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COALITION FOR RACIAL EQUALITY (CORE) AND HONG
KONG HUMAN RIGHTS COMMISSION (HKHRC) JOINT Submission to the United Nations
Committee on the Elimination of Racial Discrimination On the First Report in
respect of Hong Kong Special Administrative Region of the People's Republic
of China under the International Convention on the Elimination of All Forms
of Racial Discrimination July 2001
Executive Summary of the Joint Report to the CERD
New immigrants, ethnic minorities and migrant workers in Hong Kong are systematically targeted with abuses based on their colour, race, ethnicity, nationality or national origin, class and gender. The objective of this joint report is to show that incidents of racial discrimination in Hong Kong are not single, isolated cases, but they occur rampantly in all sectors of society.
Ethnic minorities, who make up 4.1% (279 600) of the population, face severe obstacles in their efforts to become part of Hong Kong society, the major problems being bias or even outright rejection in their hunt for employment and housing and the lack of appropriate schools for their children. Furthermore, they are a prime target of harassment by the police who subject them to ID checks at will. Lastly they also face rudeness and discriminatory attitudes in their dealings with government departments.
Foreign domestic workers (FDWs), who number 209 200, make up more than 90% of the entire population of low-status migrant workers. FDWs experience rampant abuse and are subjected every day to deception, extortion, poor working and living conditions, and psychological and physical violence and even deportation. Though their work conditions are regulated by a standardised employment contract that clearly stipulates fair working conditions and a minimum salary, abuses flourish in the absence of any contract monitoring mechanisms. Most importantly, discriminatory immigration policies (such as the New Conditions of Stay Policy - see below) deny FDWs the right of redressal, prevent them from changing employers easily and render it especially difficult for them to prosecute violating employers.
The number of new immigrants from Mainland China is 274 500, and they comprise 4.08% of the Hong Kong population. Women and children, who comprise the majority of the new immigrant population, bear the brunt of Hong Kong's discriminatory policies. The Immigration Ordinance stipulates that prospective immigrant children from Mainland China have to obtain both a One-way Entry Permit and a Certificate of Entitlement, which generally entails a wait of more than 8 years before they can join their parents in Hong Kong. Furthermore new immigrants are discriminated in housing. The existing residence rule, requiring half of a household to have a minimum of 7 years' residence in Hong Kong by the time of allocation, means that a lot of applications are frozen. Lastly they are also discriminated in employment, social security and education.
KEY RECOMMENDATIONS TO THE CERD
The Hong Kong Government needs to publicly acknowledge that racial discrimination in Hong Kong, particularly as faced by new immigrants, ethnic minorities and migrant workers of low socio-economic groups, is a serious issue that requires serious and sustained Government commitment to eradicate the issue. The Government needs to urgently adopt the following steps:
1. Create and enact a racial discrimination ordinance (RDO) to provide the necessary legal mechanisms to combat racial discrimination. The RDO should apply both to the public sphere, including all government departments and bodies, including the Immigration Department, as well as the private sphere. The creation of an RDO would help fulfil the Government's obligations as defined by the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Economic, Social and Cultural Rights.
2. Extend the mandate of the Equal Opportunities Commission to adopt the responsibility to regulate and monitor the implementation of the anti-racial discrimination ordinance.
3. Explain its action of amending the Immigration Ordinance and examine whether it contravenes the ICERD.
4. Review and amend all policies related to migrant workers, particularly the New Conditions of Stay Policy (NCS) and two-week rule, in light of how they reinforce racial, gender and class discrimination against FDWs. Remove the two-week rule and conditions against FDWs changing employers from the provisions of the NCS.
5. Create more effective public education strategies and programmes to promote racial harmony and combat racial discrimination, particularly targeting the civil service, education system and the general public. Programmes should be created in consultation with NGOs, affected groups and community groups and monitored by consultative bodies/task forces comprised of these groups. Strategies should include the launching of an extensive awareness campaign to raise social consciousness on racial harmony, equality, tolerance and diversity.
Contents
1.1 Ethnic minorities
1.2 Migrant workers
1.3 New immigrants
2. THE NEED FOR ANTI-RACIAL DISCRIMINATION LEGISLATION
2.1 Public support
3. CRITIQUE OF GOVERNMENT RESPONSE TO THE CERD
3.1.1 Article 2 (A.2): Actions to Combat Racial Discrimination
3.1.1. A.2 (1) (c): Government Policies
3.1.1. New immigrants
3.1.1. Migrant Workers
3.2.1 Article 5 (A.5): Racial Discrimination and Fundamental
Human Rights
3.2.1. A.5 (a) and 5 (d): Justice/Law Enforcement Agencies
3.2.1. Ethnic Minorities
3.2.1. Migrant Workers
3.2.2. A.5 (e) (i): Right to Employment
3.2.2. New Immigrants
3.2.2. Migrant Workers
3.2.3. A.5(e) (iii): Right to Housing; A. & A.5 (e)
(iv): Right to Social Welfare
3.2.3. New Immigrants
3.2.3. Migrant Workers
3.2.4. A. 5 (e) (v): Right to Education and Training
3.2.4. New immigrants
3.2.4. Ethnic minorities
3.2.4. Migrant Workers
RACIAL DISCRIMINATION AND NEW IMMIGRANTS, ETHNIC MINORITIES & MIGRANT WORKERS IN HONG KONG
Presented to the UN Committee on the Elimination of
Racial Discrimination
July 30 2001
Coalition for Racial Equality (CORE), Hong Kong
Hong Kong Human Rights Commission
1. BACKGROUND
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) became applicable to Hong Kong in 1969, when it was extended to the protectorate by the British Government. But despite the ICERD being in place for 32 years, the Government of the Hong Kong Special Administrative Region (the Government) has not formulated any sustained and effective strategies or implemented any steps to combat racial discrimination in Hong Kong. Rather, the Government upholds legislation, policies and practices that violate fundamental and universal human rights as enshrined by the Universal Declaration of Human Rights. The Government asserts that racial discrimination in Hong Kong is not a serious problem and does not require urgent attention. Therefore, it has made few efforts to honour its obligations to combat racial discrimination as a signatory of the ICERD, the ICCPR and ICESR.
The Government's publicity pitch that the Hong Kong SAR is a cosmopolitan city, "world-class" city, continues amid rampant and sustained violation of the rights of new immigrants, ethnic minorities and migrant workers - the predominant social groups in Hong Kong affected by racial discrimination. Racial discrimination and xenophobia against these groups are structural in character, reflected in legislation, policies and social attitudes and practices. These groups are crucial in upholding the Hong Kong SAR's prosperity, and yet they cannot participate fully in Hong Kong's economic, political, social and cultural life. They are clearly denied the same fundamental rights as other members of Hong Kong society.
Research and documentation on the experiences of these groups, undertaken by NGOs and social action and community groups, indicate that incidents of racial discrimination in Hong Kong are not single, isolated cases, but they occur rampantly in all sectors of society. New immigrants, ethnic minorities and migrant workers are systematically targeted with abuses based on their colour, race, ethnicity, nationality or national origin, class and gender. Studies shows that racial discrimination is widespread in Hong Kong in areas such as housing, employment, politics, relations with public servants and commercial establishments .
Though all three groups include members from various socio-economic strata,
this report will focus largely on issues related to people in the lower-middle
to low-income groups among:
i ethnic minorities excluding migrant workers;
ii new immigrants; and
iii migrant workers, especially foreign domestic workers (FDW).
CORE maintains that low-income groups are most susceptible to racial discrimination in Hong Kong as they occupy more vulnerable and "low-status" lifestyles and types of employment. The Government often appears to accept that people belonging to these groups are naturally easier targets of discrimination and dismisses their discriminatory treatment as an issue of class or socio-economic status, rather than that of race or national origin.
CORE asserts, however, that racial discrimination can only be properly understood in relation to other social identities, most importantly class and gender. The intersecting issues of racial discrimination, class and gender, together create unequal power relations that enable the exploitation of these groups. As such, policy responses similarly need to take into consideration the differential impacts of racial discrimination on individuals of lower socio-economic status and women.
Ethnic minorities - minorities living in Hong Kong who are non-Chinese - make
up 4.1% (279 600 people) of the population . Of these 95.3% have right of abode
outside Hong Kong . In this report we are referring primarily to peoples from
Southeast and South Asian countries. These peoples face severe obstacles in
their efforts to become part of Hong Kong society, the major problems being
bias or even outright rejection in their hunt for employment and housing and
the lack of appropriate schools for their children. Furthermore, they are a
prime target of harassment by the police who subject them to ID checks at will,
and also face rudeness and discriminatory attitudes in their dealings with government
departments.
Migrant workers, who are part of the ethnic minorities, are those who migrate
from Southeast and South Asia for specific and temporary periods of time and
engage in low-status, low-paid jobs such as domestic, construction and sex work
. This report will focus on foreign domestic workers (FDWs), who number 209
200, and make up more than 90% of the entire population of low-status migrant
workers. More than any other ethnic minority group, FDWs experience rampant
abuse and are subjected every day to deception, extortion, poor working and
living conditions, and psychological and physical violence and even deportation.
Though their work conditions are regulated by a standardised employment contract
that clearly stipulates fair working conditions and a minimum salary, abuses
flourish in the absence of any contract monitoring mechanisms. Most importantly,
discriminatory immigration policies (such as the New Conditions of Stay Policy
- see below) deny FDWs the right of redressal, prevent them from changing employers
easily and render it especially difficult for them to prosecute violating employers.
FDWs are predominantly women who face the additional burden of gender discrimination. They are victims to socially prescribed assumptions of the inferiority of domestic work which is almost exclusively viewed as the domain of women migrants from South and Southeast Asia.
According to official statistics for 1999, the estimated number of new immigrants
from the Mainland to Hong Kong was 274 500 while the mid-year Hong Kong population
was 6 720 700 . Therefore, the new immigrants comprise 4.08% of Hong Kong's
total population. As there are 54 000 new immigrants from the Mainland every
year, they form 82.3% of the total population growth in Hong Kong. Women and
children, who comprise the majority of the new immigrant population, bear the
brunt of Hong Kong's discriminatory policies. The Immigration Ordinance stipulates
that prospective immigrant children from Mainland China have to obtain both
a One-way Entry Permit and a Certificate of Entitlement, which generally entails
a wait of more than 8 years before they can join their parents in Hong Kong.
Furthermore new immigrants are discriminated in housing. The existing residence
rule, requiring half of a household to have a minimum of 7 years' residence
in Hong Kong by the time of allocation, means that a lot of applications are
frozen. Lastly they are discriminated in employment, social security and education.
2. THE NEED FOR ANTI-RACIAL DISCRIMINATION LEGISLATION
In the light of the widespread prevalence of racial discrimination in Hong Kong, there is an urgent need for legislation that outlaws racial discrimination, though it can never be an effective solution. Racial discrimination can be eradicated only through sustained and meaningful efforts through education and awareness-raising towards bringing about changes in social attitudes among the perpetrators of racial discrimination (civil servants, employers, and the general public). Legislation that penalises racial discrimination, at best, can be an initial step towards this end. It is also important to review and amend existing legislation that regulate employment, social welfare and immigration in the light of the rights violations experienced by new immigrants, ethnic minorities and migrant workers. The creation of a Racial Discrimination Ordinance would provide advocates and affected groups with the necessary legal framework and mechanisms to fight and redress case violations. It would also help fulfil the Government's obligations as defined by the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Economic, Social and Cultural Rights.
Article 2 (1) (d) of the International Convention on the Elimination of All
Forms of Racial Discrimination (the Convention) states that:
"Each State Party shall prohibit and bring to an end, by all appropriate
means, including legislation as required by circumstances, racial discrimination
by any persons, group or organization…"
The Committee on the Elimination of Racial Discrimination (the Committee) has repeatedly called for a provision in the Hong Kong Bill of Rights Ordinance protecting persons from racial discrimination to which they may be subjected by private persons, groups or organizations. In the concluding observations of the Committee considering both the 13th and 14th periodic reports of the United Kingdom of Great Britain and Northern Ireland, the Committee criticized that there is no legislative measure in Hong Kong to combat racial discrimination.
In the ICESCR, Article 2 states that each State Party should undertake legislative
measures to guarantee that the rights enunciated in the ICESCR will be exercised
without discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status. The Committee on the ICESCR has stated that the lack of legislative
measures in Hong Kong is a breach of the ICESCR.
The lack of legislation means that there is no mechanism to deal with complaints
about racial discrimination. A recent study by the Government's Equal Opportunities
Commission (EOC) confirms that: "the number of complaints received this
year is twice the total for the preceding three years." . Of the total
247 complaints about racial discrimination from September 1996 till January
2001, 157 (64%) of them were made in the year 2000 compared to a total of 76
complaints filed in the preceding three years. However, the power of the EOC
is limited to issues pertaining to sex, family status and disability. Without
a domestic legislation specifically to empower the EOC or other institutions
to handle racial discrimination, no formal investigation can be conducted nor
grievances redressed despite the alarming rise in the number of complaints.
In the 1st Report of the Hong Kong Special Administrative Region under Article
9 of the International Convention on the Elimination of All Forms of Racial
Discrimination (the Report), the Hong Kong Government argues that as long there
is no public support for legislation it will not be effective. According to
Government figures from a public consultation, 80% of the respondents are against
legislation.
The validity of this figure can be doubted as, first of all, the figure was obtained based solely on public consultations and not a wider investigation into public attitudes . Secondly, out of the total 73 respondent groups listed, while only 8 groups represent ethnic minorities and 3 groups work on domestic workers' rights, there were as many as 17 respondent groups from banking and finance, commerce and industry . The consultation paper neither stated how many people from each group were invited nor how the 80% figure against legislation had been arrived at.
On the other hand, three studies of minorities show that the groups concerned are in favour of legislation. A study conducted by Human Rights Monitor in 1998 revealed that 76% of ethnic minorities were in favour of legislation . In 2001, two studies by Society for Community Organization show that 72% of ethnic minorities and 93 % of new arrivals from Mainland China agree that legislation is the best way to fight against racial discrimination.
Instead of legislation the Government of Hong Kong is in favour of education and administrative measures. However for promoting equal opportunities in the area of race the Government has not spent much money. Together with equal opportunities in the area of sexual orientation, only HK$ 7 million were spent over the two year 1997-99 .
3. CRITIQUE OF GOVERNMENT RESPONSE TO THE CERD
3.1. Article 2 (A.2): Actions to Combat Racial Discrimination
3.1.1. A.2(1) (c): Government Policies
Certain Government immigration policies and practices tend to discriminate against applicants for entry, residency and employment in Hong Kong on the basis of their race, ethnicity, national origin, class and gender. Members of lower social classes - mainly new immigrants and migrants - tend to only be allowed entry to perform certain types of low-status work (as with migrant workers), or under special regulations and procedures (new immigrants).
3.1.1. New immigrants
The Immigration Ordinance requires applicants from the Mainland to apply for
immigration to Hong Kong by the One-way Entry Permit in cooperation with the
Chinese Authority. Following amendment of the immigration ordinance in July
1997 , mainland children, regardless of their status as holders of right of
abode, not only have to apply for a One-way Entry Permit, but also for the Certificate
of Entitlement from both sides of the governments.
However, at present, the approval of the One-way Entry Permit de facto rests solely with the Chinese Government and the system has come in for severe criticism over corruption, and the lack of transparency and uniform standards. As a consequence, the applicants, the majority being spouses or children, have to wait for more than 8 years to join their families in Hong Kong, the long separation causing major disruptions and problems for the families.
In contrast, overseas children having the right of abode in Hong Kong can apply for the Certificate of Entitlement either through the Chinese Consulates or the Immigration Department by post. Non-mainland women, who marry with Hong Kong permanent residents, can even directly send their application to the Immigration Department during their stay in Hong Kong. Generally, both groups' application can be approved within one month, especially when the spouses pass the financial status assessment.
3.1.1. Migrant Workers
The Government has specifically targeted migrant workers with policies or policy
proposals that clearly maintain discriminatory treatment against migrants. Policies
of the Immigration and Labour Departments and Security Bureau include the New
Conditions of Stay or NCS, wage freezes, wage cuts, and proposals to remove
FDWs' maternity protection and impose a service tax for their use of public
services and facilities. The Government not only fails to recognise the discriminatory
nature of these policies, but it has also yet to formally acknowledge that a
review of the policies is urgently required.
The New Conditions of Stay policy, announced in 1987 by the Security Bureau, is the main Government policy that regulates the working terms and conditions of FDWs. The NCS has been severely criticised for perpetuating discriminatory and exploitative treatment of FDWs. The NCS denies FDWs the right to change to other (non-FDW) job categories, obtain residency after seven years, be joined by their families and severely restricts the conditions upon which they can change employers. FDWs are only allowed to change employers under certain circumstances or if the worker successfully proves she was unfairly treated. By contrast, expatriate migrants have the right to change professions, change employers with few restrictions and residency after seven years.
The "two-week rule" is the provision within the NCS that most radically affects the lives of FDWs. The two-week rule states that FDWs are required to leave Hong Kong within two weeks in the event that their contract is terminated, even if they have been unfairly terminated or if their employment contract has not expired.
The NCS is criticised for favouring the interests of the employers over those of the FDW and its unfair and discriminatory restrictions place FDWs in a vulnerable position. Many cases of premature termination are arbitrary and unfair. While the NCS requires FDWs to provide proof of unfair treatment, it has no provisions against employers dismissing migrants without justification. Moreover, if employers make an allegation against the FDW, they are not required to provide evidence to back their claim.
The NCS is also the root cause of further forms of discrimination against FDWs. Terminated FDWs do not have adequate access to shelters or legal services. Some are forced to return home and re-pay excessive recruitment agency fees in order to process new contracts. Moreover, FDWs are not allowed to work while their cases are being processed.
The Government refuses to acknowledge the two-week rule's discriminatory nature. At a recent UN meeting in Bangkok, a Government official stated that: "The two-week Rule is applicable to all foreign domestic helpers, regardless of their nationality. It is not discriminatory. It was introduced in early 1987 because many foreign domestic helpers abused their stay in Hong Kong. The Hong Kong SAR Government considers the two-week rule a necessary and appropriate policy considering the HKSAR's special circumstances."
There have also been attempts by the Government to cut the minimum wage of FDWs. In the aftermath of the Asian economic crisis, the Government proposed to cut their minimum wage by 35%. In February 1999, the Government announced the imposition of a 5% decrease in their wage to HK$3,670, supposedly to alleviate the effects of the economic crisis. Ironically, Hong Kong's Legislative Council voted to increase the monthly income of its members from HK$145,150 (US$18,729) to HK$162,650 (US$21,000).
3.2. Article 5 (A.5): Racial Discrimination and Fundamental Human Rights
Despite widespread and documented cases of how the three groups are denied fundamental human rights (in relation to justice/law enforcement agencies, participation in politics, residency employment, housing, education and training) , the Government has not taken any steps to prohibit or legislate against abuses. NGO advocates assert race and national origin play a crucial role in how discrimination in the form of rights violations and mal-treatment is manifested against new immigrants, ethnic minorities and migrant workers.
A study by Society for Community Organization (SOCO) further reveals that new immigrants are discriminated against by various government departments. For instance 47% of the new immigrants have indicated that they have encountered officials with poor attitude and unwillingness to provide services . Another study by SOCO shows that in job seeking 32% of the ethnic minorities have experienced being rejected a job on the grounds of race .
The Asian Migrant Centre recently conducted a Baseline Research on Gender and Racial Discrimination Towards Filipino, Indonesians and Thai Domestic Helpers in Hong Kong revealing that almost all FDWs interviewed believed that contract violations they experience are significantly related to racial and gender discrimination. FDWs also face significant discrimination in public places. 0.4% to 7% of FDWs interviewed cited that they were unfairly treated and discriminated against in markets/groceries, shops, restaurants, commercial establishments, public transportation and government offices.
3.2.1. A.5 (a) and 5 (d): Justice/Law Enforcement Agencies
3.2.1. Ethnic Minorities
The Report does not mention the issue of racial discrimination as practised
by the police. Aside from a short notice about the possibility of complaining
against police to the Complaints Against Police Office (CAPO), the Report does
not mention the many problems that ethnic minorities face in their encounters
with police.
A study indicates that the police attitude towards ethnic minorities is often rude or discriminatory. 22% of those stopped by police and 33 % of those asking for help state that the police maintain rude and discriminatory attitudes . The police had approached more than half the respondents (59%) for ID checks . Such consistent monitoring of ethnic minorities is only able to take place due to ethnic minorities' stigmatisation and stereotyping as being associated with crime.
3.2.1. Migrant Workers
The Labour Department and EOC provide migrant workers with basic legal channels
to redress contract violations, but given that most FDWs are not well informed
of how to access these mechanisms, migrants' advocates assert that the mechanisms
alone are insufficient in allowing migrants to enjoy their rights. For example,
the EOC is responsible for settling disputes between employers and employees
before cases are taken to the Labour Department. But to date, the EOC has only
been approached with 17 cases.
Legal counseling and rights/legal education of migrants remains largely the responsibility of church groups and NGOs that operate on limited funds or donations. These services have long been outstripped by the magnitude of daily violations and, hence, existing services are in dire need of expansion and government support.
The Baseline Research found that FDWs experience significant discriminatory treatment from law enforcement agencies. 0.5% and 0.6% of those interviewed stated that they had been unfairly treated and discriminated against by the Customs and Labour Departments respectively. 0.9% had been discriminated against by the police; 1.5% by the Immigration Department; and 2.8% by Labour Courts and Labour Tribunal. There is also widespread evidence cited by migrant-counseling groups that Labour Tribunal judges often show lack of understanding of FDW's lack of awareness of legal processes and their language limitations .
3.2.2. A.5 (e) (i): Right to Employment
Although the Home Affairs Bureau of the Hong Kong Government has issued a Code of Practice Against Discrimination in Employment on the Ground of Racial Discrimination (the Code), it is not legally binding. Hence, ethnic minorities, new immigrants and migrant workers have no legal protection against racial discrimination in employment.
We are disappointed by the fact that the Government has only conducted a few studies on discrimination in employment. Its study of recruitment advertisements shows rightly that adverts are not overtly racist. However, the Government has failed to investigate further into the matter, thus ignoring later stages of the recruitment process, such as job interviews. In the Report the Government states that there is no "simple way of investigating that possibility" . This reflects quite clearly that the Government is reluctant to investigate further into the matter and to truly find out whether discrimination is prevalent.
There are no official statistics available regarding the median monthly earnings for different occupational groups for ethnic minorities . The lack of information on the economic and social status of minority groups makes it difficult to determine the difficulties that they face. This criticism was already stated in the Concluding Observations of the Committee considering the 13th periodic report of the United Kingdom of Great Britain and Northern Ireland 1996, paragraph 18. We therefore find it difficult to confirm officially whether ethnic minorities suffer from a lower mean monthly earning than Hong Kong people.
The unpublished 2001 Population Census, however, includes questions on the respondents' ethnicity. We urge that the Census and Statistics Department will provide information on ethnic minorities concerning areas such as wages and the labour force within different occupational groups. Only such measures can determine the difficulties that minority groups face.
Studies show that both new immigrants and ethnic minorities suffer from discrimination during job-seeking. More than 30% of new immigrants have been rejected for employment or in interviews merely due to their new immigrant status . For ethnic minorities 18% have been rejected on the grounds of language although the job nature did not require spoken or written Chinese. A study also reveals 27% of ethnic minorities have been rejected when the employer learnt that the person was not Chinese/Western .
Despite the lack of official evidence from the Census and Statistics Department, indicators from existing wage studies nonetheless reveal that the median monthly income of the groups concerned is lower that the overall Hong Kong population. The median monthly income for the overall Hong Kong population is HK$10,000 . However, the minimum wage set by the Government for foreign domestic helpers is only HK$3,670 . For new immigrants the median monthly employment earnings is HK$6000 . Lastly for ethnic minorities it is HK$3800 . These figures reveal clearly that the groups concerned have a much lower economic status compared to the overall Hong Kong population.
A study of ethnic minorities reveals that they receive lower salaries (41%) and have longer working hours (38%) than other races on the same job level. The same applies to new immigrants who are subject to longer working hours, lower wages and poorer benefits than their counterparts in Hong Kong .
Lastly the Government states that the recruitment policy of the civil service is based on open and fair competition and that there is no distinction made on the grounds of race or nationality . However, this means that the interests of the groups concerned are not adequately represented in Government. Thus the Government has not adopted any policy specifically aimed at including ethnic minorities or new immigrants to represent their interests. Furthermore some government posts require applicants to have stayed in Hong Kong for more than 7 years . This means that non-permanent residents are excluded from such posts.
3.2.2. New Immigrants
There is inherent discrimination against new immigrants from the Mainland by
the SAR Government and the employment sector in not recognising their qualifications
obtained in the Mainland. Only very limited professions recognize qualifications
obtained from Mainland China. In contrast, this discrimination does not exist
among those who have obtained their qualifications overseas. Therefore, many
new immigrants, who were professionals in the Mainland, are forced to engage
in low-paid and low-skill work or to be jobless. Only 9% of them can engage
in administrative or managerial grades . The discrimination encountered by new
immigrants while seeking jobs aggravate their financial problems.
3.2.2. Migrant Workers
Low-status migrants in Hong Kong do not have the right to take on types of legal
employment aside from domestic and construction work. Over 90% of low-status
migrant workers in Hong Kong work as domestic workers under the terms and conditions
of the NCS. A small number of low-status migrants work as construction workers
under specific, short-term contracts. There are also a very small number of
migrants from Southeast and South Asia who work without documentation in the
sex industry. The fact that domestic and constructions workers are denied the
same right to change professions as professional migrants/expatriates is a blatant
form of discrimination based on their race, national origin and class.
AMC's Baseline Research revealed that almost all FDWs interviewed believed that contract violations they experience are significantly related to racial and gender discrimination. 60% of respondents to AMC's Baseline Research stated that they are discriminated against and unfairly treated because they are domestic workers, and 22.2% ascribed the reason to their foreign status. The research also found that more women (15%) are underpaid than men and women also get paid less than men (HK$3,619 as opposed to HK$4,758).
Violations against FDWs flourish despite the fact that their work conditions are regulated by a standardised employment contract that clearly stipulates fair working conditions and a minimum salary. The research concluded that 15% of FDWs are paid under the official minimum wage for FDWs . More than a quarter of FDWs interviewed suffered verbal and physical abuse from all sections of Hong Kong society, including employers, shopkeepers, supervisors of public facilities and government officials. 4.5% or 9,000 FDWs have been raped or subjected to sexual abuse; 15% or 30,000 have been cheated out of their legal minimum wage. At least 22% are not given the mandated 1 rest day per week, 26% are not given statutory holidays, and more than 2% have no day off at all .
Statistical tests (ANOVA) and data indicated that there is a significant relationship (95-99%) between abuses and the FDWs' nationality, with more documented cases of abuses for Indonesian FDWs than Thais or Filipinos. 48% of Indonesian FDWs were found to be underpaid in contrast to 3.35% of Thais and 0.44% of Filipinos. Only 38.52% of Indonesians are given the required 4 rest days per month, as opposed to 95.21% Thais and 93.36% Filipinos. And 57.48% of Indonesians are given zero to one statutory holiday per year, in contrast to 7.83% Thais and 3.04% Filipinos.
A survey recently conducted by the Asian Migrant Centre of an Indonesian network of migrants' organisations - KOTKIHO (Hong Kong Coalition of Indonesian Migrant Workers Organisations) and Amal Indonesia Direct - concluded that employment/recruitment agencies' prevalent practice of overcharging specifically targets Indonesian FDWs. Indonesians, unlike FDWs of other nationalities, are not free to choose their employment agency. The survey concluded that 89% of Indonesian FDWs were charged above the Government-set maximum charge of HK$367. The mean average charged by agencies was HK$5,655.
3.2.3. A.5(e) (iii): Right to Housing; & A.5 (e) (iv): Right to Social Welfare
Both new immigrants and ethnic minorities face discrimination when they seek accommodation. According to a study by SOCO, 35% of new immigrant respondents experienced rejection by landlords. According to the respondents, the major reason for the refusal was the presence of newly arrived children (82.1%). Therefore, they find it difficult to rent a place (92.9%) and to improve their living conditions (57.1%) . For ethnic minorities, 30% experienced rejection by landlords on spurious grounds.
3.2.3 New Immigrants
Hong Kong Government's residence rule in the allocation of public housing constitutes
an institutionalized discrimination against the right to equal access to housing
for the new immigrants. The existing residence rule requires half of a household
to have a minimum of 7 years residence in Hong Kong by the time of allocation.
As a result, applications of more than 8000 new immigrants, who fail to meet
this criterion, are frozen. It is because most of them are single-mother or
new immigrant families. Denial to housing rights due to the discriminative rule
is confirmed by a SOCO study, in which 45.6% of the respondents said they were
barred from access to public housing as a result of failure to meet the residence
requirement .
As a result, since most of the new immigrant families are very poor, they can only afford to seek accommodation in cage-homes, cock-lofts, cubicles and rooftop huts. The deprivation of housing rights causes lots of problems among families living in congested conditions.
The new immigrants are also discriminated against in the area of access to social security. To be an eligible CSSA recipient, the applicant must have stayed in Hong Kong for over one year regardless whether the applicant has the right of abode. The policy hinders the poverty-stricken new immigrants to receive CSSA, and pushes them into deeper water.
Although the Social Welfare Department argues that discretion will be exercised in the most vulnerable cases, the low discretion rate proves that the SAR Government has no intention of lessening the burden of new immigrants. From October 2000 to April 2001, only 350 out of 1090 applications were approved by discretion . We believe the number of applications is far lower than the real figure as many needy new immigrant families do not apply for the CSSA because their period of stay is less than 1 year.
3.2.3. Migrant Workers
FDWs are mandated under their employment contract the same social security and
health rights as local workers, but many still cite cases of discriminatory
treatment in the health care sector. Most importantly, there was a move by the
Labour Department to reduce maternity protection for FDWs in July 1999. According
to the labour legislation, employers can be fined up HK$100,000 for terminating
their domestic worker due to pregnancy. The proposal seeks to give domestic
workers the choice to terminate their contracts upon pregnancy, however, it
is strongly criticised for merely providing employers with a legal mechanism
to terminate pregnant workers. Due to pressure from migrants' advocates, the
Government has yet to implement the proposal though it has not completely dropped
it.
The Government also does not provide shelters for FDWs who are pursuing their cases against their employers leaving, once again, the burden of responsibility to church groups and charities. The existing few church-subsidised shelters are constantly stretched beyond the limit, and in some cases, migrants must resort to sleeping in parks. Moreover, these existing shelters largely target Filipino FDWs. The lack of food and shelter denies FDWs the most basic human right; it is often the deciding factor that discourages them from filing cases.
Even for the use of existing public services available to migrants, the Government has proposed the imposition of a 20% service tax. Free access to labour, immigration and social welfare departments and public parks and facilities are guaranteed for local persons and migrants' enjoyment of the same rights should not be subject to debate.
3.2.4. A. 5 (e) (v): Right to Education and Training
The attempts of the Government to educate the public on racial discrimination have been criticised for being far too limited in its scope, content and effectiveness in actually impacting public opinion.
In the Report it is stated that the Director of Education has the duty of ensuring that all children aged between 6 and 15 attend school, and also that the Education Department has "pledged to place eligible children in schools within 21 working days: that pledge has been faithfully fulfilled…"
The Report fails to mention the lack of positive measures to ensure the provision of school places to accommodate ethnic minorities as well as a yearly increase of 20,000 new arrivals. The Report also fails to take into account the educational opportunities of those beyond the age of 15, as the Government's pledge is narrowly confined to children between 6 to 15. Despite the government's claim that "the pledge has been faithfully fulfilled", many ethnic minority and new immigrant children still are rejected a school place in local schools. This is due to faulty arrangements on the part of the Education Department and the discriminatory attitude of school personnel. This has to a large extent remained unchallenged by concerned parties.
New immigrant children have severe problems in finding school places. In Hong Kong, secondary school placements are centrally coordinated after the students have completed Secondary Three. Therefore, the Education Department will not allocate placements for new immigrants children over 15 by the normal channel. However, with the discriminatory attitude of schools and the lack of any central ability or academic assessment, these children have been rejected by schools repeatedly. Some of them have to appeal to more than 10 schools before they are accepted. 70% of over age 15 new immigrant youth are offered school placements. 70% of those students who are offered school placements, are channeled to vocational schools or the lowest qualification schools. Therefore, there are more than 28% new immigrant youths who are prematurely forced to join the workforce or can only study in evening schools designed originally for adults. Their right to education is blatantly denied due to discriminatory policies.
Provisions for the educational needs of ethnic minorities are also hopelessly inadequate. There are currently only seven schools for the whole ethnic minority population in Hong Kong. Currently 3069 students are enrolled in these schools . However, there are as many as 5300 ethnic minority children aged between 5-14 . The serious shortage is also reflected by a study that shows that 39.3% of children from ethnic minorities have difficulties in even finding a school. Of them, 23.6% don't know where to find a channel. Of the 23.6%, 4.3% cannot reach the requirements of the school, 11.6% could not find a school place, 4.0% don't know how to find a school place, and 3.7% had no help from others in finding a school place .
The deprivation of educational needs is also confirmed by another study which shows that 15% of ethnic minority children had to wait for more than a year to secure a school place. 5.6% had to wait between 6-12 months, whereas 30.7% got a school place within 6 months . For primary one students the situation is even worse. The long waiting list has left some ethnic minorities with no alternatives but to run their own schools without the support of government resources. These privately run schools are, consequently, unsupervised and of poor standards.
In the Report it is stated that there is a School-based support scheme aimed at integration . This scheme now covers both new arrivals from Mainland China and ethnic minorities. However, this scheme requires drastic overhauling before it can deliver the benefits originally aimed for. In theory, the funding for the scheme is intended to facilitate integration of the students; in practice, there is no built-in mechanism in the policy to ensure that funding is exclusively used for induction programmes. Thus the schools are free to exploit the funding for other purposes which is, in fact, the norm rather than the exception. The policy also does not guarantee that every child in need has access to the programme.
3.2.4. New immigrants
The new immigrants face specific problems. Those who are lucky to obtain a school
placement still face different forms of discrimination. Most of them are forced
to downgrade and need to take more time to repeat just because the qualifications
obtained in the Mainland are unrecognized by the schools. Besides, many of them
are allocated by the Education Department without any academic assessment to
the lowest qualification schools, which are generally lower than the children's
average academic standards. Therefore, more and more new immigrant children
are not only forced to study at these schools but are also marginalised by the
Education Department.
3.2.4. Ethnic minorities
Although it is stated in the Report that in some schools the medium is English,
one of the major obstacles at the schools is the language. A study shows that
55% of the ethnic minority youths had language problems at school and that it
is difficult for them to be integrated in schools where the medium is English.
It is a great problem that the government does not have any comprehensive policy
in improving the standard of English in these schools.
The Report states that some of the seven public schools offer the opportunity to learn the languages of the major minority groups, that is Hindi or Urdu . However, languages of other ethnic minorities are not offered. For instance the Nepalese community in Hong Kong are disappointed that no schools offer Nepalese as an optional course. This violates the right to preserve ones own language and culture.
Furthermore Hindi and Urdu are only taught in two of the five primary schools, whereas in the secondary schools, Hindi and Urdu are only offered in one of the two schools . Lastly, the Government does not support special funds or initiatives from the community to teach mother tongue languages.
As the Government states, learning Chinese is important if one wants to be part of the workforce and those who do not speak Chinese face language problems. However, the government has no comprehensive policy regarding the needs of ethnic minorities. In the schools for ethnic minorities, Chinese is only optional, whereas in secondary school it is compulsory for students only in Form 1-3. In Form 4 Chinese is optional, and the course in Form 4 is not taught each year. Lastly, only few NGOs receive money from the Government to launch specific programmes for ethnic minority children to integrate into the society.
It is stated in the Government Report that some vocational training courses for the workplace are conducted in Cantonese, because proficiency in Cantonese is essential on the job market. However, it is a gross mistake that retraining courses targeting unskilled applicants are conducted in Cantonese, because only 11.2% of ethnic minorities are fluent in Cantonese, 64.9% speak English while all the others use other languages; and 78.4% of the ethnic groups are engaged in elementary occupations.
For instance, the Youth Pre-vocational Training Programme for the 15-19 year-old group has totally ignored the ethnic minorities. Secondly, when it comes to construction workers, priority is now given to those who go through vocational training. However, those who cannot speak Cantonese are barred from attending these courses. The unemployment rate among Nepalese is now 14.3% ; for the overall population in Hong Kong it is 5.5% .
Furthermore the Government provides little support to the ethnic minorities to become eligible for the courses; in part II, paragraph 139 (d) of the Report, the Government justifies its non-intervention by referring to the free labour market and therefore it does not offer courses for ethnic minorities in Cantonese. However, a study shows that more than 75% of ethnic minorities think that the Government should change its policy and make provisions for them to learn Cantonese .
3.2.5. Migrant Workers
The Government has made positive steps to indicate its recognition of the importance
of providing migrant workers with education, however, a more comprehensive strategy
is required to meet migrants' actual needs in education and training. The Government's
Home Affairs Bureau has published and circulated a guide to services available
to migrant workers in Hong Kong, and it also significantly funds a range of
migrant-support organisations that work with FDWs. Though these steps are encouraging,
they are limited in advancing the education levels of the large majority of
migrant workers.
4. RECOMMENDATIONS
The Hong Kong Government needs to publicly acknowledge that racial discrimination in Hong Kong, particularly as faced by new immigrants, ethnic minorities and migrant workers of low socio-economic groups, is a major issue of concern requiring urgent government attention. In the light of the foregoing discussion, the Hong Kong SAR Government needs to immediately initiate and adopt the following measures if racial discrimination is to be eradicated and Hong Kong is to become a 'cosmopolitan, world-class city' in letter and spirit.
1. Create and enact a racial discrimination ordinance to provide the necessary legal mechanisms to combat racial discrimination and to meet Hong Kong's obligation set out in the ICERD.
· The ordinance should include specific provisions that refer to new immigrants,
ethnic minorities and migrant workers and apply uniformly to all sections of
society and government departments including the Immigration Department.
· For the ordinance to be effective, it should be formulated only after taking
into account the opinions of the general public, specially the three affected
groups.
· Also the mandate of the Equal Opportunities Commission (EOC) needs to be extended
or another body set up to adopt the responsibility of regulating and monitoring
the implementation of the ordinance.
· Along with the ordinance, measures should be taken to ensure that frontline
government agencies, particularly the police, immigration and labour departments,
courts, police, do not display discriminatory attitudes in their dealings with
the affected groups.
2. Review and expand the existing Employment, Social Welfare and Immigration Ordinance in the light of the rights violations experienced by new immigrants, ethnic minorities and migrant workers.
· The Social Welfare, Employment and Immigration Departments should establish
consultative mechanisms for effective redressal of complaints and for following
up rights violations.
· For this consultative bodies need to be created where government, migrants
and NGOs can discuss, comment on and make recommendations on policies related
to new immigrants and ethnic minorities and migrant workers.
· The international standards put forth by the 1990 Convention for the Protection
of Migrant Workers and Members of Their Families should be adopted as a guide
for reviewing and re-formulating government policies towards migrant workers.
· Besides, the Complaints Against Police Office (CAPO) needs to be made independent
of the police for effective functioning. Also the Code of Practice Against Discrimination
in Employment on the Ground of Racial Discrimination needs to be amended for
its guidelines to be applicable to both the public and private sector.
3. Review, amend and, if necessary, abolish FDW-related policies, particularly the New Conditions of Stay Policy, two-week rule and restrictions against changing employers, in light of how they reinforce racial, gender and class discrimination against FDWs and make FDWs more vulnerable to abuses and contract violations.
· The restrictive NCS policy exacerbates contract violations and abuses among
FDWs and restricts the Labour Department's ability to equally apply the full
range of rights stipulated in the Employment Ordinance to migrant workers.
· Some clauses relating to the withdrawal of maternity protection for FDWs and
the imposition of a service tax on their use of public facilities need to be
urgently reconsidered and revoked.
· More assistance needs to be given to NGOs and migrants-counseling groups,
including office space and financial assistance, to support their work with
FDWs.
· While the Labour Department should be advised not to prosecute FDWs for reporting
cases of underpayment, the recruitment agencies that are responsible for facilitating
contracts that violate HK laws and the FDW contract need to be penalised.
· Besides more effective, accessible, multi-lingual and racially/gender-sensitive
channels need to be provided within the Labour Department for FDWs to report
violations, including underpayment, instantly. Also free shelters need to be
established for FDWs that offers them relief/emergency services and multi-lingual
counseling on how to file and pursue cases.
4. Review and amend the Immigration Ordinance and its 1997 amendment which discriminates against the family members of Hong Kong residents in the Mainland.
· It is also vital to formulate effective mechanisms to crackdown on discrimination
against new immigrant families' in accessing public housing and social services.
· Government needs to ensure that admissions to schools are made easy for migrant
children, and opportunities provided for them to learn their mother tongue.
5. Create more effective public education programmes on racial discrimination, human rights issues and the value and contribution of the affected groups to Hong Kong society. These should target both perpetrators of racial discrimination - the civil service, education system and employers - and the affected groups themselves. They should be created and monitored through pre-established consultative task forces comprised of the affected groups, community groups and NGOs.
· A sustained and extensive public awareness campaign needs to be immediately
launched to raise social consciousness on the importance of racial harmony,
equality, tolerance, diversity and human rights.
· Civil servants, particularly frontline government officers need to be given
compulsory training on the importance of racial, gender and human rights issues.
More support, mainly training space and financial support, needs to be provided
to NGOs and community groups working with the affected groups. Racial equality
issues also need to be made an integral part of school curricula.
· It is necessary to collect meaningful data to comprehend the full extent of
discrimination faced by ethnic minorities and new immigrants. One way could
be to include in the 2001 Population Census statistics that compare the affected
groups' wages, salaries, access to housing and education with the Hong Kong
Chinese population.
· A recruitment policy needs to be enacted to ensure balanced representation
of minorities and immigrant groups in the civil service and public institutions,
including immigration, labour and social welfare departments, the police, EOC,
universities and schools.
· Training courses need to be created specifically for the main ethnic minority
groups in languages they understand.