LC Paper No. CB(2)572/98-99
(These minutes have been
seen by the Administration)
Ref : CB2/PL/HA
LegCo Panel on Home Affairs
Minutes of Special Meeting
held on Tuesday, 22 September 1998 at 2:30 pm
in the Chamber of the Legislative Council Building
Members Present :
Hon Albert HO Chun-yan (Deputy Chairman/Chairman of the meeting)
Hon Cyd HO Sau-lan
Hon Edward HO Sing-tin, JP
Hon LEE Wing-tat
Hon MA Fung-kwok
Hon James TO Kun-sun
Hon Ambrose CHEUNG Wing-sum, JP
Hon Christine LOH
Hon Jasper TSANG Yok-sing, JP
Hon Emily LAU Wai-hing, JP
Hon Timothy FOK Tsun-ting, JP
Hon LAW Chi-kwong, JP
Members Absent :
Hon CHOY So-yuk (Chairman)
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon Gary CHENG Kai-nam
Hon Andrew WONG Wang-fat, JP
Hon LAU Wong-fat, GBS, JP
Hon Andrew CHENG Kar-foo
Public Officers Attending :
Attendance by Invitation :
- Mr Peter LO
- Deputy Secretary for Home Affairs
- Miss Helen TANG
- Principal Assistant Secretary for Home Affairs
Clerk in Attendance :
- Association of Expatriate Civil Servants of Hong Kong
- Mr Jamie SCOTT
- Mr Michael SCOTT
- Vice President
- Mr Allan ROGER
- Council Member
- Senior Non-Expatriate Officers Association
- Mr K H HUI
- Immediate Past-Chairman
- Mr PANG Tat-choi
- Hon Secretary
- Hong Kong General Chamber of Commerce
- Mr Y S CHEUNG
- Assistant Director, Operations
- Ms Emma HO
- Manager, Human Resources
- Indian Resources Group
- Mr Ravi GIDUMAL
- Ms Vandana RAJWANI
- United Muslim Association of Hong Kong
- Mr Mohamed Alli DIN
- Hong Kong Human Rights Monitor
- Mr LAW Yuk-kai
- Mr Paul HARRIS
- Ms Belinda WINTERBOURNE
- Research Officer
- Hong Kong Human Rights Commission
- Mr HO Hei-wah
- Ms SZE Lai-shan
- Mr MUI Wai-keung
- Movement Against Discrimination (MAD)
- Mr MAK Hoi-wah
- Mr LI Kin-yin
- Executive Member
Staff in Attendance :
- Mrs Constance LI
- Chief Assistant Secretary (2) 2
I. Opening Remark
- Mr Stephen LAM
- Assistant Legal Adviser 4
- Miss Flora TAI
- Senior Assistant Secretary (2) 2
Deputy Chairman informed members that as the Chairman was unable to attend the meeting due to other commitment, he would chair the meeting on her behalf.
II. Meeting with deputations
2. The Chairman of the meeting (the Chairman) welcomed representatives of the deputations attending the meeting. He then invited views from the deputations and questions from members afterwards. The gist of discussion is summarized in paragraphs 3 - 13.
Association of Expatriate Civil Servants of Hong Kong (AECS)
[Paper No. CB(2)279/98-99(01)]
3. Representatives of AECS briefed members on the written submission. AECS was of the view that the localization policy in the civil service was in contravention of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); and that the colonial appointment policy which discriminated against applicants who were habitual residents in Hong Kong, Macau, China or Taiwan, by virtue of Civil Service Regulation 115, should no longer be applicable. With reference to the practice in Canada which allowed employment of civil servants who were proficient in either of the two official languages, representatives of ACES said that the across-the-board Chinese language requirement in the Hong Kong civil service was discriminatory in nature. The Chinese language requirement had denied the right of a significant portion of Hong Kong permanent residents who did not speak Chinese to equal access to the civil service.
Senior Non-Expatriate Officers Association (SNEOA)
[Paper No. CB(2)279/98-99(02)]
4. Representatives of SNEOA briefed members on their written submission. They considered that the Chinese language requirement for appointment to the civil service was based on operational needs. They did not agree with AESC that proficiency in either of the official languages was sufficient because an efficient civil service in Hong Kong must be able to communicate directly with the general public in both English and Chinese. Nevertheless, they agreed with AESC that provisions of Civil Service Regulation 115 relating to residency in Hong Kong, Macau, China or Taiwan had connotation of colonialism and racial discrimination, and should therefore be deleted. The representatives supported the equal opportunities principle in that civil service appointments and promotions must be based on performance and capabilities rather than race.
Hong Kong General Chamber of Commerce (HKGCC)
[Paper No. CB(2)279/98-99(03)]
5. Representative of HKGCC briefed members on HKGCC's views as set out in their letter dated 16 September 1998. He stressed that HKGCC's views on racial discrimination was confined to employment and labour relations. Representative of HKGCC pointed out that some HKGCC's members had already expressed concern about the impact of existing anti-discrimination legislation on the provision of employment benefits. He cautioned that the operation of anti-discrimination legislation might not necessarily benefit the employees more than before. In response to members' enquiries, representative of HKGCC reiterated that HKGCC did not see an urgent need at present for legislation against racial discrimination which had not posed a problem to Hong Kong. Moreover, Hong Kong would still need to assess carefully the impact of existing anti-discrimination legislation which was introduced only recently. In reply to Mr James TO, representative of HKGCC clarified that the HKGCC only opposed to having another legislation on racial discrimination at the present stage, but they would certainly keep an open mind if requested to examine any proposed anti-racial discrimination bill.
6. As regards HKGCC's position on the existing anti-discrimination legislation, representative of HKGCC stated that HKGCC had supported the passage of the Sex Discrimination Bill and Disbility Discrimination Bill but not the Family Status Discrimination Bill. On the need for an embracing anti-discrimination legislation, representative of HKGCC said that the issue had been discussed by the former Legislative Council. While HKGCC supported elimination of all forms of discrimination and considered that having an all-embracing legislation would save time in discussion, it depended really on the coverage of the legislation and the impact on labour relations. Since anti-discrimination legislation was new in Hong Kong, a gradual approach was preferred by HKGCC to allow time for employers/employees to understand and evaluate the implications of these legislation before proceeding further.
Indian Resources Group (IRG)
[LC Paper No. CB(2)296/98-99]
7. Representatives of IRG briefed members on their written submission. They cited experiences of ethnic minorities in Hong Kong being discriminated in finding employment, renting accommodation, seeking legal services and in their daily lives. They said that these experiences fully illustrated the fact that ethnic minorities had been subject to different forms of racial discrimination which should be prohibited by legislation. They disagreed with the Administration's position that education was more appropriate than legislation in dealing with the problem. In their view, education and legislation on racial discrimination should co-exist as there was no conflict of the two. In response to Ms Emily LAU, representatives of IRG explained that they had asked some random questions on ethnic minorities in conjunction with the Human Rights Monitor, and the examples were collated by asking IRG's members and some other people. The IRG had also brought the matter to the attention of the Chief Executive during a recent meeting.
United Muslim Association of Hong Kong (UMAHK)
[Paper No. CB(2)306/98-99(01)]
8. Representative of the UMAHK briefed members on the UMAHK's experience in its application for land to build a mosque and Islamic Centre in the New Territories and in seeking financial support for its international school. He said that UMAHK's applications for land to build a mosque had been turned down on two ocsasions due to objection from residents in the vicinity. The experience illustrated that ethnic minorities had been subject to discrimination by the Government and the local community. He also mentioned that children from some low-income Muslim families were not accepted by normal schools. He pointed out that Muslims were often perceived to be Indians or Pakistanis, but in fact many were ethnic Chinese.
Hong Kong Human Rights Monitor (HKHRM)
[Paper No. CB(2)313/98-99(01)]
9. Representatives of HKHRM briefed members on the written submission. They said that policy decision on whether to legislate against discrimination of ethnic minorities should be based on international human rights conventions and the Basic Law, rather than the wish of the ethnic majority. They also rebutted the result of the Government's consultation exercise in 1997 on racial discrimination by presenting the result of the HKHRM's survey conducted in July 1998. The survey showed a high reporting of racial discrimination in Hong Kong and a clear preference for legislation. They considered that Government had not done enough in the fields of education, employment and Government contracts to guard against racial discrimination.
Representatives of the HKHRM drew members' attention to the criticism of the United Nations Committee on Economic, Social and Cultural Rights in its 1996 Concluding Observations on Hong Kong about Government's refusal to legislate on the basis of the views of the majority community and Government's procrastinating approach to the issue. Representatives of HKHRM stressed that the Government had the obligation under international conventions, which were entrenched in Article 39 of the Basic Law, to legislate for the protection of the minorities against discrimination without delay. Under the common law system in Hong Kong, it was impossible to prohibit any act of racial discrimination or to provide any remedy unless there was a law forbidding such acts. They pointed out that the existing Bill of Rights Ordinance did not cover discriminatory acts in the private sector. They disagreed with the Administration's argument that to legislate against racial discrimination would be counter-productive, as anti-racial discrimination legislation would only seek to outlaw discriminatory acts and not to introduce positive discriminatory measures.
Hong Kong Human Rights Commission (HKHRC)
[Paper No. CB(2)313/98-99(02)]
10. Representative of the HKHRC briefed members on the written submission. HKHRC stressed that the Government clearly had the obligation to legislate against racial discrimination under international conventions. HKHRC expressed disappointment at the Government's refusal to legislate against racial discrimination despite criticisms of various United Nations Committees in this respect. Representative of the HKHRC pointed out that new immigrants from the Mainland were subject to serious discrimination in finding employment, accommodation and in their social life. He refuted the Administration's view that racial discrimination was not a problem. Referring to the Government's effort to foster a sense of belonging to China among students, the representative cautioned that ICERD condemned racist propaganda and therefore nationalistic education should be promoted with great care in schools.
Movement Against Discrimination (MAD)
[LC Paper No. CB(2)326/98-99]
11. Representative of the MAD briefed members on the written submission. MAD shared the view of other deputations that the Government had the obligation to legislate against racial discrimination under international conventions. The representative expressed strong dissatisfaction at the Government's abrogation of its international responsibility. He said MAD supported the Member's Bill to be proposed by Hon Christine LOH to outlaw any form of racial discrimination. He considered that legislation would be necessary to effectively eliminate and prevent any form of racial discrimination. In this connection, he referred to discriminatory practices of some bars and unfair treatment of new immigrants from the Mainland. Such forms of racial discrimination could not be dealt with under the present legislative framework.
12. In response to Mr James TO, representative of the MAD agreed that it was possible that ethnic minorities might be subject to discrimination arising from their status and income. However, this did not rule out the fact such discrimination originated from the ethnicity of the minorities.
III. Meeting with the Administration
[Paper No. CB(2)81/98-99(02)]
13. At the invitation of the Chairman, Deputy Secretary for Home Affairs (DS(HA)) responded to views of the deputations and members' questions raised at the meeting. The gist of the discussion is summarized in paragraphs 15 - 26.
Chinese language requirement in the civil service
14. With reference to ASCE's comments on the Chinese language requirement in the civil service, DS(HA) said that a comparison between Hong Kong and Canada was inappropriate because of the geographic and demographic differences. He quoted his overseas working experience and made the following remarks -
- appointment to the civil service in Canada was open to any resident of Canada who was proficient in either of the official languages because the operational requirement for Canadian civil servants to speak French in some areas, for example British Columbia, was normally not great; and
- proficiency in two languages was a requirement for employment in the civil service in Belgium and other members of the European Union.
15. DS(HA) clarified that the mandatory Chinese language requirement of the civil service applied to appointment on permanent and pensionable terms but not those on contract terms. The language requirement was only to meet the operational need of the civil service and was not discriminatory in nature. Given the increasing use of Chinese in day-to-day work, Chinese language proficiency was essential for most permanent posts in the civil service. Expatriate civil servants who could not meet the Chinese language requirement could remain on contract terms. Moreover, Heads of Departments (HOD) could specify different levels of language requirements for different grades/ranks of their departments. HODs could also recommend waiving the Chinese language requirement for expatriate staff holding professional/technical posts to transfer to permanent and pensionable terms if there was no operational need for them to speak Chinese.
|16. The Chairman referred to AECS's argument about the racist nature of a blanket policy of Chinese language requirement for appointment to the civil service, since language proficiency was linked closely to one's race, colour, national or social origin. Miss Christine LOH also asked whether such an appointment policy would constitute a form of indirect discrimination. In response, DS(HA) stated that he could not respond on behalf of the Civil Service Bureau on civil service appointment policy. However, he was given the understanding that the Chinese language requirement was purely based on operational needs and the policy had been implemented with flexibility. Moreover, Article 22 of the Hong Kong Bill of Rights Ordinance (BORO) already precluded the Government from any act of discrimination. At the Chairman's suggestion, DS(HA) agreed to request the Civil Service Bureau to provide a written response to the AESC's written submission on the Chinese language requirement and Miss Christine LOH's question about indirect discrimination.
The obligation to legislate against discrimination under international conventions/covenants
17. DS(HA) said that the Administration was aware of its various obligations under international conventions and covenants and had taken appropriate measures to fulfil its obligations. The BORO already bound the Government, all public authorities and any person acting on behalf of the Government or a public authority. As regards relationship between private parties, the Administration was of the view that it should be dealt with by specific legislation. He stressed that it was of paramount importance that the Administration must consider the overall interests of the community and adopt a rational and impartial approach before introducing any policy initiative. In this connection, the Administration had taken appropriate means, i.e. public education and publicity, to deal with the issue of racial discrimination.
Education and legislation
18. With reference to IRG's view that education and legislation were complementary in the elimination of racial discrimination, DS(HA) reiterated that there was no evidence at present that the problem had become so serious that legislation was warranted to outlaw racial discriminatory acts. To legislate against racial discrimination on the grounds of a few known cases of racial discriminatory acts could be counter-productive and work to the detriment of social harmony. As a responsible government, the Administration had to strike a balance by taking the overall interest of the community into account.
19. Miss Christine LOH queried the Administration's argument that legislation against racial discrimination would be counter-productive and asked whether the Administration could present any evidence that implementation of existing anti-discrimination legislation had been detrimental to social harmony. DS(HA) clarified that he did not imply there was negative impact of anti-racial discrimination legislation. The Administration's concern was that legislation was not warranted if the problem of racial discrimination was not serious and if the community was not in need of such legislation.
Public consultation on the extent of racial discrimination
20. DS(HA) informed members that he had started consultations on a district basis, particularly in areas with substantial numbers of minority residents, to obtain first-hand information about the extent of racial discrimination in Hong Kong. Community leaders, including leaders of minority groups, in the districts would be invited to the consultation meetings. DS(HA) referred to his recent meeting in the Eastern District attended by expatriates of different nationalities from Singapore, India, Italy and Britain. All of them claimed that racial discrimination in Hong Kong was not serious and legislation might be counter-productive. There was also comment that the subject of racial discrimination could easily be mixed up with discrimination on the ground of occupation, social status and so on.
21. In response to Ms HO Sau-lan, DS(HA) reiterated that public consultations on racial discrimination would be carried out in a fair and impartial manner. Different ethnic minorities and local residents would be invited to the meetings arranged by the respective District Officers. The Administration would also invite comments from Consuls General in Hong Kong, particularly those representing ethnic minorities, on the extent of racial discrimination in Hong Kong . In this connection, the Chairman asked and DS(HA) responded that the Home Affairs Bureau would welcome views from other interested organizations on the issue.
22. On the absence of systematic information or statistics about racial discrimination in Hong Kong, Ms HO Sau-lan suggested that a complaint mechanism should be set up to receive complaints from ethnic minorities who had experienced racial discrimination. The statistics so obtained would help the Administration to have a better understanding of the extent of the problem. Mr James TO supported the suggestion. DS(HA) responded that Government could consider gathering information on ethnic minorities, but he cautioned that there would be resource implications.
Charging higher prices for non-white customers in bars and clubs
23. Referring to press reports that some bars and clubs charged higher prices for non-white customers, DS(HA) said that the Administration had taken up the matter with the five bars mentioned in such reports. According to the bar operators, the pricing strategy was based on commercial principles that regular customers would be charged lower prices. DS(HA) stressed that as there were over 500 bars and clubs in Hong Kong, customers had the free choice in patronizing any bar or club. In this connection, representatives of HKHRM and MAD expressed regret at the Administration's stance on the matter. They were of the view that the incident was clearly discrimination on grounds of skin colour or race. They considered that only legislation could outlaw such discriminatory acts and that the Administration had failed its obligation by simply accepting the explanation given by operators of those bars and clubs and taking no further action on the case.
24. In response, DS(HA) clarified that the Administration had not taken a position on whether the way those bars and clubs operated was correct or not. The fact was that there was no conclusive evidence that the bars concerned had discriminated against any particular ethnic groups by charging them higher prices. While he agreed with the Chairman that the operations of those bars and clubs might give an impression of racial discrimination to some people in the community, the Administration had to consider the views of parties concerned in a fair manner. On this matter, the Administration had concluded that it was not a clear-cut case of racial discrimination.
Discrimination against new immigrants from the Mainland
25. On concerns about discrimination against new immigrants from the Mainland, DS(HA) said that the Administration had already made a lot of efforts to assist new immigrants integrate into the community.
IV. Any other business
Briefing on the Race Discrimination Bill to be proposed by Hon Christine LOH
[LC Paper No. CB(2)307/98-99]
26. At the invitation of the Chairman, Miss Christine LOH briefed members on the Race Discrimination Bill to be proposed in her name. Miss LOH informed members while the scope of the Bill would be basically the same as two previous Bills proposed by former Legislative Councillors in 1995 and 1997, the drafting of her Bill would be based on the existing anti-discrimination laws in Hong Kong. She said that the Bill was being finalized, and she would consult interested organizations, political parties and the public on the proposed Bill. She hoped Members would support her Bill when introduced into the Legislative Council.
27. The Chairman thanked representatives of the deputations for presenting their views on racial discrimination to the Panel. In summing up, the Chairman said that discussion on racial discrimination would continue when the Race Discrimination Bill was introduced into the Legislative Council by Miss Christine LOH.
28. There being no other business, the meeting ended at 5:05 pm.
Legislative Council Secretariat
5 November 1998