Race bill is 'no panacea for prejudice'
On March 8, the first day in her job as permanent secretary for home affairs, Carrie Lam Cheng Yuet-ngor accepted the challenge of representing Hong Kong at a UN Human Rights Committee hearing in New York only days later.
The task could have landed on the desk of her then deputy, Stephen Fisher, who, after four years in the job, was much more conversant with the issues. But Mrs Lam opted to go herself.
She said it was not right for the deputy to head the delegation to such an important meeting. 'In terms of respect for the UN Human Rights Committee, in terms of representation for the city in an international forum, it also was not right,' she said.
Not sleeping a wink during the 15-hour flight, the veteran official read all the papers and drafted her own speech for the meeting. The original speech, penned by her colleague, took the form of a stock-taking account of what the government had already achieved. Mrs Lam instead chose to take a more progressive approach.
Mrs Lam, who within the previous six years had held positions covering welfare and housing and planning, as well as serving as trade envoy in London, said last week: 'Administrative officers get posted from one job to another as if we can change face overnight. I can't - I don't have that sort of skill. I carry my style and my knowledge and my experience from one job to another.'
She considers building consensus within and outside government a key responsibility in her various roles. But she said: 'I am not fearful of confronting critics. I will not shy away from controversies.'
Mrs Lam said she brought the same passion that characterised her earlier work in domestic violence, children's rights and social security issues into her new posting.
She continued this consensus-building approach when promoting and defending the Race Discrimination Bill before human rights groups, minorities, legislators - and within the government. The bill, the product of a decade of government foot-dragging in outlawing racial discrimination, was met with a barrage of criticism after its release on Wednesday.
Critics said the list of exemptions, in particular one on language, were more about preserving the government's long-standing discriminatory practices than protecting the interests of ethnic minorities. They said Mrs Lam's consensus-building style had led to compromises absolving the government of legal liability on the most contentious issues.
The bill defines 'race' as race, colour, descent, national origin or ethnic origin. It declares unlawful discrimination, harassment and vilification on the grounds of race.
The draft covers six areas, including employment, education, club membership and provision of goods and services.
It prohibits direct discrimination - differential treatment on the ground of race - and indirect discrimination - a condition applicable to all that inherently puts a racial group at a particular disadvantage.
The indirect discrimination provision will cover such cases as a requirement for applicants for a cleaning job to pass a written Chinese test, even though the skill is not necessary for the job, putting non-Chinese applicants at a disadvantage.
The bill also broadens the jurisdictions of the Equal Opportunities Commission (EOC) - which deals with discrimination on the basis of sex, disability and family status - to cover racial discrimination. The commission will get a HK$6 million grant to prepare for its new role and will be given further resources once the law is enacted.
'I have also encouraged the EOC to reach out to ethnic minorities to raise awareness of other anti-discrimination laws currently in place,' she said.
The most controversial aspect of the bill is the exemptions introduced. Differential terms of employment are allowed for expatriate staff on the basis of skills and experience, but not race.
Mrs Lam said the provision was there only to provide clarity: companies could pay staff different salaries as long as it was not based on race. Existing expat packages will be exempt thanks to a so-called grandfather clause.
Companies with five staff or fewer will be exempt for three years. Employers are also allowed to choose domestic helpers of a particular race, though once the helpers have been employed they will be protected by the law. The bill fails to cover indigenous-villager status, nationality and residency status.
The provision attracting the most controversy is the language exemption, which cuts across all six areas covered by the bill. The bill states that the choice of medium of instruction in schools cannot be grounds for racial discrimination.
It is also spells out that affirmative action - requirements for government and organisations to adopt measures to promote equal opportunities - will not be covered, as they are in many western jurisdictions.
The clauses effectively shield the Education and Manpower Bureau against potential lawsuits from minority children unable to compete on an equal footing with their local Chinese counterparts in Chinese-medium schools. In this regard, one critic described the bill as unprecedented in legitimising and institutionalising discriminatory policies.
Mrs Lam said she never expected applause for the bill, as no one wanted to be subjected to regulation.
'But I don't understand why there is such a strong sense of bias, prejudice and dislike against our education officials,' she said. Mrs Lam said the education bureau had a list of support programmes for minority children, including the language bridging courses it would introduce to primary schools next year.
She also urged the minority groups to have faith that the government would do more to help them.
Fermi Wong Wai-fun, director of minority rights group Unison Hong Kong, asked Mrs Lam to look at the track record of the education bureau. 'Education officials ignored complaints and fought all the way to protect their secondary school places allocation system until the High Court declared it discriminatory against girls. Without legislation, how could one expect the bureau to change for the better?' she said.
'We are not asking the government to teach in the minorities' language, nor are we saying that all documents have to be translated in all sorts of languages. We are targeting education. Without proper education, minorities will always be trapped in poverty.'
Ms Wong said the so-called support measures adopted by the bureau were piecemeal and ineffective.
She has fought in vain for years for a Chinese-as-a-second-language curriculum for non-Chinese students. Although the bureau said it would bring in overseas exams for students learning Chinese as a second language, the move would be meaningless without a corresponding curriculum and recognition from tertiary institutions.
Mrs Lam does not believe mandating behaviour through legislation is practical. 'It is not a matter for legislation but a matter of policy.' She said the language exemption was necessary to ensure the government could function effectively. Otherwise, all government documents would have to be translated into English or other languages.
Hong Kong Human Rights Monitor director Law Yuk-kai questioned the rationale behind the government's choice of the UK Race Relations Act 1976 - instead of the law as amended in 2000 - for its point of reference.
But Mrs Lam argued that the 1976 act was followed because it was well tested, with a number of court cases in the UK as precedents. 'It is not fashion. We are not going for the latest model,' she said of the choice.
'The 2000 act was passed with controversies on whether it could be effectively implemented. So it would not be prudent for us to go for this latest version of the UK legislation.'
But she did not rule out the possibility of changes and improvements in the future should the bill be enacted.
Barrister and anti-racism advocate Vandana Rajwani said it was true that the 1976 act was 'well tested' but said it had been 'tested so much that it has now been criticised as too narrow and thus ineffective in protecting people against indirect discrimination. It is considered regressive'.
'In Hong Kong, it is more than likely that the most common form of discrimination will be indirect discrimination - it is unlikely there will be as many cases of blatant direct discrimination,' Ms Rajwani said.
'I welcome the long-overdue bill but it appears to weaken protection against indirect discrimination and it needs some serious amendments for it to be acceptable to the public. This is a fundamental human rights issue that affects everyone in Hong Kong - not just a minority issue.'
Mrs Lam said the bill was not a panacea for racial discrimination, as there were always ways around the law if someone was bent on racist behaviour.
'Now we cannot advertise to recruit a person of a particular race,' she said. 'But when people of different races come forward, I can always find a way to pick the one I like and discriminate against the ones I don't like.
'We are the advocate, not just for the government but also on behalf of all the parties we are representing.'