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 ane Country, Two System. Despite the transfer of sovereignty, Hong Kong continues to enjoy a comparatively competitive economy and stable environment as comp ared with another(prenominal) regions in East Asia. It was non until recently that that the discussion over certificate of minorities rights1 attracted more(prenominal)(prenominal) public concern within the territory. So what is it hiding behind the kill of the apparent prosperity in the club?What and who are being cut by the general public or the majority in the auberge? This article is going to discuss some aspects whether the rights of minorities are being sufficiently encourageed by the public institutions and the render of legislations and conclude with suggestions to secure nonage rights in Hong Kong. 2. History When the British took over Hong Kong in 1840s, it brought in the group of Gurkhas. Western investors as well as people from regional countries migrated since indeed because of the stability in Hong Kong, which eventually developed into a hub where East meets West2.Blending future ideas from the West into the traditional ideas from China, the product is a partnership interwoven with peoples of various traditions and beliefs towards a certain issues, for instance, customs, religions and, more controversially, sexual orientation. Despite the establishment of level-headed Aid Department, mates Opportunities delegating and other social institutions, there comprise account subject fields of disagreement against the nonage groups in work and at school, in public and private sectors, let alone m whatsoever more unreported.Are the minority being well protected? 3. Perfor human racece of the Protection of the Minority at that place are different bodies in Hong Kong that are devoted to d efend the rights of the minority groups. inter subject areaist Human Rights Regimes and staple fibre virtue list out what rights are to be protected other local Legislations deliver obligations of people non to severalise against others public and social institutions take a more agile role in making Hong Kong a city which do not tolerate disagreement3. 1. external Human Rights RegimeDifferent 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 withal salad dressing on Hong Kong. 1. The ICCPR The ICCPR guarantees some fundamental civil and political rights. at that place are provisions that especially protect the minorities such as social and sexual minorities from being discriminated against.It recognizes the states duty to guarantee the rights protected by the ICCPR without specialization of any kind4. It guarantees the equality of all persons before the law and equal protection of the law against difference on various curtilage5 and the rights enjoyed by minorities shall not be denied6. 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 education7, so dissimilarity on grounds like race nor sex on admission policy of schools is to be abrogateed. 3.The CEDAW The CEDAW march ons equality between men and women. The regime of Hong Kong submitted periodic reports under CEDAW to detail the protective measures to women in Hong Kong. A Womens Commission is in any eccentric person 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 re quired by the treaties to recognize the rights of women, ethnic and sexual minorities and to use up discrimination on grounds of sex, races and other location. . The Basic rectitude The Basic police brings into force the rights guaranteed by the Joint Declaration. It also implements provisions of the ICCPR and ICESCR through obligate 39. It guarantees rights for some minorities, for instance, rights of the indigenous inhabitants of the New Territories8. The supremacy of Basic virtue and its ability to override other laws in Hong Kong that are inappropriate with it9 assure the minority groups that they would not be deprived of their basic rights.The pillowcase Secretary for Justice v Yau Yuk Lung Zigo and Another10 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 regulation (BOR) Enacted since the Tiananmen true Incident, BOR incorporates the ICCPR to strengthen the regime of rights.The BOR also brought about effective reform where laws are revised to ensure compatibility with BOR. Anti-discrimination Ordinances Legislator Anna Wu introduced the Equal Opportunities Bill11 (EOB) in 1994 but Governor Chris wooden shoe declined to give permission to it. Instead the Sex Discrimination Ordinance (SDO), baulk 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 ( greenhorn) Although the LAD is not devoted to eliminating discrimination in the society, it assists parties being discriminated against to hear for justice provided that the party is qualified for reasoned aid. That said LAD also protects minority rights in the sense that it helps minorities who cannot afford to bring a lawful action when they need to. Through implementing the Ordinary Legal Aid arrangement and Supplementary Legal Aid Scheme, LAD caters the needs for minority groups which founder different financial resources12 and sustains the peoples 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 make up ones minded role in that sense14. The EOC has taken legal action, by means of representation, appearing as amicus, starting a judicial proceeding in just about half(a) of the cl trains under the anti-discrimination laws15. As a result many claimants who cannot afford the legal costs thus cannot try out for equality and justice.Even where the claimant first tries conci liation but fails to disband 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 dead body than the claimant, to reach a settlement under duress outside the greet with the complaint to prevent the publication of the dispute in the course of litigation. as well as the EOC would not disclose the information of the claims such as the identity of the parties and the outcome.The perpetrators skill 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 exist16. Chairman of EOC responded but merely explained that the existing anti-discrimination laws do not fix 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 direct copy what KHRC has done. 5. Common Law model As Hong Kong practises a leafy vegetable 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 Another17. Homosexual sodomy committed otherwise than in private has been criminalized by the Crime Ordinance under fragment 118F18, at least before his case. The relevant region (s. 118F) was held unconstitutional by the Court of Final Appeal in this case on the ground that it constitutes violations to both member25 of the Basic Law and guileicle22 of BOR19. 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 Others20 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 SDO21.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 managing director of Education22 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 Marriages23 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 derivative instrument treatments constitute discriminatio n. Only those without a justifiable aim or those whose aim does not justify its means constitute a discrimination24. When there is no indication on whether the society is ready to genuinely accept the transsexuals, it is fair(a) and justifiable to adopt a conservative approach. The first three cases showed the role of the society, especially the Courts, in striving to eliminate discrimination within the territory, although the use 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. end 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 Kongs 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 a re 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 fashion 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 delirium Ordinance. contact The Same Difference Protecting Same-Sex Couples Under The Domestic madness Ordinance, (2009) 4(1) Asian Journal of Comparative Law, Article 9, pp. 237-269. Kelley Loper suggested in her article that it is infallibl e to have legal reform in order to ensure comprehensive 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 Kongs population. See http//www. nationsencyclopedia. com/economies/Asia-and-the-Pacific/Hong-Kong. html 3 Puja Kapai, The Hong Kong Equal Opportunity Commission handicraft 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 freelance 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 decide 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 avocation 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 apart 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 enunciate 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 TheBelgian Linguistic case (No 2)(1968)1 EHRR 252