I am very pleased to be here today. I will talk about the philosophy and the work of the EOC and the role it plays in the Hong Kong community. Through the discussion, I also hope to highlight the kind of framework required to support the development of a vibrant NGO community.

INTRODUCTION

Let me first introduce the Equal Opportunities Commission (EOC) and explain what it does. The EOC was established in 1996 by statute. Its work is to administer three laws – the Sex Discrimination Ordinance (SDO), the Disability Discrimination Ordinance (DDO) and the Family Status Discrimination Ordinance (FSDO). We do not as yet have anti-discrimination laws in the areas of race, age or sexuality. The Bill of Rights of Hong Kong which is binding upon government and the public authorities, however, has a general prohibition against all forms of discrimination which includes race specifically.

The EOC has a number of functions. These are to investigate and conciliate complaints, to undertake general investigation of systemic problems or matters of wide public interest, to provide litigation assistance where it is strategic to do so and to promote equal opportunities through education, research and training. Please click into our website. It is bilingual. It also has formats for the visually impaired. We develop training modules and we have CD-ROMS and newsletters.

OUR MESSAGES

Equal opportunities is about people and it is about everyone. In promoting equal opportunities. The EOC delivers three social messages. These are:

For the individual – Everyone has the right to development.

For the business sector – Social accountability means marketability.

For the community – Enhancement of human capital sustains development and reduces reliance on the public purse.

FOR THE INDIVIDUAL AND THE COMMUNITY

Of all forms of human rights, nothing can be more basic than the rights to life and to survival. An extension of these rights is the right to development. By providing individuals with equal access to education, employment, services, facilities and participation in community life, we are providing a platform for individual development. This enables an individual to maximize his/her own abilities and thus achieve greater self sufficiency. This in turn leads to lesser dependency on social security and reduces the strain on our public purse. Anti-poverty measures are directly pegged on the capacity of the individual to develop.

Many have asserted that that there is no equality per se. This is true. What we are advocating, however, is an access right for the individual. This is allowing an individual to put his/her foot in the door but it does not lead to sameness or equality in results. Equal opportunity is about development, level playing field, competitiveness and meritocracy, the same values that a business seeks.

GLOBALISATION

The process of globalisation has had a dramatic impact on the world economy, characterised by intensified economic interdependence and global competition. But in recent years, there has been a backlash against globalisation because economic progress has not been evenly dispersed and countries can become very vulnerable to global economic change. The push for competition, deregulation, privatisation and open capital markets is found to have undermined economic prospects for many of the world's poorest people.

Removing trade and investment barriers open up markets and provide new opportunities but this can also leave countries vulnerable to global economic changes.

The entering of China into WTO means a more liberated regime of trade within China. Global market forces will be brought into China at a speed that may outpace the development of internal institution, procedures and laws required to support it. These global forces can create serious challenges for an economy but they can also bring in a large body of policies and practices to benefit the local economy.

Shell Brazil was honoured as a 'Child's Friend Company' for its corporate policy of not doing business with companies that use child labour. Business can require its contractors to adhere to ethical practice in providing a safe and healthy working environment, adopt fair labour practices and be environmentally friendly. It can also upgrade local skills, provide schooling, medical and health benefits or housing to the workforce and its children to meet the severe shortages. Business can be an agent and a partner for societal development to sustain its long term interest in a market.

The UN Secretary-General, Kofi Annan, challenged world business leaders at the 1999 Annual Meeting of the World Economic Forum at Davos, to initiate a Global Compact of shared values and principles to give a human face to the global market. For the community in Hong Kong, we have been advocating the principles of the Global Compact which include the elimination of discrimination in respect of employment and occupation.

INTERNATIONAL LAW

More and more recognition is now given to social accountability as a tool to drive the globalisation process as well as to improve business performance. International law has now also raised the prospect of using international human rights covenants, such as the right to health, to mitigate against the restrictions created by patented drugs for HIV/ AIDS treatment and allow generic drugs to be produced. The liberalization and reduction in price of HIV/AIDS drugs was largely due to the extensive lobbying of the NGOs. This is one example where international covenant rights can be used as a shield against the encroachment of unmitigated and patented monopolies.

The business case and the WTO case for rights have now opened up opportunities for NGOs to influence the decision makers.

REDISTRIBUTION OF OPPORTUNITIES

Perhaps you are wondering why I am spending so much time talking about "values"and the economic impact of these values? The reason is that neither government nor business would listen to me unless I equate it with economic value. We need to leverage our public forces and create "win-win" situations. The role of the EOC is to maximize the use of human capital. The role of the third sector is to undertake social investment. Both create sustainable development and return and increase productivity.

An Equal Opportunities framework is designed to advance human potential and the equitable treatment of the individual and to ensure that one sphere of interest will not override the interest of another. This will help to achieve community equity and social equilibrium. I equate this to a social contract between the different individuals that live in a community. Each individual is entitled to an equal measure of development opportunity. This is a right based on the rule of law that everyone must be treated equally and the international covenant obligations such as the International Covenant on Economic, Social and Cultural Rights of which the PRC is a member.

An equal opportunities framework distributes the control to individual development to the individual level. It therefore must provide the individual with the self help or the self empowerment mechanisms to enable the individual to be as independent and self reliant as is possible.

THE SUPPORTING MECHANISMS

To do this, legislation is necessary. We must empower the individual with the legal basis for asserting his/her rights. The law must also provide a dispute resolution mechanism and a remedy. With this comes the individual responsibility to take charge of a situation, to resolve disputes and to come to a solution. The whole process involves an adjustment of interest between conflicting parties.

In western societies gender equality law was initially resisted by trade unions. This was because all union members were male at the time. Gender equality law expanded the workforce and created greater competition for the male union members.

An equal opportunities framework results in redistribution of jobs, education and other opportunities within the community. This redistribution of social and economic opportunities often attracts tremendous resistance because it is a blow to the prevailing interest and status quo. The law must level the playing field for the individual and provide him/her with the power to counter the status quo and that is the legal basis for the assertion of individual rights.

The law also helps people to fast track learning and to acquire good habits more quickly. Not that long ago in Hong Kong, spitting in public was very common. Spitting we all know is not hygienic and spreads diseases such as TB. We legislated against spitting and the fine (as from 17th May 2002) will be HK$600 per spit. When a fine is imposed people learn more quickly. Behavioral changes follow the law and come faster.

Jay walking followed the same pattern. Traffic accidents, property damage, personal injuries and deaths were caused by jay walking. We now have a law against jay walking and we now have a population that by and large follow the road safety and crossing rules.

The equal opportunities legislation in Hong Kong provides for resolution of disputes between parties through conciliation. Conciliation, as an alternative to formal legal procedures, is not a novel invention. It has been used widely in some parts of the world, such as the U.S. and Australia, and is reviving its popularity in Asia.

Some of the advantages of this process are obvious. For a start, it is less time consuming and expensive than going to court. On average, a claimant can expect to wait up to 18 months, or even longer, for a court hearing. In contrast, conciliation can be organized within weeks, or even days, with the consent of the parties.

The ultimate authority in conciliation belongs to the participants themselves. Unlike the legal process, the emphasis is not on who is right or wrong, or who wins and who loses, but rather on establishing a workable and consensual solution and tends to reduce hostility and the participants make an emotional investment in its success.

Of the cases for which conciliation was attempted, the success rate has been 66% for the EOC. The terms of settlement for our cases have included reinstatement, financial compensation, changes in corporate procedure , requirement for training or a letter of apology. Procedural changes and training transcend the individual level and produce more lasting effect. While there is no direct economic value attached to an apology, it has an important social value: it repairs a relationship and heals a rift.

Conciliation as a form of alternative dispute resolution process is based on the notion of "restorative justice"as distinct from "retributive justice". Restorative justice is compatible with the ancient Chinese culture of emphasizing restoration of harmony.

Conciliation is not without flaws. Some feel that it does not effect social changes that benefit the wider community. Others are concerned that the balance of power could sway against the complainant. They are all valid reasons and we need to address them.

I now turn to EOC's litigation role. Deep seated prejudices will not change overnight and sometimes the force of the law has to be called upon to start the process of change. The threat of litigation also serves as a stick that makes the conciliation process more effective.

The EOC provides litigation support where, for instance, the case raises a question of principle or where it relates to a matter of public interest. The strategic litigation role has been used successfully in a number of cases.

The EOC has provided litigation support to three aggrieved persons in their court actions against the Fire Services and Customs for their refusal to employ them on the ground that they each had a relative with mental illness. Other than this association with relatives, the three aggrieved persons were fit for employment. This practice was only changed with a court order.

In the case of the Secondary School Places Allocation System, the EOC took the Education Department to court to declare the allocation system discriminatory. For over 20 years, the best girls' scores were scaled down and the boys' up. We won the case and the Education Department is obliged to change the system this year.

A third case that attracted a great deal of attention concerns pregnancy discrimination in the private sector. The court ruled that there was discrimination on the ground of pregnancy as well as victimization of the complainant for complaining to the EOC. Further the court ruled that although the complainant resigned, it was constructive dismissal, and the employer is vicariously liable for the acts of it employees who committed the acts.

AN INDEPENDENT BODY

These changes cannot be made without law or an independent body backed up by sufficient resources. The EOC is a statutory body the functions of which are defined by law and not subject to the interference of the executive branch. While it is fully funded by government, it is independent of it and can bring action against the government. There are other statutory bodies like the EOC, such as, the Independent Commission Against Corruption (ICAC). These bodies have the power to check government actions and necessarily must be outside the government and independent of it.

Both the EOC and the ICAC are accountable to the law and to the Chief Executive of the HKSAR and I am appointed by him. This is a quasi government body but the EOC actually assumes the status of a non-governmental organisation and appears on the opposite side of government during UN hearings on Hong Kong.

SUPPORT FOR CIVIL SOCIETY

Organisations such as the EOC and NGOs are part of our civil society and form the third sector in Hong Kong. This sector promotes social justice generally and deals with special interests. To function, these groups must have legitimacy under law, credibility in the community and resources for its work. The third sector is part of Hong Kong's social fabric and is not just tolerated but in fact encouraged by government. The diversity of services required for a community is such that these cannot always be provided by the government and are sometimes more sensitively, economically and quickly delivered by this sector.

In terms of legitimacy under law, there are various forms of association available to these institutions. Apart from those that are directly created or incorporated under statute, associations may be established as companies with limited liability, partnerships or registered as societies. The objects or aims of these associations are left to be set by the founders but they must comply with rules of conduct as regards having meetings, accounts, termination and elections of officers etc. Generally the preferred forms of association are registered societies or companies limited by guarantee (but without a share capital). They are all non-profit making.

Credibility has to be earned and varies from institution to institution. In 2000, a survey conducted by Edelman PR Worldwide found that NGOs, such as Greenpeace and Amnesty International, have earned a greater level of trust than some of the most well-respected global multinational companies such as Ford and Microsoft. It is noteworthy that the respondents were well-educated, media attentive individuals between the age of 34 and 64 from five industrialised countries (U.S., U.K., France, Germany, and Australia). These are indications that consumers are becoming more sophisticated and are increasingly taking account of social accountability issues. Similarly, shareholders too, are likely to be interested in these same issues. Legitimacy under law and credibility are also necessary for these bodies to attract funding. The reputation of the institution affects the willingness of others to provide funding and its status must be verifiable against a public register maintained by government.

The kinds of charities and NGOs present in Hong Kong are numerous. We have family and corporate foundations. Endowments for the arts and literature, social services, disaster and poverty relief, education, sports, recreation, sciences, hospitals, religious orders, protection of animals, protection of the environment and so on. We have about 3,400 registered charities in Hong Kong.

I was asked yesterday on arrival, why is it that Hong Kong has so many NGOs. It is a long story but I'll try to give you a glimpse of some of the factors.

- First, under our legal system, what is not prohibited is permitted. The law tells us what not to do but it does not prescribe what we should do.
- Second, in terms of mobilization of social forces, we have no master plan, it is undirected, widely participatory and bottom up.
- Third, in terms of government policy, it started with laissez faire and developed into positive non-interventionism. A large space is carved out for the community.

Historically Hong Kong started as a refugee center and was a colony of Britain. Political participation was not a real option and there was no social security. Community support and identity developed with charitable work in the areas of education, medicines and the alleviation of poverty. Some of the private organizations subsequently became independent contractors of government in delivering services.

My mother used to tell me that when I was a child, we had many sudden visitors at meal time. As a student in a Catholic school, I was taught faith, hope and charity. This was the culture I grew up in.

As the community prospered, the sense of community transformed itself into a more rights based approach for equitable distribution of resources and opportunities. Basic education for all as a right and not as a charity is an example. The approach has changed but the needs are the same and we still need the NGOs.

The role of the civil society and the NGOs is to leverage the social forces, the consumers, the shareholders, the vulnerable and transform these forces into a market maker for products, services, government programmes and policies.

 

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