Racism 2012 - Law


Despite Hong Kong’s self-appointed tag of ‘Asia’s World City’, the SAR’s landmark law against race discrimination was only enacted three years ago, following years of incessant bickering and vocal campaigns from the city’s civil rights groups.

For years, the government maintained their position that racial discrimination wasn’t a big problem and blocked several legislators’ attempts at passing anti-racial discrimination laws, in spite of the ever-growing stories that exposed the city’s racist attitudes, especially to ethnic minorities of a darker skin tone. Stories of minorities being denied admission to schools, housing, places of entertainment and, especially, opportunities for employment were becoming an increasing issue, to the point where Hong Kong businesses were losing out on talent to other Asian countries with better anti-discrimination policies.

In 2008, after urges from civil rights leaders, business sectors and even the UN, Hong Kong finally passed the Race Discrimination Ordinance, a law which sought to eliminate racial discrimination, vilification and harassment from the city. But, since commencing operation on July 10, 2009, how effective has it been in its goals?

“My view is that the most the RDO has done is create an impression psychologically that racism is taken seriously in Hong Kong,” says Puja Kapai, associate professor at the University of Hong Kong’s Faculty of Law. “Now the government can say that they have a law protecting minorities from racism.”

The RDO placed the responsibility for dealing with complaints of racial discrimination under the umbrella of the Equal Opportunities Commission, an administrative body set up in 1996 to deal with cases of discrimination under various pieces of legislation, including the Sex Discrimination Ordinance, Disability Discrimination Ordinance and a Family Status Discrimination Ordinance. As EOC chairman Lam Woon-kwong told Hong Kong News, a widely read city-based Filipino newspaper, late last year, the commission has been actively promoting the RDO to minority communities, employing ethnic minority staff members, training real estate agents to be aware of anti-discrimination regulations pertaining to housing and publishing pamphlets to remind employers and employees of RDO provisions.

Lam notes that the RDO was very successful in taking down blog entries and hate-mails targeting Filipino migrant workers following the Manila hostage crisis last year. “Local anger was so high. There was a large proportion of hate-mail and blog sites,” he said, in the story. “We issued a press release saying while we understand anger, do not direct it to the Filipino people. It’s unfair and could be an offence under the law.”

While no prosecutions came from the racially tinged incidents surrounding the hostage crisis, Lam sees the RDO as something which adds potential legal consequences to racist remarks and actions. “The legislation does help,” he said, in the article. “Otherwise, we wouldn’t have any tools to hand. Without legislative backing, [fighting racism] could be less effective.”

Still, there are jarring holes in the legislation, meaning it fails to protect several vulnerable groups. The operation, in relation to certain government agencies such as immigration, is limited, and the law doesn’t go as far to bind the government as its other discrimination legislation. There are also specific nationality, immigration and residency status exceptions that, essentially, allow for discrimination against mainland Chinese and asylum seekers.

In practice, the EOC has also not seen many cases of racial discrimination. Last year, only 64 complaints were filed under the RDO, as opposed to 262 under the Sex Discrimination Ordinance and 509 under the Disability Discrimination Ordinance. And, from January to August this year, only 35 RDO complaints were filed, with 17 of these discontinued upon investigation and three cases conciliated. No legal actions were taken as a result of the complaints.

The comparative lack of complaints filed under the RDO doesn’t necessarily mean that racial discrimination is not occurring. Rather, because a bulk of racial discrimination incidents occur in the workplace, Kapai feels that many people from minority backgrounds, who already have a hard time securing a job, are reluctant to bring complaints to light as they then must confront the offender. Says Kapai: “There’s too much that they have to lose.”

Despite these shortcomings, Kapai says the RDO was an important and necessary step in the fight against racism. “Legislation is only one way to educate the community on the inappropriateness of race-based treatment that disadvantages minorities,” says Kapai. “When you’re teaching someone to respect others, you can’t even force them with the law to do it. However well-intentioned the law may be, you can’t twist their arm to give respect.”


What’s protected under the Race Discrimination Ordinance?
The RDO makes the following unlawful:
a) Racial discrimination: treating someone less favourably than other persons on the basis of their race, directly or indirectly (such as imposing a requirement that applies unfairly to a particular race).
b) Racial harassment: engaging in unwelcome, abusive, insulting or offensive behaviour because of someone’s race, making them feel threatened, humiliated or embarrassed.
c) Racial vilification: in public, inciting hatred, serious contempt or severe ridicule of a person because of their race.

But, what’s race?
Under the RDO, race means the race, colour, descent, national or ethnic origin of a person.
Other stuff you may need to know:
● Religion is not, in and of itself, a race. Religious discrimination can amount to racial discrimination if it unfairly targets certain races.
● You can discriminate on the basis of someone’s nationality or immigration status.
● There are exceptions including genuine occupational qualifications, special skills and access to cemeteries.

If you’re discriminated against, harassed or vilified, what can you do?
You can lodge a complaint at the Equal Opportunities Commission (2511 8211; eoc.org.hk). Alternatively, lodge a complaint with the relevant management. Or you can take a case to court, through a lawyer.

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