Equal Opportunities Commission (EOC)

34. The Equal Opportunities Commission (EOC) can only enforce the Sex Discrimination Ordinance (Cap 480), the Disability Discrimination Ordinance (Cap 487), and the Family Status Discrimination Ordinance (Cap 527) [hereinafter the three antidiscrimination ordinances]. Mr. Raymond Tang, the Chairperson of the EOC, regarded the EOC as “a statutory regulator” and the EOC is obliged to “act within the remit set by the legislature

41 C. Raj Kumar, “Developing a Human Rights Culture in Hong Kong: Creating a Framework for Establishing an Independent Human Rights Commission,” (2004) 11 Tulsa Journal of Comparagraphtive and International Law 407 at 414.

42 Id at 414- 5.

43 The Paris Principles, Article A(2).

44 Id, Article C.

that created our organization.”⁴⁵

35. However, some grounds of discriminations are not covered in the domestic legislation but are protected under the ICCPR and the BORO. Under Article 4 and Article 26 of the ICCPR (similarly under Article 1 and Article 22 of the BORO), every person is entitled to equality before and equal protection of law “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

36. Therefore, discrimination cases on those unprotected grounds in Hong Kong have to be dealt with by the courts or other administrative tribunals. Nevethless, the BORO only binds “(a) the Government and all public authorities; and (b) any person acting on behalf of the Government or a public authority.”⁴⁶

37. This means that there is no remedy against human rights violators in the private sector for discrimination on grounds not covered by the three antidiscrimination ordinances.

38. Even if the EOC is independent and well-established with genuine support from the Government, the EOC, with its mandate limited to equality rights only, is unlikely to fufill the Pairs Principles. As the JCHR commented:-

“[H]uman rights dimension is an unavoidable element of the debate on the single equality body. There is wide agreement that the equality commission should at least be able to address the human rights dimension of individual discrimination cases … [A]ny attempt to determine the future of the structure in the UK for the promotion and protection of equality which does not also address how to promote and protect human rights would be "incomplete, incoherent and ineffective".”⁴⁷ [emphasis added]

39. Whether the degree of independence of existing specialized commissions in Hong Kong complies with the Paris Principles is questionable. In the case of the EOC, the government’s refusal to reappoint Ms. Anna Wu, who was perceived as an assertive figure in promoting equality, for a second three-year term in 2003 has been widely regarded as an attempt to play down the activism of the EOC at that time.⁴⁸ It was

45 A Reply from Mr. Raymond Tang to Mr. Law Yuk Kai (14 June 2006), on the enquiry whether the EOC would file their own submission before the United Nations Committee on the Elimination of All Forms of Discrimination Against Women at 3.

46 Bills of Rights Ordinance, Section 7.

47 Joint Committee on Human Rights, Sixth Report, “The Case for a Human Rights Commission,” (2002-03 HL 67;

HC 489), paragraph 188 [hereinafter JCHR’s 6^th Report].

48 Carole. J. Petersen, “The Paris Principles and Human Rights Institutions: Is Hong Kong Slipping Further Away from the Mark?” (2003) 33 Hong Kong Law Journal 513 at 516-7.

suspected that the relationship between the Government and Anna Wu turned bad since the EOC’s remarkable success in the litigation against the Education Department on the issue whether the allocation system of secondary school was discriminatory to girls.⁴⁹ 40. Subsequently, the Government appointed Mr. Michael Wong, a retired judge from the

Court of Appeal as the Commissioner albeit his lack of experience in the related areas.

Mr. Michael Wong was also criticized for receiving a pension and four air tickets, and residing in a flat given to his daughter by a local businessman.⁵⁰

41. The controversy didn’t stop here. Mr. Michael Wong dismissed Mr. Patrick Yu, who had been appointed by Ms. Anna Wu during her term of office, immediately after his appointment. The event turned into a widespread accusation that Mr. Wong had abused his administrative powers.⁵¹

42. Moreover, the operation of the EOC is not without criticism. Firstly, once a complainant enters the conciliation phase a complainant is “forced” to accept the meagre remedy that is offered to her. The complainant knows that if she rejects the offer, her complaint will be classified as “unsuccessfully conciliated” and the EOC will probably close the case.⁵² 43. Secondly, the EOC has been taking a reserved and passive role in granting victims legal

assistance. According to a survey conducted by Ms. Carole Petersen, the former Professot of the Faculty of Law of the University of Hong Kong, legal assistance was granted only in 17 out of the 451 complaints (less than 4% of the total).⁵³

44. Thirdly, the EOC officers are too “neutral” towards the complaint during the conciliation process. The complainants often look to them for assistance and are disappointed when the officers explain their duty of neutrality. As the officers are afraid of being accused by respondents as biased, the processes of investigation and conciliation often turns out to be

49 Equal Opportunities Commission v Director of Education [2001] 3 HKLRD 690.

50 Alliance for Civic Education, Amnesty International H.K., Civil Human Rights Front, Concerning CSSA Review Alliance, Hong Kong Confederation of Trade Unions, Hong Kong Council of Social Service, Hong Kong Human Rights Monitor, Hong Kong Social Workers Association, Justice and Peace Commission of the Hong Kong Catholic Diocese, Office of Emily Lau Legislative Councilor, Office of Fernando Cheung Legislative Councilor, Oxfam Hong Kong, Power for Democracy, Sham Shui Po Community Association, Society for Community Organization, The Frontier, Unison H.K., Zi Teng, 落實子女居港權家長會(香港), “International Covenant on Economic, Social and Cultural Rights-- Situation in Hong Kong & Recommendations,” Office of Emily Lau (2005), available at www.emilylau.org.hk/doc/CompilationofNGOContributions.doc

51 Ravina Shamdasani, "Watchdog faces pressure to resign: Firing breached human rights treaties, says academic", South China Morning Post (24 Oct 2003), C3.

52 Carole J. Petersen, “Racial Equality and the Law: Creating an Effective Statute and Enforcement Model for Hong Kong,” (2004) 34 Hong Kong Law Journal 459 at 474-5.

53 Id.

more adversarial than consensual.⁵⁴ A more adversarial process tends to favour the respondents which are usually more resourceful and are represented by legal practitioners.

45. Given the jurisdictional limitation, the appointment scandal and various operational defeats, the EOC has been awarded a “C” grade in the accreditation by the ICC.⁵⁵