[Salutations]

Thank you for inviting me to talk about the challenges faced by the Equal Opportunities Commission (EOC) in Hong Kong today.

Introduction

“Challenges faced by the EOC” is indeed a well chosen theme as we have been asked to deliberate on this topic on a number of occasions. Your invitation does give me a chance to revisit our work. When I was preparing this speech, I began to ask myself, have we really overcome the hurdles before us in all these years? Though we have made a lot of progress in combating discrimination and have effected significant changes in social practices and beliefs, and we may have also removed or modified some stereotypical notions along the way, the road ahead is still long and what remains to be done arduous.

To appreciate the challenges faced by the EOC, it would be instructive to bear in mind the history of the organization, how EOC came into being. EOC did not come into being through a process of social evolution, as in the case of, for example, comparable institutions in Europe, such as Scandinavia. Neither did EOC come about as a natural or orderly progression in the development of our local society. Specialized human rights agencies, such as the Privacy Commissioner’s Office and the EOC, were established less than a year prior to the changeover in 1997, although data protection and equal opportunities were not exactly familiar subjects in the community at the time. Suffice to say that the organization was born at a time of political significance and even now there are those who consider the concepts that we advocate foreign to our local culture.[1]

Coming back to what we do now, the EOC has a number of functions relating to discrimination[2]: to undertake investigation and conciliation, to provide litigation support, to promote equal opportunities through education, research and training, and to assist courts in discrimination matters as 'amicus curiae'. Over the past years, the EOC has established significant milestones in fighting discrimination in Hong Kong, for example, the Richland Garden case[3], the Ma Bik Yung v Ko Chuen case[4], and the most controversial Secondary School Places Allocation System (SSPA) case. Despite the controversial nature of these cases, nobody would deny that these cases have had a significant impact on the mindset of the local community. Both the government and the general public are required, or to put it in a stronger way, are forced to assess the impact of any policy on disadvantaged groups and to ensure equitable distribution of development opportunities.

Although the legislation has been in place for more than ten years, there are still many challenges that lie ahead.

Facilitation or Obstruction - where do we stand?

Putting it simply, human right is concerned with how one individual should treat another and respect the basic rights of the other. However, in advancing the concept and promoting it, one cannot escape the scenario, where the rights of the individual, or groups of individuals, are set against the exercise of executive authority over those individuals.

The EOC and other statutory bodies, such as the Ombudsman, the PCO and the ICAC, are part of the constitutional framework of checks and balances against executive power. Although the concept of equal opportunities is no longer new, it is still being perceived by some in certain quarters as a source of unwelcomed interference with executive prerogatives or business activities.

As we would appreciate, public administrators in executing their duties very often are planning for the majority rather than the minority, let alone the individual. That’s understandable (and often for good and valid reasons) and I am not suggesting that minority interests are being ignored in our public processes. But at the policy making level, minority and individual voices are not readily heard, let alone adequately represented in the decision making process. It is easy to speak of equality but to put it into practice is a totally different thing. There are significant obstacles to overcome, stereotypical mindsets to eliminate and attitudes to change.[5]

The EOC’s coming into existence signified an important step towards an equitable society. Whilst many look upon us as a vanguard of social equality, there are also others who do not fully appreciate the value that we seek to bring to our community. It will be up to us to show to the executive authority, the big businesses and the public that the role of the EOC is not to interfere, but rather to support the exercise of executive powers, to enhance the efficient utilization of ALL human resources, and to encourage a healthy process of social development. In the context of community development, it is neither efficient nor healthy to trade off the basic rights of an individual or a minority group for the support of the majority. We see it as our task the facilitation of social development.

Independence

Underpinning our work is the independence of the EOC. Maintaining independence has always been the number one challenge for all human rights and equal opportunities institutions around the world. In Hong Kong, there is no equivalent of a national human rights commission and the EOC does not have the broad mandate that human rights commissions elsewhere are given. But we are no less effective in what we do. For the most part NHRIs tend to be advisory in nature. The EOC, on the other hand, is primarily a regulatory agency, with specific powers to handle complaints, to investigate and conciliate and to take cases to court. We endeavour to bring relief and remedy direct to the victims of discrimination. At the same time, and equally important, through a comprehensive program of promotional and training activities, we advocate and promote the concepts and ideals that we cherish in our quest for social justice.

Our work, and the legal system that we have in Hong Kong which supports our work, have earned us recognition in the international community[6]. I venture to suggest that the EOC is well regarded by international bodies for the work we do, in particular with regard to the fact that the EOC could carry out its mandate without interference from the executive authorities.

For my part, I am confident that we shall continue to enjoy the support of the SARG and I see no threat to our independence.

Conflicting Expectations

Up till today, some people are still equating equal opportunities with equality in outcome and believe that equal opportunities means denying individual differences and everyone should enjoy the same outcome. I must stress, however, the essence of equal opportunities is about respecting individuality and embracing diversity. We should all be treated the same (irrespective of gender, disabilities, racial characteristics, etc.) but it does not mean that we shall all enjoy the same result.

What the law requires the public to do is to provide various minority or marginalized groups with equal opportunities in employment, in education, in the provision of goods and services, etc. No more and no less. However, there is a fundamental gap between the expectations from various human rights groups and the power that lies with the EOC.

Human rights groups have high expectations of the EOC, and rightly so[7]. They look up to the EOC as the advocate for their cause. While I agree that the EOC is an important institution in advancing human rights, I have to say that the EOC is, first and foremost, a statutory body with statutory limitations imposed upon us. Our credibility enjoins us to act within our remits in our efforts to combat discrimination. Our processes require us to act impartially when conducting investigation and conciliation. We cannot, and should not, side with one party to the detriment of the other. We have to be even-handed in our dealings. This is the foundation of our regulatory credibility.

We are also acutely aware of the gaps in our system when compared to other socially more developed places. Subjects such as sexual orientation, age and religion quickly come to mind. From time to time, the EOC is criticized as not being proactive enough in these matters. We regularly receive complaints alleging discrimination on these grounds, but we cannot take them forward for lack of jurisdiction. The situation is getting more intense over the years as the awareness of the public has risen substantially since the implementation of the anti-discrimination legislation over the past 12 years.

It is not an easy situation to resolve. As a modern city, and having given ourselves the description - world class, Hong Kong is often made to compare with other places and world trend, which, in this context, means the developed world. Countries within the developed world tend to have more or less the same social construct and historical development. Whether there are any valid or legitimate variations for present purposes between Eastern and Western cultures, or between the developed and developing world, is a matter for debate. Suffice to say that I believe we will gradually move towards closing the gap that I have mentioned. How quickly this can be done is for the community to decide.

Cultural difference is generally not accepted as a good enough reason not to legislate against the other grounds of discrimination. But there are some strongly held views, social norms and conditions, and public sentiments, which require careful handling. Some grounds may be more difficult to handle than others[8]. In the case of sexual orientation, the subject impinges on ingrained and deep-rooted values and perceived notions of morality[9].

The EOC sees it as its mission to protect members of the public from all forms of discrimination, but it also recognizes that we are not going to get there overnight. It is likely to be a long and time-consuming process. It will be time-consuming, because the general public needs to be educated on the subject and prepared for change.

Finding the right equilibrium between protecting basic rights of minority groups and the interests of mainstream society is and remains a significant challenge for the EOC and policy makers. Meanwhile, the EOC fares better in delivering substantive results within the confines of our statutory remits.

Compared to ten years ago, people in Hong Kong nowadays are more aware of their rights and are much more ready to fight for equal opportunities. Sometimes the rights of a particular minority group cannot reconcile with another, for example, the argument regarding the right way to construct a proper access to premises or facilities has never been fully settled between the visually impaired groups and the physically handicapped groups[10]. It is not easy to resolve conflicting interests of different minority groups as they are equally entitled to have a barrier-free access, and up till today, we could not say that we have found a perfect solution to such conflicting claims and interests.

Race Discrimination Ordinance

The EOC offers support and the possibility of redress to those pushed to the edges of our society. Most of our clients come from marginalized or disadvantaged groups. The complexity and diversity of historical, social and cultural factors, render understanding the needs of ethnic minorities not an easy task. Speaking a different language and coming from a totally different cultural background, makes everyday living a challenge. The RDO offers an opportunity for our community to come together to establish a multi-cultural society, one that makes the most of all our human resources, irrespective of racial variations.

The EOC has published a draft code of practice on employment. The consultation period has been extended to 19 January 2009 (the initial period would have expired today 8 Dec.) By extending the consultation period, we hope to encourage more responses from the public. We have had some constructive comments from those who would be affected by the legislation.

The controversy during the legislative process has caused us to be very wary of the risk that the code might be seen as a vehicle to make good what some quarters regard as inadequacies in the law. We all know that this new ordinance has not satisfied the demands from all quarters. But using the code to make good those demands is not the function of a code of practice. A code is a compliance tool, and, through compliance, promote equality and equal opportunities. Any improvement upon the statute is the function of the legislature.

The RDO opens up a new horizon for us in Hong Kong. How the complaints will come about and how the cases would turn out remain to be seen. Much depends on not just the EOC’s own efforts, but also that of the community as a whole. My colleagues and I will face the challenge and we look forward to the public’s support and understanding in finding the right way to promote racial harmony.[11]

The Gender Politics

In Hong Kong, social norms and values are still largely defined in favour of the male perspective. The decision making process is still very much dominated by the male gender. This male-dominance is not only reflected in the government and its executive functions as well as big businesses; it has been extended to other finer aspects of life, such as the consumer market, entertainment and mass media.

The media in Hong Kong has a profound influence on our youth and it is overwhelmingly representing male values and perspectives. It is not difficult for you to notice that both men and women’s magazines and other media types contain only one single and simple message – that “women should primarily concern themselves with attracting the other gender.”

The EOC has carried out a survey on the public perception of the portrayal of women in the Hong Kong print media. Surprisingly, despite their personal dislike of the way media portrayed the female gender, the majority of the respondents thought the community would find the overall advertisements and the news pictures (mostly provocative images of women partly clothed or naked) acceptable. The survey clearly indicated a gap between the perceived female images in print media and in real life.

We appreciate that media stereotypes, which guide the audience or reader to a pre-set and common understanding of a person or a group of people, are sometimes inevitable, especially in the advertising, entertainment and news reporting business. However, gender stereotypes can be problematic. They can reduce a wide range of differences to simplistic categorizations; they can transform unfair (or even erroneous) assumptions about particular groups of people into “realities”; they can be used to justify the position of those in power and they can perpetuate social prejudice and inequality. Though some efforts have been made in monitoring the media portrayal of women in film, television and magazines in the last ten years, probably due to the influence of women in the media behind the scene, female stereotypes continue to thrive in the media today and the survey is a good proof of that.

The survey also shows that stereotypical assumptions are prevalent among young people whose perception of themselves and the female gender are heavily affected by the media. This is more worrisome. The EOC certainly would not want to see women being portrayed as sexual objects only or as dependents, and we definitely do not want our future generations being lured into pursuing unattainable beauty – painfully thin women with Barbie-doll proportions. Our youngster should be taught to have confidence in themselves (as they are) and to develop proper gender awareness. This would mean a long educational process. Changing paradigms and social perception of the female gender and discouraging gender stereotyping among youngsters would be another big area of our work.

Education

Public education is one of our major roles. Our educational programme aims to explain how human rights and responsibilities apply in our everyday lives. The rigor and innovation of EOC’s staff and our policy work, investigations, research and educational projects have given visibility to critical social issues. Besides public education, the EOC has worked together with the Education Bureau to integrate equal opportunities into the school curriculum in the past few years. We believe that our youngsters should learn about acceptance and respect for others at an early age. Educating our next generation to have respect for others and not to engage in any act of discrimination has always been a challenge, especially in times of economic recession.

While we all agree that education is extremely important for our young people, how often have we ever thought about education for ethnic minority students? Besides the language barrier, their access to mainstream education remains limited, primarily due to lack of immersion programmes and support facilities to facilitate their integration into the mainstream society. This is evident in the lower level of educational attainment and significantly higher youth unemployment rates.

If we want to avoid the unhappy experience of other places with racial issues, I do believe that we need to do something to help this group of students but what exactly needs to be done and how that could be done would require the concerted effort of all the stakeholders.

Formal Investigation

Disability discrimination in Hong Kong remains prevalent even though the Disability Discrimination Ordinance has been in force for more than a decade. Our complaint figures show that accessibility-related complaints make up about 13% of the total complaints lodged under the Disability Discrimination Ordinance (DDO) received by the EOC.

Under the DDO, developers and property management companies should provide barrier-free access to persons with a disability unless this would impose unjustifiable hardship. With the number of complaints maintaining at a high level, the EOC considers that redressing individual accessibility problems by complaint handling may not be the most effective way to deal with inaccessibility. To systematically examine accessibility difficulties faced by people with disability, the EOC launched in December 2006 a formal investigation on accessibility in certain publicly accessible premises covering about 60 sites within housing estates, commercial centres, car parks, buildings and offices in Hong Kong. Through this formal investigation, we hope to collate opinions and views of interested parties, primarily the disability concern groups, professionals and relevant stakeholders regarding accessibility problems and issues and to consider ways of improving the current situation. To be realistic, it would take forever to achieve a barrier free access if the EOC needs to conduct formal investigations to explore every single corner of Hong Kong. We call upon the community to create a barrier free access to public places in Hong Kong, but we know a community-wide implementation will remain a job to be achieved in the long-run.

Besides access to premises, transport is another major area of concern among disability concern groups. The lengthy campaign concerning “Concessionary Fares for Persons with Disabilities” has not yielded the expected support despite all these years of negotiations and lobbying[12]. Some of our major transport operators have already taken concrete steps to embrace corporate social responsibility and offered concessionary fares to the young and the elderly. I hope that they will extend this allowance to our disabled friends, whose need is no less deserving than our students. We fully appreciate the fact that legislation itself may not be sufficient to improve the living conditions of marginalized groups and that the willingness to put equality into practice must come from the heart of everyone of us in Hong Kong.

In every economic downturn, the marginalized and disadvantaged groups are the first to suffer. With everyone talking about recession in the coming year and that Hong Kong is very likely to suffer from the “Financial Tsunami”, we ask our corporate citizens to bear in mind that the quest for more profits should not be made at the expense of lowering the commitment to corporate social responsibilities.

We live in challenging times. The challenge which we face is to find our holistic self to move ahead as a community, embracing the diversities among us, and unleash the potentials that lie within to elevate us to a higher order of social development.

Thank you.

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^[1] One major local newspaper group consistently referred to the EOC as an unwanted colonial legacy and has gone on record saying that the EOC should be dissolved.

^[2] Currently, the EOC has responsibilities under four anti-discrimination ordinances: the Sex Discrimination Ordinance, the Disabilities Discrimination Ordinance, the Family Status Discrimination Ordinance and the Race Discrimination Ordinance.

^[3] Residents opposed the setting up of a neighbourhood health clinic, which catered for AIDS patients. Staffs and visitors to the clinic were harassed, and access way blocked. EOC intervened, investigated and finally conciliated. Residents apologized for their action.

^[4] The taxi cab case, where the driver while, refusing to assist a disabled person to board his cab, verbally humiliated the individual. The EOC provided legal assistance and the Court held that it had power to order an apology. Failure to apologize would affect an award of compensation.

^[5] That female workers are no less efficient than male workers. That disabled people can be just as productive. That providing reasonable accommodation is not an investment with no return.

^[6] Currently, the EOC is the only operationally independent anti-discrimination agency in the region which adopts a specific statutory regulatory approach.

^[7] They have no other official human rights body they can go to.

^[8] Age discrimination - economic and social impacts. Sexual orientation - emotional, impacts on religion.

^[9] There may be social risks in introducing legislation ahead of public awareness and understanding, or worse, against public sentiments. From a regulatory perspective, regulatory efficiency is best achieved through public receptiveness of the subject of regulation. A regulator would be hard put to advance its mandate, if the subject matter does not have public support, or at least, a sufficient level of understanding on the part of the public. This also highlights the basic difference in approach between a regulator and an advocate. An advocate pursues his goal with single-mindedness all the way to achieve his objective. A regulator has to administer the relevant law and to issue guidelines and codes, etc. to address both sides of an argument or subject matter, not one side only. The function of an advocate is to pursue his conceptual objective. The function of a regulator is to provide guidance to parties affected and to enforce where breaches occur.

^[10] Wheelchair users prefer ramps. But ramps create problem for the visually impaired.

^[11] The experience of those places with racial issues and some with anti-racial discrimination legislation has not been encouraging. We must strive not to repeat such experience here.

^[12] The subject had been before the LegCo for over 4 years. The Mass Transit Railway(MTR) holds the key but is unwilling to lead.