• 歧視奇譚|戴啟思

  • 發布日期:2021-01-30 11:00
  • 歧視奇譚|戴啟思

 

Racial Discrimination-Two Problems

Racial Discrimination-Two Problems

Discrimination has been in the news this past week. An obvious case of discrimination turned out not to be discrimination at all. Another case concerning the possible disqualification of holders of BN(O) passports does not, at first sight, to be about discrimination but it possibly is.

The first matter is that some subscribers to food delivery services would rather not have their food handled by delivery drivers who fit the description of 'Indian/Pakistani'.

This description is racist. If it is meant to refer to the worker's country of origin, it is inaccurate. The delivery man, for most delivery workers are men, has almost certainly been born in Hong Kong and is just as much entitled to call this place his home as the bigoted customer.

The first instinct on hearing of such obvious racial discrimination is to turn to the Equal Opportunities Commission and ask for swift action that will sanction the customer and stop the discriminatory behaviour. The Equal Opportunities Commission had to say, a touch regretfully, that although the customer's conduct was discriminatory on the grounds of race, it was not unlawful discrimination under the Race Discrimination Ordinance.

"How can this be?" you might ask. The answer is a useful reminder of the limits of written laws.

Although some people would wish it were otherwise, we still live for the present in a society where you are free to do what you will unless some positive law forbids it or regulates the relevant activity. We would all be free to drive motor cars on highways at great speed were it not for a host of laws regulating who can, and cannot drive, and on what terms.

Surprisingly, discrimination on the grounds of race was not unlawful before enacting the Race Discrimination Ordinance in 2008. The ordinance did not prohibit all acts of racial discrimination. It focused only on those acts which had an impact on most social and economic interactions.

So, we have specific provisions related to employment, education and the disposal and management of property which makes it unlawful to treat someone less favourably on the grounds of race. If an activity is not explicitly prohibited under the ordinance, it remains lawful, even though discriminatory.

The Race Discrimination Ordinance covers service providers, like a food delivery service. It is unlawful for a service provider to refuse service to someone he would provide to another person if the ground of refusal were the first person's race or national origin.

However, the ordinance does not cover the situation where the customer seeks to attach conditions to delivery of the service which is discriminatory, such as insisting that delivery is by anyone but a person of a particular nationality or race.

I suppose that the law's drafters thought that everyone was free to choose a service provider and that bigots would steer clear of service providers they would not use because they were prejudiced against them on racial ground.

However, there is a problem where the service provider uses employees to deliver the service who are not acceptable to the customer because they do not conform to an acceptable racial or national profile. As it should do, the service provider can refuse to provide the service, but that does nothing for the hurt feelings of the employee. It will be interesting to see if the Equal Opportunities Commission would seek changes to the law to address this situation.

The saga about the Mainland and Hong Kong Governments possibly punishing BN(O) passport holders for having the audacity to accept an immigration deal offered by British Government is, perhaps surprisingly, a case of possible racial discrimination.

Although everyone knows that the Hong Kong authorities treat BN(O) passports as travel documents only and not signifiers of a separate nationality, the British Government takes them seriously. BN(O) passports are held by a type of British National who, under the new scheme, might become a different type of British National with the right of abode in the UK after six years residence and upon completing a further years' stay at the end of which 'full' nationality may, not will be granted.

If the idea is that the Government should deprive BN(O) holders living in Hong Kong of the opportunity to vote and stand for election, an amendment to the Basic law would almost certainly be required. However, an amendment to the Race Discrimination Ordinance would also appear to be necessary.

It might seem paradoxical, given the official position on BN(O) passports are 'only' travel documents, but the reason for treating BN(O) 's differently would seem to be because they persist in holding onto a nationality status which, ironically, is a status not recognized by the Hong Kong Government.

As the definition of 'race' in the Race Discrimination Ordinance includes nationality or imputed nationality, a prohibition on BN(O) 's voting or standing for election would fall foul of the ordinance's provisions that guarantee non-discriminatory access to standing for election, and voting.

I make these observations well knowing that the Race Discrimination Ordinance contains a provision saying that the law does not affect the Chinese Nationality Law, which, as is well-known, prohibits dual nationality. However, the proposal floated now seems to need to recognize BN(O) status to a minimal extent if only to penalize those who persist in holding onto their BNO status. It will be interesting to see how the Government solves this problem.

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