Equal Opportunities Commission


Submissions to International Bodies in relation to International Instruments


ICESCR (International Covenant on Economic, Social and Cultural Rights)

Second Report to be prepared by the Hong Kong
Special Administrative Region under the
International Covenant on Economic, Social and Cultural Rights
– Submission from the Equal Opportunities Commission –
In November 2002, the Home Affairs Bureau (HAB) issued for public consultation a draft outline of the second report of Hong Kong Special Administrative Region (HKSAR) under the International Covenant on Economic, Social and Cultural Rights (the Covenant). The outline contains a list of topics to be covered in the report and does not provide information on the progress made in implementing the Covenant since the first report of the Government. In the absence of such information, it is difficult to gauge whether the Government has addressed all the concerns raised by he Equal Opportunities Commission (EOC) in its first alternative report[1] (see Annex I). Hence, this paper reiterates various prevalent issues raised by the EOC in that report as well as new concerns, and a summary of the response of the EOC to the aforementioned consultation (see Annex II).
Public Consultation
2.    The EOC is aware that the HAB will not be consulting the public on the draft second report. The EOC believes that consultation would be more focused if the draft second report is released before it is finalised and hopes the HAB would reconsider its decision.
Annual Progress Reports on the Covenant
3.    In respect of reporting under international instruments, the current practice of the Government is to submit reports only according to the reporting cycle for each instrument. The EOC proposes that in addition to submissions to the Committee on Economic, Social and Cultural Rights (the Committee), the Government systematically monitors the measures it has adopted to implement the rights under the Covenant and reports on its progress annually to the Legislative Council, non-governmental organisations (NGOs) and the wider public.
NGOs’ Participation
4.    NGOs are social partners of the Government and represent an important voice from the community. The Government should encourage and facilitate NGOs’ participation in the monitoring and implementation of the Covenant.
Exclusion from Domestic Law (Article 2 of Covenant)
5.    The EOC shares the concern repeatedly expressed by the Committee that the provisions of the Covenant are excluded from domestic law in Hong Kong[2]. This remains the status quo and it is unclear whether and how the Government intends to address this concern.
Legal Aid for Discrimination Cases (Article 2 of Covenant)
6.    In cases taken under the Hong Kong Bill of Rights Ordinance, the Legal Aid Department may waive the means test for applicants. The EOC, again, urges the Government to expand access to legal representation for persons seeking legal redress for actions under the Sex Discrimination Ordinance (SDO), Disability Discrimination Ordinance (DDO) and Family Status Discrimination Ordinance (FSDO) and to facilitate their access to the courts.
Anti-discrimination Laws to cover Race, Age and Sexual Orientation (Article 2 of Covenant)
7.    To date, there is still no law in Hong Kong that deals with discrimination on the ground of race, age or sexual orientation. The Government contended that past surveys on race, age and sexual orientation discrimination revealed that discrimination on these grounds was not serious and public attitudes could best be changed through public education. The EOC believes that the true nature and extent of the problem cannot be accurately assessed based on surveys alone. The EOC therefore reiterates its proposal to the Government to introduce anti-discrimination
legislation to cover discrimination on the grounds of race, age and sexual orientation.
Choice of Occupation and Labour Rights (Article 6 of Covenant)
8.    The EOC notes that the Committee’s Concluding Observations in 1996 had already expressed concerns that the SDO did not protect those individuals whose right to work was violated by inappropriate account being taken of their private sex lives, and the number of women forced out of the labour market, particularly older women and older workers. The EOC reiterates its proposal to the Government legislate against discrimination on the grounds of age and sexual orientation.
Equal Pay for Work of Equal Value (Article 7 of Covenant)
9.    In 2000, the EOC received special funding from the Government to establish a Task Force to study the status of equal pay for work of equal value (EPEV) and to make recommendations on progressive implementation of EPEV. The Task Force subsequently recommended a study on EPEV be undertaken. Phase I of the study is completed and the EOC is in the process of finalising its recommendations.
Exclusion of Domestic Helpers from Mandatory Provident Fund Scheme (Article 7 of Covenant)
10.   The EOC remains concerned about the exclusion of domestic helpersfrom the Mandatory Provident Fund Scheme due to an exemption in the legislation on domestic employees. The EOC urges the Government to review the definition of “domestic employees”, which is confined only to employees whose contract of employment is wholly or substantially for the provision of domestic services in the residential premises of the employer.[3]
Two-week Rule Binding on Domestic Helpers (Article 7 of Covenant)
11.   The EOC remains concerned with the imposition of the two-week rule which requires migrant domestic helpers to leave the HKSAR within two weeks of termination of contract or the remainder of the permitted limit of stay, whichever is the shorter. Furthermore, they are not allowed to work if they leave their employment because of abuse and are awaiting legal redress. The EOC reiterates its proposal to the Government to review the two-week rule binding on domestic helpers.
Retirement Protection (Article 9 of Covenant)
12.   Vulnerable groups in the community, such as women homemakers, new arrival women and PWDs are likely to face financial problems in old age because they tend to have lower lifetime earnings and tend to reach retirement with smaller pensions and fewer assets.
13.   The existing Mandatory Provident Fund Scheme is contribution-based and benefits only employed persons. However, even for women and PWDs who are in gainful employment, they may still be unable to work towards a reasonable pension because their labour force participation rates and arnings are comparatively lower; gender pay gap widens with age; and any women and PWD are in part-time or casual employment.
14.   The EOC urges the Government to review current retirement protection for vulnerable groups and take measures to address this issue.
Small House Policy (Article 11 of Covenant)
15.   The small house policy was introduced to improve the housing situation that existed in the New Territories more than 20 years ago. It entitles male indigenous villagers in the New Territories to apply to the Government to build a three-storey village style house as residence. The policy excludes both women and non-indigenous persons and is exempted in the SDO (SDO).[4]
16.   In 1997, the Government began a review of the policy that was projected to end in 1998. In November 1999, the Government informed the United Nations Committee on Civil and Political Rights that it was still reviewing the policy. Thereafter, the Government gave no further information on the progress and the result of the review until recently when it announced a new review of the policy. The reason for a new review is unclear but irrespective of the outcome, the EOC reiterates its view that the policy exemption in the SDO should be repealed.
Health Data (Article 12 of Covenant)
17.   The EOC proposes that the Government should collect comprehensive data on all disabilities in order to examine all disabilities and their origins; assess and monitor disability prevalence; analyse the variables on illness, which include the use of medical services; and analyse life and health insurance coverage.
18.   These health data will not only be important for health care but also for insurance purposes. At present, the lack of concrete actuarial data on some disabilities results in rejection of applications to purchase insurance products. This has cost implication for public health care in that individuals who have no insurance coverage and cannot afford private health care will be forced to use public health care.
Mental Health Care Services (Article 12 of Covenant)
19.   In 2002, the EOC conducted a joint study on the perceptions and experiences of discrimination of 757 persons with mental illness (the Study).[5]
20.   One of the key recommendations in the Study refers to the establishment of a Mental Health Council by the Government. According to government estimate, mental illness can affect one in five of the population,[7] indicating the importance of mental health care services. Yet 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. However, the experiences of the respondents in the Study reveal that mental health care services in Hong Kong are fragmented and not always to the benefit of persons with mental illness.
21.   To maximise access to multidisciplinary services for persons with mental illness, the EOC believes that a central body is needed to bring together all the professionals and agencies to offer comprehensive and person-focused service to persons with mental illness. Accordingly, the proposed Mental Health Council needs to be 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.
22.   Medication also featured prominently in the Study with Respondents reporting that while psychiatric drugs generally have their side effects, the conventional psychiatric drugs cause greater disruption to daily activities. Medication represents only a small part of the total treatment cost of serious illness. The greater acquisition cost of the new generation psychiatric drugs is more than compensated by the decrease in clinical care (such as shorter duration of hospitalisation) and other indirect costs (such as unemployment benefits and longer rehabilitation process). More
fundamentally, new drugs create fewer side effects rendering persons with
mental illness less of a hostage to stigmatisation, which leads to concealment and non-treatment.
23.   In the year 2001-2002, the Government provided additional funding to 2500 patients with new psychiatric drugs. The EOC proposes that the effectiveness of the scheme should be evaluated and made public.
Higher Prevalence Rate of Women with Mental Illness (Article 12 of
24.   Census data revealed that more women (55.1%) than men (44.9%) were reported to have a mental illness.[7] The Study of the EOC on mental illness found that depression was more commonly reported by female respondents.[8] This concurs with the World Health Organisation Report 2001, which points out that women were almost twice as likely to have depressive and anxiety disorders. Reasons for higher prevalence include, inter alia, the traditional role of women that exposes them to greater stresses and make them less able to change their stressful environment, and the high rate of domestic and sexual violence against women. In this regard, mental health service for women needs to be sensitive to the socio-economic context as well as the genetic and biological factors underpinning mental illnesses.
Integrated Education Scheme (Article 13 of Covenant)
25.   The EOC believes that integrated education benefits students both with and without disabilities. Experience has shown that when children with and without disabilities learn together, they also learn from each other. They learn to respect, help, and socialise with each other, and the peer support produces a positive mutual learning environment. Apart from the educational values, this is a crucial step towards integration in the community.
26.   Since the launch of the Integrated Education Scheme (the Scheme) in 1997 by the then Education Department, which emphasises a whole school approach, integrated education is becoming the norm, particularly after the EOC has issued the Code of Practice on Education under the DDO.[9] The EOC is currently in the process of developing, in collaboration with the Education and Manpower Bureau (EMB), an e-training package for teachers on equal opportunities in the education field in relation to disability. The EOC has also been in regular contact with the EMB and the Hong Kong Examinations and Assessment Authority regarding the support that should be provided to students with disabilities.
27.   The EOC proposes that the EMB should articulate its strategy on meeting the demands for integrated education in terms of school places, allocation of resources, teacher training, curriculum development and adaptations. To enhance the effectiveness of such a strategy, the EOC believes that key stakeholders, such as teachers and parents, should be consulted so that their needs, concerns and ideas can be taken into account.
Specific Learning Disability (Article 13 of Covenant)
28.   It is estimated that about 10% of children in Hong Kong live with different types of Specific Learning Disability (SLD) and yet there exists considerable misconception about this disability.
29.   SLD is a group of invisible disabilities due to neurological differences in brain development. Persons with SLDs are of average or above average intelligence and do not show any physical features that distinguish them from others. For children who have the type of SLD that involves problems in reading and writing, they experience inevitable difficulties under the present education system if no support is given to them, as almost all subjects involve reading and writing in the teaching and learning process.
30.   At present, the classification of SLD as a disability remains a subject of dispute. The EOC is of the view that SLD falls within the definition of disability under the DDO, which includes specifically a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction. This means that supporting children with SLDs in education is not a matter of discretion. It is a matter of law. These children have a right to education with reasonable accommodation.
31.   The EOC proposes that the Government should develop a strategy for learning that is suitable for children with SLDs. This strategy should promulgate a multidisciplinary approach between health care professionals and educators, and both the EMB and the Department of Health must be given adequate resources to support the needs of children with SLDs. There is also a pressing need for the EMB to increase the awareness of both parents and teachers in the initial identification of SLD to help trigger professional assessment, diagnosis and education planning.
Stereotypical Depictions in Curriculum Materials (Article 13 of Covenant)
32.   Textbooks and teaching materials play an important role in forming and reinforcing the attitudes and perceptions of children. In 2002, the EOC published findings from a study that investigated the nature and extent of stereotyping in curriculum materials.[10] These findings showed that curriculum materials used in schools still contain stereotypical depictions of gender, disability, ethnic minority groups, children and old people. The findings were useful in developing recommended guidelines for publishers and teachers in providing alternative presentations in textbooks and teaching materials.
33.   Presently, the EOC is working in collaboration with the Curriculum Development Institute on developing teaching support materials to enable primary and secondary teachers to include equal opportunity principles and concepts in their teaching schedules.
34.   The EOC urges the Government to remove stereotypical depictions from curriculum materials and to incorporate equal opportunity education in schools’ basic curriculum.
Participation of Women and Persons with Disabilities in Sport (Article 15 of Covenant)
35.   As part of the Government’s effort to develop a new sports strategy for Hong Kong, the Government published the “Sports Policy Review Report: Towards a More Sporting Future” in 2002 for public consultation. The EOC welcomes the review on sport and would like to reproduce here some of its key recommendations to the Government:
a.           mainstream gender and disability perspectives into the new sports policy;
b.          collect data on the participation rate of women and girls and PWDs in physical education, sport and competitive sport to identify any differences in participation;
c.           ensure women and PWDs are adequately represented in policy-making positions and sports organisations;[11]
d.          ensure sports venues, in particular the proposed new sports complex, are fully accessible to PWDs;
e.           develop an “Athletes’ Plan” to provide financial, educational and career guidance support to full-time athletes with disabilities – similar to the proposal for athletes without disabilities; and
f.           work with the media to develop an inclusive sporting culture that enables full participation of women and PWDs in every aspect of sport.
Mainstreaming of Equal Opportunities Perspectives
36.   The EOC believes that the promotion of equality should be linked with the objective of promoting long-lasting changes in institutional values and practices. The EOC therefore urges the Government to proactively mainstream equal opportunities perspectives into its policies and programmes. This involves systematic consideration of the differences between the conditions, situations and needs of various sections of the community, and systematic examination of policies and programmes to take account of possible effects on all when defining and implementing them.
37.   As part of mainstreaming, the Government should develop procedures and mechanisms on handling complaints relating to violations of equal opportunities and provide training courses on implementing equal opportunities in all aspects of employment and service delivery. In view of the size of its workforce and the scales of its many functions and operations, the Government should consider designating or recruiting specialist equal opportunities officers to deal with complaints, advise on policy matters and monitor the implementation of equal opportunities in government.
38.   The EOC can play an important role in assisting the Government to mainstream equal opportunities principles and values. Once these principles and values are institutionalised, the need for EOC intervention will be correspondingly reduced and the occasions for litigation minimised.
Equal Opportunities Commission
January 2003

[1]The Equal Opportunities Commission submitted an alternative report under the Covenant to the Committee on Economic, Social and Cultural Rights in 2001.

[2]The Committee had expressed its concern in its concluding observations on the third Periodic Report of the U.K. in December 1996 and again on the Initial Report of China in May 2001.

[3]Part 2, Schedule 1, Mandatory Provident Fund Schemes Ordinance, Cap. 485.

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

[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.

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

[7]Census and Statistics Department, Special Topics Report No. 28 – Persons with Disabilities and Chronic Illness, August 2001, p.35.

[8] See note 5.

[9]The EOC published a Code of Practice on Education under the DDO to assist educational establishments to develop policies and procedures that prevent and eliminate disability discrimination; to provide educators with practical guidance on compliance with the DDO; and to enable PWDs and their associates to understand their rights and responsibilities under the DDO.

[10]Equal Opportunities Commission (2002), “Research on Content Analysis of Textbooks and Teaching Materials in Respect of Stereotypes”.

[11]For reference, the International Olympic Committee in 1995 set an objective for National Olympic
Committees and International Sports Federations that at least 10% of positions in sports policy-making should be held by women by 2000 and 20% by 2005. This was in recognition that achieving gender equity required improving the representation of women at the policy-making level where they could be more effective in representing the interests of women and exerting influence.