The Hong Kong Equal Opportunities Commission: Calling for a New Avatar

AnalysisThe Hong Kong Equal Opportunities Commission ('EOC') was set up to perform the important function of an independent body which would receive and investigate complaints of discrimination within the community and to help Hong Kong strive to become a society in which discrimination on grounds such as sex, disability, family status, and race would not be tolerated. Despite the broad powers of inquiry and investigation given to the EOC to enable it to effectively perform this critical role, its inherent limitations have resulted in the limited impact the EOC has had on the implementation of anti-discrimination laws in Hong Kong. This article discusses some of these inherent limitations and outlines the structural and substantive issues that have plagued the EOC in recent years. In view of these matters, it is argued that without an immediate change in the institutional design, membership and culture of the EOC, it is unlikely that the EOC will have any significant impact in the years to come. The article concludes with some suggestions on the changes that need to be put into place to help the EOC be born anew so that it can lead Hong Kong closer to substantive outcomes in anti-discrimination law and policy.published_or_final_versio

The Human Rights of Women in the Hong Kong Special Administrative Region

Although Hong Kong is a party to the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) and has enacted relevant protections to safeguard the rights and interests of women under the Hong Kong Basic Law (HKBL) and anti-discrimination laws, the existing framework of protection is inadequate in critical respects and fails to offer substantive protection. The paper critically examines existing law and policy governing women’s rights, highlighting the reasons for its failings and outlines recommendations for achieving substantive and transformative equality for women.published_or_final_versio

A principled approach towards judicial review: lessons from W v Registrar of Marriages

This article examines the role of deference in constitutional challenges in the context of minority rights claims. It reviews prevailing justi! cations against judicial activism, arguing that contextual considerations such as the existence of an institutional framework for inclusive governance are key to determining the appropriate role and indeed, duty of the court. Parting company with the court’s emphasis on deference and social consensus in W v Registrar of Marriages, it argues that courts have an elevated responsibility to determine interpretive issues on substantial grounds based on principle or meta-principles rather than structural grounds like deferral to majority views in minority rights claims. This imposes a greater burden on the judicial branch to serve as a conduit for minority representation in contentious constitutional issues and more broadly as a forum for deliberative participation by marginalised communities. Whilst it is essential that the safeguards of checks and balances be rigorously observed, a heightened level of scrutiny in such instances complements, rather than undermines the rule of law.published_or_final_versio

Developing capacities for inclusive citizenship in multicultural societies: the role of deliberative theory and citizenship education

Political frameworks such as assimilation, accommodation and multiculturalism that have sought to address difference have failed to achieve political equality and inclusion for immigrants, driven primarily by the flawed understanding of culture and identity in multicultural states. Offering a brief critique of these models, this essay advocates the use of deliberative theory in citizenship education as instrumental to building capacities for inclusive citizenship and cultivating belonging and inclusion in diverse societies. Deliberative practice enables the reconceptualization of citizenship as performative, involving responsibilities for dialogic engagement. Such capacities and responsibilities are indispensable for a just political order in multicultural societies. © 2012 The Author(s).published_or_final_versio

Building Inclusive Societies: The Role of Substantive Equality, Ideas of Justice and Deliberative Theory

The coexistence of cultural and religious minorities in liberal democratic systems presents various complexities. Faced with a choice between acculturation and assimilation, minorities routinely struggle for justice and experience discrimination and exclusion. Modern political discourse has traditionally drawn on ideas such as tolerance, accommodation and assimilation and group rights to protect minorities on the basis of attributes perceived to be constitutive of their cultural, religious or national identities. The chapter presents a brief overview of the difficulties inherent in political models such as liberalism, liberal multiculturalism and limited self-government used to reconcile the status of cultural and national minorities in plural societies. These frameworks fix the political subject into rigid categories, highlighting their lack of political sensibility given the fluidity of identity today. This chapter argues that immigrant minorities exhibit complex layers of identity that challenge the singularity and mono-dimensionality attributed to political loyalty, citizenship and political identity in an age of plurinational states. Drawing on theories of identity-matrixing, it is argued that the deconstruction of identity is indispensable to better understanding and effectively influencing the development of sentiments of loyalty, group affiliation and shared morality. This chapter draws on theories of justice, deliberative theory and principles of substantive equality to illustrate how belonging, commonality of purpose and loyalty can be cultivated through regular engagement with other groups in deliberative decision-making processes. Deliberative theory and substantive capacity-building measures to ensure meaningful participation have the potential to transform multicultural societies into multicultural polities by securing inclusive governance.published_or_final_versio

Minority rights and public interest litigation in Asia

Invited lecturesThe 2009 Public Interest Litigation in Asia Conference, Hong Kong, 14 August 2009

The doctrine of substantive equality and the democratisation of diversities

The coexistence of cultural and religious minorities in liberal democratic systems presents various challenges given the complexities that inhere in the just management of a diverse populace. Minorities living in these communities suffer unequal outcomes, hardships and exclusion on various accounts. This is particularly so where the equal application of the law to all individuals results in injustice when minority needs remain unaccounted for. These circumstances have forced a critical review of the institutional mechanisms which accompany governance and the visions of justice they support. Various theories have been developed to accommodate multiculturalism and address these complexities. Liberal theorists have sought to predicate rights on the core principles of the common good and individual autonomy whilst others have debated the liberal’s dilemma. Theorists of multiculturalism have offered a communitarian critique to liberalism, suggesting variegated group rights and models of accommodation. Others, however, have pointed to the critical failures of multiculturalism. This paper critiques some of the recent developments in discourse on accommodative mechanisms, citizenship theory and minority rights. Given the failings of existing models, it argues that deliberative mechanisms customised by the doctrine of substantive equality are better able to provide an inclusive and just political framework. The doctrine of substantive equality serves to account for the gaps in existing democratic and citizenship theories. It is an indispensable tool in just government given the state of identity politics, the history of oppression, imperialism and other marginalizations experienced by minority communities. Implementing the doctrine in the deliberative context would go a long way towards fostering minority participation and inculcating civic responsibility to create a new vision for citizenship and the dispensation of justice. The paper concludes with a call for a renewed political discourse to eliminate obstacles to a consensus-building model of democratic deliberation that caters to multiculturalism and diversity