Equal Opportunities Commission


Submissions to International Bodies in relation to International Instruments


APF (Asia Pacific Forum) Questionnaire on Promoting the Rights of People with Disabilities

Response from Hong Kong Equal Opportunities Commission
to Asian Pacific Forum questionnaire on
Promoting the Rights of People with Disabilities: Towards a New United Nations Convention
This paper sets out the response of the Hong Kong Equal Opportunities Commission (EOC) to the Asia Pacific Forum on National Human Rights Institutions (APF) questionnaire on the captioned questionnaire on promoting the rights of people with disabilities (PWD).
Question 1: Is your institution aware (or as aware as it would like to be) of the human rights perspective on disability?
Yes, we are. Although the EOC is not a human rights organization, we are a statutory body formed under the law to work towards the elimination of discrimination, disability harassment, vilification and other unlawful acts done in respect of PWD. We are also entrusted to promote equality of opportunities for PWD. The other two pieces of legislation the EOC is administering are the Sex Discrimination Ordinance (SDO) and the Family Status Discrimination Ordinance (FSDO).
Question 2: Is your institution aware (or as aware as it would like to be) of the various United Nations developments in the field of human rights and disability?
In terms of dialogue, the EOC has submitted NGO alternative reports and made presentation to the UN Committees on Economic, Social and Cultural Rights and that on Civil and Political Rights regarding the implementation of those rights in Hong Kong with special reference to PWD.
In terms of participation, representatives of the EOC have attended a number of activities and conferences organized by UN, UNDEP and OHCHR on the rights of PWD. They include the conference on “ Towards a United Nations Convention on the Human Rights of Persons with Disabilities—The Voice of Civil Society”, the 45 the UN Meeting on the Status Women in which women with disability was an topic of discussion, UN General Assembly Special Session on HIV/AIDS, various workshops on Regional Cooperation for the Promotion and Protection of Human Rights in the Asia-Pacific Region, etc.
In terms of cooperation, we co-organised Asia Pacific Forum on National Human Rights Institutions (APF) in 1999 the Inter-regional Seminar and Symposium on International Norms and Standards relating to Disability. This was funded by EOC, UN, APF and others.
In terms of published materials, efforts are made to keep abreast of the UN developments in the field of human rights and disability through reading of relevant UN articles, surfing of the UN sites, and contact with UN officials and other NGO in those aspects. We also have regular communication with APF and its member institutions as well as equivalent bodies in Canada, USA, UK and Northern Ireland.
Questions 3: Where are the main knowledge gaps as you see them?
We feel that knowledge gaps still exist in respect of timeliness of information, lack of full knowledge of the latest development in trend, best practices, standards and different capacity building programmes. On some occasions we also observe gaps that relate to the complexity of the UN structure and how information flows from or back to it. We would like to be able to participate more frequently and in some cases share our experiences with participants. 
Questions4: Does disability rank as a priority with your institution? If so, when and why?
Disability issues have been ranked with the top priority of our work since the inception of the EOC in May 1996. As mentioned earlier, EOC is entrusted to administer the DDO which came into full effect on 20 December 1996. The DDO prohibits discrimination against a person on ground of his/her disabilities in respect of employment and non-employment related activities. Under the law, disability harassment, vilification and victimizations are also unlawful. The legal protection also extends to the associates of PWD.
Question 5: Does your institution make any operational distinction between physical and mental disability or between various kinds of disability? If so, why?
In terms of enforcement of law, we do not make operational distinction between various kinds of disability. The DDO defines disability broadly covering present, past or future loss of physical, mental, cognitive and developmental functions. It also covers disability that is imputed to a person. DDO protects PWD and their associates against discrimination and harassment. Of course, persons with different kinds of disability have different needs. Individual characteristics will be taken into consideration when we administer the law.
Equal status is awarded to persons with different disabilities in our law enforcement and promotional works. Of course, the characteristics of different disability types are and will be taken into consideration when we design our strategies in enforcement and advocacy functions. Currently we are focusing on mental illness and children with learning disabilities. In view of the SARS outbreak we are, also, dealing specifically with the discrimination arising from that and advising parties to adopt measures which are regarded as reasonable essential and proportional to the situation at hand.
Question 6: Does your institution place any emphasis on gender and disability or on multiple forms of discrimination based on disability or overlapping with disability? 
As EOC works to eliminate sex, disability and family status discrimination, we are particularly concerned with the overlapping effects of these attributes on a person. Discrimination against women with disabilities are a cause for concern as little is known of the status of this double disadvantaged group. In Hong Kong, they remain largely invisible and their voices seldom heard. This is not altogether surprising in that the profile of women with disabilities is generally lacking in many countries worldwide. Incorporating a gendered perspective in the policy-development process on disability would help to remedy the problem.
Questions 7: Do you set aside a person or body of persons in your institution to deal with the rights of PWD? Please specify.
Until very recent, we have specialization in our complaint handling section to deal with discrimination complaints lodged for different attributes, i.e. sex, disability and family status. However, with the development over the years and job rotation between teams, all staff performing investigation and conciliation work are experienced with issues and concern surrounding all target groups within our jurisdiction. Specialization is now by functions of complaint handling, legal, training, research and promotional work and not by grounds of discrimination. This arrangement enables both sharing of knowledge and flexibility in coping to fluctuations in work volume. For example, a quick response team was created with officers deployed and drawn from a wider spectrum of staff to handle the surge of enquiries/ complaints in relation to SARS. Staff can competently deal with different aspects surrounding issues and complaints, such as those related to women with disability. 
Question 8: Do you get many complaints from PWD or their representative NGOs? What kinds of complaints figure most prominently?
Under the law, aggrieved persons or their representatives can lodge complaints with the EOC for disability discrimination. EOC can take the initiative to investigate into incidents reported or observed discrimination. Since we came into operation in September 1996, we had dealt with a total of 2081 complaints under the DDO. Among them, 1752 are complaints for investigation and conciliation, i.e. cases formally lodged by the aggrieved persons against the respondents. In respect of the other 329 cases, follow up actions have taken with the aggrieved persons not wanting to make formal complaints. About 65% of total complaints we have dealt with are employment-related. The remaining are on non-employment field, mainly concerns with education and accessibility issues.
Besides individual complaints, we see it more effective to redress systemic disability issues at the policy level. Examples include transportation, physical accessibility, information technology and communication accessibility, issues enhancing independent living of PWD, accommodation in education for students with learning difficulty, sensitivity of law enforcement officers towards PWD, etc. These are addressed through policy papers and guidelines we have issued, training (including web-based training for the Education Department), seminars and task forces that we have organized and regular liaison we have established with government and NGOs. Our strategic litigation function has been successfully employed to remove systemic employment restrictions in government.
Question 9: Has your institution held any general or public inquiries into the status of persons with disabilities (or specified groups of persons with disabilities) or their treatment within your jurisdiction? If so, please specify.
The DDO empowers the EOC to conduct formal investigation for any purpose connected with the carrying out of any of its functions under the DDO. Regarding the conduct of the formal investigation, the EOC has the power to obtain information, make recommendation and issue enforcement notice requiring parties to comply with the recommendations made. 
No formal investigation has been conducted under the DDO, although such investigation has been conducted in respect of the SDO. However, we have conducted less formal investigation studies on harassment of health care workers and HIV / AIDS patients by a group of residents in a community, on the procedures and training needs of the immigration department in relation to DDO as the result of a missing boy with autism at the immigration check points, and surveys of the peoples with mental illness. These have been successful as educational and preventive tools and have resulted in improvements being made.
Question 10: Does your institution contribute to the inquiries held by other public authorities into the status of persons with disabilities or their treatment within your jurisdiction?
The EOC has made presentations at various special panels of the Legislative Council on subjects related to rights, status and issues of PWD. Examples of topics include transportation; digital divide; stigmatization and harassment; education; social, economic, cultural, civil and political rights of PWD. We also provide information and views to government.
Question 11: Does your institution have an agreement (formal or informal) with other disability public bodies (e.g. national disability commissions or authorities) on how to work best together on disability matters? If so, please specify.
Hong Kong has no national coordinating committee or national disability commission for PWD. The body that shares some of the features of such bodies is the Rehabilitation Advisory Committee (RAC) of the Government’s Health and Welfare Bureau. It is an advisory body to the Government on disability-related matters. The RAC does not have an executive committee and has limited advisory powers and functions. The Government published a White Paper on Rehabilitation that laid down the direction and objective of the policy of rehabilitation services some years ago. Many changes have since occurred in the rehabilitation sector and the macro-socio-political and economic environment, but no reviews have been conducted on the contents and the appropriateness of the White Paper. Rehabilitation policies and services are mainly developed and implemented by relevant government bureaux and departments, and government funded NGOs.
The law defines the parameters and the main direction of the work of the EOC. Although there is no formal agreement between EOC and RAC in relation to the area raised in the question, we work closely with all agencies in disability matters.
Question 12: Has your institution assisted persons with disabilities (individually or as groups) with litigation. What factors led your to support the litigation? What was the subject matter of the litigation? What were the outcomes?
Under the DDO, a person who alleges discrimination on the ground of disability may lodge a complaint with the EOC or institute civil proceedings at district court. Upon receipt of a complaint, the EOC has a responsibility to investigate and to endeavour to effect a settlement by conciliation.
In cases where conciliation fails, the EOC may consider granting assistance to complainant who wishes to further pursue their cases. As at 30 April, 2003, a cumulative total of 115 applicants for other assistance (including legal assistance) have been received in respect of DDO complaints and assistance was granted to 40 of them. 
As EOC is not a legal aid agency, our litigation is strategically directed towards public interest cases and those areas with strong educational and deterant value. In respect of litigation, we were successful in a number of mental illness and physical disability cases.
In the mental illness cases, the court found in favour of three plaintiffs, who were variously dismissed or refused employment by two discipline services on the ground that their family members have had a history of mental illness. These cases set important precedents for Hong Kong as well as highlighted the seriousness of systemic discrimination and prejudice against mental illness. The court also granted EOC’s request for an order requiring non-disclosure of the personal particulars of the plaintiffs other than the surnames because of associated stigmatization.
The physical disability case was on disability harassment of the plaintiff, a paraplegic, by a taxi driver when the former used the taxi service. The ruling was in favour of the plaintiff and the taxi driver was order to pay monetary damage.
Legal assistance was also granted to five care providers in a community health center which including the treatment of HIV / AIDS. In that case three defendants, residents of a nearby housing estate, interfered with the care providers as they went to or left work, and refused to let them pass through the housing estate in the same way as other members of the public. The case was settled before court action.     
Questions 13: Has your institution supplied amicous briefs in litigation involving persons with disabilities? If so please specify.
Although amicous briefs have been supplied in sex discrimination litigation, the EOC has not yet supplied in respect of PWD. We are always prepared to supply either amicous briefs or intervened where warranted.
Question 14: Has your institution instituted legal proceedings in its own name or on behalf of persons with disabilities?
In the cases where legal assistance was granted, litigation actions were taken under the names of the PWD. The EOC has in its own name sought judicial review of the secondary school places allocation system. The EOC saw a need to take out legal proceedings in its own name particularly in case where the aggrieved persons are not willing to be made known or in actions involving a class of people. EOC has proposed legislative amendment to the Government. The Government has agreed in principle to amend the law to give power to the EOC to commence action in its own name seeking declaratory, and in some cases injunctive, relief where either complainants or respondents (as the case may be) cannot be found. The EOC intends only to use this power where public interest requires it. The early intervention by the EOC in these situations would help to forestall a deterioration of the community relationship. In due course, we believe class actions are necessary but the law does not provide for this currently.
Questions 15: Do you include disability rights awareness as part of your overall education program?
Not only do we put disability rights awareness as an important component in our overall education program, efforts are also made to encourage and promote best practices in protecting such rights.
The EOC organized a community road show and seminars on news reporting and mental illness to develop best practices for the media in their portrayal of those with mental illness. Information on overseas media guidelines has also been provided to local media to encourage balanced and responsible reporting of mental illness.
The EOC has commissioned a number of baseline and opinion surveys to gauge public attitude towards PWD. On the basis of the findings, promotional initiatives are mapped out to promote better understanding of PWD and their rights. Our promotional and publicity activities include TV and radio programs, training courses, seminars, poster campaigns, competitions, etc. We also fund communities for their programs and initiatives that help raise awareness of PWD rights and nurture positive attitude towards PWD.
Tailor-made and scheduled training programs on equal opportunities are organized for employers, NGOs and interested parties..
The Code of Practice in Employment under the DDO is published to assist employers and employees in understanding their legal rights and obligations under the law. The Code of Practice on Education under the DDO is also issued to assist school administrators and teachers to understand their obligations in their particular field. Other printed matters include the series of “ DDO and I” booklets and “Information leaflets on Education”, etc. These were produced to assist stakeholders and interested parties to understand the applicability of DDO in various aspects.    

Questions 16: Do you help NGOs (whether traditional human rights NGOs or disability NGOs) to raise their capacity to participate in the democratic process in order to achieve the rights of persons with disabilities? If so please specify.
The EOC recommended to government to amend the DDO to provide for the specific prohibition of discrimination in eligibility to vote for, or to be elected, or appointed, to advisory bodies of the Government.
Question 17: Does your institution make comments on draft legislation that affects persons with disabilities? Has that legislation been changed as a result of your comments/ observations? If so, please specify
The DDO empowers the EOC to review the law and to make amendment proposals to the government. A number of proposals have been made regarding the improvement of the DDO, voting rights, etc. The Government has agreed in principle to amend the law to give power to the EOC to commence action in its own name seeking declaratory, and in some cases injunctive relief. The EOC intends only to use this power where public interest requires it. The early intervention by the EOC in these situations would help to forestall a deterioration of the community relationship.

As an alternative to litigation, EOC has asked for the power to secure from third parties voluntary binding undertaking which will be enforceable in court. Such undertakings may be entered into by entities whose policies and practices are discriminatory, but which may require time to eliminate the discriminatory elements. The Government has also in principle agreed to the proposal.


Question 18: has your institution produced any general reports to your government on disability matters? If so, what changes come about as a result?
The EOC reports to the government and legislature about its work through its regular and annual reports. We present our views to government and legislators on the systemic discrimination against PWD, government’s compliance of the social, economic, cultural, civil and political rights of PWD, empowerment and development of PWD.
Equal Opportunities Commission
May 2003