Thirdreport of the Hong Kong Special Administrative Region of the People S Republic of China

ThirdReport of the Hong Kong Special Administrative Region of the People’s Republic of China

under the International Covenant on Economic, Social and Cultural Rights

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CONTENT

Improvements since the previous report:Compensation under the Employees’ Compensation Ordinance (Cap. 282)

Third Report of the Hong Kong Special Administrative Region
of the People’s Republic of China under the International Covenant on Economic, Social and Cultural Rights

Preamble

This report (the Report) is the third report of the Hong Kong Special Administrative Region of the People’s Republic of China (HKSAR), under the International Covenant on Economic, Social and Cultural Rights (the Covenant). It forms part of the second periodic report of China under the Covenant. It updates the Committee on Economic, Social and Cultural Rights (the Committee) on developments since the submission of the second report of the HKSAR (the previous report), which formed part of China’s initial report submitted in June2003. It also responds to the Committee’s Concluding Observations of 13 May 2005 (previous Concluding Observations), after the Committee’s hearing in respect of the previous report at its 34thsession held from 27 to 29 April 2005.

Following the issue of the previous Concluding Observations by the Committee in May 2005, we have widely disseminated it among all levels of society, including the Legislative Council (LegCo), relevant Government bureaux and departments, the Judiciary, non-governmental organisations (NGOs) and other interested parties. It has also been made available to the public through the Government website.

We have undertaken to provide a detailed response to the concerns and recommendations of the Committee expressed in respect of the HKSAR in the Report. In preparing the Report, we have, in accordance with past practice, set out in an outline the broad subject headings and individual topics that we envisaged to be covered in the report. The outline for consultation was widely issued to stakeholders, including the LegCo and members of the Human Rights Forum, Committee on the Promotion of Racial Harmony, Ethnic Minorities Forum and Children’s Rights Forum (which cover human rights organisations, ethnic minorities groups children and youth groups, and NGOs ), and was available on the Internet. The public were invited to submit during the period from 11 January to 19 February 2010 their views on Government’s implementation of the Covenant in respect of the topics. The public were also invited to suggest additional topics that ought to be included in the Report.

The outline was discussed at two sessions of the Panel on Constitutional Affairs of the LegCo, and representatives of interested NGOs presented their views during one of the sessions. Discussion was also held with members of the Human Rights Forum, Committee on the Promotion of Racial Harmony, and Children’s Rights Forum to seek their views. We have carefully considered the views and comments received in drafting the Report. As with the past practice, issues raised by commentators, together with the respective responses of the HKSAR Government where applicable, have been incorporated in the relevant sections of the Report.

As the initial report of the HKSAR submitted in 1999 (the initial report) and the previous report have already contained detailed information on the laws, policies and practices that are in place to ensure Hong Kong’s compliance with the Covenant and many of them remain unchanged, or have changed only slightly, wehave not repeated descriptions or explanations of such in this Report.

The Report will be made available to stakeholders, including the LegCo, members of the abovementioned forums and interested NGOs, and will be distributed to the public at the Public Enquiry Service Centres of the Home Affairs Department (HAD), public libraries and Government website.

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Article 1: Progress and development of democracy

1.1The latest position of Hong Kong’s constitutional development will be addressed in HKSAR’s Third Report in the light of the International Covenant on Civil and Political Rights (ICCPR), which is expected to be submitted within 2010.

Article 2: Progressive realisation of the rights recognised in the Covenant and the exercise of those rights without discrimination

Legislation against racial discrimination

2.1As foreshadowed in paragraphs 2.4 and2.5 of the previous report, the HKSAR had reviewed the issue of legislation prohibiting racial discrimination. After gauging the views of the public in a consultation exercise ended in February 2005, the Government had introduced the Race Discrimination Bill and the Bill was passed by the LegCo in July 2008 after detailed scrutiny.

2.2The Race Discrimination Ordinance (RDO) (Chapter 602 of the Laws of Hong Kong, hereafter abbreviated as Cap. 602), which came into full operation in July 2009, aims at protecting the rights of individuals against discrimination, harassment and vilification on the ground of race. It renders unlawful both direct and indirect racial discrimination in prescribed areas of activity, including education, employment and the provision of goods, services, facilities and premises. It enshrines the internationally accepted principle of proportionality in determining whether there is indirect discrimination. It also makes racial harassment (i.e. engaging in unwelcome conduct in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by that conduct) unlawful in the specified fields. In addition, the RDO prohibits other unlawful acts relating to racial discrimination, including discriminatory practices and advertisements, aiding, instructing or procuring others to discriminate, as well as vilification. While the RDO does not impose an obligation for affirmative actions, special measures designed to meet the special needs of persons of a particular racial group are specifically permitted under the law.

2.3The Equal Opportunities Commission (EOC), anindependent statutory body, is responsible for the implementation of the RDO. The EOC is entrusted under the RDO with the functions and powers to work towards the elimination of racial discrimination and promote equality of opportunity and harmony between persons of different racial groups. In relation to racial discrimination, it has the power to conduct formal investigations and obtain information in accordance with the RDO. The EOC is empowered to deal with individual complaints and provide legal assistance. In addition, the EOC can make recommendations for changes in policies and procedures to any person, or recommendations to the Government on changes in the law or otherwise, in the light of the findings in its formal investigations.

2.4The Government has provided additional resources to the EOC for undertaking these tasks. The EOC issued a Code of Practice on Employment under the RDO which came into operation in July 2009. It gives practical guidance to prevent racial discrimination and harassment, and to promote racial equality and harmony in employment-related matters.

2.5Some commentators alleged that the RDO does not offer protection to some groups such as new arrivals from the Mainland of China. The Committee has also urged the Government to extend the statutory protection to this particular group. As a matter of fact, the RDO applies equally to all persons in Hong Kong, and safeguards their rights against discrimination on the ground of race. It does not exclude new arrivals from the Mainland from its ambit. New arrivals from the Mainland are equally protected by the RDO against discrimination on the ground of race.