Foreign Correspondents' Club Luncheon
“The Role and Work of the Equal Opportunities Commission – Its Impact and Challenges”（只備英文版）— Speech by Ms Anna Wu, Chairperson, Equal Opportunities Commission
Thank you very much for inviting me here to talk about the work and challenges of the Equal Opportunities Commission (EOC).
The EOC was established in 1996 by statute. Its work is to administer three laws covering five grounds of discrimination – gender, pregnancy, marital status, family status and disability.
The EOC has a number of functions relating to discrimination. These are to undertake investigation, to conciliate complaints, to provide litigation support and to promote equal opportunities through education, research and training.
Among the independent statutory bodies of its kind, the EOC is unique in that it has litigation power. The Commission, however, is not a legal aid agency. It supports litigation in strategic cases - where a large number of people is involved or where public interest is affected.
This strategic litigation role is essential to the Commission's work. 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. More fundamentally it is this power which gives the Commission teeth and makes it possible for the Commission to call for legal accountability from government and compliance from the private sector.
Of all forms of human rights, nothing can be more basic than the rights to life and survival. A natural extension of these rights is the right to development. By providing individuals with equal access to education, employment and participation in community life, we are providing a platform for individual development. This leads to greater self sufficiency and lesser reliance on social security. In fact, many anti-poverty measures worldwide are pegged on the capacity of the individual to develop.
THE SSPA CASE
Our best known case is the judicial review we took against government on the Secondary School Places Allocation System (SSPA). In August 1999, after one year of formal investigation, we issued our findings. These findings showed that the system led to systematic scaling down of our best girls scores and scaling up of our best boys' scores, and applied gender queuing and gender quota which restricted girls' access to the best schools unfairly. The system also produced adverse impact, though less significant, on the lower 70% boys. In essence, the system was designed to favour male elites.
This system had been in use in HK for almost a quarter of a century before we took action against government. It placed 70,000 to 80,000 students in high schools a year. As the Education Department refused to change the system, litigation became the only choice. The court declared the system illegal in June 2001.
At issue is how we can make education effective and fair for both boys and girls. Manipulation of statistics does not help make the education system more effective or any fairer.
One other area of education I want to highlight today is Specific Learning Disability (SLD). SLD makes an individual learn differently from others and hence has very serious impact on children who are in their learning age. About 10% of our school children are affected by it. But these children can perform as well as or even better than others given the right support. Both Albert Einstein and Steven Speilberg were dyslexic but the world has been enriched by their contributions.
Under law, SLD is recognized as a disability and reasonable accommodation by the education system is a right, not a matter of discretion. Because the disability was not recognized and because of the belief that resources should not be applied unfairly in their favour, up until recently the needs of these children have not generally been planned for with many being considered slow or difficult learners.
The controversies in education are still continuing and they reflect some prevailing mindset issues.
First, the gender factor-
Social norms and values continue to be defined according to male needs and perspectives. This leads to male values continuing to dominate the decision making process. Suppressing the 'over achieving girls' and compensating the 'under achieving boys' reflect this mindset.
Second, the statistical majority-
Public administrators plan for the majority, never the minority, let alone the individual. This often means the needs of students with SLD go unnoticed.
The job of the EOC is to introduce our values into the decision making process of the government. This requires officials to assess the impact of any policy on disadvantaged groups and to ensure equitable distribution of development opportunities.
Because the concept of equal opportunities is still relatively new, it does not sit comfortably with some government officials who perceive these laws as interfering with executive prerogative and calling into question long standing policies.
The role of the EOC is not to usurp executive functions but to support the government in the exercise of its powers. The power a government holds is a public power to be used by it as an impartial arbiter when dealing with competing interests. In using this power the government cannot trade off the basic rights of an individual or a minority group to please the majority.
The EOC and other statutory bodies, such as the Ombudsman's Office, the Privacy Commissioner's Office and the ICAC, are part of the constitutional framework of check and balance against executive power. The fact that we exist demonstrates the measure of confidence the government has in itself. It also means that the government accepts that there is a need for an independent monitor of its own actions.
Maintaining independence is the number one challenge for all human rights and equal opportunities institutions around the world. These institutions have a common predicament. They are critics of their funder, the government, and tension can build up.
In March this year, the government of Australia introduced legislation to limit the power of the Human Rights & Equal Opportunity Commission (HREOC) to intervene in court and to seek judicial review. The Howard government was irritated with the intervention and criticisms of HREOC regarding the government's handling of the Tampa affair .
HREOC has intervened in some of the most contentious court cases, on matters that range from asylum seekers and detention centres, to Aboriginal reconciliation, transsexual marriage and IVF access for single or lesbian women. Such actions do not bring you universal love but what it does demonstrate clearly is that all rights bodies must be independent not just of the government but also of vested interest.
Also in the same month, I was informed of the plight of Professor Pradit Chareonthaitawee, a national Human Rights Commissioner of Thailand.
At a meeting in Islamabad, he expressed his concern over the killings of over 400 drug suspects in Thailand. The Special Rapporteur on extrajudicial, summary and arbitrary execution then called upon the Thai government to strictly abide by the international human rights law and the strict limits on the use of lethal force.
Subsequently, the Professor was criticized by the Prime Minister for having made a 'non-patriotic allegation' to the UN. The government also released information to discredit him. His family received anonymous harassing and life threatening telephone calls. The spokesperson for the ruling party claimed that the Professor had no authority to raise the case with the UN and should only investigate the case domestically and called for the impeachment of the Professor. Recently, the situation seemed to have improved with many people voicing support for the Professor.
THE PARIS PRINCIPLES
The relationship of national human rights institutions and their governments was addressed at a UN sponsored meeting in Paris in 1991, at which the commonly known Paris Principles were developed.
The key features of the Paris Principles regarding national human rights institutions include:
-independence and autonomy from government;
-a broad mandate based on universal human rights standards;
-adequate powers of investigation;
In Hong Kong, there is no equivalent of a national human rights commission. The EOC does not have the broad mandate that a human rights commission requires. However, we are highly regarded by international bodies for the work that we do.
The May 2001 report of the UN Committee on Economic, Social and Cultural Rights has this to say about the EOC,
"The Committee notes with satisfaction that the Equal Opportunities Commission established in 1996 is effectively carrying out its mandate without interference from the Government of HKSAR."
More recently the European Parliament in its 8 April 2003 report states that it,
"Acknowledges the excellent work being done by the Office of the Ombudsman, the Privacy Commissioner's Office, the Equal Opportunities Commission, the Independent Commission Against Corruption, and urges the HKSAR government to ensure that they have the necessary resources to operate independently in the discharge of their tasks."
One area that I hope to be able to speak to government on, after SARS, is the budget constraints that may limit the litigation role of the EOC in future. Litigation is very costly and may take years to complete. Because our allocated budget from government for litigation is about HK$400,000 a year, we have been redeploying internal funds and building up reserves to meet litigation expenses. Recently we successfully fought off a court application by the defendant requiring the EOC to provide security for cost before we could proceed with the case. The litigation process will become more complex as litigation tactics become more widely employed. We have provided litigation support sparingly and some meritorious cases have been turned away. When our reserves run out, it will be difficult for us to undertake major litigation because we must make provisions for lawsuits to be dragged out over several years and for possible appeals thereafter.
There has been recent speculation about downgrading of my post and the dismantling of the EOC as a statutory body. Government has dispelled any suggestion that the EOC would be dismantled. However the review of the post of the Chair has been officially postponed until the consideration of a race law. This would appear to be indicative of a split within the government - some supporting downgrading, others not. These circumstances reflect pressure both inside and outside the government to downgrade the EOC.
When I was appointed by Mr. Tung to do the job, I knew there were objections to my appointment which he had to overcome. I have asked in the past for his support and he has given it. What I look forward to is an unequivocal public statement of support from the government for the work of the EOC.
Finally let me say a few words about SARS. We have received about 450 enquiries and complaints related to SARS and we are concerned with the discrimination and stigmatisation stemming from SARS. SARS underlines something we have known all along:
- discrimination has no national boundaries
- discrimination creates economic loss
It is clear that economic growth is not dependent on fiscal measures alone. As SARS has demonstrated, sustainable growth must be underpinned by a clean environment, good health, dedicated people and equality. Having a strong equal opportunities framework is part of that equation. I look forward to the undaunted human spirit continuing after SARS.