～請代為廣傳～

Five Critical Issues to be Properly Addressed
-- A Joint Statement on Government's Consultation Document on Legislation Against Racial Discrimination
(6 February 2005)

The Hong Kong Government released "Legislating Against Racial Discrimination: A Consultation Paper" in September 2004 to seek views from the public on a proposed legislation. We welcome the government's commitment to legislate against racial discrimination. However different parties in the community have raised 5 critical issues on the paper: concerns on the Immigration Ordinance, the positive duty of the government, concern towards new arrivals from the Mainland, the 3-year sunset clause and the definition of indirect discrimination. We strongly urge the government to address these 5 concerns seriously.

1. Immigration Ordinance

The proposed law intends not to affect the part of the Immigration Ordinance governing immigration control of persons who have no right of abode in Hong Kong and the application of such legal provisions. That means, under the new law, in a case involving such immigration issues, even though such legal provisions are inconsistent with the new race law but for the exemption of the Immigration Ordinance and in applying the Immigration Ordinance will lead to racial discrimination, it is the Immigration Ordinance which will prevail and it is alright to apply the Immigration Ordinance this way.

At present the Immigration Ordinance provides the basis for a number of discriminatory issues, such as the two-week rule. The exemption will entrench this discriminatory rule.

The two-week rule targets at the foreign domestic workers. It requires them to leave Hong Kong within 14 days after the termination of their contract even if they have found another employer to employ them. In contrast, there is no such a restriction on other expatriates working in Hong Kong in type of jobs. It is indirect discrimination against ethnic minorities from South and South East Asia because they are inproportionately adversely affected by the rules than other races, say the Caucasian.

The whole exception on Immigration legislation should be abolished. All immigration law and practices should be reviewed in the light of ICERD, including the new General Recommendation by CERD on the treatment of non-citizen. Similarly, the exception on pre-existing racially discriminatory legislation should be abandoned.

2. Positive Duty

The objectives stated in the paper for legislation does not specify any positive responsibility for the Government. It is important to provide in the law that the Government and the public authorities should be under a positive duty to combat discrimination, to promote racial equality and harmony.

The statutory duty on the Government will therefore oblige it to closely monitor the situation by keeping statistics, conducting surveys racial impact assessment and studies, detecting and preventing racial profiling, working for race mainstreaming, and formulating and implementing plans of actions for racial equality.

3. New Arrivals from the Mainland

The Government stated in the consultation paper that discrimination against new arrivals from the Mainland will not be considered as a form of racial discrimination as they are of the same ethnic stock as local Chinese.

New arrivals from the Mainland suffer from irrational prejudice and discrimination. These new arrivals suffer from discriminatory experience of a similar nature to these discrimination other immigrants are experiencing: they are discriminated against because of their immigration identity and status, their different skill in local languages, the perceived weaker knowledge of the local society, and other differences in appearance and behaviour and other aspects due to their socialization at their place origin in the Mainland which were quite different from those people got in Hong Kong. While immigrants from foreign countries will be protected under the ground of 'national origin' but those from the Mainland are denied of such a protection because they are from China. The new arrivals from the Mainland are denied of such a ground of protection although they have to cross the border to enter Hong Kong like many other ethnic minorities and face similar discrimination.

Indeed the Hong Kong government acknowledges that this discrimination does occur and has even included this issue in the report to the CERD Committee, noting that they constituted a 'distinct group' within the ethnic minority. Furthermore, the International Convention of Elimination of All Forms of Racial Discrimination (ICERD) states the importance of self-identification of the affected group. And obviously many new immigrants identified themselves as a different ethnic group from local Chinese, especially when they face daily discrimination from many of the local Chinese.　

Discrimination against new arrivals from Mainland is a serious social problem and firm action should be taken to tackle with. It is to suggest that the new racial discrimination legislation should include new arrivals from the Mainland. The government has accepted that the bill should prohibit discrimination on the ground of 'national origin'. The term 'national origin' could be defined in the status so as to include 'origin from any territory outside the Hong Kong Special Administrative Region' to incorporate the protection towards the new arrivals from the Mainland. This definition will protect many overseas Chinese who have come or returned to Hong Kong.

4. 3-year sunset clause

It has been stated in the consultation paper that employers who have less than six employees would be given a three-year exemption after the enactment of the race law, as the government believes that the small companies and employers need time to adapt to the law.

As most employers of foreign domestic helpers only employ one helper in their households, it would exempt them from the future bill for three years. This exception is a racially discriminatory policy. Most foreign domestic workers and a lot of security guards employed by Owners Corporations will be left unprotected during the grace period. In any case, the application of the exception to households employing domestic workers is unjustified as they do not need any major adjustments.

It is important that the sunset period for the employers should be abolished or substantially reduced to a minimum as Hong Kong already has three discrimination ordinances in place.

5. Indirect discrimination

The definition of indirect discrimination proposed by the government has been interpreted in a way which will exclude a lot of deserving cases. Due to the limitation, not much protection could be offered. Therefore, a more liberal definition such as the new definition of indirect discrimination applied by the European Commission Race Directive should be introduced.

[Notes: The government posed that indirect discrimination would be counted if a person applies to another 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 but which is such that the proportion of persons of the same racial or ethnic group as that other person who can comply with it is considerably smaller than the proportion of persons not of that racial or ethnic group who can comply with it.

The phrase 'requirement or condition' is very narrowly interpreted as a requirement or condition has to be absolute and practices, especially informal and/or past ones, may be excluded. To prove to be in 'considerably smaller proportion', statistical data usually required is hard to come by and a case can only be brought after actual harm is done. This concept would put the victim at a particular disadvantage as statistical evidence for the purposes of proof is difficult to obtain. The European Commission Race Directive has replaced 'requirement or condition' by a wider definition of 'provision, criterion or practices'. This should be adopted in Hong Kong as well to cover more circumstances.]

Co- signatories:
Unison Hong Kong
Oxfam Hong Kong
Amnesty International (Hong Kong)
Hong Kong Human Rights Monitor
Civil Human Rights Front
Society for Community Organization
New Immigrants' Mutual Aid Association
Concern Group on the Rights of New Immigrant Women
Hong Kong Christian Institute
Asian Migrant Centre
Asian Migrants Coordinating Body
Helpers for Domestic Helpers
Bethune House Migrant Women's Refuge
Mission for Filipino Migrant Workers (HK) Society
Asia Pacific Mission for Migrants (APMM)