The Human Rights of Women in the Hong Kong Special Administration Region
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William & Mary Journal of Race, Gender, and Social Justice Volume 19 (2012-2013) Issue 2 William & Mary Journal of Women and Article 3 the Law February 2013 The Human Rights of Women in the Hong Kong Special Administration Region Puja Kapai Follow this and additional works at: https://scholarship.law.wm.edu/wmjowl Part of the Comparative and Foreign Law Commons, and the Law and Gender Commons Repository Citation Puja Kapai, The Human Rights of Women in the Hong Kong Special Administration Region, 19 Wm. & Mary J. Women & L. 255 (2013), https://scholarship.law.wm.edu/wmjowl/vol19/iss2/3 Copyright c 2013 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmjowl THE HUMAN RIGHTS OF WOMEN IN THE HONG KONG SPECIAL ADMINISTRATIVE REGION PUJA KAPAI* ABSTRACT Although Hong Kong is a party to the Convention for the Elimi- nation of All Forms of Discrimination Against Women (CEDAW) and has enacted legislation to safeguard women’s rights, the existing framework of protection is inadequate in critical respects and fails to achieve substantive equal protection for women. This paper ex- amines existing law and policy governing women’s rights and identi- fies the underlying causes for its continued failings. It identifies some of the key gaps that render women continually vulnerable to discriminatory treatment. This paper concludes by outlining rec- ommendations for achieving the goals of substantive and transfor- mative equality for women. INTRODUCTION I. FROM COLONY TO SPECIAL ADMINISTRATIVE REGION: A BRIEF HISTORICAL OVERVIEW II. INTERNATIONAL LEGAL OBLIGATIONS: HUMAN RIGHTS PROTECTIONS AND THE GUARANTEES OF EQUALITY AND NON-DISCRIMINATION III. THE DOMESTIC IMPLEMENTATION OF INTERNATIONAL HUMAN RIGHTS LAWS ON THE RIGHTS OF WOMEN AND THE GUARANTEES OF EQUALITY AND NON-DISCRIMINATION A. Sex Discrimination Ordinance B. Family Status Discrimination Ordinance C. Race Discrimination Ordinance D. Machinery for the Implementation of Anti-Discrimination Laws in Hong Kong 1. The Equal Opportunities Commission 2. The Courts of the HKSAR IV. OTHER PROVISIONS PROTECTING THE INTERESTS OF WOMEN V. PUTTING THE LEGAL FRAMEWORK INTO CONTEXT CONCLUSION * Associate Professor, Deputy Director, Centre for Comparative and Public Law and Director, Summer Social Justice Programme, Faculty of Law, The University of Hong Kong. The author would like to thank Claire Hussin for her research assistance and Anne Cheung, Staci Ford, and Swati Jhaveri for their unwavering encouragement, faith and support. 255 256 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 19:255 INTRODUCTION Hong Kong represents a unique society in that it is full of con- tradictions. It characterizes both modernity and the conservatism of a bygone era. Whilst the former colony has put into place consti- tutional protections and legislative provisions to guarantee the equal protection of women’s rights, the current state of the law and juris- prudence has left the situation of women precarious and wanting. Part I provides a very brief historical overview of Hong Kong’s transition from a colony to a Special Administrative Region of the People’s Republic of China. Part II outlines relevant legislative pro- visions that protect the human rights of women in Hong Kong,1 un- derscoring Hong Kong’s international obligations to enact such laws and their constitutional entrenchment under the Hong Kong Basic Law.2 Part III charts the enactment of relevant anti-discrimination statutes in Hong Kong. It sets out the institutional framework put into place to protect against violations of women’s rights to equality and non-discrimination. In the process, it discusses related jurispru- dence emanating from the Hong Kong courts.3 Part IV discusses other legislation that impacts the rights of women.4 In evaluating the effectiveness of this framework, this paper argues that it falls short of international standards in numerous re- spects and undermines the rights of women.5 Evidentiary burdens, coupled with impediments in access to justice, renders the institu- tional protections available less than satisfactory. This results in the withdrawal or non-pursuit of claims by women.6 As the examples discussed will show, apart from the procedural obstacles to achiev- ing effective enforcement, the courts, whilst progressive in terms of ascertaining the perpetration of discrimination from a substantive understanding of equality, are unduly deferential to the executive and legislative branches, in particular when claims have implica- tions on economic or social rights and policies.7 The courts’ reluc- tance to exercise their powers of strict scrutiny where the fundamental right to equality is concerned exacerbates the plight of women and particularly hurts segments of the female population who already suffer from discrimination on multiple grounds.8 These examples 1. See discussion infra Parts I–II. 2. See discussion infra Part II. 3. See discussion infra Part III. 4. See discussion infra Part IV. 5. See discussion infra Part III. 6. See discussion infra Part III. 7. See discussion infra Part III.D.2. 8. See discussion infra Part III.D.2. 2013] THE HUMAN RIGHTS OF WOMEN IN HONG KONG 257 also reveal the underdeveloped nature of arguments relating to equality and intersectional discrimination which are rarely put be- fore the courts. Hence, the jurisprudence on these concepts which are key to addressing invidious and deep-rooted discrimination, trails be- hind international jurisprudence. These examples include: access to the right abode for Filipina domestic helpers in Hong Kong; the right to health and obstetric services at equal costs for mainland mothers delivering babies in Hong Kong hospitals; and the rights of trans- sexual women to marry a partner of their choosing. The paper con- cludes with recommendations on how the protection of women’s rights can be enhanced.9 It is imperative for the government to institution- alize gender mainstreaming with a view to enabling effective plan- ning in policy and legal developments to advance the interests of women and protect them against direct and indirect forms of dis- crimination and other violations of their fundamental human rights. Such reform should be urgently prioritized in light of the actual and hidden costs of inadequate protection of the rights of more than half the population of Hong Kong.10 I. FROM COLONY TO SPECIAL ADMINISTRATIVE REGION: A BRIEF HISTORICAL OVERVIEW Hong Kong’s status as a British colony since the mid-1800s resulted in the application of English common law in Hong Kong, subject to the need for modifications in light of local circumstances, until June 30, 1997.11 Hong Kong also had its own legislature within the first few years of British rule.12 Together, through the applica- tion of local legislation, the principles of common law as developed in England (subject to the modification for local circumstances test), and any English statutes that were applicable by the Queen’s Order in Council, this body of rules constituted the laws that would govern Hong Kong in its ninety-nine years as a British colony.13 9. See discussion infra Part V. 10. According to the latest available statistics on the population of Hong Kong, as of the middle of 2012, 3,818,100 out of a total population of 7,136,300 people were female. This amounts to 53.5 %. Population—Overview, CENSUS & STATISTICS DEP’T: HKSAR, http://www.censtatd.gov.hk/hkstat/sub/so20.jsp (last visited Jan. 18, 2013). 11. Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, China-U.K., para. 4, Dec. 19, 1984, available at http://www.cmab.gov.hk /en/issues/jd2.htm [hereinafter Joint Declaration]. 12. History of the Legislature, LEGISLATIVE COUNCIL OF THE HKSAR OF CHINA, http:// www.legco.gov.hk/general/english/intro/hist_lc.htm (last visited Jan. 18, 2013). 13. XIANGGANG JIBEN FA art. 84 (H.K.); see Hong Kong Letters Patent 1917 to 1995, app. I (1996), art. IX, available at http://www.law.hku.hk/conlawhk/sourcebook/10062.html. 258 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 19:255 The Sino-British Joint Declaration (the Joint Declaration)14 set the terms for the resumption of Chinese sovereignty over Hong Kong.15 The treaty provided that Hong Kong was to be constituted a Special Administrative Region (SAR) of the People’s Republic of China (China).16 Under this arrangement, although under Chinese sover- eignty, the Hong Kong SAR was to be granted a high degree of auton- omy, and, more importantly, the laws and economic systems previously in force were to be retained, save where their continuation would be inconsistent with Chinese sovereignty, in which case, they were to be adapted where possible or otherwise repealed.17 Furthermore, Hong Kong would be governed in accordance with its mini-constitution, the Basic Law of Hong Kong (HKBL), which was promulgated in 1990 and came into effect on July 1, 1997, upon the establishment of the Hong Kong SAR.18 In furtherance of the objectives underlined in the Joint Declaration, the HKBL facilitates the continued application of “laws previously in force,”19 guarantees judicial independence,20 and enables the SAR to enact its own laws, policies, and to develop related jurisprudence in most areas of governance.21 The significance of this arrangement was that it facilitated the smooth transfer of sovereignty to China whilst preserving the social, political, legal, and economic order that had prevailed in the colony for over one hundred years.22 This provided much needed confidence in the future of Hong Kong’s continued stability as a region under the sovereignty of China.23 In the lead-up to the transfer of sovereignty, Hong Kong experienced a growth in its constitutional consciousness.