Discuss the Extent to Which the Hong Kong Legal System

1. Introduction Hong Kong is an exceptional region: a previous British-ruled colony constituted of a majority of Chinese and now a special administrative region on the Chinese soil practising “One Country, Two System”. Despite the transfer of sovereignty, Hong Kong continues to enjoy a relatively competitive economy and stable environment as compared with other regions in East Asia. It was not until recently that that the discussion over protection of minorities rights[1] attracted more public concern within the territory. So what is it hiding behind the veil of the apparent prosperity in the society?
What and who are being ignored by the general public or the “majority” in the society? This article is going to discuss some aspects whether the rights of minorities are being sufficiently protected by the public institutions and the provisions of legislations and conclude with suggestions to secure minority rights in Hong Kong. 2. History When the British took over Hong Kong in 1840s, it brought in the Brigade of Gurkhas. Western investors as well as people from regional countries migrated since then because of the stability in Hong Kong, which eventually developed into a hub where East meets West[2].
Blending incoming ideas from the West into the traditional ideas from China, the product is a society interwoven with peoples of different traditions and beliefs towards a certain issues, for instance, customs, religions and, more controversially, sexual orientation. Despite the establishment of Legal Aid Department, Equal Opportunities Commission and other social institutions, there exist reported cases of discrimination against the minority groups in work and at school, in public and private sectors, let alone many more unreported.

Are the minority being well protected? 3. Performance of the Protection of the Minority There are different bodies in Hong Kong that are devoted to protecting the rights of the minority groups. International Human Rights Regimes and Basic Law list out what rights are to be protected; other local Legislations deliver obligations of people not to discriminate against others; public and social institutions take a more active role in making Hong Kong a city which do not tolerate discrimination[3]. 1. International Human Rights Regime
Different Human Rights Regimes such as the International Covenant on Civil and Political Rights (“ICCPR”), the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) as applied in Hong Kong shall remain in force. Others like the Covenant on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) is also binding on Hong Kong. 1. The ICCPR The ICCPR guarantees some basic civil and political rights. There are provisions that especially protect the minorities such as ethnic and sexual minorities from being discriminated against.
It recognizes the state’s duty to guarantee the rights protected by the ICCPR without distinction of any kind[4]. It guarantees the equality of all persons before the law and equal protection of the law against discrimination on various grounds[5] and the rights enjoyed by minorities shall not be denied[6]. 2. The ICESCR The ICESCR recognizes economic, social and cultural rights enjoyed by every human beings. For instance it guarantees the rights of everyone to education[7], so discrimination on grounds like race nor sex on admission policy of schools is to be prohibited. 3.
The CEDAW The CEDAW promotes equality between men and women. The Government of Hong Kong submitted periodic reports under CEDAW to detail the protective measures to women in Hong Kong. A Women’s Commission is also set up to deal with interest of women in society. The society has quite successfully observe these international treaties and by enforcing these provisions in the treaties, Hong Kong fulfils its duty as required by the treaties to recognize the rights of women, ethnic and sexual minorities and to eliminate discrimination on grounds of sex, races and other status. . The Basic Law The Basic Law brings into force the rights guaranteed by the Joint Declaration. It also implements provisions of the ICCPR and ICESCR through Article 39. It guarantees rights for some minorities, for instance, rights of the indigenous inhabitants of the New Territories[8]. The supremacy of Basic Law and its ability to override other laws in Hong Kong that are inconsistent with it[9] assure the minority groups that they would not be deprived of their basic rights.
The case Secretary for Justice v Yau Yuk Lung Zigo and Another[10] demonstrated the supremacy of the Basic Law: the law that contravenes the provision of rights (of the homosexual in this case) guaranteed by the Basic Law would be declared unconstitutional. The Basic Law has shown an unequivocal intention to protect rights of every residents including the minority of course. 3. Local Legislation The Bill of Rights Ordinance (“BOR”) Enacted since the Tiananmen Square Incident, BOR incorporates the ICCPR to strengthen the regime of rights.
The BOR also brought about legal reform where laws are revised to ensure compatibility with BOR. Anti-discrimination Ordinances Legislator Anna Wu introduced the Equal Opportunities Bill[11] (“EOB”) in 1994 but Governor Chris Patten declined to give permission to it. Instead the Sex Discrimination Ordinance (“SDO”), Disability Discrimination Ordinance and later Family Status Discrimination Ordinance and Racial Discrimination Ordinance are introduced by the government. These anti-discrimination laws are mainly to prohibit discrimination on respective grounds. 4. Public Institutions 1.
Legal Aid Department (“LAD”) Although the LAD is not devoted to eliminating discrimination in the society, it assists parties being discriminated against to seek for justice provided that the party is qualified for legal aid. That said LAD also protects minority rights in the sense that it helps minorities who cannot afford to bring a legal action when they need to. Through implementing the Ordinary Legal Aid Scheme and Supplementary Legal Aid Scheme, LAD caters the needs for minority groups which have different financial resources[12] and sustains the people’s rights to access to Court. . Equal Opportunities Commission (“EOC”)[13] Although the EOC is an institution delegated to promote equality and empowered by law to take action against those discriminate against others, it has taken a limited role in that sense[14]. The EOC has taken legal action, by means of representation, appearing as amicus, starting a litigation in just about half of the claims under the anti-discrimination laws[15]. As a result many claimants who cannot afford the legal costs thus cannot seek for equality and justice.
Even where the claimant first tries conciliation but fails to resolve the dispute, there is no warranty that they would get legal assistance from the EOC. This makes it possible for the respondent, who is usually a bigger enterprise or a more powerful body than the claimant, to reach a settlement under duress outside the court with the complaint to prevent the publication of the dispute in the course of litigation. Also the EOC would not disclose the information of the claims such as the identity of the parties and the outcome.
The perpetrators might continue their wrongful conduct as they are not reported nor publicized. On the other hand, the EOC has adopted a restricted role in eliminating sexual orientation discrimination. Such cases are not unheard of and persistently exist[16]. Chairman of EOC responded but merely explained that the existing anti-discrimination laws do not pertain to discrimination on the grounds of sexual orientation discrimination. But the Korean Human Rights Commission (“KHRC”) has taken a far more active approach than the EOC, urging the Korean Government to pass legislation on this nature.
The EOC should have considered the approach of KHRC and revised its own policy if not directly copy what KHRC has done. 5. Common Law model As Hong Kong practises a common law system, the cases concerning discrimination against minority groups become precedent for and are binding on later cases. The following are a few examples of how discrimination against minorities rights is treated in Courts of Hong Kong. 1. Secretary for Justice v Yau Yuk Lung Zigo and Another[17]. Homosexual buggery committed otherwise than in private has been criminalized by the Crime Ordinance under Section 118F[18], at least before his case. The relevant section (s. 118F) was held unconstitutional by the Court of Final Appeal in this case on the ground that it constitutes violations to both Article 25 of the Basic Law and Article 22 of BOR[19]. The outcome of this case reasserts the equality of all Hong Kong residents before the Law. 2. Secretary for Justice and Others v Chan Wah and Others[20] In this case, it is held that the exclusion of non-indigenous residents and women from voting and participating an election is discriminatory and violates the BOR and SDO[21].
This case has also reminded the public that the society of Hong Kong endeavours to eliminate discrimination even in customary and traditional practices. 3. EOC v Director of Education[22] In this case, the operation of Secondary School Places Allocation System is held to be amounted to discrimination against certain pupils by sex under Section 5(1) of the SDO. This case demonstrates the principle of substantive equality that should be achieved in Hong Kong. 4. W v. Registrar of Marriages[23] In this case, it is held that transsexuals could not marry a person of the same biological sex.
I would agree that the judgment is not discriminatory because not all differential treatments constitute discrimination. Only those without a justifiable aim or those whose aim does not justify its means constitute a discrimination[24]. When there is no indication on whether the society is ready to genuinely accept the transsexuals, it is reasonable and justifiable to adopt a conservative approach. The first three cases showed the determination of the society, especially the Courts, in striving to eliminate discrimination within the territory, although the determination might be weak at times.
But with these cases as precedents, equality would more likely be done in the fields where the precedents are concerned. 4. Conclusion Despite occasional inability of the EOC to cope with the discriminatory cases; despite cases where discrimination against others persists; despite voicing concerns over issues relating to same-sex relationships and rights to education, Hong Kong’s legal system has fulfilled its basic duty to secure minority rights in Hong Kong.
We can see that International Human Rights Regimes remain in force; legislations are introduced to prohibit discrimination based on the grounds of sex, race, colour or other status; public institutions are set up to transform Hong Kong into a society which preserves equality. All these has demonstrated the efforts of the Government, the public institutions and the Public in protecting minority rights. But facing claims to further protect the minorities, the fundamental way with a view to building Hong Kong into a society where minority would be well-respected is to resort to education.
Only by correcting the mindset of people can minority rights be fully protected. ———————– [1] Puja Kapai argued in her article that to be committed to equality within the society, same-sex marriage shall be included in the purview of the Domestic Violence Ordinance. See The Same Difference: Protecting Same-Sex Couples Under The Domestic Violence Ordinance, (2009) 4(1) Asian Journal of Comparative Law, Article 9, pp. 237-269. Kelley Loper suggested in her article that it is necessary to have legal reform in order to ensure inclusive education and substantive equality.
See Equality and inclusion in education for persons with disabilities: Article 24 of the convention on the rights of persons with disabilities and its implementation in Hong Kong, Hong Kong Law Journal, 2010, v. 40 n. 2, p. 419-447 [2] Non-Chinese citizens constitute more than 8 percent of the Hong Kong’s population. See http://www. nationsencyclopedia. com/economies/Asia-and-the-Pacific/Hong-Kong. html [3] Puja Kapai, “The Hong Kong Equal Opportunity Commission: Calling for a New Avatar” (2009)HKLJ P. 40 [4] Article 2(1), ICCPR [5] Article 26, ICCPR. It guarantees effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [6] Article 27, ICCPR [7] Article 13, ICESCR [8] Article 40, Basic Law [9] Article 11, Basic Law [10] (2007) 10 HKCFAR 335, dated 17 July 2007 [11] The EOB sought to prohibit discrimination on grounds like sex, race, disability, age and sexuality. 12] The Supplementary Legal Aid Scheme provides legal assistance to the “sandwich class” whose financial resources exceed HK$260,000 (the upper limit allowed under the Ordinary Legal Aid Scheme) but not HK$1,300,000. [13] The EOC is an independent body which promotes rights and eliminates discrimination of citizens under the anti-discrimination laws in Hong Kong, receives and looks into complaints from the society and helps to conciliate to resolve disputes and provides legal assistance to complaints in need when the dispute cannot be resolved by conciliation. 14] For those who seek for legal assistance in their cases, over half of the requests are turned down by the EOC. See Kapai, P “Calling for a New Avatar” (n 3 above) P. 343 [15] Kapai, P “Calling for a New Avatar” (n 3 above) P. 342 [16] Such as the turning away of homosexual couples in love motels, Criminalizing homosexual buggery. See Kapai, P “Calling for a New Avatar” (n 3 above) P. 350 [17] See Yau Yuk Lung, (n 10 above) 18] Section 118F of the Crime Ordinance states that ” A man who commits buggery with another man otherwise than in private shall be guilty of an offence” [19] Art 22 of BOR provides that “the law shall … guarantee to all persons … effective protection against discrimination on any ground such as … sex, … or other status. ” Chief Justice Li held that sexual orientation is within the phrase “other status”. [20] [2000] 4 HKC 429, dated 22 December 2000 [21] Against Art. 21 and 26 of the BOR and s. 35 of SDO [22] [2001] 2 HKLRD 690, dated 22 June 2001 [23] [2010] HKCFI 55 [24] See The Belgian Linguistic case (No 2) (1968) 1 EHRR 252

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