INTRODUCTION

Good morning! It is a pleasure to be here -- to have this chance to meet with all of you and to briefly discuss how legislating against racial discrimination can work for Hong Kong.

I went to Geneva two weeks ago to present the views of the Equal Opportunities Commission before the United Nations Committee on Economic, Social and Cultural Rights. I made it clear that the EOC believes the Government should introduce anti-discrimination legislation to cover discrimination on the ground of race. I believe that the majority of you will share this belief with us.

Right now we have laws prohibiting discrimination on the grounds of sex, marital status, pregnancy, disability and family status; but there are no laws to prohibit discrimination based on race and the aggrieved are left without any protection.

THE LAW

The International Convention on the Elimination of All Forms of Racial Discrimination was extended to Hong Kong in 1969. It is the earliest rights covenant to apply to Hong Kong and continues in effect today. In a few months' time, the Hong Kong SAR Government will be appearing before the relevant UN Committee on the Elimination of All Forms of Racial Discrimination to explain why Hong Kong has no law to prohibit discrimination on this ground.

Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination provides that "State Parties undertake to prohibit and to eliminate racial discrimination in all forms and to guarantee the right of everyone without distinction as to race, colour or national or ethnic origin, to equality before the law…" This means legislation because no government can prohibit otherwise.

The members of the Committee on Social, Economic and Cultural Rights also made it clear that the right to be protected against race discrimination is a right that should be justiciable and of immediate effect. It was made clear that this is not aspirational or promotional in nature.

Currently the public sector is bound by the BOR not to discriminate others on the ground of race. However, the BOR only binds the public sector and not the private sector. Thus complaints between citizens whether it be in the areas of employment, accommodation or services receive no remedy.

Article 22 of the BOR provides that,

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

THE GOVERNMENT ARGUMENTS

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, which was extended to Hong Kong in 1976 – its response: nothing. Up until the enactment of the anti-discrimination laws in Hong Kong, discrimination was regarded as non-existent.

The government has advanced slightly since then. Its current position on race discrimination is as follows:
• It is not serious enough to warrant legislation,
• The majority does not favour legislation,
• Legislation may make it worse and increase discord, and
• Hong Kong should rely on education.

Well what is wrong with these arguments? Clearly, it is always the minority of one type or another that is subject to discrimination. To play the numbers game is to say that the victim should continue to suffer in silence and if the victims should make it an issue, they do so at their peril and will be victimized for breaking the silence. This is a blatant condonation of bad behaviour and of a system that keeps people apart. Government's obligation is to protect individuals in the community and not to subject them to further victimization when seeking protection. On education, yes, education is important but education by itself is not enough. There is every incentive to learn faster with a legislative framework. We fine people for manufacturing unsafe products, for jay walking and for spitting. The result of these laws is also that the community learns a lot faster when these laws exist.

Legislation is needed because we are obliged to protect individual and minority rights and we cannot build a community on the basis of double standards or on segregation. We cannot say that some are more equal than others before the law and those who suffer gender and disability discrimination should be protected and not those for race.

I have heard it many times that laws cannot guarantee socially desirable behaviour. This is true. But it is also true that laws can prohibit socially undesirable behaviour. It is only then that we can direct ourselves towards what is desirable and see what is beneficial. Anti-discrimination laws are to prohibit discrimination as well as to encourage respect of others who are different from ourselves. These are two sides of the same coin.

ECONOMIC VALUE

Hong Kong prides itself as an open and international city with a level playing field for all. If we really want to be a world class city like New York, London or Toronto, we would need to demonstrate our tolerance and be receptive of people coming from diverse backgrounds. Literally we need to put our money where our mouth is, not just pay lip service to it but guarantee it by law.

Hong Kong is a very multiracial society. We have many kinds of Chinese alone: Hong Kong Chinese, Mainland Chinese and other overseas Chinese. Hong Kong is also home to a very diverse range of communities from the Philippines, Indonesia, Thailand, Nepal, Pakistan, Britain, Japan, Europe, America, Canada, Australia, New Zealand, Africa, Korea, Bangladesh and Sri Lanka, not to mention Jews and Indians from Shanghai! Many Indian and Jewish families came to Hong Kong as refugees from Shanghai and other major cities in China, the same way that many Chinese families did. The racial diversity provides a unique value. It is our link to our trading partners and strengthens Hong Kong as the global trader.

More than 2,000 multinational companies maintain regional offices or headquarters in Hong Kong. These multinational firms have played important roles in Hong Kong's economic development. Similarly Hong Kong's homegrown companies have become increasingly global.

Eliminating racial discrimination is not only fair, it makes good business sense.

Many companies in the world have diversity policy. An example of the benefits of workforce diversity can be demonstrated in the story of the rise in fortunes for a telecom company (CTI) in Hong Kong. About four years ago, this company saw an opportunity to expand its business in Canada because of the vast number of Hong Kong people who had emigrated to Canada. The company's marketing strategy included leaflets in Chinese and, for new customers, a promise to deliver moon cakes during the Mid-Autumn Festival to relatives back in Hong Kong. The strategy proved very successful and this Hong Kong-based company was able to secure a market share in a foreign country. The crucial element is that these employees were able to understand the needs of the customers and weave these into the marketing plan.

A good diversity policy also enhances brand name value. Last year, a survey conducted by Edelman PR Worldwide found that non-governmental organizations (NGOs), such as Greenpeace and Amnesty International, have earned a greater level of trust than some of the most well-respected global multinational companies such as Ford and Microsoft. It is noteworthy that the respondents were well-educated, media attentive individuals between the age of 34 and 64 from five industrialised countries (U.S., U.K., France, Germany, and Australia). These are indications that consumers are becoming more sophisticated and are increasingly taking account of social accountability issues. Similarly, shareholders too, are likely to be interested in these same issues.

According to a study by Covenant Investment Management in 1996 on Standard and Poor's 500, it found that the annualised return for the 100 companies which rated lowest in equal employment opportunities issues averaged 8%, compared to 18% for the 100 companies that rated highest in their equal employment opportunities. The figures are clear: diversity pays. Today, 93% of Fortune 500 companies have instituted diversity programmes in their organisations.

At the international level, the United Nations Secretary-General, Kofi Annan, challenged world business leaders at the 1999 Annual Meeting of the World Economic Forum at Davos, to initiate a Global Compact of shared values and principles to give a human face to the global market. For the community in Hong Kong, we have been advocating three principles of the Global Compact:
•Businesses should support and respect the protection of international human rights within their sphere of influence; and
•Make sure their own corporations are not complicit in human rights abuses; and
•Eliminate discrimination in respect of employment and occupation.

Another example of international initiative is the launching of the global Dow Jones Sustainability Group Indexes (DJSGI) in 1999 in response to growing investors' interest in sustainable development. These indexes track the performance of sustainability leaders worldwide and encompass the top 10% of companies that lead their industry in terms of economic, environmental and social criteria.

In June 2000, the Organisation for Economic Co-operation and Development (OECD) Ministers endorsed the revised "Guidelines for Multinational Enterprises", which set out voluntary principles and standards of responsible corporate conduct in areas such as the environment, labour standards and human rights.

In the U.S., the former Vice President, Al Gore, and the Department of Commerce commissioned a benchmarking exercise in October 2000 of best practices in achieving workforce diversity. Significantly, the exercise revealed the large number of public and private sector organisations that have been actively promoting diversity. In the U.K., some 700 companies have joined a "Business in the Community" campaign, committed to continually improving their positive impact on society. Many of these companies have also formed a network, "Race for Opportunity", to work on race and diversity as a business agenda and include large corporations such as Barclays Bank, BBC, British Telecom, HSBC, Goldman Sachs, Shell International Ltd., and Texaco, to name but a few.

Increasingly, corporations are required to operate in a fair, transparent and accountable manner. Numerous public and private bodies have responded by establishing standards and norms related to important aspects of corporate governance.

Business now recognizes that increasingly consumers are demanding that the foods they eat, the clothes they wear and the products they use daily are manufactured under ethical working conditions. These include fair employment opportunities for all, fair wages, a safe working place and a clean environment to name a few. Market share and brand name value depend on consumer acceptance of a company's employment policy, servicing standards and manufacturing conditions. Failures in these areas can sometimes lead to consumer boycotts.

Social accountability and marketability are becoming more and more entwined, and rights advocates recognise that industries and business create jobs and they must become a partner in the advancement and development of a community.

THE EOC EXPERIENCE

When I initiated the equal opportunities private member's bill in 1994, it was also government's argument that these laws would make people unnecessarily litigious and we should not over regulate business or make cost of operation too high for them.

Well let's look at the EOC experience. The three sets of anti-discrimination laws have been in operation since 1996. Our statistics show a total of:

23,892 general enquiries,
12,018 specific enquiries,
2,600 complaints received,
1,959 complaints requiring investigation and conciliation

Where conciliation was attempted, 2/3 were successfully conciliated. A total of 93 applications for legal assistance was received and of these we have granted legal assistance to 49 cases [2 more cases still under consideration]. Because we are not a legal aid agency, legal assistance has been granted only for strategic reasons, for instance, on the ground of public interest, systemic discrimination for clarification of the law.

Furthermore the law does not provide for mandatory affirmative action or any kind of quota system. The law also does not prescribe any treble damage suits or open class actions.

In our experience, these laws have not lent themselves to abuse. The remedies available under these laws include reinstatement, damages, undertakings of difference forms and apologies. Some litigants have chosen non-monetary settlement such as requiring a change in human resource or recruitment procedure, training for the employers or apologies from complainants. There is a very important message behind these forms of resolution - to educate others and to prevent recurrence.

We now have three laws already. One more law in the area of race is not going to create additional compliance costs. Overseas businesses have to comply with parent company requirements in any event. The 1986 Nobel Peace Prize Winner Elie Weisel, who is a holocaust survivor, said, "Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented." We cannot be silent on a matter such as this. I hope I will have your support.

End