While Hong Kong has long been known as a cosmopolitan metropolis and a pluralistic society, racial discrimination continues to rear its ugly head in the community.
In order to guarantee equal access to opportunities for people from different racial and ethnic groups, the SAR government introduced the Race Discrimination Ordinance (RDO) in 2008.
The law, to a certain extent, helps in maintaining Hong Kong’s status as a pluralistic society, but the fact that the government is exempt from it when carrying out its official duties and exercising its executive powers has seriously undermined the efficacy of the legislation.
As a result, Hong Kong continues to lag behind other advanced regions when it comes to upholding equal rights.
At present, the RDO remains the only piece of anti-discrimination legislation in the city (the others being the Sex Discrimination Ordinance, Disability Discrimination Ordinance and Family Status Discrimination Ordinance) that doesn’t apply to the government.
Back in 2008 when the Race Discrimination Bill was still under scrutiny in the Legislative Council, lawmakers pointed out that the government’s exemption from the law would constitute a major loophole. The majority of the members of the Legco bills committee at the time cast serious doubts on the rationale behind the proposed exemption.
In order to justify the exemption, the government put forward two reasons:
Firstly, the International Covenant on Civil and Political Rights (ICCPR) has already been incorporated into the Hong Kong Bill of Rights Ordinance.
Besides, Article 39 of the Basic Law also stipulates that the ICCPR is applicable to Hong Kong. The HKSAR administration thus has to abide by the relevant provisions in the Hong Kong Bill of Rights Ordinance regarding racial equality.
In other words, the administration has already fallen within the jurisdiction of the ICCPR, the Basic Law and the Hong Kong Bill of Rights on preventing racial discrimination simultaneously.
If anybody believes he or she may have fallen victim to racial discrimination by the government when it is carrying out its duties or exercising its authority, that person can file a judicial review application with the court in order to seek justice.
Secondly, the government argued that the binding Administrative Guidelines on Promotion of Racial Equality issued by the Constitutional and Mainland Affairs Bureau is already able to guarantee members of the public substantial racial equality.
At first glance, the government’s arguments might sound reasonable. Yet most bills committee members remained unconvinced at the time.
They said that given the limited scope of judicial review, even if a lawsuit filed by a civilian against the government is heard in court, its statutory exemption from the RDO is very likely to affect the court ruling over the case.
Moreover, filing a judicial review lawsuit can often be a costly undertaking and the litigation cost may result in huge financial risks for the plaintiffs.
Such huge financial risks are indeed tantamount to a de facto obstruction to any move to sue the government for racial discrimination.
On the other hand, if the government’s exemption from the RDO is revoked, then citizens who believe they have been unfairly treated by authorities because of their racial background can seek help from the Equal Opportunities Commission for free, thereby greatly reducing their financial risk as a result of huge litigation costs.
Earlier this year, the United Nations Committee on the Elimination of Racial Discrimination (UNCERD) has carefully scrutinized the progress Hong Kong has made in fulfilling the International Convention on the Elimination of All Forms of Racial Discrimination.
In its conclusion, the committee reiterated that Hong Kong should amend the existing RDO and make it applicable to the SAR government.
The UNCERD also demanded that the government give a detailed outline of all the solid actions it has taken in amending the RDO as required in its next regular report to the committee.
It’s been 10 years since the RDO was passed by Legco. When it comes to amending the law, the SAR government doesn’t have to wait until its next report to the UN.
Chief Executive Carrie Lam Cheng Yuet-ngor should take the initiative and propose amendments to the RDO to make it applicable to the government as well in her policy address this Wednesday.
This article appeared in the Hong Kong Economic Journal on Oct 5
Translation by Alan Lee
[Chinese version 中文版]
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