TOWARDS UNITY IN DIVERSITY?1 A STUDY OF THE PROPOSED RACE DISCRIMINATION LEGISLATION AND ITS SHORTCOMINGS FROM THE PERSPECTIVE OF THE INEQUALITY FACED BY MINORITY STUDENTS IN THE HONG KONG EDUCATIONAL SYSTEM
Marion Aubourg Intern 2005 Institute of Political Science of Lille, France August 2005
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“Unity in Diversity” is the Po Leung Kuk Camoes Tan Siu Lin school’s theme of the year 2004/2005.
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TABLE OF CONTENTS
Page Introduction I: FROM DIVERSITY TO DISPARITY IN EDUCATION Section I- What is racial discrimination?
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A. Convention Against Discrimination in Education (CADE) B. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) C. Alternative way to interpret the ICERD Section II- Significance of equal access to education A. B. C. D. E.
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Education is a right… Diversity a chance Education is a prerequisite to Hong Kong’s development Education lessens crime Why focus on students?
Section III- Failures to prevent racial discrimination
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A. Bill Of Rights Ordinance B. Basic Law C. Hong Kong breach of International Law
II: DISCRIMINATION IN EDUCATION Section IV- Hong Kong “salad bowl”
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A. Patchwork of ethnic minorities B. Mainland Chinese: a disclaimed minority? Section V- Creation of a vicious circle in education
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A. Blemish of Hong Kong educational policies B. Implications on the equal access to education (i) Limited school choices (ii) Inadequate curriculum (iii) Lack of recognition (iv) Separation of communities
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III: FROM GOODWILL TO UNSUITED PROPOSAL: GOVERNMENT LACK OF BOLDNESS Section VI- Government proposal
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A. Unsuccessful approach: Education instead of Legislation (i) Rationale to oppose legislation (ii) Public education policies failure B. The proposed Race Discrimination Bill C. Authority responsible for the jurisdiction Section VII- Shortcomings of the proposal
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A. An under inclusive ICERD definition or just an unwilling government? B. “One country, two castes” mentalities? C. EOC compromised (i) Lack of independence (ii) Lack of resources D. Obsolete definition of racial discrimination E. Need for a language provision F. Proposition on Education IV: A MORE PRO-ACTIVE APPROACH Section VIII- Beyond the Government’s proposal
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A. Forgotten aspects B. Implementing Affirmative Action policies (i) Advantage of affirmative action policies (ii) How to frame Affirmative Action C. Promoting social inclusion D. Creation of a Tribunal of Equal Opportunities E. Need to support the Non-Governmental Organizations (NGOs)
Conclusion
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Introduction
THE concept of “protection of minorities” is one the oldest concerns of international law.
Its origin stems from the rise of the nation-state in the sixteenth and seventeenth centuries, which necessitated consideration for minority groups. Many treaties were concluded for the benefit of specific groups. An example is the Treaty of Paris (30 March 1856) which contains provisions to protect Christian minorities in the Ottoman Empire.
The Hong Kong Special Administrative Government (HKSARG) published a consultation paper2 in February 1997 to solicit public views on whether to legislate to prohibit discrimination on the ground of race.3 Over 80% of the respondents opposed legislation. The Government therefore decided not to legislate at that stage, but to pursue non-legislative measures, that is to say, promote public education. However, discrimination of the ethnic minorities in the Hong Kong society, including those from the Mainland, has been increasingly significant. Thus, in 2001-2002, the Home Affairs Bureau (HAB) revisited the question and found that circumstances had changed. Some of the organisations that opposed legislation expressed their opposition in milder terms. In a survey conducted between February and March in 2004, about 60% of the respondents supported the introduction of legislation to prohibit racial discrimination and about 65% believed that a race discrimination law would not have a negative impact on the Hong Kong economy.4 In light of this change of public outlook and with a view to meeting its international obligations, the Government announced its decision that by 2006, it would introduce legislation against racial discrimination, and that it would consult the public. Although racial discrimination exists in many areas of life in Hong Kong (employment, housing, provision of medical services, education and transport among others), this report focuses on racial discrimination ethnic minority students face in the educational system. The aim is to stress on the inadequacies of the government proposal when it comes to improving the racial discrimination in education faced by the ethnic minority students’ and their right to equal access to education.5 In order to understand the issue, it is necessary to define the concept of “racial discrimination” in law and to explain why equal access is important in education. Sections I and II deal with these aspects. Section III identifies the failures of HKSARG to tackle these problems, while Sections IV and V provide a general overview of the ethnic minorities in Hong Kong, the dysfunctional educational system, as well as problems the ethnic minority students encounter. Sections VI and VII focus on the flaws of the government proposal. Recommendations are then offered. Section VIII consists of other recommendations dealing with issues not mentioned in the proposal.
Part I: FROM DIVERSITY TO DISPARITY IN EDUCATION I: What is racial discrimination? To define racial discrimination in education, two relevant conventions can be cited. The first is the Convention Against Discrimination in Education (CADE), which was adopted by the General Conference of UNESCO in 1960. Since Hong Kong is not a State Party of this international organization, the Government is not legally bound by the Convention. However, the Convention has broad international support and it is also the only Convention addressing directly and clearly the issue 2
Home Affairs Bureau “Equal Opportunities: A Study on Discrimination on the Ground of Race”, February 1997. 3 Whether this first consultation was flawed or not won’t be discussed here. 4 Home Affairs Bureau (2004) Survey on Public Attitudes towards Racial Discrimination - Executive Summary, HKSAR Home Affairs Bureau. 5 This paper is based on research as well as personal experience during my year in Hong Kong.
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of discrimination in education. Thus, its definition provides useful consideration for Hong Kong. The second is the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). This is directly related to Hong Kong since it was acceded to in 1969 via the former sovereign, Britain, and remains in force. Moreover, the ICERD is the basis for Hong Kong to legislate locally, which it should have done in the past. A: CADE6 For the purposes of this Convention, discrimination includes "any distinction, exclusion, limitation or preference, which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education, and in particular: (a) Of depriving any person or group of persons of access to education of any type or at any level; (b) Of limiting any person or group of persons to education of an inferior standard; (c) Subject to the provisions of article 2 of this Convention (which stipulates the conditions for establishing separate educational systems or institutions, public and private, for religious or linguistic reasons, when permitted in a State), of establishing or maintaining separate educational systems or institutions for persons or groups of persons; (d) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man".7 B: ICERD8 The ICERD defines racial discrimination "shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life".9 There are also some limits. First, the Convention shall not apply to distinctions, exclusions, restrictions, preferences made by a State Party between citizens and non-citizens. •
In the case of Hong Kong, there is no separate Hong Kong citizenship but there is a status of “permanent resident,”, which is open to non-Chinese nationals 10 . The rights to political participation and welfare are only enjoyed by “permanent residents”.11
Second, the Convention should not be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality. 6
Convention against Discrimination in Education , adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization on 14 December 1960. Entry into force: 22 May 1962, in accordance with article 14. 7 Article 1 of the Convention against Discrimination in Education. 8 Adopted and opened for signature and ratification by General Assembly of the United Nations, resolution 2106A (XX) of 21 December 1965. Entry in force: 4 January 1969, in accordance with Article 19. 9 Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination. 10 Article 24 (4) of the Basic Law provides that “the permanent residents of the Hong Kong Special Administrative Region shall be […] persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region”. 11 See for more details Articles 22 and 24 of Hong Kong Special Administrative Region Basic Law.
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The issue that has been raised following the anti-discrimination law about reforming the immigration system in Hong Kong will be indirectly discussed in this research, through the question of illegal immigrants, asylum seekers and refugees children’ rights.
And finally, special measures, taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals, in order to ensure them equal enjoyment or exercise of human rights and fundamental freedoms, shall not be deemed racial discrimination, provided that such measures do not lead to separate rights for different racial groups and are not continued after the objectives pursued have been achieved. •
These special measures will be discussed in section VII, with the issue of affirmative action.
C: Alternative way to interpret the ICERD Critics have argued that the ICERD is insufficiently inclusive12. An alternative way to interpret this Convention could give it broader meaning. In considering the definition of racial discrimination, it is necessary, in accordance with the rules of interpretation of treaties,13 to take into account the whole system of international treaties on human rights. Particularly relevant are the two international Covenants on human rights.14 The International Covenant on Civil and Political Rights (ICCPR) for example stipulates that the rights enunciated concern all individuals within the territory of a State Party and subject to its jurisdiction. It is also provided that the law shall guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, language, national origin, birth or other status. Most of the provisions of the two Covenants refer to the rights of "everyone", to all persons, and very seldom to "citizens".15 Thus, when read with other human rights instruments, shortcomings of the ICERD can be supplemented.
II: The significance of equal access to education "Education for all is important for three reasons. First, education is a right. Second, education enhances individual freedom. Third, education yields important development benefits." John Daniel, UNESCO's Assistant Director-General for Education 12
See, e.g., Berta Esperanza Hernández-Truyol, “Latinas, Culture, and Human Rights: A Model for Making Change, Saving Soul,” 23 Women’s Rights Law Reporter 21 (2001). Professor Hernández-Truyol uses the Latina community to illustrate that notions of race, as articulated by ICERD, are insufficient for antidiscrimination laws. She remarks: “[A] multidimensionality perspective [on race] is much more realistic in the context of the human condition and our daily existence. Beyond the incoherent definition of race in [ICERD], it is also important to understand that different cultural groups have different understandings of the concept of race”. 13 Article 31 of the Vienna Convention; the Convention was adopted on 22 May 1969 and opened for signature on 23 May 1969 by the United Nations Conference on the Law of Treaties. The Conference was convened pursuant to General Assembly resolutions 2166 (XXI) of 5 December 1966 and 2287 (XXII) of 6 December 1967. 14 The International Bill of Human Rights (of which HKSAR is bound) consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. Both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights were adopted and opened for signature, ratification and accession by General Assembly (UN) resolution 2200A (XXI) on the 16 December 1966. 15 Article 24 of the ICCPR.
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As an international city and an economic hub, Hong Kong is constantly searching for the development and the betterment of its society. As part of this quest, education - and its equal access - is of utmost importance to maintain Hong Kong “international-ness”. Indeed, education is the critical nexus that links all the items on the development agenda: promoting health, reducing poverty and crime, sharing technology, protecting the environment, advancing gender equality, extending democracy and improving governance. A: Education is a right… The Universal Declaration of Human Rights asserts the principle of non-discrimination and proclaims that every person has the right to education. It is based on the principles of the dignity and equality inherent in all human beings. 16 As the main vector of socialization and integration, schools in this respect should be committed to develop every child's potential to become a full and equally valued member of society. B: Diversity is a chance Multiculturalism is both a valuable asset and a positive indicator of an advanced society. Hong Kong, as a cosmopolitan city, needs different nationalities to make the region stand out. 17 Moreover, diversity enriches the educational experience. One learns from those whose experiences, beliefs, and perspectives are different. Diversity challenges stereotyped misconceptions; encourages critical thinking; and helps students to communicate effectively with people of varied backgrounds. In sum, it prepares students to become well-adapted citizens in an increasingly complex and pluralistic society. C: Education is a prerequisite to Hong Kong’s development Education enhances one's economic competitiveness. Sustaining a society’s prosperity requires it to make effective use of the talents and abilities of all citizens and bring together individuals from diverse backgrounds and cultures. Focusing more on equal access to education would allow Hong Kong to maintain its international status and regain part of its competitive edge. D: Education lessens crime “He who opens a school, closes a prison” Victor Hugo Different studies have been carried out to examine the relation between educational attainment and the tendency to commit crime.18 Most of these studies have argued the inextricable link between crime and the collapsing educational standards.19 High quality of education is one of the most powerful weapons against crime as well as the most potent means of self and social transformation.
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Article 26. the Declaration has been adopted and proclaimed by the General Assembly of the United Nations, resolution 217 A (III) of 10 December 1948. 17 Interview with Christian Gia, from the Po Leung Kuk Camoes Tan Siu Lin primary school. 18 The African Symposium: An On-line Educational Research Journal A Publication of the African Educational Research Network .Volume 4 No. 4 December 2004. 19 For example, in Britain, a UNESCO report indicated that more than two million people are said to be completely illiterate and more than a third of the 11-year old children arriving at many secondary schools in Britain’s inner cities are such poor readers that they cannot properly understand their textbooks. The report attributed this to the increasing rate of violent crime against individuals in Britain which has increased a frightening 1200 percent in the last 33 years. Similar reports in the United States of America, Germany, Canada, New Zealand, Australia and South-Africa also point to the same results.
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Hong Kong is rightly touted as a city safe from crime and disorder. However, the present situation encountered in the educational system may not be sustainable.20 A diverse region such as Hong Kong should value public education for the vital role it can play in unifying the society and make it more peaceful. E: Why focus on students? “Education makes a people easy to lead, but difficult to drive; easy to govern, but impossible to enslave” William Blake Investments in students are vital for the future development of a society, especially in a city like Hong Kong with such a low birth rate. In sum, how students are educated today will substantially determine the kind of society people will live in tomorrow.
III: Failures to prevent racial discrimination Beyond the importance of diversity in education, the need to legislate on racial discrimination in Hong Kong can be further argued regarding its own current legal system vacuum. Thus far, Hong Kong only has the Sex Discrimination Ordinance, Disability Discrimination Ordinance and Family Status Discrimination Ordinance. However, Hong Kong has local as well as international obligation to extend protection to prohibit all forms of racial discrimination. A: Bill Of Rights Ordinance (hereafter BORO)21 As it has been pointed by Ms Anna Wu,22 the Hong Kong BORO contains broad guarantees against discrimination but only in a limited context. The BORO prohibits discrimination with regard to the enjoyment of the rights protected by the Bill of Rights itself,23 and provides a more general guarantee of equality before and equal protection of the law.24 However, it states that the Hong Kong BORO binds only the Government and public authorities (and persons acting on their behalf).25 Thus, the BORO cannot be used to remedy discrimination by private parties. Finally, even where the BORO can be applied to remedy discrimination, the generality of its provisions and the need to enforce it through expensive litigation in the courts discourages many people from seeking such a remedy.26 In sum, the BORO in itself appears to be insufficient to prohibit racial discrimination. B: Basic Law Numerous articles in the Basic Law grant protection of rights and freedoms to all as well as equality. Unfortunately, they are also not sufficient. Article 25 provides that: “All Hong Kong residents shall be equal before the law”. 27 Article 39 provides also that: “The provisions of the International Covenant on Civil and Political Rights, the 20
This worry has also been expressed during an interview by a French teacher- Christian Gia- from the Po Leung Kuk Camoes Tan Siu Lin primary school. 21 The BORO insufficiency has been stressed among others in the TV programme called Hong Kong Connection. The report-“Racial Discrimination in Hong Kong” has been broadcast in April 2005. 22 Ms Anna Wu is the former Chairperson of the Hong Kong Equal Opportunities Commission. 23 Article 1 of the BORO. 24 Article 22 of the BORO. 25 Section 7 of the BORO. 26 See “Equal opportunities Legislation and Human Rights Commission: a Proposal” by Anna Wu, 1994. 27 Article 24 provides that residents include permanent residents and non-permanent residents.
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International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.” Article 41 provides that: “Persons in the Hong Kong Special Administrative Region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in this Chapter (III).” C: Hong Kong breach of International Law Various international obligations applicable to Hong Kong also require legislation on racial discrimination, included in education. The main treaties of relevance are the ICERD, ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICERD has applied to Hong Kong for more than 30 years. Article 7 of the ICERD provides that: “States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination […]” Moreover, these “immediate and effective measures”, Article 5 further provides that: “State parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before law.” According to the United Nations Committee on Elimination of Racial Discrimination, this means that jurisdictions like Hong Kong must introduce specific legislation to curtail racial discrimination. Not only has the Government refused to enact legislation, it has also engaged in efforts to defeat several private member bills introduced by legislators Anna Wu in 1995, Elizabeth Wong in 1997, and Christine Loh in 1998.28 As for the ICCPR, it has been largely incorporated into Hong Kong Law by virtue of the 1991 BORO. The ICCPR guarantees a right to non-discrimination in Articles 2 and 26. 29 As for the ICESCR, Articles 2 and 13, 30 echoed by Articles 28 and 29 of the Convention on the Rights of the Child (CRC),31 guaranteeing a right to education, This right includes, at the minimum, free and compulsory
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In 1994, legislator Anna Wu introduced a comprehensive bill covering a variety of equal opportunities issues including racial discrimination. This prompted the government to propose the Sex Discrimination Ordinance (SDO) and the Disability Discrimination Ordinance (DDO) as alternatives to this comprehensive approach. Both laws were passed in 1995. But racial and other forms of discrimination were excluded. In 1997, Elizabeth Wong proposed a bill outlawing racial discrimination based on Wu’s draft, but the majority of lawmakers did not support the legislation, claiming that it was not the right time. Between 1998 and 2000, legislator Christine Loh tried to put forward a re-drafted bill on racial discrimination, following the format of the existing equal opportunities laws. This effort was unsuccessful, because the Hong Kong government would not give the approval required by the Basic Law. The Basic Law indeed requires that lawmakers obtain the consent of the Chief Executive to present any bill that will affect government policy. 29 ICCPR article 2.1 provides: “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 colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. ICCPR article 26 provides: “All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. 30 ICESCR article 13.1 provides that “The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace”. 31 The Convention on the Rights of the Child is a universally agreed set of non-negotiable standards and obligations. The Convention on the Rights of the Child is the first legally binding international instrument to incorporate the full range of human rights – civil and political rights as well as economic, social and cultural rights. The Convention on the Rights of the Child was adopted and opened for signature, ratification and
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primary education for all and secondary education available and accessible to every child. The terms “all” and “every child” suggest no restrictions on the beneficiaries of such rights. The Committee on Economic Social and Cultural Rights (CESCR) further refers to an education “accessible to all, especially the most vulnerable groups, in law and fact […]”. Following the recurrent unwillingness to legislate against racial discrimination, HKSARG has been subject to numerous international embarrassments. The CESCR stressed that: "It is the Committee's view that the HKSAR's failure to prohibit race discrimination in the private sector constitutes a breach of its obligations under article 2 of the Covenant […]".32 This kind of statement is not an isolated case. The HKSARG has had other similar recommendations by the Committee on the Elimination of All Forms of Discrimination (1997, 2001); Human Rights Committee (1995 and 1999); and Committee on Economic, Social and Cultural Rights (1994, 1996, 2001 and 2005).33 Overall, a race discrimination ordinance would help Hong Kong fulfill its obligations under the ICERD and contribute to its world-city aspirations. The need to legislate against racial discrimination is also justified by the increasing significance of unequal treatment of minority students. Therefore, scrutinizing the specific difficulties faced by the minority students is necessary to further go into details with the Government proposal and understand its flaws.
PART II: DISCRIMINATION ISSUES IN EDUCATION: AN ENTRENCHED AND CONTINUOUS PREDICAMENT IV: Hong Kong “salad bowl” Hong Kong is a diverse society in terms of race, religion, ethnicity, as well as how people choose to organize themselves politically and socially. A: Patchwork of ethnic minorities Hong Kong is a predominantly Chinese society but the population of residents from other cultural and ethnic backgrounds has increased rapidly in recent years. According to the 2001 Population Census,34 non-Chinese minorities constitute approximately 5.1% of the population. The number of persons under age 15 was 82,724 and the percentage of ethnic minority youth in the total youth population age 15 to 24 increased from 1.6% in 1991 to 4.7% (43,038) in 2001.35 Filipinos form the largest group (nearly 57%) follow by Indonesians (over 14%). The median age is about 32, ranging between 27 and 38. Over 90% of the Filipinos, Indonesians and Thais were female, accession by General Assembly resolution 44/25 of 20 November 1989. It entered into force 2 September 1990, in accordance with article 49. 32 Concluding observations of the Committee on Economic, Social and Cultural Rights, E/C.12/1/Add/58 11 May 2001. 33 “The Committee regrets that HKSAR has not implemented a number of the recommendations contained in its concluding observations of 2001. The Committee wishes to reiterate in particular its concern on the following issue: “The present anti-discrimination legislation does not cover discrimination on the basis of race […]; The absence of a human rights institution with a broad mandate, while noting HKSAR’s position that the Equal Opportunities Commission has comparable functions[…]”. 34 The Home Affairs Bureau and the Census and Statistics Department commissioned a private consultant to conduct a sample survey of Hong Kong's ethnic minorities. The enquiry was carried out between October 1999 and January 2000. This was an interim measure pending the 2001 Population Census. 35 Report submitted to the Commission on Youth “Youth in Hong Kong: A statistical Profile 2003”, Policy Research and Advocacy, The Hong Kong Council of Social Service.
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reflecting the large number of persons from the respective countries working in Hong Kong as domestic helpers. Relatively large numbers of Indonesians (over 27%), Pakistanis (nearly 44%), and Thais (over 22%) are educated only to the primary level or below. By contrast, relatively large numbers of 'Others'36 (nearly 64%), Indians (50.8%), Nepalese (over 36%) and Filipinos (nearly 32%) have received tertiary education. More than 20% of all respondents of the 2001 Population Census have encountered difficulties during their time in Hong Kong. Pakistanis (nearly 45%), 'Others' (nearly 39%), and Thais (nearly 23%) have encountered the most difficulties while Indians and Nepalese (12%) the least. Filipinos (nearly 17%) and Indonesians (nearly 18%) fell in the middle of the range. Language problems are by far the most common source of such difficulties, being cited by nearly 69% of all those who have encountered difficulties of any kind. Indeed, only 54.9% of the population of the ethnic minorities aged 5 and above were able to speak Cantonese. Few respondents claimed the ability to write (a little over 4%) or read (nearly 7%) Chinese. Indians (12.2%), ‘others’ (just over 8%), Pakistanis (10.6%), and Thais (10.5%) are the most accomplished writers. The pattern is much the same for reading ability. The groups with the lowest levels of reading ability are the Nepalese (none), Filipinos (nearly 3%) and Indonesians (nearly 10%). Of those who have encountered difficulties, most (nearly 84%) had sought help from friends, employers, colleagues or relatives. Only 10% have sought assistance from voluntary organisations or social workers and fewer than 7% from Government departments. The latter figures show a lack of political channels in the service of those who are in difficulties; thus, confirm a low commitment from the Government to actively – and in a voluntary way – improve their situation. B: Mainland Chinese: a disclaimed minority? Recent immigrants from Mainland China and Hong Kong people are both ethnically Chinese. Therefore it may be argued – as the Government does (see Section VII) – that new immigrants are not considered to be an ethnic minority facing racial discrimination, but rather Chinese people facing social discrimination.37 On the other hand, it may be suggested that racial identity is not determined purely genetically. It is socially constructed as well.38 How the new immigrants are considered by others and consider themselves are the most important criteria to determine whether a group is a minority. Besides, Hong Kongers and Mainlanders do not share the same history since 1842; nor do they have the same lifestyle and culture. They are living genuinely in two different worlds. Being openly discriminated against because of their origin, the new immigrants should therefore be defended as being part of the minority groups. The immigration quota for Mainland Chinese immigrants has steadily increased over the years and is now 150 per day, including 60 children per day. According to the Hong Kong Census and Statistics Department, about 380,000 new immigrants from mainland China have settled in Hong Kong in the past seven years.39 Most of them are spouses and children who came to reunite with families.40 This is a significant proportion of the population and many of the problems they are facing are similar to those from the other countries. For example, communication problems are a key difficulty because many Mainlanders in Hong Kong do not speak Cantonese or English. All in all, according to the 36
'Others' include Japanese, Europeans, American, Canadians, Australians, New Zealanders, Africans, Koreans, Bengalis, and Sri Lankans. 37 Hong Kong Home Affairs Bureau, “Legislative Council Brief, Proposed Legislation Against Racial Discrimination”, 2003. 38 Cornell, S and Hartmann, D. Ethnicity and Race: Making Identities in a Changing World. Pine Forge Press: California, 1998. 39 Hong Kong Immigration Department, 2004; Hong Kong Census and Statistics Department, Special Report No.25, ‘Persons from the Mainland China having resided in Hong Kong for less than 7 years’, 2000. 40 In 2001 there were about 54,000 mainlanders who migrated to Hong Kong, with about 10,000 studying in primary or secondary schools. Both the Education Department and Social Service Department claimed that they had prepared for the coming of the newly arrived children. They promised to arrange school places within three months of arrival and they offered special supportive programmes to the families, which has been done, but only to a certain extent.
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surveys and reports from Non Governmental Organizations41 as well as newspapers,42 91% of the new immigrants complained of being racially discriminated against because of their origin. The total number of people in Hong Kong who are either ethnic minorities or Mainland immigrants probably exceeds one-eighth of the population. Among them, many are facing continuous difficulties in all walks of life. The difficulties encountered in education especially lead to a vicious circle, where the population misconceptions and the outcome of deficient local social policies nourish one another.
V: Creation of a vicious circle in education The absence of legislation makes it more difficult to measure the extent of discrimination as victims presently have no basis to register official complaints. Thus, although systematic, the discriminations encountered in the educational system are less apparent. A: Blemish of Hong Kong educational policies Hong Kong currently has a system of ‘nine-year' free and compulsory education. There are two major mechanisms within Hong Kong educational system that have a major impact on the ethnic minority students’ opportunities. These mechanisms are the allocation system and the mother tongue teaching policy. For the first years of primary and secondary school, the students may apply for school places using two possible ways. Students can apply directly to the school of their choice during a “discretionary places admission” phase. This system allows schools to reserve a certain number of places that may be filled at the school’s discretion. Students may also apply through the central allocation system, which assigns school places according to a complex and iniquitous process, “a lucky draw”.43 Shortly after 1997, the Government undertook a comprehensive review of the education system to enhance the overall quality of education services. One of the major policies - mother tongue teaching - has impacted disproportionately ethnic minority students. Until 1997, most of the secondary schools opted to use English as the Medium of Instruction (EMI). To avoid the decline of Chinese standards, the Education Department in early 1997 advised secondary school teachers to use Chinese as the Medium of Instruction (CMI); thus the majority of secondary schools switched from the EMI to the CMI in 1998. 44 Currently, only 114 schools are permitted to teach through the medium of English. Indeed, as pointed out by Kelley Loper, the term “mother-tongue teaching” implies that Hong Kong students all have the same “mother-tongue”,45 denying therefore the ethnic minorities’ main difficulty: the language. In total, the attendance rates of the young ethnic minorities aged 6-11 (99.3%) and 12-16 41
New Immigrants’ Mutual Aid Association, September 2004; Society for Community Organization, Research report on the situation of racial discrimination against new immigrants form mainland, 2001 (www.soco.org.hk 5/4/2004); Coalition for Racial Equality and Hong Kong Human Rights Commission, Joint Submission to the United Nations Committee on the Elimination of Racial Discrimination on the First Report in respect of Hong Kong Special Administrative Region of the People’s Republic of China under International Convention on the Elimination of All Forms of Racial Discrimination, July 2001 (www.hkhrc.org.hk, 12/4/2004); Society for Community Organization, Research on the life adaptation of migrant youth, 4/4/1998, (www.soco.org.hk 2/4/2004) 42 “Thousand of New Immigrants complained of being racial discriminated against”, Ming Pao, 22 June 2003; “Being called animal, new immigrant university student committed suicide”, Ming Pao, 7 October 2003 43 This remark has been expressed by Mrs Li, headmistress of the Po Leung Kuk Camoes Tan Siu Lin primary school. 44 The Hong Kong government issued a consultation document (“the Firm Guidance”) in April 1997, proposing a compulsory Chinese medium instruction policy. Due to strong opposition from schools, students and parents, the “Firm Guidance” was revised as the “Guidance” in September 1997 to make allowance for some schools to be exempted. 45 See the research “ Race and Equality: A Study of Ethnic Minorities in Hong Kong’s Education System” by Kelley Loper, project by the Centre for Comparative and Public Law and Unison Hong Kong - for Ethnic Equality Project Report, February 2004.
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(96.3%) in 2001 were very close to those of same age group in overall youth population (99.9% and 97.5% respectively). This was because of the implementation of nine-year free and universal basic education policy. However, the attendance rates of the young ethnic minorities aged 17-18 (54.7%) and 19-24 (3.7%) in 2001 were lower than those of same age group in overall youth population (71.0% and 26.4% respectively).46 The difficulties are not only a question of low attendance but also impacts choice and opportunity. Hong Kong’s educational system - intentionally or not - tends to limit ethnic minority students’ prospects. B: Implications on equal access to education. Equal access to education is jeopardized both directly and indirectly by a number of flaws, which are interconnected.47 (i) Limited school choices The mother tongue teaching policy has drastically reduced the number of English-medium schools, giving minority children who cannot read and write Chinese fewer school choices. Students that do not know Cantonese are forced to go to International Schools, which are most of the time cost prohibitive. Even the government subsidized schools (English Schools Foundation) cost up to US$10,000 a year (approx. HK$78,000). This is clearly prohibitive for many people. When minority students know how to speak Cantonese fluently (there are many who do), their inability to write prevent them from sitting public examinations. 48 These factors result in insufficient school places for ethnic minority children in the public education system, thus creating an environment of marginalization. Research shows 39.3% ethnic minorities’ children have difficulties in finding a school while 23.6% do not know where to find a channel, while 11.6% cannot find school places. Moreover, 15% of ethnic minority children have to wait for more than a year for a school place, 5.6% have to wait for 6 to 12 months, whereas 30.7% get a school place within 6 months. 49 Since some children of ethnic minorities cannot find a place in school, they are forced to turn to vocational training. However, the vocational training courses are always taught in Chinese. As for the new immigrants’ children from Mainland China, they have been rejected by schools repeatedly because of the discriminatory nature of the educational policies and the lack of any central assessment of the child’s academic ability. Some of them have to appeal to more than 10 schools before they are accepted. For those above age 15, the Education Department does not touch upon the issue of securing a school place.50 It only recommends that young immigrants above age 15 should study at evening schools or take adult courses, although most of them are very keen to continue their education. Many of them can only find placements in private schools or simply give up their studies. On the whole, only 9 primary schools and 4 secondary schools generally accept the ethnic minority students. Many who cannot afford the school fees at international schools can only find places at these schools. In addition, the so-called “Educational Facilities for Non-Chinese Speaking Children” 46
Report submitted to the Commission on Youth “Youth in Hong Kong: A statistical Profile 2003”, Policy Research and Advocacy, The Hong Kong Council of Social Service. 47 See the research “Cultivating A Multicultural Society And Combating Racial Discrimination in Hong Kong” by Kelley Loper, August 2001. 48 Interview with Polly Fang, French teacher in the Po Leung Kuk Camoes Tan Siu Lin primary school. 49 Coalition for Racial Equality (CORE), Hong Kong Human Rights Commission July 30, 2001. 50 Placement and Support Section of the Education and Manpower Bureau, “The Education and Support Services for Non-Chinese Speaking Children”, October 2004.
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includes only eight government and aided secondary schools and six primary schools.51 Among those, some are either highly competitive or highly costly or both. In other words, they are hardly accessible. Some of these schools go as far as imposing a quota on the Non-Chinese speaker students.52 On top of these faults, is the added difficulty of accessing English information about the school system, which restricts the chances to find a place quickly. (ii) Inadequate curriculum The inadequate curriculum includes both a relatively low quality of education provided by schools catering to ethnic minority students and a lack of Chinese language classes for Non-Chinese speaker students. Regarding the former, 70% of the new immigrant youth for example are channelled to vocational schools or the lowest qualification schools. As for the latter, not enough opportunities are provided to learn Chinese at the early stage of life. A recent survey indicated that over 80% of the parent respondents of the ethnic minorities were unwilling to send their children to Chinese schools owing to barriers of language.53 The absence of a curriculum on Chinese as a second language renders the integration of ethnic minorities most difficult and clips their prospects for a career. (iii) Lack of recognition Three kinds of “non-recognition” can be identified. The first one is directly exerted by the educational structure. Indeed, it does not recognize the certificate of graduate minority students coming from abroad. 54 Nor does it grant a local equivalence. The second is wielded by the minority students themselves, who sometimes do not do well at school, because there is little incentive for them to succeed in a society where they are made to feel unwelcome. Discrimination may discourage minority students because they do not perceive the long-term benefits of education and may lead to a low selfesteem. The third is exerted by the population, who sometimes conveys deep-rooted misconceptions towards the ‘others’. For example, some parents refused to send their children to schools that enrol many Newly Arrived Children (Mainland Chinese). A 2004 survey revealed also that people had negative perception over ethnic minorities (60.4% agree). 55 According to a Chinese University Poll new migrants from the Mainland are generally seen as uneducated and dirty. 80% of those surveyed thought that new arrivals had a low level of education. 30% had no intention of getting acquainted with newly arrived migrants.56 (iv) Separation of communities The central allocation system assigns ethnic minority candidates who do not speak Chinese only in the schools traditionally accepting ethnic minority pupils, thus creating a dual system of separate communities. Clearly, there are few opportunities for Chinese children to come into contact with ethnic minorities as peers, and vice versa. Many of the ethnic minority youth in Hong Kong have few Chinese friends. This lack of interaction may exacerbate prejudices. The rejection of and discrimination against ethnic minority youth may seriously jeopardise their formation of identity and affect their later growth.
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Education and Manpower Bureau, Hong Kong SAR Government, “Education Facilities for Non-Chinese Speaking Children”, 2002. 52 Polly Hui, “Doors Open for Ethnic Minority Students”, South China Morning Post, 6 Sept 2003, Education Post. 53 Ming Pao Online News, ‘Ethnic minorities were unwilling to attend Chinese schools’, 2004/05/02. 54 This has been stressed by Madhav Nepal, member of the Asian Students Association, during an interview conducting in June 2005. 55 2004 Survey conducted by APIAS & Oxfam. 56 This poll was conducted by Professor Kenneth Chau Kin-Lam "Migrants dirty and uneducated: poll" Chloe Lai, SCMP, 7 September 1999.
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If the minority students face difficulties in finding school places, they are likely to have a low level of education in the future, thus nourishing more misconceptions. If they also face difficulties in learning Cantonese because of an unsuited curriculum, their chance to become part of the community are likely to tighten, nourishing again more discrimination. In sum, the minority students are discriminated because of deficient local social policies.
PART III: FROM GOODWILL TO UNSUITED PROPOSAL: THE GOVERNMENT LACK OF BOLDNESS VI: Government proposal The flaws enumerated above are all the more difficult to uproot now as the Government previous policies to resolve it have been inadequate. Taking the inadequacy into account, a closer look at what is currently proposed is also necessary in order to discern whether the proposal is unsuited to the Hong Kong educational situation. A: Unsuccessful approach: education instead of legislation Until recently, former Chief Executive Tung Chee Hwa disapproved to legislate as regards the issue of racial discrimination. He declared that “the most important thing is to educate people to know that discrimination is wrong”. 57 As to reaffirm the Government’s stance, the former Chief Secretary, Donald Tsang, termed race discrimination as an “evil” with a potential to tarnish Hong Kong’s reputation, but “stressed that the problem was not serious enough to warrant legislation”. 58 Not surprisingly, this stance created a striking anomaly.59 On the one hand, the government asserts that Hong Kong is the “Manhattan of Asia”,60 that “people from all over the world are welcome here”61 and that Hong Kong is at the forefront of developed societies. On the other hand, it denies, however, the existence of significant discrimination despite strong evidence of its importance.62 (i) Rationale to oppose legislation The reasons for HKSARG not to legislate were never clearly explained. On the one hand, this could be racial discrimination is represented in Chinese societies as a Western practice carried out against Chinese and others. Therefore, despite evidence to the contrary, the Chinese elites claim that their societies are free of racism. On the other hand, the ideology of the regime’s social base appears to offer a better explanation. The traditional constituency of Hong Kong is represented by the so-called “Big Business” or “tycoons”. Hong Kong’s top political leaders consider first and foremost the interests and views of business. Such an influence was explicitly pointed by Donald Tsang, who has urged business leaders to take a direct part in politics and ensure that “the message of business gets through to the grassroots”.63 The message can be sum up in few words: “The less supervision, the better”. 64 The problem is that this interdependent relation is a voice against the democratization process. Their opposition to equality is explicitly based on an expressed fear that those who do not earn enough to pay taxes will overwhelm the more propertied elements. And most minority fall within 57
“Tung rejects Anti Racism Law Idea”, South China Morning Post, June 15, 2001. “Don’t Shun politics, Businessmen Told”, South China Morning Post, July 28, 2001, P.4. 59 Sautman B., Kneehaus E., The politics of Racial Discrimination in Hong Kong, Baltimore, Md: School of Law, University of Maryland, 2002. 60 Ming Pao, July 5, 1997; BBC, July 5, 1997. 61 South China Morning Post, October 4, 2001, p.4. 62 Loh Kung-wai, “Dad u hui de fenci” The irony of the metropolis, Taiyang Bao, June 3, 2001. 63 “Don’t Shun Politics, businessmen told”, South China Morning Post, August 19, 2001. 64 Law Yuk Kai, director of Hong Kong Human Rights Monitor, during an interview for Hong Kong Connection, April 2005. 58
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this class, 65 they are therefore doomed to face both racial and socio-economical discrimination. Fortunately, it seems that the “message” of the business has slightly changed very recently. (ii) Public education policies failure Up until now, the HKSARG has attempted to meet the needs of ethnic minority communities through public education policies. For example, the numbers of schools that generally accept ethnic minority students has increased from two primary and two secondary schools in 1998 to nine primary and four secondary schools in 2003. Also, others efforts include the formation of the Race Relation Unit in the Home Affairs Bureau, which serves as a secretariat for the Committee on the Promotion of Racial Harmony (2002); 66 the 60-hour Introduction Programme for newly arrived Mainland immigrant children (1995, 2000); the School-Based Support Scheme and the publication of “Your Guide to Services in Hong Kong” including a section on educational services. The Government has also agreed to strengthen programmes for teaching and learning Chinese to ethnic minorities’ children. Indeed, in the 2004 school year, non-Chinese speaking students have been allocated to Chinese medium schools for the first time. As they may experience difficulties in adapting to the Chinese learning environment, the Government provided support for some NGOs to offer language classes.67 However, not enough preparation, time and resources have been allocated to properly implement this policy; not enough explanations to the teachers, parents and students have been given to fully integrate the non-Chinese speaking students. Even if the goal is rather salutary, the means used are likely to be considered a “joke” for the educational body.68 In addition, the Education and Manpower Bureau has not allocated additional financial resources to fund these projects. The money spent on education has decreased over the past few years, while the need for education continues to increase. The Government apparently lacks a conceptual model for educating and integrating minority students. For example, there is no genuine form of race education in the schools. Overall, the lack of a coherent policy toward ethnic minority students has led to confusion, mistrust and placed students at a disadvantage relative to their Hong Kong Chinese peers. Moreover, until recently, the HKSARG campaign against racial discrimination has not been visible enough.69 It will take much more than the recent public education posters put up inside the MTR stations with the slogan “Less colour, more understanding” to raise people’s awareness that multiculturalism is an asset. So far, there was no evidence yet that educational measures have mitigated race discrimination.70 B: Race Discrimination Bill Legislation is a basic tool to protect victims of discrimination and to provide them with remedies and channels. It is a clear way also to draw the line between what is lawful and unlawful. In other words, laws are the first step to a broader education policy. “The law has to be seen not just as a tool to prosecute, but it has to be seen as a tool to educate”. 71 Although enacting laws does not in itself
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The role of the business in the rejection of the 1997 proposal has been pointed in the report “Racial Discrimination in Hong Kong”, Hong Kong Connection, April 2005. 66 The Committee on the Promotion of Racial Harmony is a joint non-governmental organization and Government committee. The Committee advises the Government on public education and publicity to foster racial harmony in the community and to enhance mutual understanding. 67 The language Programme for Ethnic Minorities is supervised by three sponsored NGOs: Caritas, Christian Action and the International Social Service. Another language programme-Project Connection- has been launched by Hong Kong Christian Service, sponsored by the HAB. 68 Interview with Mrs Li, headmistress of the Po Leung Kuk Camoes Tan Siu Lin primary school. 69 Stephen Vines, “Hong Kong’s Big Dirty Little Secret”, Asian Wall Street Journal, January 10, 2001, p.6 70 Indeed, some actions by public authorities have been regarded as having fostered discrimination. For example, it is alleged that school texts negatively represent the people of non-Chinese developing countries. 71 Comment of Ravi, an Indian company owner, during an interview for Hong Kong Connection, April 2005.
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eradicate discrimination in society, it plays an important and indispensable role in helping to achieve that goal. To define racial discrimination, the Government proposes to apply the Article 1 of the ICERD. It would be modeled on the structure and format of the three existing anti-discrimination Ordinances. According to the Home Affairs Bureau, the Bill should cover six types of discrimination and should render the following acts unlawful: direct racial discrimination; indirect racial discrimination; discrimination on the basis of the race or ethnic origin of the spouse or a relative of a person; discrimination by way of victimization; racial harassment; and racial vilification. It is proposed that the protection provisions should cover the fields of employment; education; sale of goods, provision of facilities, services and premises; appointments to advisory and statutory bodies; pupillage and tenancy in barristers’ chambers; clubs; and government. 72 C: Authority responsible for the jurisdiction The Government is inclined to put the new legislation under the jurisdiction of the Equal Opportunities Commission (EOC). The EOC was established by statute in May, 1996.73 It is currently responsible for administering the three anti-discrimination laws. The EOC is fully funded by the Government. The Chairperson and members of the EOC are appointed by the Chief Executive. A central role of the EOC is to enforce anti-discrimination legislation. Thus, the EOC plays an investigatory role in analyzing individual complaints and alleged breaches of the anti-discrimination laws. Secondly, the EOC fulfils an advocacy role and has a strategic litigation power. Thirdly, the EOC conciliation process acts a substitute for state courts for individuals seeking redress for discriminatory practices.74 Soon after the EOC was set up, it began to receive complaints of racial discrimination, even though it is powerless to act on them. A total of 196 complaints from mid-1996 to mid-2001 were made. In total, race discrimination complaints accounted for some one tenth of submissions. The Race Relation Unit of the Home Affairs Bureau has received 150 complains since its establishment; but without any legal clout, it has functioned only as a mediator.75 The EOC appears to be the most appropriate institution to deal with racial discrimination.
VII: The shortcomings of the proposal The Coalition for Racial Equality regards the Government’s proposal to fall short of meeting international standards.76 A: An under-inclusive ICERD definition or just an unwilling Government? As mentioned in section I, the ICERD’s grounds have been criticized for being under-inclusive. Indeed, groups of people endure discrimination that is functionally equivalent to racial discrimination. For example, scholars have noted that a person’s regional origin can sometimes lead to inequalities 72
Consultation on Legislating against Racial Discrimination, December 2004. It should be noted that the Consultation Paper has not been published in minority languages; only a summary has been provided. 73 The establishment of the EOC originates from the initiative of Ms. Anna Wu, who drafted a private member’s bill to establish a Human Rights and Equal Opportunities Commission. See Equal Opportunities Bill 1994, Hong Kong Government Gazette, Legal Supplement No. 3, July 1, 1994 and the Human Rights and Equal Opportunities Bill 1994 (circulated for public consultation, March 1994). 74 For more information about the EOC conciliation process and its role, see the “Private conciliation of discrimination disputes: confidentiality, informalism and power” by Katherine Lynch Associate Professor Faculty of Law, University of Hong Kong. 75 “ Racial Discrimination in Hong Kong”, Hong Kong Connection, April 2005. 76 Coalition for Racial Equality (CoRE), Press release: The government’s release of the consultation paper on legislation against racial discrimination flawed from the outset, September 16, 2004.
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similar to those suffered by racial minorities.77 As a result, some jurisdictions have included “regional origin” as a specified ground for protection in their anti-discrimination legislation.78 Another example of a ground that is not specified by ICERD—but sometimes included in legislation—is family origin.79 The HKSARG has stated that one of the objectives of the Bill is to implement the ICERD.80 Thus, it is not only the concept of non-discrimination that must be implemented but also other provisions stated in the convention. Implementing the provisions would lead for example to integrate the new immigrants from Mainland China under the protection of the coming law. All in all, the ICERD is only a basic threshold to reach. It does not restrict the Government to extend the scope. There are signatories of ICERD (e.g. People’s Republic of China and Australia) that go more than the basic threshold of ICERD in accordance with their actual societal contexts. Therefore, in drafting its Racial Discrimination Bill, Hong Kong lawmakers should consider whether they aim simply to satisfy the ICERD as a legal technicality or aim to best serve Hong Kong’s unique needs. An important aspect is the necessity to adapt the law to meet the situation of the new immigrants from the Mainland. B: “One country, two castes”81mentalities? Up until 2000, the HKSARG included new arrivals among the groups to be protected.82 Hong Kong’s Human Rights Reports to the United Nations have always included new immigrants from the Mainland as a minority. But since there is a pressure for legislation, the Government seems to have changed its position. This may be explained - to some extent - by the growing importance of China. Right after the handover in July 1997, the Mainland was rather considered as a kind of separate country. With the growing weight of China-economically and diplomatically- the power relationship between HK and the Mainland has changed, thus leading the HK Government to emphasize more and more on the “one country” rather than on the “two systems”.83 Thus, the Government will not consider recent immigrants from Mainland China as a protected group. As stressed by Deputy Secretary for Home Affairs Stephen Fisher, “New immigrants and the Chinese in Hong Kong have the same fate. We’re all Chinese […] Temporary discrimination does not mean permanent discrimination”.84 Well, if it is true that temporary does not mean permanent, it is also highly probable that temporary discrimination will lead to a deep-rooted one if nothing is done. By excluding the new immigrants from the race law, the government fails to follow the General Comments of the Committee on the Elimination of Racial Discrimination, which states that an ethnic 77
See, e.g., Ilhyung Lee, “Equivalence at Law (and Society): Social Status in Korea, Race in America,” 37 Vanderbilt Journal of Transnational Law 109 (2004) (discussing various functional equivalents to race, such as “regional origin,” in Korean society). 78 “Regional origin” is a ground specified in legal instruments ranging from the Korean National Human Rights Commission Act, to the Togolese Constitution, to the municipal anti-discrimination code of Cincinnati in the United States. 79 The Japanese and Colombian constitutions are examples of laws that include “family origin” as a specified ground for protection against discrimination. 80 Home Affairs Bureau 2004: Legislating Against Racial Discrimination, Hong Kong: page 9. 81 “Trapped in a bamboo maze”, Financial Times, 5 June 1999. 82 In 1997, in the Government's "Consultation Paper on Equal Opportunities: a Study on the Ground of Race", new arrivals from China were considered a protected group． The Employment Code of Practice of 1998 also considered new arrivals as a protected group in order to provide equal opportunities in employment for them. Furthermore, in 2000, in its submission to the UN Committee on the Elimination of All Forms of Racial Discrimination, new immigrants were also considered a protected group. “ The SAR government acknowledged that discrimination against mainland migrants is analogous to race discrimination”, Ming Pao, 20 February, 1997. 83 This explanation has been stressed by Lee Khai Loon, member of the Asian Stidents Association, during an interview conducted in June 2005. 84 This remark has been collected for the report “Racial Discrimination in Hong Kong”, Hong Kong Connection, April 2005.
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group should be identified by self-identification. 85 By failing to take into account the special circumstances of Hong Kong in relation to its new mainland immigrants, the Government is likely to be subject to continuing criticism from UN human rights bodies. The CESCR has recently declared86: “The Committee is concerned that, in the proposed racial discrimination law, the protection afforded by this law will not cover migrants from the Mainland despite the widespread de jure and de facto discrimination against them on the basis of their origin. The Committee strongly urges the HKSAR to extend the protection afforded by the proposed racial discrimination law to internal migrants from the Mainland, and to put a stop to the widespread discriminatory practices against them on the basis of their origin.” It is crucial that the Government should protect the new arrivals in the law against discrimination.87 A more explicit way to protect their rights would be to expressly include in the law ‘origin from any territory outside the Hong Kong Special Administrative Region’. Alternatively, the bill could expressly prohibit discrimination on the ground that the person is an immigrant.88 C: EOC compromised? (i) Lack of independence If the Government is likely to delegate both the power and the responsibility to the EOC to carry out this law, it should grant the impartiality and the resources that such a power requires. However, the EOC scandal in late 2003 had exposed serious weakness. 89 Indeed, the political interference in the appointment of a key officer has affected the credibility and the integrity of the EOC as well as its proper functioning. This event has shown that the Government was reluctant in having a statutory body that is influential and powerful. 90 It is of utmost importance that the independence and impartiality of the EOC should be restored. (ii) Question of resources At the meeting of Legislative Council Panel on Home Affairs on 11 December 2004, the EOC raised certain concerns in relation to the proposal. It was concerned about having insufficient resources. The 85
General recommendations 8, 14 and 24 of the International Convention on Elimination of All Forms of Racial Discrimination; Recommendation 8 states: "Having considered reports from the States Parties concerning information about the ways in which individuals are identified as being members of a particular racial or ethnic groups, (the Committee) is of the opinion that such identification shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned." 86 Committee on economic, social and cultural rights, Thirty-fourth session 25 April – 13 May 2005 Consideration of reports submitted by state parties under Articles 16 and 17 of the Covenant, Concluding Observations of the Committee on Economic, Social and Cultural Rights People’s Republic of China (including Hong Kong and Macao). 87 The concern of including the new immigrants has been expressed by numerous NGOs, as for example during the New Immigrants Consultation Session on February 2005. 88 See Hong Kong Journal of Law, “Racial Equality and the Law: Creating an effective Statute and Enforcement model for Hong Kong”, Carole J. Peterson, vol.34, p.459, 2004. 89 On 2 July the SAR Government announced that it would not renew the contract of Anna Wu, chairwoman of the Equal Opportunities Commission (EOC) and that she would be replaced at the end of the month by retired judge Michael Wong Kin-chow. Many people expressed disappointment that Ms Wu’s contract was not being renewed. Ms Wu had developed a good reputation both in Hong Kong and internationally during her four years in the job and had been praised by academics, the legal sector and human rights NGOs for her energy and her willingness to enforce the gender and disability discrimination laws under her purview. Some commentators said publicly that the SAR Government was unhappy with Ms Wu because she had successfully taken the Government to court on equal opportunities issues. In sum, she was a challenge to the government policies. Mr Wong was soon embroiled in controversy. The EOC’s director of operations designate and human rights expert Patrick Yu Chung-yin accused Mr Wong of unfairly sacking him. A coalition of 60 non-government organisations demanded that Mr Wong be suspended. Finally, after two weeks of intense media coverage Mr Wong resigned Patricia Chu Yeung Pak-yu, a retired civil servant, was appointed to replace Mr Wong. 90 This point has been stressed during an interview with Lee Khai Loon, member of the Asian Students Association.
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primary enforcement power of the EOC is the power to investigate and conciliate complaints, which requires an adequate budget. Thus, it will be forced to make strategic decisions as to which cases are important enough to support. In 2002, for example, less than 10 out of 2,000 complaints were granted legal aid.91 The Government should make a commitment to provide sufficient the resources to the EOC so that it can fulfil its functions. D: An obsolete definition of indirect discrimination The Coalition on Racial Equality believes the legislation should not be modelled on the existing discrimination ordinances 92 but rather on updated international law. This includes an up to date definition of indirect discrimination. 93 An evolving understanding of the meaning of indirect discrimination has particular relevance with the education system. Many of the difficulties faced by the ethnic minority students could amount to indirect, rather than direct, discrimination. For example, admissions policies based on language requirements may seemingly apply equally to all races and ethnicities. In effect, however, these policies limit access to education for certain ethnic groups who may be less likely to speak or read Chinese. The definition of indirect discrimination in the proposal is modelled upon existing Ordinances: “Under the Bill, it is proposed that a person should be regarded as indirectly discriminating against another person if he applies to that other person a requirement or condition which he applies or would apply to persons not of the same racial or ethnic group as that other person […].”94 The concern is that this definition is likely to be narrowly interpreted. Other states import broader reaching phrases in place of "condition or requirement." The UK legislation for example, has already been amended through two European Union Directives (namely the Employment Directive and the Race Directive). The Directives stemmed from Article 13 of the Treaty of Amsterdam, adopted by the EU Council of Ministers in 1997. According to the Race Directive, indirect discrimination occurs when “an apparently neutral provision, criterion or practice […] would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons”.95 This definition makes the scope wider and does not require statistical evidence, which is the case now in Hong Kong. The Government’s proposed Bill should follow it as it better protects the rights of racial minorities and can therefore be more effectively applied. E: Need for a language provision Hong Kong should consider adding grounds to its Racial Discrimination Bill that will best suit local social situation, where discrimination based on language, religion or culture are key. Language discrimination means treating someone differently solely because of his or her native language or other characteristics of speech. Yet, the Government proposes not to include racial discrimination based on language in the Bill. Language is the most serious obstacle encountered by the ethnic minority students. A language discrimination provision would make it unlawful for the ethnic minorities to be denied equal access to government services or where they are rejected on the grounds of language in school enrolment when fluent Cantonese is not required.
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Carole J. Petersen 2002: “The Right to Equality in the Public Sector: An Assessment of Post-colonial Hong Kong” in: Hong Kong Law Journal, volume 32, part 1. 92 Consultation paper, paragraph 26, September 2004. 93 Coalition for Racial Equality (CoRE), Press release: The government’s release of the consultation paper on legislation against racial discrimination flawed from the outset, September 16, 2004. 94 Consultation on Legislating against Racial Discrimination, December 2004. 95 The Council of the European Union, “Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin” (Race Directive), (19 July 2000), L180 Official Journal of the European Communities 22, 24, article 2(b).
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F: Proposition on education The Government’s consultation paper proposes that: “It should be made unlawful for the responsible body of an educational establishment […] to discriminate on the ground of race in respect of admissions or the treatment of students.”96 The proposed bill should not only protect persons from discrimination by educational institutions but by other parties in education settings such as teachers, other students, etc. The education institutions should also be bound by the law to prevent a racially hostile environment from developing in their premises.
PART IV: A MORE PRO-ACTIVE APPROACH VIII: Beyond the Government’s proposal Legislation against racial discrimination should take a more proactive approach in addition to a remedial one. It should aim at enhancing social inclusion of the ethnic minorities in Hong Kong and not just take preventive measures to prohibit racial discrimination.97 A: “Forgotten” aspects of the proposal98 Hong Kong is a signatory via China of the CRC and is bound by its set of non-negotiable standards and obligations. Article 2 provides that: “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” Coupled with Article 28, which relates to education, the CRC requires that all the children have the right of being non-discriminated against in the educational system. “All the children” include: (i) The young abode seekers About 180 children, stranded in Hong Kong due to right of abode legal proceedings, were denied of school education by the Government, as revealed by a series of press reports in November 2001.99 Some schools and church groups allowed these children to study in their schools but were warned by the Government against doing so. Some of these children have waited for years, spent their childhood without school education, playmates and proper recognition from the society. Though the legal proceedings had been completed by 2002, to stop these children from receiving normal education is a serious breach CRC, as well as the 1951 UN Refugee Convention.100 In comparison, the main host
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Paragraph 51 of the Consultation Paper. Hong Kong Christian Service Opinion on Legislating Against Racial Discrimination, Dec 2004. 98 Because few data were available and updated as regards the situation of the young abode seekers, refugee children and the illegal immigrants children in Hong Kong, this issue have not been thoroughly studied in this report. However, the significance of this issue was worth to be mentioned. Most of the references here are extracted from the NGO Report of the Hong Kong Special Administrative Region under the Convention on the Rights of the Child, February 2005. 99 South China Morning Post, November 2001. 100 The 1951 U.N. Convention Relating to the Status of Refugees and its 1967 Protocol do not extend to Hong Kong, and the SAR eliminated its temporary protection policy, which was extended only to Vietnamese in 1998. On a case-by-case basis, the Director of Immigration has discretion to grant refugee status or asylum in cases of exceptional humanitarian or compassionate need, but the Immigration Ordinance does not provide foreigners any right to have asylum claims recognized. The Government practice is to refer refugee and asylum claimants to a lawyer or to the office of the U.N. High Commissioner for Refugees (UNHCR). Those granted refugee status, as 97
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countries in Europe (France, UK, Germany, Austria, Netherlands, Belgium) all provide free and compulsory education to the asylum seekers children up to the age of 16 or 18. (ii) Refugee children in Hong Kong Article 22 of the CRC provides: “States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee […] receives appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention […].” As of 31 August 2004, there were 41 refugee children aged under 18 in Hong Kong according to the United Nations High Commissioner for Refugees Sub-office. These children are awaiting resettlement to a third country after their parents were granted refugee status. The process of resettling could take months to years. These children are not allowed to attend local schools under the existing practice because they are not treated as Hong Kong residents. If they could afford it, they could go to private schools but this is unlikely. While are providing tuition classes to these children, they should be allowed by law to go to public schools. (iii) Illegal immigrant children from Mainland China Further measures need to be taken to address the issue of illegal immigrant children from China, especially with respect to the difficulties of family separation between Hong Kong and the mainland. The Basic Law gives the right to a child of a Hong Kong resident, to be resident in Hong Kong after July 1997.101 But the Hong Kong Legislative Council enacted a law preventing children born before their parents became permanent residents from having the right of residency. It also imposed a quota system in China, where these children would have to queue - for a long period of time - to reunite with their parents. From 1997 to 2001, only 66% of mainland children on recognizance were admitted into local schools. But any child, regardless of their immigration status, should be eligible for free primary and secondary school education. Denying them an education punishes them even though the children had no choice but to enter Hong Kong.102 The problems stated above relating to those classes of children can be addressed through the proposal Bill against racial discrimination, as suggested by the CESCR103: “The Committee is concerned that, according to the proposals made by the Hong Kong Home Affairs Bureau, the new law will not affect the existing immigration legislation in HKSAR. The Committee recommends that the relevant provisions of the existing immigration legislation governing entry into, period of stay, and departure from, HKSAR are amended to ensure full conformity and consistency with the new racial discrimination legislation”. Therefore, this issue can be partly addressed by including in the Bill a phrase that shows that people from any territory outside the Hong Kong Special Administrative Region, irrespective of their status are included. B: Implementing Affirmative Action policies A 2004 survey conducted by APIAS104 and Oxfam showed that 73% of the interviewees supported the Government and NGOs to provide “positive discrimination” (also called “affirmative action” or “special measures”) for ethnic minorities, while 12% disagree. Positive discrimination is a policy providing advantages for people of a minority group who are seen to have traditionally been well as those awaiting UNHCR assessment of their status, receive a UNHCR subsistence allowance but are not allowed to seek employment or enroll their children in local schools. 101 Article 22 of the BL. 102 The case of forced repatriation of Chung Yuk Lam, a primary school girl, has caused much concerns and frustrations to the society. 103 Committee on economic, social and cultural rights, Thirty-fourth session 25 April – 13 May 2005 Consideration of reports submitted by state parties under Articles 16 and 17 of the Covenant Concluding Observations of the Committee on Economic, Social and Cultural Rights People’s Republic of China (including Hong Kong and Macao). 104 The Asia Pacific Institute of Ageing Studies.
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discriminated against. This consists of preferential access to education, employment, health care, or social welfare. (i) Advantage of Affirmative Action policies As certain racial groups were discriminated against in the past, they may not be equipped with adequate education and work experience to compete for opportunities. In order to ensure they can enjoy equality of opportunity, positive actions in favour of these groups can be fostered, even if such actions are discriminatory on their face.105 It recognizes that ethnic minorities have disproportionate problems, thus demanding the appropriate attention. Such an approach is different from a nondiscrimination approach, which only prohibits discrimination but does not attempt to provide equality of outcome. In the education, affirmative action may lead to a system in which a proportion of places in higher education is set aside for students of a particular group. This system of quota ought to be maintained only until the achievement of equal access on the basis of capacity. Other actions could be implemented such as the establishment of an alternative syllabus of colloquial and simpler Chinese Language; and in parallel, it may also be possible that related public examination are designed and provided for non-Chinese students.106 (ii) How to frame Affirmative Action Non-discrimination and affirmative action if not carefully framed may clash with each other. Where the non-discrimination principle removes factors such as race, gender, nationality, etc. from the decision-making processes, affirmative action seeks to ensure equality by taking those factors into account.107 Therefore, affirmative action policies must be carefully framed and implemented so as not to undermine the principle of non-discrimination itself. Article 1(4) of the ICERD framed affirmative action thus: “Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved”. Article 2 also makes clear that protection of certain groups did not constitute discrimination, provided that such measures were not maintained after the achievement of the aims for which they had been taken. Both provisions insist upon the limited duration of the special measures. In the same vein, the Human Rights Committee108 pointed out that “the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant […] Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters […]”.109 Other jurisdictions have also embraced special measures, such as the European Union.110
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See the report by Hong Kong Human Rights Monitor and Oxfam Hong Kong “Backgrounder on enacting a racial discrimination legislation for Hong Kong”, August 2004. 106 This solution is suggested by the Hong Kong social service, in “Views and Concerns on the Consultation Paper on Legislating Against Racial Discrimination”, 4 February 2005. 107 See United States Supreme Court Justice Blackmun's dictum: “in order to get beyond racism, we must first take race into account”. Regents of the University of California v. Bakke, 1978. 108 Human Rights Committee in its general Comment on article 26 of the ICCPR. 109 Human Rights Committee, General Comment No. 18, para. 10, in HRI/GEN/1/Rev.4 (2000). 110 The Council of the European Union has issued a Directive that provides that “The prohibition of discrimination should be without prejudice to the maintenance or adoption of measures intended to prevent or compensate for disadvantages suffered by a group of persons of a particular racial or ethnic origin, and such
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As soon as the Bill is passed into law, it is crucial that the HKSARG should impose on public authorities a positive duty to promote equal access to education for the ethnic minorities. Positive discrimination may be promoted at a maximum for one generation. One generation should be enough time to alter people’s attitudes towards the minorities. It should also be sufficient time for minority students to become more confident. Nevertheless, affirmative action alone is unlikely to change people’s minds. Positive discrimination cannot be the only way to promote equality, but it has to be accompanied by public education and social inclusion policies as a long-term plan. C: Promoting social inclusion Strategies to tackle the problems of racial discrimination need to be a combination of legislation, government policies, supportive measures and public education. It requires a real commitment in promoting racial equality through public education and organization of education activities. The means for improving social inclusion are broad. First of all, compulsory Chinese language learning should be implemented in order to support the minority youth in building a long-term personal development in Hong Kong. This may include providing adequate Chinese as a second language courses within Chinese Medium Schools, changing admissions requirements, or providing a standard code of practice for schools on assisting non-Chinese speakers to integrate. Educational institutions need to be made aware of the impact of their curricula in shaping the discriminative behaviours. In addition, recreational and educational activities that provide chances for intercultural cooperation and enhance mutual understanding should be strongly reinforced. Schools need to cater to both Chinese and non-Chinese students and foster cultural exchange. In bringing diverse students together, the public schools cannot advocate the value of one racial, ethnic, or religious group over another; nor can they engage in practices that would discriminate against any such group.111 The sort of programs that can foster multiculturalism include: a mandatory inclusion of an anti-discrimination unit into students’ social studies;112 compulsory teaching about the different ethnic groups in Hong Kong, their customs and history;113 and civic education to include diversity studies. Mutual respect should be one of the major themes to advocate. 114 In sum, the effort must foster a multicultural education approach that changes the school program, including staffing, curriculum and instruction, and reflects the diverse cultures of populations within the school. Beyond the educational field, the Government can improve also its channels of communication with the minorities. By launching the Government website in various language versions, the information gap of the ethnic minorities from the mainstream society will certainly be reduced. Moreover, the role of the media should not be forgotten. To a certain extent, the media shapes people’s perceptions. Since it sometimes caricatures the image of those who compose the minorities, it becomes crucial to develop a critical awareness of media stereotypes among young people. In summary, all policies should be checked to ensure that they do not contribute to the exclusion of minority groups but contribute to the emergence of a context in which racial harmony would be potent.
measures may permit organizations of persons of a particular racial or ethnic origin where their main object is the promotion of the special needs of those persons”. Council Directive 2000/43/EC (29 June 2000), at recital 17 111 The example of the Po Leung Kuk Camoes Tan Siu Lin primary school is quite relevant here. This primary school is made up of 1000 pupils; among them around 30% are non-Chinese speaking students. English, Cantonese, Putonghua and French languages are taught, thus creating a rich language learning environment. This school has turned out to be also a pioneer, since it has become the first “Direct Subsidy Scheme” primary school in 2001. The school theme of the year 2004/2005- Unity in Diversity- summarizes the philosophy of this school. 112 See the publication by the Asian Students Association, “ The Road to Equal Opportunities”, 2004. 113 Ibid. 114 Hong Kong Christian Service Opinion on Legislating Against Racial Discrimination, Dec 2004.
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D: Creation of a Tribunal of Equal Opportunities115 Some countries have an Equal Opportunities Tribunal, such as Australia. It is designed to make easier for people to obtain a judgement in a discrimination case. As stressed by Katherine Lynch116, such a tribunal may enhance the impact of anti-discrimination legislation in Hong Kong and give more public exposure to government policies. There would be other advantages of such a specialist tribunal as for example, the clarification of government policies; effectiveness in carrying out systemic changes in policy and practice; and possibility for victims of unlawful discrimination to use a more accessible and affordable public forum. E: Need to support the Non-Governmental Organizations (NGOs) The NGO Sector has been close partners of the HKSAR Government and provides about 2/3 of the social welfare service for the population, including the ethnic minorities. For more effective government-NGO partnership, the Government needs to spend more time to see hoe NGOs can be better enabled to promote equality.
CONCLUSION Promoting racial harmony in society should be of the utmost importance. Education is one the cornerstones. Equal access to education without discrimination must necessarily be a part of public policy. The HKSARG is right to introduce a Race Discrimination Bill. Not only should the Government prohibit discriminatory behaviours, it should also prevent such kind acts by improving mutual understanding. Commitment to equality means that the Government should not only fulfil minimum standards but also adapt these standards to the specificities of Hong Kong. To do so, the Government needs to have a broader view on what the Law should stand for. It should not only be a tool to satisfy international requirements but it must be a means to achieve individual and social justice. “Of all forms of human rights, nothing could be more basic than the rights to life and survival. A natural extension of these rights it the right to development. By providing individuals with equal access to education, employment and participation in community life, society provides a platform for individual development.” Anna Wu Hung-Yuk
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The proposal for the establishment of a specialist tribunal to hear discrimination complaints was originally made by Anna Wu at the time of the drafting and implementation of Hong Kong’s first anti-discrimination laws. 116 Katherine Lynch, “Private conciliation of discrimination disputes: confidentiality, informalism and power”, Associate Professor Faculty of Law, University of Hong Kong.
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