IT WAS REPORTEDLY at an internal policy-review meeting chaired by Secretary for Transport Nicholas Ng Wing-fui that the Government took the decision to turn its back on the groundswell of opinion which had been building in favour of laws against racial discrimination in recent months.
While Tung Chee-hwa recently justified this on the basis that legislation is not the best way to tackle the problem, arguing that race discrimination is a far bigger problem in some countries which do have such laws, such as the United States and Britain, it was a very different consideration that was apparently the crucial factor behind the policy-review body's decision.
Namely fear of opening the floodgates to a host of other anti-discrimination laws. For if the Government had agreed to enact laws on race it would have, in effect, conceded that its critics were right in arguing it was legally obliged to do so under the International Covenant on Economic, Social and Cultural Rights, which applies to Hong Kong under the Basic Law.
And that would make it also obliged to enact laws to outlaw the numerous other types of discrimination covered by the Covenant, including unfair treatment of homosexuals. And, more seriously, discrimination on the grounds of age, something the Government has always strenuously opposed taking action against, for fear this would interfere with the free-market economy that is seen as the cornerstone of Hong Kong's past economic success.
Instead it has now become clear that Mr Tung and his team have decided to take the hardline approach of flatly denying Hong Kong is under any obligation to legislate in relation to the Covenant.
In a speech last Thursday, Secretary for Justice Elsie Leung Oi-sie cited a recent right-of-abode court ruling against a mainland mother to buttress her argument that the contents of the Covenant are not binding, but rather merely 'promotional and aspirational'. And that they need not be implemented through legislation, but can instead be encouraged by more ineffective means such as 'economic, social and educational measures'.
In other words, it is up to the Government to decide not only how to implement the very basic right of being protected against prejudice - but also whether to bother to do so at all. That runs counter to the recent conclusions of a United Nations committee in Geneva, which unequivocally described the obligation as a legal one, and criticised the Government for failing to enact legislation on racial discrimination.
Although Ms Leung acknowledged this difference of opinion, she suggested it didn't matter because the committee does 'not perform judicial or quasi-judicial functions'. Instead, she implied its conclusions were not meant to do anything more than 'facilitate dialogue' with Hong Kong on such issues.
This means the Government is, in effect, turning its back on international opinion on the issue. That is sure to cause controversy in coming months, as racial discrimination will be on the agenda again during further hearings in Geneva later this month, followed by an international conference on the subject in South Africa.
But Mr Tung and his team have evidently made up their minds that laws against racial prejudice are too risky to contemplate at present. Not so much because of the issue, but because of the dangerous precedent it would set in other areas. That conclusion is unlikely to be swayed by domestic and international pressure - at least in the short-term.
Danny Gittings is the Post's Editorial Pages Editor
Hong Kong Basic Law
Human Rights Instruments