Following is the speech by the Secretary for Justice, Ms Elsie Leung, at the World Women Lawyers' Conference organised by the International Bar Association in London today (March 1):
Good morning, Ladies and Gentlemen. It is a great pleasure to attend and be given the honour to address this Conference. I am very happy to be given this opportunity to talk about women's rights as human rights in the context of Hong Kong and shall explain why rights for women go hand in hand with progress of humanity. Looking back at the metamorphosis of women's position in Hong Kong during the past century, the two-way relationship between law and social environment is also well illustrated.
Sources of Law in Hong Kong before the Unification
Until the l July 1997, no written constitution existed in or was applicable to Hong Kong. Under British rule, the English Common Law and certain imperial enactments applied to Hong Kong. However, British Laws relating to marriage and succession were considered to be inappropriate to the people of Hong Kong and the Chinese customary law in these areas was preserved. The sources of laws of Hong Kong were therefore: (1) ordinances and subsidiary legislation promulgated by the local legislature; (2) British Orders in Council and Acts that applied to Hong Kong; (3) the common law and rules of equity so far as they were applicable to Hong Kong; and (4) residual Chinese customary law. It was under such conglomeration of laws that one found concubinage and other obsolete laws and customs of the defunct Tsing Dynasty still existing in Hong Kong prior to the 7 October 197l, nearly 60 years after the demise of that dynasty.
Inequities of Chinese Law & Custom
Under Chinese customary law, married women had limited property rights and were not entitled to inherit the family property. They were financially and socially dependent upon their husbands. Chinese customary marriage was potentially polygamous in that, whilst a woman should be married to one spouse during her whole lifetime, a man could have one principal wife, the t'sai (ęd), and as many concubines or t'sip(ęc) as he could financially afford. The law on divorce was particularly harsh on women: the husband could oust the wife on one of seven grounds (namely: disobedience to parents-in-law, bearing no son, lascivious conduct, jealousy, malignant disease, loquacity and theft) by simply making a declaration in the presence of family members; but the wife did not have a reciprocal right to terminate the marriage. Either of the spouses could ask for a divorce in the case of justifiable termination, e.g. the wife was raped by her father-in-law, etc., in which case a decision of a magistrate was required, or a divorce by consent, which was frequently dictated by the will of the parents of the parties. Poetry and dramas often described the tragedies of spouses who were divorced against their wishes. For Chinese customary marriages, there was no remedy through the courts, which had jurisdiction only over monogamous marriages.
Reform of Matrimonial Law
In early 1950s, the Strickland Committee looked into the issue as to how far the Chinese customary law should remain applicable to Hong Kong. It took almost 20 years for the recommendations of the Committee to be implemented. Finally, an extensive reform of the law came into effect on the 7 October 1971: concubinage was abolished; women were given equal rights of succession to intestates' estates; and only one form of marriage was recognized, i.e. registered marriage. The status and rights of concubines lawfully taken before that date were, however, preserved.
In 1972, there was also an extensive amendment made to the Matrimonial Causes Ordinance. No-fault divorces became possible for the first time. Whilst incompatibility is not in itself a ground for divorce, the appropriate period of separation can be evidence that the marriage is irretrievably broken down. The amendment aimed at resolving the problem of a marriage which exists only as an empty shell, and enabling the parties to solve matters relating to children and financial arrangements without mudslinging. Further amendments of the law since 1972 have enabled parties to a Chinese customary marriage to obtain a divorce; have shortened the periods of separation which can be grounds for divorce; and have made it possible for married couples to make a joint application for a divorce. The last trace of the inequity of Chinese customary law was removed with the promulgation of the New Territories Land (Exemption) Ordinance in 1994. This gave women of the rural villages rights of inheritance to old scheduled lots upon intestacy which were equal to those of their male counterparts.
Since the latter half of the 20th century, women in Hong Kong have become more financially independent; until the recent financial crisis and the economic transformation, women had more job opportunities and, even without technical or special skills, they could easily support themselves in various industries and service sectors. Although Hong Kong has no full social security, comprehensive social assistance is available to take care of the basic needs of all sectors of the community, including women, 9 years compulsory education came into effect in the mid-1970s, and gave girls equal learning opportunities as boys. Legal Aid and legal services provide access to the courts and free consultation in many circumstances. Women have a choice whether or not to walk out when they feel that their marriage is at an end.
In the late l960s, there were about 100 divorce cases each year. During the first 9 months of the year 2000, 20,646 divorce applications were pending before the Family Court, 9,400 of which were filed within the year. Even with the treble increase in population since 1970, this represents an astronomical increase in the divorce rate.
Currently, women in Hong Kong still face employment problems. Because of the economic recession, the shifting of manufacturing industries to the Mainland, the transformation of the economy to high technology and knowledge based activities, unskilled woman workers are frequently looked on as merely a supplementary source of labour and are the first to suffer redundancy. And, as primary care-givers in the family, they may be unable to make use of retraining programmes. The question is how can they adjust themselves to the economic transformation so that there will be no setback in their advancement? This is something which legislation alone cannot solve.
Human Rights Development in Hong Kong
Equality is one of the fundamental human rights provided in two international covenants that apply to the Hong Kong SAR. They are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Although the United Kingdom extended the two human rights covenants to Hong Kong in l976, no general legislative measure was undertaken to implement them until 1991. As a private practitioner, I acted for a client who brought judicial review proceedings against the Director of Immigration for a discriminatory policy against women. It was the then government's policy that, whilst a Hong Kong male resident could easily apply for his wife to join him as a dependent, a female resident's application for her husband to join her in Hong Kong would not normally be allowed. Although the court was sympathetic to my client, it held that international obligation could not bind the Director unless the ICCPR was implemented through laws.
On the 8 June 1991, the Hong Kong Bill of Rights Ordinance('BORO') was enacted, rendering the provisions of ICCPR applicable to Hong Kong legally enforceable in the domestic court. Article 22 of the BORO (mirroring Article 26 of the ICCPR) declares that all persons are equal before the law, and provides that the law shall prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex .....or other status.
With the reunification of Hong Kong with Mainland China, the Basic Law - our constitutional document - was promulgated in April 1990 and came into effect on the l July 1997. Article 39 of the Basic Law stipulates that the provisions of the ICCPR and ICESCR as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the ICCPR and ICESCR. The provisions of the ICCPR, including the guarantee of non-discrimination on the ground of sex, are therefore safely entrenched in our constitutional instrument. Article 11 of the Basic Law provides that no law enacted by the Legislature of the HKSAR shall contravene the Basic Law. Therefore equality of the sexes is not simply a noble aspiration, but a constitutional requirement which the HKSAR Government must observe.
1995 was an important year for the rights of women. The Beijing Declaration and Platform for Action were adopted at the Fourth World Conference on Women held in Beijing in September 1995. In Hong Kong, the Sex Discrimination Ordinance was enacted in July of that year. It renders unlawful discrimination on the grounds of sex, marital status or pregnancy in specified areas of activity including employment, education, and the provision of goods, facilities or services. The Ordinance also outlaws sexual harassment and makes it unlawful to apply any discriminatory practices or to publish any discriminatory advertisement. An aggrieved person can bring legal proceedings in the District Court to claim civil remedies, which include damages, an order for re-employment, and an order for promotion.
The Sex Discrimination Ordinance also provides for the establishment of an independent statutory body, the Equal Opportunities Commission (the EOC). This body is tasked, among other things, with the responsibility of eliminating sex discrimination and promoting equality between men and women through public education and other means. The EOC was formally established in May 1996 and started operations in September of that year. It is responsible for enforcing, among other things, the Sex Discrimination Ordinance, for handling complaints under that Ordinance, as well as keeping under review the operation of the Ordinance and making proposals for amendment as and when necessary.
The International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was extended to Hong Kong on 14 October 1996. Through exchange of diplomatic notes, the People's Republic of China agreed that CEDAW would continue to apply to Hong Kong after 1997 notwithstanding the resumption of sovereignty. The Hong Kong SAR Government submitted its initial report to the United Nations in August 1998 and, in February 1999, the Committee on the Elimination of Discrimination Against Women, sitting in New York, considered that initial report. I am pleased to say that it was generally satisfied with the implementation of CEDAW in Hong Kong. However, one of its concerns was the absence of a high-level central mechanism for the development and co-ordination of a women-focused policy and long-term strategy to ensure effective implementation of the Convention.
In response to the Committee's recommendation, the Women's Commission was established in January this year, in order to identify women's needs and to address all matters of concern to women. The Commission will play a pivotal role in developing a long-term vision and improved strategy for the development and advancement of women. Women's perspectives will be taken into account as a matter of course when policies and initiatives are formulated. The Health and Welfare Bureau will provide secretariat and administrative support to the Commission, as well as undertaking implementation responsibilities relating to the Convention.
CEDAW is not simply paid lip-service in Hong Kong. Take, for example, the decision of the Court of Final Appeal in recent Right-of-Abode cases. In those cases, the Court struck down a provision in the Immigration Ordinance which provided that a child born out of wedlock could only claim right of abode through its mother and not its father. The Government respected the decision of the Court in this respect and has since amended the law accordingly.
Efforts for Better Human Rights for Women
However, there is always room for further improvement. Ongoing efforts are being made to improve our domestic laws to ensure a level playing field for all. For example, my department is working on two legislative proposals which we hope will provide added protection to women involved in the criminal justice system. These proposals are in relation to marital rape, and competence and compellability of spouses to give evidence in criminal proceedings. Last year, we introduced amendments to ensure that the criminal trial process becomes a less intimidating or traumatizing experience for victims in sexual offence cases, and to abolish the corroboration rules in sexual offences. These rules originated from unjustifiable scepticism about women who alleged that they had been sexually abused.
I hope that I have provided you with an overview of the development of women's rights in Hong Kong. Women now comprise approximately half of the population, approximately 40% of the labour force and 1/3 of the managerial post holders. Insofar as the Government is concerned, 4 out of the 13 Executive Council Members and more than 10% of the 60 Legislative Councillors are women. 19% of Directorate grade officers in the Civil Service, and 8 out of 24 principal officials are women. Their participation in economic and public affairs reflect a marked progress of women's rights in Hong Kong during a period when Hong Kong was growing fastest into a financial and business centre. Women have contributed at all levels towards the prosperity of Hong Kong. They participated in all the industries that made Hong Kong world-famous, e.g. plastic flowers, garments, toys, wigs, etc. Some women have made themselves known as international entrepreneurs. By being given their rights, women have been able to contribute towards the development of Hong Kong financially, socially and politically. At the same time, human rights have gained great importance in our daily lives, making the government more accountable and transparent and in turn empowering people to maximize their personal development. During the latter half of the last century, legal reforms reflected the needs of the society and, at the same time, made an impact on the society. The development of women's rights does not mean the erosion of the rights of men. Rather it shows the progress of humanity as a whole. That progress requires determination, strife and strategy, and the joint efforts of the international community, governments and NGOs.
End/Thursday, March 1, 2001