on the Second Report of the
Hong Kong Special Administrative Region (HKSAR)
In the light of the
International Covenant on Economic, Social and Cultural Rights (ICESCR)

Before the 34th Session of the
Committee on Economic, Social and Cultural Rights
( Geneva, April 2005 )

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Background

1.      The Equal Opportunities Commission (EOC) was established by statute in May 1996 and is responsible for administering three anti-discrimination laws in Hong Kong: the Sex Discrimination Ordinance (SDO); the Disability Discrimination Ordinance (DDO); and the Family Status Discrimination Ordinance (FSDO). The EOC is fully funded by the Government.

2.      The EOC is charged with the responsibility of eliminating discrimination on the grounds of sex, marital status, pregnancy, family status and disability, eliminating sexual harassment and disability harassment and vilification, and promoting equality between men and women, between persons with disabilities and without disabilities, and persons with family status and without family status.

General Comments

The HKSAR Government's Consultation Process

3.      In preparing the Second Report on ICESCR to the United Nations (UN) (prior to its formal filing with CESCR), the HKSAR Government issued a draft outline of the report for public consultation. With a draft outline, the Commission believes that the public may have difficulties in: (a) knowing if the concerns raised by the relevant UN committees are adequately addressed; and (b) gaining an in-depth knowledge of the overall progress in the implementation of the rights under respective treaties.

4.      The EOC proposes that in future the HKSAR Government release adequate details to enable the public to gain a better understanding of the concerns raised and actions taken in relation to the implementation of the rights under the respective treaties and to facilitate concerned parties to submit their views prior to formal filing.

Non-governmental Organisations' (NGO) Participation

5.      NGOs are social partners of the HKSAR Government and represent an important voice from the community. NGOs' participation in the monitoring and implementation of the ICESCR and various other international human rights treaties in Hong Kong should be encouraged. Currently, representatives of NGOs are invited to attend Human Rights Forum organised by the Home Affairs Bureau (HAB) of the HKSAR Government on a quarterly basis to express their views on the implementation of international human rights treaties. The EOC considers it a good practice and suggests that the Forum should be opened to more NGOs which are interested in human rights issues. Moreover the forum could be held more frequently. This will facilitate timely collection of opinions for improvement of human rights situation in Hong Kong.

Article 2: State Parties to take steps to achieve progressively the full realization of the rights recognized in the Covenant

Legislating Against Race Discrimination

6.      The EOC shares the concern expressed by the Committee on Economic Social and Cultural Rights (Committee) in its concluding observations of the recent reporting by the HKSAR Government. The Committee stated:

"It is the Committee's view that the HKSAR's failure to prohibit race discrimination in the private sector constitutes a breach of its obligations under article 2 of the Covenant. The Committee calls upon the HKSAR to extend its prohibition of race discrimination into the private sector." [1]

7.      The EOC notes that the Home Affairs Bureau (HAB) of the HKSAR Government established a joint NGO/Government forum, the Committee on the Promotion of Racial Harmony, to advise the Government on the promotion of inter-racial respect and tolerance and matters relating to the International Convention on the Elimination of All Forms of Racial Discrimination in 2002. It is encouraging to note that the HKSAR Government is now consulting on legislating against racial discrimination. It is expected that the legislative process would be completed by mid 2006. The EOC urges the HKSAR Government to speed up the legislative process so that anti-discriminatory legislation could be extended to the private sector as soon as practicable.

No Legislations Against Age and Sexual Orientation Discrimination

8.      Although the number of complaints and enquiries received by the EOC in respect of discriminatory acts outside its specific remit (e.g. race, age and sexual orientation) recorded no increases in the past few years, it is believed that the numbers may not be a true reflection of the state of the problem, as people realize that such complaints are outside the EOC's jurisdiction and redress is generally not available.

9.      Though the HKSAR Government is consulting on legislating against racial discrimination, the EOC also noted its contention that public attitudes in relation to age and sexual orientation could best be changed through public education. The EOC notices that there have been some discussions between the HKSAR government and some concern groups in relation to the protection for people with different sexual orientations. The EOC reiterates its proposal that the Government should consider to introduce anti-discrimination legislation to cover discrimination on the grounds of age and sexual orientation in order to meet its international obligations. Public consultation on the issue should be initiated as soon as practicable.

Establishment of a Human Rights Commission for the HKSAR

10.      In its 2001 concluding observations, the Committee expressed concern about - "the failure of the HKSAR to establish a national human rights institution with a broad mandate and its failure to establish adequate alternative arrangements for the promotion of economic, social and cultural rights". Although currently there are a number of specialized bodies in Hong Kong such as the Office of the Privacy Commissioner for Personal Data and the EOC dealing with different aspects of human rights, the EOC suggests the HKSAR Government should consider setting up a single independent human rights commission in Hong Kong through careful planning and wide public consultation so that the various aspects of human rights can be properly catered for in a more cost-effective manner. It is glad to note in the HKSAR Government's Second Report on ICESCR that the Government is receptive towards this idea, and has indicated its willingness to monitor any change of circumstances that may indicate a need to reconsider its position.

Review of the Sex Discrimination Ordinance

11.      In paragraph 3.7 of the HKSAR Government's second report under the ICESCR, it mentioned that the EOC had completed its review of the SDO in 1999 and had submitted a report to the HKSAR Government. The HKSAR Government has accepted many of the 14 amendments proposed by the EOC. The Commission urges the HKSAR Government to introduce the proposed amendments as soon as possible.

Article 3: Equal rights of men and women

The EOC and the Women's Commission

12.      The EOC was not specifically set up to implement the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). However, the EOC, through its promotion of the SDO, has played a significant role in fulfilling some of the obligations under the CEDAW.

13.      The EOC is collaborating with the Women's Commission (WoC), an advisory body set up by the HKSAR Government in January 2001, on different fronts to mainstream gender perspectives in policy formulation and service delivery to meet the needs of women. For example, the WoC and the EOC had jointly organised a forum on preventing sexual harassment in universities in August 2000. The forum was organised in respond to a number of sexual harassment incidents occurred during orientation camps of some universities that were widely covered by the press. Senior staff and representatives of student unions of the eight local universities attended the forum and made suggestions on how to enhance collaborations among stakeholders such as the university community, the WoC, the EOC and related NGOs.

14.      The EOC is also working hand in hand with the WoC to integrate gender equality and equal opportunity concepts into curricula of primary and secondary schools in Hong Kong. While recognising the effort made by the HKSAR Government in promoting gender equality through the work of the WoC, the EOC also urges the Government to continue its support to the work of the WoC and to apply the gender-mainstreaming checklist developed by the WoC more widely to effectively meet the needs of women.

Article 6: Choice of occupation and labour rights

Discriminatory Employment Practice

15.      As pointed out in the Commission's last Non-Governmental Organisation report submitted to the 25th Session of the Committee, in judgment delivered in the District Court in September 2000 in the cases of K & Ors v Secretary for Justice the Court found that the recruitment policies of the Fire Services Department and the Customs and Excise Department were unlawfully discriminatory under the DDO because they excluded from employment persons with family members with mental illness.

16.      The EOC urges the HKSAR Government to review all its recruitment and employment policies, including those of other disciplinary forces that adopted similar policy, and comply with all equal opportunities and anti-discrimination legislations to ensure there is no unlawful discrimination.

Article 7: Right to enjoy just and favourable conditions of work

Low Employment Rates of Women and People with Disabilities

17.      The EOC is concerned that the employment rate of persons with disabilities continues to be low. In a general household survey conducted by the Census and Statistics Department in 2000, it was found that of the 260,500 persons with disabilities aged 15 or above, some 200,800 (77.1%) were economically inactive.

18.      As at October 2004, women's labour force participation rate was 52.1% compared with 71.6% for men. Comparing the figures with those in the year 2000 when the labour force participation rates for women and men were 49% and 75% respectively, it is noted that the gap, though large, is narrowing.

19.      The EOC urges the Government to adopt more supportive measures to assist persons with disabilities and women to enter the job market. The EOC also believes that the Government should from time to time review the type and availability of the supportive measures to see if these measures could appropriately meet the social needs.

Article 11: Right to an adequate standard of living

Housing Policies

20.      The EOC notes that the SDO contains an exemption which makes it possible to discriminate between persons of different marital status in respect of the public housing schemes known as the Home Ownership Scheme and the Private Sector Participation Scheme [2]. The EOC has in 1999 recommended, among other proposed amendments, the removal of this exemption from the SDO. The HKSAR Government has accepted many of the EOC's proposed amendments and is actively considering how to take them forward and undertook to update the Committee, as necessary, at the hearing of the second report.

21.      Another exemption in the SDO [3] relates to the small house policy. This policy was introduced to improve the housing situation which existed in the New Territories more than 20 years ago. Under this policy, a male indigenous person in the New Territories is entitled to apply to the Government to build a three-storey village style house as a residence. Both women and non-indigenous persons are excluded from this policy.

22.      In February 1999, the EOC recommended to the Government, as part of the proposals made following its review of the SDO, that the small house policy exemption should be repealed. In January 2001, the HKSAR Government advised the Committee that it had commenced a review of the policy in September 1997. In its second report submitted to the Committee in 2003, the HKSAR Government informed the Committee that the review foreshadowed in the initial report was still in progress.

23.      The EOC urges the Government to expedite on its decision on the small house policy and to ensure that any possible options to resolve the matter do not discriminate on the ground of sex.

Article 12: Right to health

Health Care Services for People with Mental Illnesses

24.      Mental illness can affect one in five of the population [4], underscoring the importance of mental health care services. The success of these services hinges on many factors, such as public acceptance, effective health service, availability of effective medication, accessibility to support and legal services, and provision of occupational, vocational and rehabilitation services. A recent study on the perceptions and experiences of discrimination of 757 persons with mental illness [5] reveals that mental health care services in Hong Kong are fragmented.

25.      To ensure that the multidisciplinary services available to persons with mental illness could be most effectively deployed and therefore maximize the number of people who could employ the services, the EOC believes that a central body to bring together all the professionals and agencies to offer comprehensive and person-focused service to persons with mental illness is a viable option. The EOC supports the establishment of a Mental Health Council, operating as a multidisciplinary and cross sectorial body to coordinate policy formulation, programme delivery, research and public education in the area of mental health, and to safeguard the rights of persons with mental illness.

Article 13: Right to education

Education for Ethnic Minority Children

26.      The Government has stated in its report that there are sufficient places in public sector schools to enable Hong Kong to integrate into the education mainstream ethnic minority children who envisage their futures as lying in Hong Kong and that there are nine public sector schools that have admitted relatively greater numbers of non-Chinese speakers. In the 2004/05 school year, the Government introduced a new school places allocation system for ethnic minority children which meant that the children could now study in other mainstreaming Chinese schools. However, many ethnic minority children face severe difficulties in schooling, especially learning Chinese, due to language barrier. Moreover, they do not have adequate access to learn their own mother tongue languages. Although this is not an issue directly linked to the EOC's current remit, the EOC is concerned with the adverse effect of the lack of schooling for these children from ethnic minority groups.

27.      As the Government is introducing a major education reform in the next few years, and that the education opportunities of ethnic minorities in Hong Kong is much debated during the anti-racial discrimination laws consultation, the EOC urges the HKSAR Government to take into consideration the difficulties faced by these children and to provide means to integrate them into mainstream schools, and eventually into the Hong Kong society.

 

Equal Opportunities Commission, Hong Kong
February 2005

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[1] Concluding observations of the Committee on Economic, Social and Cultural Rights, E/C.12/1/Add/58 11 May 2001. (Unedited Version)

[2] Item 6, Part 2 in Schedule 5 of the Sex Discrimination Ordinance.

[3] Item 2, Part 2 in Schedule 5 of the Sex Discrimination Ordinance.

[4] Source: Hong Kong Rehabilitation Programme Plan (1998-99 to 2002-03), published by the Rehabilitation Division, Health and Welfare Bureau, August 1999.

[5] A Study of Mental Health Service Users' Perception and Experience of Discrimination in Hong Kong was conducted jointly by the EOC, the Department of Psychiatry of The Chinese University of Hong Kong and the Department of Social Work of Baptist University.