Legislation needed to ensure educational rights for all | South China Morning Post
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LETTER OF THE LAW

Legislation needed to ensure educational rights for all

While the rest of the world moves towards equality for all children, our city lags behind

PUBLISHED : Tuesday, 27 August, 2013, 12:00am
UPDATED : Tuesday, 27 August, 2013, 4:42am
 

Hong Kong needs rights-based law and policies of inclusive education.

The chairwoman and rapporteur of the UN Committee on the Rights of the Child were in town last week. They were invited by local NGO the Hong Kong Committee on Children's Rights to meet the people and investigate the city, before they returned to Geneva to consider the government's report in September.

In their meeting with the special educational needs (SEN) and disabled communities, Hong Kong's problematic integrated education policy was raised again. The city's so-called integrated education policy is ill-conceived and ineffective, having evolved from a welfare and administrative framework dating back to the industrial age. The world is moving towards a rights-based approach to inclusive education and Hong Kong's policies do not match today's idea of human rights.

Article 28 of the UN Convention on the Rights of the Child (CRC) requires state parties to recognise the child's right to education on the basis of equal opportunity. Article 24 of the UN Convention on the Rights of Persons with Disabilities (CRPD) recognises the right to inclusive education. The purpose of these two conventions is to provide equality and opportunity to develop one's personality and abilities to their fullest potential, regardless of special needs.

A rights-based approach to inclusive education can be achieved by means of law. In some countries, there is a clear constitutional mandate. For example, the Canadian Charter of Rights and Freedoms explicitly provides for equal protection and benefit without discrimination based on, among other factors, mental or physical disability. As a result, provincial authorities make laws, regulations and policies that require or recommend an individualised programme for each SEN student.

In Hong Kong, there is no similar constitutional provision. Article 25 of the Basic Law guarantees equality before the law. It comes close, but is too broad to provide a meaningful foundation. This shortcoming may be compensated by the application of the CRC and CRPD, taking the relevant provisions of the two conventions as guiding principles. As these conventions extend to Hong Kong, the government has a duty to take measures to implement them.

Article 24 of the CRPD guarantees the substantive right to inclusive education and requires signatories to take positive measures to implement inclusive education at all levels. But existing Hong Kong laws are insufficient to give it full effect. The Disability Discrimination Ordinance prohibits discrimination based on disability. It does not grant positive rights. To this end, legislation may be an option.

In fact, the Chinese State Council is reviewing its Disabled Persons' Education Regulation to bring it more in line with the CRPD's rights-based approach.

Taiwan, though not a CRPD signatory, has set a good example and gained international praise. Its Special Education Act and related policies are rights-based and inclusive, catering for individual needs. Its special education law is made to protect the rights of a broad range of pupils, from disabled to gifted. SEN and disabled communities have been a major driving force in bringing about changes in Taiwan's laws, policies and inclusive culture. It's time Hong Kong's SEN and disabled groups communicated their cause to the public and advocated for principled, rights-based legal and educational reforms. Meeting with the UN rapporteurs is but a start.

Simon Ng is assistant professor and senior programme director of law at the School of Professional and Continuing Education, University of Hong Kong

 

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