Submission to the Hong Kong Government
in Response to its Proposed
Code of Practice Against Discrimination in Employment on the Ground of Race
In November 1997, the Hong Kong Government released a Code of Practice against Discrimination in Employment on the Ground of Race. The Government has prescribed a consultation period, ending 31 December 1997, during which comments on the Code of Practice are to be submitted.
The proposed Code of Practice is wholly inadequate, as a purported means of satisfying Hong Kong's obligations under domestic and international human rights law:
I. Voluntary guidelines do not fulfill the government's obligation under relevant international human rights conventions to enact legislation to protect vulnerable groups from discrimination. Voluntary guidelines should only be viewed as a means of preparing the community for legislation
Hong Kong has obligations under various international human rights treaties to eradicate discrimination in Hong Kong on the ground of race. Hong Kong has failed to fulfill its obligations under those treaties, and has ignored the pleas of the United Nations human rights bodies that have repeatedly reminded Hong Kong of it treaty obligations, as follows:
(A) Obligations under the International Covenant on Civil and Political Rights:
Article 2(1) provides that:
"Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race" (our emphasis).
Article 2(3) provides that effective remedies for discrimination must be provided by Hong Kong, as follows:
"Each Party to the present Covenant undertakes:
To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy_;
To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
To ensure that the competent authorities shall enforce such remedies when granted.ˇ¨
(B) Obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD or the Race Convention)
Article 2(1)(d)of this Convention (which Hong Kong signed nearly 30 years ago) provides that:-
"Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organizationˇ¨.
(C) Failure to comply with the ICCPR and with the Race Convention
The proposed Code of Practice does not ensure to all individuals in Hong Kong the rights of the ICCPR without distinction, as provided for in Article 2(1) of the ICCPR. Furthermore, it does not ensure that all individuals are ensured rights without discrimination based on race, as provided for in the Race Convention. The Code of Practice merely suggests to employers that certain behaviour might be "good practices". There is no mechanism for ensuring non-discrimination.
The proposed Code of Practice is not legislation, does not have binding power over Hong Kong individuals or entities, does not protect victims of race discrimination, and do not provide remedies for non-compliance. Therefore, it does not satisfy Hong Kong's obligations under Article 2(2) of the ICCPR and under Article 2(1) of the Race Convention. The Code of Practice is a patently inadequate, substitute for legislation.
Various United Nations Committees (Treaty Bodies) have repeatedly informed the Hong Kong Government of its obligation to enact legislation. Hong Kong has again chosen to ignore the United Nations, and to propose voluntary, non-binding guidelines.
II. The Code of Practice is Replete with Exemptions and Exceptions, and Provides Easy Excuses for Non-Adoption by Companies
In voluntary guidelines there is no need for "exemptions". The question of whether an exemption is required in actual legislation (which we hope will be enacted soon) can be considered by the relevant Bills Committee.
(A) No compliance if recommendations not "feasible" for companies.
The Code of Practice creates an umbrella exception of "non-feasibility". The Code of Practice provides that: "Government recognises that it may not always be feasible for everyone to follow all of the good practices recommended in this Code." This "recognition" by the Government is a license to employers to declare that compliance is "not feasible" or "inconvenient". Thus, employers will not comply.
Instituting a voluntary set of "guidelines" for "good practices" with a blanket exemption for any practice that "may not always be feasible" is tantamount to having no Code of Practice at all. Employers can pick or choose any of the recommendations of the Code, and follow them. Or, as is more likely, employers can pick none of the recommendations, and be shielded by the excuse that it simply was not feasible for them to comply.
III. Having a Voluntary Code of Practice is Tantamount to Telling the Hong Kong Community that Race Discrimination is not Important or Significant
Though the Hong Kong Government has conceded that race discrimination exists in Hong Kong, the Government does not concede the extent of that discrimination, and does not believe that such discrimination is "serious" enough to warrant hard and effective preventative and corrective measures, such as legislation.
The Government's failure to enact legislation on race, as opposed to the legislation already enacted in relation to sex discrimination, sends a clear message to the business community (which is the target group for the employment Code of Practice) that discrimination based on race is insignificant, and is not important enough to warrant anything more than mere recommendations on how to correct it.
The government's "request" that employers adopt a Code of Practice to eliminate their discriminatory practices is like putting the fox in charge of the chicken coop.
IV. Consultation Document on Race & Code of Practice Concession
The Consultation Document published by the Government on 19 February 1997 highlighted evidence of employment discrimination in Hong Kong on the basis of race. The government concedes that it "probablyˇ¨ exists, and there are multiple examples of such discrimination in Hong Kong. For example, there is obvious discrimination against Vietnamese asylum seekers, foreign domestic helpers (most of whom are from the Philippines), South Asians and new immigrants from Mainland China.
Even the Code of Practice on Race concedes that there is race discrimination in Hong Kong, for example, as regards new immigrants from China. The Code of Practice, in Section 2.1(a) provides that:
ˇ§'raceˇ¦ includes colour, descent, or national or ethnic origin. In the context of Hong Kong, discrimination against new arrivals from Mainland China is also a form of racial discrimination. This is because, although they are ethnically Chinese, they belong to an identifiable minority within Hong Kong society.ˇ¨
It is not realistic that a voluntary Code of Practice will be effective, because it relies on employers who do not tolerate people of different races changing their attitudes and practices.
V. The Code of Practice is Limited to Discrimination in Employment
A serious limiting factor present in the Code of Practice is evident on its face: it is intended to govern discrimination in employment, and no other type of discrimination. The Consultation Document revealed that race discrimination exists in Hong Kong in contexts other than the employment setting. An example is the recent revelations about discriminatory pricing in the tourism industry whereby Japanese tourists are charged special high rates. There have also been instances of persons of Indian ethnicity being refused entry to places of entertainment. The Code of Practice fails to cover these areas.
This Code of Practice is wholly inadequate and doomed to fail. Its only virtue is as preparation for legislation which must surely follow soon.
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