TIME FOR HONG KONG TO LEGISLATE ON RACIAL DISCRIMINATION
Today is the International Day for the Elimination of Racial Discrimination.
This day will be more meaningful if the Hong Kong government commits itself to legislation prohibiting racial discrimination.
The Legislative Council passed a motion on March 12 urging the government to adopt the recommendations of the relevant United Nations committees and expeditiously legislate against racial discrimination.
The International Covenant on the Elimination of All Forms of Racial Discrimination (ICERD) has been applicable to Hong Kong for more than 30 years. Paragraph 1(d) of Article 2 of the ICERD says, 'Each state party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation.'
The Committee on ICERD does not accept the argument put forward for not initiating such legislation. The Committee on Economic, Social and Cultural Rights is of the view that Hong Kong's failure to prohibit race discrimination in the private sector constitutes a breach of its obligations under Article 2 of the Covenant. Clearly, Hong Kong has a legal and moral obligation to enact such legislation to give force to the covenant.
The business community has expressed concern over the implications. Many feel that the law is a piece of legislation that impedes the free-market economy.
What they don't see are the positive effects. A law against racial discrimination reinforces the free-market principle because it ensures opportunities are allocated according to merit and ability rather than by discrimination.
This law will help attract international talent and ensure that Hong Kong remains a world-class city.
It will show our commitment to a level playing field and our belief in the equal treatment of all persons.
Currently, Hong Kong has three pieces of anti-discrimination legislation, the Sex Discrimination Ordinance, Disability Discrimination Ordinance, and Family Status Discrimination Ordinance.
Legislation on race will entail no significant new costs beyond those already incurred by the need to conform with the existing equal opportunities laws.
Some may ask, How feasible is it to legislate on racial discrimination? Obviously, when we legislate, we will make reference to the existing equal opportunities laws.
The UN already has a model law as guidance for governments. It was compiled after looking at the legislation of over 40 countries.
The model law expands liability for racial discrimination to the government as well as private individuals. Under it, the government will have a positive duty to implement policies and measures to combat racial discrimination, particularly in employment, education, housing, the provision of goods, facilities and services, and health and nutrition.
Under this law, it will be an offence to threaten or insult a person by words or behaviour which cause racial discrimination.
It will also be an offence to commit any act of violence against an individual group on racial grounds.
The model law also creates both criminal and civil liability for breach of its provisions, applicable to everyone.
Punishment could be by fine, imprisonment or community service.
This law also provides for an independent commission against racial discrimination consisting of persons of high moral standing.
This commission will have jurisdiction to consider any matter relating to racial discrimination and take a decision on it.
Obviously, we should not indiscriminately adopt the UN's model legislation.
Our racial discrimination law, if we do decide to legislate, must be carefully scrutinised and well thought out. Nevertheless, our society has an obligation to protect everyone.
JAMES TO KUN-SUN
Legislative Councillor for the Democratic Party