 (see the 2012 General Survey, paragraph 55). It also recalls that employers and workers organizations must be allowed to conduct their activities in a climate that is free from pressure, intimidation, harassment, threats or efforts to discredit them or their leaders. Further recalling that 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, the Committee firmly requests the Government to take all necessary measures to ensure in law and in practice the full enjoyment of the rights enshrined in the Convention. It also requests the Government to provide specific information in relation to the application in practice of the NSL. The Committee also requests the Government to provide further details in relation to the public consultations and publications it has indicated it intends to carry out with a view to providing clarity on the applicable legislative principles, and the Committee expects that such activities will provide an opportunity to assess and address any negative effects that the application of the NSL could have on the rights enshrined in the Convention.