Race battle may be won, but not the war

PUBLISHED : Tuesday, 08 September, 2009, 12:00am
UPDATED : Tuesday, 08 September, 2009, 12:00am

China was severely criticised by the UN Committee on the Elimination of Racial Discrimination at a meeting in Geneva last month. It was not unexpected, as the hearings came in the wake of riots in Tibet last year and in Xinjiang this year.

Hong Kong, whose report was part of the Chinese one, got off relatively lightly, mostly because it was able to point to the fact that, at long last, it had finally adopted a race discrimination ordinance.

The committee made clear its approval by saying at the outset that it welcomed the move. It was gracious enough not to point out that such a law had only come into effect this year - 40 years after the International Convention on the Elimination of All Forms of Racial Discrimination was first extended to Hong Kong.

Hong Kong officials had opposed such legislation, first by denying the existence of racial discrimination, then acknowledging that the problem existed but insisting that education, not legislation, was the way to tackle it. But the committee persevered in pressing for a law. In 2001, for example, it reiterated its concern about the continued absence of race discrimination legislation, adding pointedly: 'The committee does not accept the argument put forward for not initiating such legislation, i.e., that such legislation would not be supported by the society as a whole.'

Even with the law in place, the committee was concerned about the ordinance's definition of racial discrimination and recommended that 'indirect discrimination with regard to language, immigration status and nationality be included among the prohibited grounds of discrimination'.

It pointed out that the new law 'only covers certain government activities and exercise of its powers' and recommended that 'all government functions and powers be brought within the scope' of the ordinance.

These issues were debated fiercely when the Legislative Council examined the draft ordinance. The government insisted that discrimination against mainland migrants would not be covered because it was not racial, but social, discrimination. It also refused to allow all the government's functions and powers to be covered by the law.

The committee reiterated its concern for domestic migrant workers, and again called for the repeal of the 'two-week rule', under which foreign domestic helpers must leave Hong Kong within two weeks after termination of their contract.

In response to the committee's criticism, the Hong Kong government said that 'acts done on the ground of nationality and immigration status do not constitute acts done on the ground of 'race',' and that this 'would not narrow the definition of race' in the ordinance. It added that the law's protection 'applies equally to all persons in Hong Kong, regardless of their nationality or immigration status'.

But such a response is misleading since the government is, in effect, saying that mainland migrants are protected if anyone discriminates against them because of their race, not because they are new migrants.

It also tries to obscure the issue of government culpability by saying 'there is an extensive framework of organisations that deal with complaints against a government department' and 'any racially discriminatory act of the government is also subject to the court's supervisory jurisdiction'.

It would have been far better if the government had simply allowed all its actions to be governed by the ordinance.

Clearly, just as it had taken many years for Hong Kong to finally have a race discrimination ordinance on the books, it will also take many years before the government allows the law to be truly effective. The fight against racial discrimination in Hong Kong is by no means over.

Frank Ching is a Hong Kong-based writer and commentator whose book, Ancestors: 900 Years in the Life of a Chinese Family, has been reissued in paperback. frank.ching@scmp.com