Virus
or not, the law remains the law
“I have no idea why people would say this is
discrimination… this is simply not the right time to bring the issue up.”
A
member of a local political party was quoted as saying the above in a media
report on 14 March, referring to shops and eateries turning away
Mandarin-speaking customers amid COVID-19 scares.
The
blunt comment, which came just a week before the International Day for the Elimination
of Racial Discrimination on 21 March, reveals a perhaps widespread belief:
“People are not happy with the border control measures, and they are doing
whatever they can to contain the spread of the virus. To say that they are
committing discrimination not only misses the point, but also discredits their
fear and undermines their effort.”
But
even the most sensible objective can be marred by the way it is pursued. As the
saying goes, the end does not always justify the means. Is what you are doing actually
relevant to your stated goal? Are there alternative ways to achieve the same
objective without affecting a disproportionate number of people?
Technicalities
like these may be dull or pedantic to some, but in some cases they may go to
determine whether an act violates Hong Kong’s anti-discrimination ordinances.
As much as the Equal Opportunities Commission (EOC) strives to stay in touch
with public sentiment, we cannot bend the law for the sake of brownie
points.
So
what exactly does the law say?
First
of all, nothing in the Race Discrimination Ordinance (RDO) suggests that
for racial discrimination to occur, the perpetrator must be of a different race
or ethnicity than the victim. An example: a shop run by a Caucasian refuses to
serve fellow Caucasians while opening its doors to Africans, Asians and people
of other races. Obviously, Caucasians in this instance are being treated less
favourably on the ground of race – the very definition of racial discrimination
under the RDO.
Also,
racial discrimination may occur when a requirement, such as a language-related
condition, disproportionately and adversely affects people of a particular
race. This is known as indirect discrimination, and according to section 4(2)
of the RDO, it is only lawful when: (i) there is a legitimate objective; and
(ii) the condition bears a rational and proportionate connection to the
objective.
Because
a considerable number of ethnic Chinese are Mandarin speakers, eateries banning
Mandarin-speaking customers may risk committing indirect discrimination against
ethnic Chinese. Of course, preventing the spread of the novel coronavirus may
be a legitimate objective, but is there a “rational and proportionate
connection” between the ban and the stated objective?
Considering
the 14-day mandatory quarantine that now applies to arrivals from mainland
China, and the fact that COVID-19 cases have sprung up in numerous countries
and regions, it would be far-fetched to say that there is a rational and
proportionate connection between the objective of disease control and a ban
targeted at Mandarin-speaking customers.
What
is more, it is against the Disability Discrimination Ordinance (DDO)
to discriminate against a person based on the perception or speculation that
she or he carries a virus or disease. While section 61 of the DDO states that
the ordinance does not apply to an act targeted at a person with an infectious
disease, the act in question must be reasonably necessary for the
purpose of protecting public health. Again, for the reasons stated above, it
would be extremely difficult to prove that the ban on Mandarin-speaking
customers is necessary and closely relevant to safeguarding public health.
The
author and educator Parker Palmer once wrote, “The human soul doesn't want to
be advised or fixed... It simply wants to be witnessed – to be seen, heard and
companioned exactly as it is.” The EOC is well aware of Hongkongers’
frustration and where it is coming from, but the fact remains that some of the
acts borne out of these anxieties may be unlawful under the anti-discrimination
ordinances.
If
social distancing and personal hygiene are half of the battle against COVID-19,
the other half comes down to honouring the truth and saying no to
misinformation. The law is part of that truth, and we must strive to uphold it.
Ricky CHU Man-kin
Chairperson, Equal Opportunities Commission
(Note:
A version of this article was released on ejinsight.com, a website of Hong Kong Economic Journal on 1 April
2020, and in Hong Kong Free Press and
South China Morning Post on 6 April
2020.)