The Government has received the concluding observations issued today (August 28) by the United Nations Committee on Elimination of Racial Discrimination (the Committee) on the report of the Hong Kong Special Administrative Region (HKSAR) under the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention).
"We note that the Committee welcomed the enactment of the Race Discrimination Ordinance (RDO), which was fully implemented in 2009. This is part of our efforts in eliminating racial discrimination and promoting racial equality in the HKSAR," a Government spokesman said.
"On the other hand, the Committee has raised concerns and made recommendations in a number of areas. We respect the Committee's views and will examine them carefully.
RDO and related matters
"The Committee expressed concern that the definition of racial discrimination under the RDO is not completely consistent with article 1 of the Convention as it does not clearly define indirect discrimination with regard to language, and does not include immigration status and nationality among the prohibited grounds of discrimination. It recommended the inclusion of the items concerned in the RDO.
"We would like to point out that the definition of 'race' in the RDO (i.e. that it means the race, colour, descent, national or ethnic origin of a person) follows the grounds listed in article 1(1) of the Convention.
"The RDO defines indirect discrimination in the same manner as the three anti-discrimination ordinances concerning sex, disability and family status respectively. The proportionality test in the definition is in line with the general principle under international human rights jurisprudence. The definition covers various requirements or conditions, including those involving language. Whether a particular requirement or condition would give rise to indirect discrimination would depend on the factual circumstances of the case. As such, it is not appropriate to enumerate all requirements and conditions in the definition or to highlight a particular requirement or condition, such as language, in the definition.
"For clarity and certainty in law, the RDO provides that acts done on the ground of nationality and immigration status do not constitute acts done on the ground of 'race'. This would not narrow the definition of 'race' in the RDO. The protection under the RDO applies equally to all persons in Hong Kong, regardless of their nationality or immigration status.
"The Committee recommended that all Government functions and powers should be brought under the scope of the RDO. We would like to emphasise that the Government is prohibited from practising racially discriminatory acts in the exercise of its functions under the Basic Law and the Hong Kong Bill of Rights Ordinance. While the RDO does not contain a specific clause to cover all the functions and powers of the Government, it binds the Government in all the areas specified in the Ordinance, such as employment, education and provision of services. In addition, there is an extensive framework of organisations which deal with complaints against a government department. Any racially discriminatory act of the Government is also subject to the court's supervisory jurisdiction.
"The Committee recommended that the HKSAR should adopt a race equality plan to ensure effective implementation of the law and the Equal Opportunities Commission (EOC) should be strengthened. The Government is committed to abide by the requirements of the RDO. We have drawn up proposed Administrative Guidelines on the Promotion of Racial Equality. They provide guidance to relevant bureaux, departments and public bodies. We will take into account views expressed by relevant parties in finalising the Guidelines.
"We have provided extra resources to the EOC for the implementation of the RDO. These include a special subvention of $7 million for making preparatory arrangements such as conducting public education, publicity as well as promotion and an additional subvention of about $5 million in 2009-10 for recruiting additional staff and organising community activities.
Refugees and torture claimants
"The Committee encouraged our reconsideration of extending to Hong Kong the 1951 Refugee Convention and its 1967 Protocol, and recommended a legal framework for screening asylum claims. We would like to point out that asylum claims lodged in Hong Kong are being administered by the United Nations High Commissioner for Refugees (UNHCR) directly (via the Hong Kong Sub-office), which makes decision on the screening of genuine refugees and their resettlement afterwards. We will continue to support the work of the UNHCR and provide humanitarian assistance to all refugee claimants pending the UNHCR's decision on their applications.
Foreign domestic helpers (FDHs)
"The Committee expressed concern on the 'two-week rule' and the live-in requirement for the FDHs, as well as their working hours and holiday arrangements. It should be noted that the 'two-week rule', also applicable to other imported workers, is necessary to maintain effective immigration control. It serves legitimate purposes to prevent migrant workers from overstaying and taking up unauthorised work. The rule does not preclude them from returning to Hong Kong to work. In addition, appropriate flexibility is allowed to cater for special circumstances.
"As for the live-in requirement, it has been the Government's established policy that importation of workers should only be allowed where there is confirmed manpower shortage in the local market. The FDHs are imported to meet the shortfall of local live-in domestic workers. For the purpose of meeting this shortfall, the current regime for importing FDHs has been far less restrictive than that for other low-skilled workers.
"In respect of working hours, the Employment Ordinance has provisions on annual leave and rest day arrangements, which apply equally to both local and migrant workers (including the FDHs). Moreover, the Government has publicised the importance of provision of proper rest periods to all workers. A guide has also been published to encourage employers and employees to work out suitable rest break arrangements.
Chinese language education
"The Committee recommended the development of a policy on Chinese teaching for non-Chinese speaking (NCS) students and efforts to improve the quality of Chinese language education for them. The Government's policy is to facilitate the early integration of NCS students into the local education system. It is the purpose of the language education policy to require all students to study Chinese Language and English Language in the local school curriculum in primary and secondary schools. Since November 2008, through a supplementary guide, we have provided different curriculum modes, supplemented curriculum and pedagogy principles, strategies and recommendations for implementing the Chinese Language curriculum in the learning context of NCS students. This guide serves the needs of NCS students with different aspirations, but without confining them to an 'alternative' Chinese Language curriculum with pre-set simpler contents and lower standards.
"We have also stepped up our support measures such as the provision of a special grant for designated schools with a critical mass of NCS students to develop school-based support measures and to share their experience with other schools which have admitted such students, distribution of learning materials on Chinese language to schools and NCS students, development of assessment tools on Chinese Language and setting up the Chinese Language Support Centres to provide programmes after-school. The Government would continue to evaluate the effectiveness of various measures.
Response to the Committee
"The Government will study the concluding observations carefully, and will give our responses to the Committee as requested in its concluding observations," the spokesman said.
The hearing of the Committee on China's report was held on August 7 and 10. The HKSAR Government team attended as part of China's delegation.
Ends/Friday, August 28, 2009