Rights and Obligations under CEDAW
Organised by Human Rights Commission of Malaysia
“CEDAW: The Hong Kong Experience”（只備英文版）— Speech by Ms Anna Wu, Chairperson, Equal Opportunities Commission
I am very pleased to be here today and share with you the Hong Kong experience in relation to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Women the world over moved through a number of phases – from being chattels to being the subjects of protection together with juveniles and lunatics, to acquiring legal personality and to demanding rights and choice today. We are still not quite our own person. There are many commonalities that women in different cultures share and these are weaved into a common fabric, CEDAW.
The Equal Opportunities Commission (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).
The Sex Discrimination Ordinance was enacted in July 1995, and outlaws discrimination on the ground of sex, marital status or pregnancy in specified areas of activity including employment, education, and the provision of goods, facilities or services. The Ordinance also outlaws sexual harassment and makes it unlawful to publish any discriminatory advertisement.
The Sex Discrimination Ordinance also provides for the establishment of the EOC. In 1997, the Family Status Discrimination Ordinance came into force. The enactment of these two ordinances represented important milestones in promoting equality between the sexes.
These laws cover direct & indirect discrimination. While direct discrimination is obvious, indirect discrimination is not. A measure that is seemingly neutral may indirectly impact adversely on a particular group. This is indirect discrimination. An example would be to have all those who do part time work subject to a more severe pay cut and if part time workers happened to be predominantly women, indirect discrimination on the basis of gender would result.
These laws are important because they promote individual development. By giving fair access and participation rights to women to have an education or a job, it is enabling the women to develop their potential and to achieve independent living as far as possible. In turn this leads to a reduction in poverty and lesser reliance on social security. It leads to sustainable development of a community and it is an investment in human capital. The law also reverses the burden of proof. Women can assert their rights based on these laws and no longer have to argue on moral grounds alone.
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.
THE EOC'S FUNCTIONS
The Commission supports and undertakes litigation in strategic cases on behalf of victims – in areas where clarity is required, where there is persistent discrimination, where a large number of people are involved or where public interest is affected.
This strategic litigation role is essential to the Commission's work in the elimination of discrimination. Apart from providing individual justice, it has wide education value and it supports the Commission's conciliation and settlement functions due to the deterrent effect litigation creates. It is also the litigation power that gives EOC teeth. After 2 years of investigation and discussion, it was the court judgment against government that resulted in a change to the system of allocation of high school places which preferred boys to girls. Judges play a key role in calling for legal accountability. For any independent body, I would recommend the power to subpoena information in addition to the power to litigate.
For the year 2002, we have provided training courses to about 7,000 participants and given consultancy services to 7 organizations covering almost 20,000 employees and 28,000 students. Our website which will continue to be a resource center in both Chinese and English now receives a hit-rate of over 910,000 a month.
In April, we will be launching our settlement register of successful cases which will provide information on the complaints, the legal issues involved and the solutions arrived at varying from damages, reinstatement, changes in policy and procedure to apologies.
On our complaints statistics, about 60% of the complaints received were employment-related cases. Of these, pregnancy related discrimination attracts the highest number of complaints followed by sexual harassment complaints.
Now I would like to share with you some historical background. As you know, Hong Kong is a Special Administrative Region of the People's Republic of China. Hong Kong was a British Colony for 156 years and reverted to Chinese sovereignty on l July, 1997.
Under the British rule, the English Common Law and certain imperial enactments applied to Hong Kong. However, Chinese customary laws relating to marriage and succession were preserved.
Under these customary laws, married women had very limited property rights and were not entitled to inherit the family property. They were financially and socially dependent upon their husbands. In Chinese customs in those days, a woman should be married to one spouse only during her entire lifetime, while a man could have one principal wife and as many concubines as he could financially afford.
In the early 1960s, women officers of the government were paid one quarter less than their male counterparts for doing the same job. At that time, maternal health and family planning services were relatively scarce, pregnant employees were unfairly dismissed, and girls were disadvantaged in receiving formal education.
The situation improved immensely for women when the government enforced six-year free compulsory education for boys and girls in 1971 and extended this to nine years in 1978. The Marriage Reform Ordinance came into effect on 7 October 1971, which officially abolished polygamy. Other laws were legislated at the time, which recognized women's independent legal personality and their rights to property ownership, to sue and be sued, and to inheritance of their fathers' or husbands' legacy. The right to inherit, however, did not apply to land in the New Territories (the rural part of Hong Kong) and property under a Chinese family trust governed by customary law.
In 1981, the Legislative Council passed the Employment (Amendment) (No.2) Ordinance. Under the ordinance, female employees who have completed 40 weeks of service with her employer before the expected date of confinement were entitled to 10 weeks paid maternity leave (currently at 80% of the basic salary). In the same year, the government agreed to offer equal conditions of service and benefits for men and women within the civil service.
As laws for urban Hong Kong and the rest of the world moved on, Chinese customary law became frozen in time. It also became more and more oppressive against women as it became inseparable from land interest and political influence for indigenous men in the New Territories. It was only in 1994 that female indigenous residents were given the right to inherit land in the New Territories. Women in the New Territories are still not eligible to apply for the indigenous residents' small house entitlements, a government housing program excluded from the application of the SDO.
EXTENSION OF INTERNATIONAL COVENANTS TO HONG KONG
The British Government had extended several international instruments to Hong Kong. Both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights have applied to Hong Kong since 1976. However, it was not until the 1984 signing of the Joint Declaration on the future of Hong Kong that the Hong Kong public first became widely aware of the existence of these international covenants. These covenants were important enough to warrant special mention in the Joint Declaration and were regarded as sufficiently fundamental to require preservation beyond 1997. If the future of Hong Kong had not become an issue, these commitments would probably have remained hidden from the Hong Kong public for many more years.
Many years after these covenants were first disclosed in the Joint Declaration, the British and Hong Kong governments had done little to implement them. In 1988, at a hearing of the United Nations Human Rights Committee, Britain was asked what had been done to promote awareness of the rights under the International Covenant on Civil and Political Rights in Hong Kong – its response: nothing.
In addition to these two covenants, the International Convention on the Elimination of All Forms of Racial Discrimination was made applicable to Hong Kong since 1969 and we still do not have a race law. CEDAW followed in 1996 and CEDAW's optional protocol does not apply to Hong Kong.
The apparent tranquillity of Hong Kong was disturbed by the June 4th tragedy in Beijing in 1989. To salvage the situation and to shore up confidence in Hong Kong, the British Government decided to entrench the International Covenant on Civil and Political Rights through domestic legislation in the form of a bill of rights ordinance. Suddenly, people began to realize that international covenants on rights have meaning and significance in individual lives. Ironically, the event that triggered this change of heart occurred in China, not in Hong Kong or Britain.
BACKGROUND FOR ANTI-DISCRIMINATION LEGISLATION
With the passage of the Hong Kong Bill of Rights, the rights under the international covenants became enforceable (justiciable) in the courts of Hong Kong. Citizens can only sue on the basis of domestic legislation but not a treaty. Without domestic law, treaties can be a blank cheque signed by a government but not honoured domestically.
The Bill contains broad guarantees against discrimination, but only in a limited context. It cannot be used to remedy discrimination by private parties, such as private employers.
The original draft of the proposed Bill of Rights was expressed to bind both public and private persons. However, final legislative changes made shortly before the Bill was enacted restricted the Bill's application to government and public authorities. The chief government argument made in favour of so limiting the scope of the Bill was that issues like discrimination in the private sector would be better dealt with by specific legislation than by the general provision of the Bill of Rights.
In the ensuing three years, Government did nothing to supplement its inadequacies. But during these years, two successful debates were held in the Legislative Council calling for the extension of CEDAW to Hong Kong. Needless to say, these debates were initiated by women.
In June 1994, three months after I, as a Member of the Legislative Council at the time, publicized my proposals for Equal Opportunities legislation and a Human Rights and Equal Opportunities Commission for Hong Kong, the government most grudgingly announced its legislative proposal to deal with sex discrimination. This proposal made no reference to discrimination on the grounds of pregnancy or marital status. The government official in charge explained that these had nothing to do with gender. In fact article 11 of CEDAW refers to both marital status and pregnancy.
The government introduced the Sex Discrimination Bill in October 1994, in slightly wider form, reacting to pressure. One of the amendments to this Bill that I introduced was equality for women and men in rural elections in the New Territories.
The history is clear, without pressure, Hong Kong government was not going to promote awareness of the covenants or to implement them and without promotion both awareness and demand would be slow building up. It is a vicious cycle and it must be broken. However, the Hong Kong legislative history was unusual in that gender equality laws preceded CEDAW's extension to Hong Kong.
WOMEN'S STATUS IN HONG KONG
How is the Hong Kong woman faring today?
As we go through the statistics, look for 3 themes. These are the feminization of poverty (that many women are becoming poorer), job segregation (contributing significantly to the concerns regarding equal pay for work of equal value) and how these relate to CEDAW by article.
The number of Hong Kong women in the labour force has increased significantly over the years but constitutes only 43% of the total workforce. More worryingly, recent data indicate a trend towards feminization of poverty in Hong Kong.
Men in Hong Kong earned approximately 29 percent more per month than women in 2001.
Statistics show that in 2001, women with tertiary degrees earned about $9,000 less than men with similar education and training.
This may be partly due to the fact that women and men are segregated into different jobs that are valued differently and hence the importance of understanding equal pay for work of equal value, a concept covered by CEDAW.
Of all managers and administrators, men constituted 74.5% in 2001, while women only constituted 25.5%. For professionals, 32.7% were women, while 67.3% were men. The ratios for clerical and elementary occupations were reverse. 72.7% of clerks were women and 27.3% were men.
80% of employed persons who earned less than half the median monthly earnings, i.e. $4,999 or below, were women.
During the period 1996 to 2001, Comprehensive Social Security Assistance (CSSA) recipients have increased by 77.9% to 397,468. The biggest increase was found in female recipients at 87.6% from 110,244 in 1996 to 206,791 in 2001.
Of single parent families who were CSSA recipients, 61% were female-headed families – a situation largely unchanged since 1996.
In the present economic downturn, women often work without job security in casualised and temporary modes of employment. They are often without retirement benefits and enjoy limited employment protection.
Other top concerns included the lack of affordable women's health screening in Hong Kong and a lack of recognition of their contribution to society as homemakers.
According to census data, more women (55.1%) than men (44.9%) were reported to have mental illness. In a recent study conducted jointly by the EOC and the Chinese University of Hong Kong, it was found that depression was more commonly reported by female respondents. This concurs with the World Health Organization 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.
Currently in Hong Kong, we have 3 women out of 19 Executive Council Members, 11 women (18%) out of 60 Legislators, and 72 women (14%) out of 518 District Councilors. In the Civil Service, currently 3 out of the 19 Principal Officials, and 6 of the 14 Permanent Secretaries are women. About one-third of our civil servants are women.
For the judiciary, there are currently no women on the Court of Final Appeal. For the High Court, there are 6 female judges (20%) out of a total of 30 judges. There are 7 female judges (22%) out of 32 judges in the District Court.
The number of women serving on Government advisory and statutory bodies totalled about 1,200 (20%) as at September 2002.
Although we have some very successful businesswomen in Hong Kong, women on corporate boards are still few and far between. We have found through our research that women in Hong Kong have minimal participation in the economic decision-making process. Our study in 1999 found less than 5% of women on the Boards of the 33 companies that made up the Hang Seng Index. Women also have a lot of difficulty getting bank loans and, without credit, it is difficult to start a business. You will find access to bank loans an issue referred to in CEDAW.
DISCRIMINATION & SEXUAL HARASSMENT
A survey by the Hong Kong Federation of Women's Centres issued on this year's International Women's Day found that 64 per cent of women interviewed said age and sex discrimination were major causes of concern.
In another survey, more than 600 women were interviewed by the Confederation of Trade Unions, which found that 48.8 per cent had been sexually harassed in the past two years. Only 35 per cent of those harassed did anything about it. The rest did nothing. The Confederation said that fear of losing jobs were deterring women from seeking redress against office sex pests.
CEDAW prohibits discrimination against women and seeks to advance the status of women. CEDAW obligates the State to ensure the realisation of rights by women and take women's disadvantaged position, the differences arising from social, economic and political factors, into consideration. It requires government to level the playing field and to take proactive and positive steps to advance the status of women. In other words, neutrality is not an acceptable regime.
What is important to note is that discrimination has a very wide definition under CEDAW, referring to any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying equality. CEDAW uses the basis of equality with men as the measurement and calls for the full development and advancement of women. CEDAW is result orientated. It requires not just impediments be removed but also steps to achieve equality be taken. It requires equality of outcome. (Sometimes gender neutrality can work against women, e.g. the SDO removal of the night shift exclusion for women. This change represented women leaving the phase of the protective laws and moving onto the phase of women having a right to choose. This change was voted in because the business lobby favoured fewer protective laws for labour.)
It took seven years to draft CEDAW. India chaired the sub-committee that drafted CEDAW and it is important to know that the developing world had a big say in this.
The strength of CEDAW rests on the international consensus which is a strong counter to claims that equality between women and men should be made relative to culture and tradition, local conditions and local divisions. We need to look at women from the perspective of CEDAW.
Like other human rights treaties, it is worded generally so that it can apply to a wide range of country situations and so that its interpretation can develop to meet changing circumstances and specific concerns. For example, the definition of discrimination under Article 1 and the guarantee of women's equality under the law under Article 15 are applicable universally. We must also be aware that other human rights treaties can be used along side CEDAW to address specific areas.
Even more fundamental is that CEDAW is a treaty that creates binding legal obligations on states, they are not merely moral obligation.
IMPACT OF CEDAW
What is the impact of CEDAW on governments?
First, CEDAW requires governments to eliminate discrimination and provide legal protection to women through legislative and other means and to give effect to these rights through competent tribunals and institutions. Therefore, to make CEDAW bite domestically, it must be coupled with domestic legislation and the government is directed to legislate and to make sure the rights are enforceable through institutions, judicial tribunals being the main one. It is the domestic legislation which enables an individual to call for legal accountability against government on its treaty obligations.
Second, CEDAW is an auditing tool. Article 2 deals with legislation, articles 5 & 11 with maternity, article 7 with public participation, article 10 with education, article 11 with employment, article 15 on bank loans and so on. CEDAW is a framework against which government compliance is measured. It is the women's policy for any government.
Third, the CEDAW monitoring mechanism requires governments to report regularly on the implementation of the obligations. To do so, a government needs to "promote and consult" the public before reporting. It is therefore extremely important for women to press government to be more proactive in its "promotion and consultation" exercises. A treaty would otherwise sit on the shelf and collect dust. It is also extremely important for NGOs to submit alternative reports to the CEDAW monitoring body because it creates pressure on a government to take its job seriously and, by providing information, the monitoring body is in a better position to question a government's performance.
EOC's recent survey revealed that the majority of women did not know that CEDAW applies to Hong Kong. The survey, which sampled a random group of about 1,500 women, found that 71 per cent did not know the government had policies to raise women's status. Sixty-seven per cent said they did not know about CEDAW (without prompting).
All these results were not surprising. It is a reflection of the failure of government to "promote and consult" widely. The findings should make government sit up and think about what it has done in the past for women and to articulate its program clearly. Government uses surveys to prove its points, we should too. We should use surveys to measure impact and awareness and make sure the findings are credible.
Fourth, CEDAW requires governments to mainstream gender perspectives. The concept of gender mainstreaming has been described as follows:
"Mainstreaming a gender perspective is the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in all areas and at levels. It is a strategy of making women's as well as men's concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres so that women and men benefit equally and inequality is not perpetuated. The ultimate goal is to achieve gender equality."
Mainstreaming of gender perspectives in policy making is calling for political accountability on the issue and it is best done with a central mechanism that can focus on and co-ordinate policy and programme on women effectively.
Fifth, to "mainstream" properly, we need government to produce "gender data" and "gender-budgeting". To analyse impact and to formulate policy, we need gender segregated data and we need to see how much is spent on the respective gender. In other words we need financial accountability and equitable allocation and distribution of public resources. For instance, public education, and certainly the best school places, should be made available to both girls and boys and not give priority to boys.
Domestic legislation against gender discrimination is a part of CEDAW but CEDAW goes further. Laws call for equal opportunity and access. Laws prescribe equality in terms of starting points but not of ending points. Perhaps we can say that the law requires the balance sheet on women to be brought up from negative to "0" but does not require a positive balance above "0". CEDAW picks up from here and pushes a government to go further, to achieve equality of results.
Barbara Ward, a British-born economist, once said "The most important change people can make is to change their way of looking at the world". CEDAW provides a blueprint for international leaders to look through the eyes of women. CEDAW provides a framework through which governments around the world are to deliver tangible benefits and advancement and to account to women globally. This is where its value lies.
Let me conclude by telling you the story of the English professor.
An English professor once wrote the words "A woman without her man is nothing" on the blackboard, and asked his students to punctuate the phrase.
All of the males in the class wrote, "A woman, without her man, is nothing."
All the females in the class wrote, "A woman: without her, man is nothing."
Well we know men and women are different but that does not make one less equal than the other.