LCQ3: Equal Opportunities Commission

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Following is a question by the Hon Law Chi-kwong and a reply by the Secretary for Home Affairs, Dr Patrick Ho, in the Legislative Council today (November 12):

Question:

It has been reported that the appointment procedures and employment terms of the chairperson of the Equal Opportunities Commission (EOC) who has just resigned, as well as the recent dismissal of the Director of Operations designate, who was to report for duty this month, has aroused controversy among the public and called into question the independence and credibility of EOC. Moreover, according to the principles relating to the status and functioning of national institutions for the protection and promotion of human rights (the Paris Principles) endorsed by the United Nations, an institution responsible for human rights affairs should be independent, not be subject to government interventions, given as broad a mandate as possible and adequate funding for performing its functions and have pluralism of membership. In this connection, will the Government inform this Council whether:

(a) it has assessed if the authorities have acted in accordance with and adhered to the Paris Principles in the appointment of the chairperson and members of EOC; if it has, of the assessment results;

(b) it will follow other countries' practice of formulating codes requiring statutory organisations responsible for human rights affairs to have adequate transparency, impartiality and accountability in their operations; and

Reply:

Madam President,

Taking the Honourable Member's questions seriatim:

(a) The Paris Principles relate to the status and functioning of national institutions for the promotion and protection of human rights. The Equal Opportunities Commission (EOC) is not such an institution, in that it is not national, and it does not have a broad mandate in respect of all forms of discrimination. Its mandate is limited to discrimination on the grounds of sex, pregnancy, marital status, disability, and family status. While the Paris Principles do not strictly apply to the EOC, we believe that we have largely conformed with the Paris Principles relating to appointment of members to these national institutions and the composition of such institutions. The relevant principles also require guarantees of independence and pluralism.

The Paris Principles relating to the actual act of appointment require that: "In order to ensure a stable mandate for the members of the national institution, without which there can be no real independence, their appointment shall be effected by an official act which shall establish the specific duration of the mandate. This mandate may be renewable, provided that the pluralism of the institution's membership is ensured."

The power to appoint the Chairperson and members of the EOC are clearly set out in legislation. Each appointee has a clear term of office and may be re-appointed. Thus, we can clearly state that the appointment of the Chairperson and Members of the EOC is and has always has been in accordance with the above stated principles.

The Principles prescribe directions for the composition of national institutions in terms of their membership. In the quest for pluralism, they provide that such institutions shall be established with a procedure that affords all necessary guarantees to ensure the representation of social forces involved in promoting and protecting human rights, particularly by powers that will enable effective co-operations to be established with, or through the presence of, representatives of:

"(i) Non-governmental organisations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organisations, for example, associations of lawyers, doctors, journalists and eminent scientists;

(ii) Trends in philosophical or religious thought;

(iii) Universities and qualified experts;

(iv) Parliament;

(v) Government departments (if these are included, their representatives should participate in the deliberations only in an advisory capacity)."

The present membership of the EOC clearly demonstrates that the Commission comprises members from almost all these categories. The EOC is empowered to implement the Sex Discrimination Ordinance, the Disability Discrimination Ordinance and the Family Status Discrimination Ordinance. The membership of the EOC comprises persons whose expertise and background are relevant to the Commission's mandate. As with all appointments to Government's statutory and advisory bodies, our primary aim is to select the best candidates (the merit principle) in order to meet the requirements of the advisory and statutory bodies concerned. We will consider the candidates' ability, expertise, experience, integrity and commitment to community service, while taking into account the need to maintain a balanced composition. The EOC presently comprises members representing women's interests, rehabilitation groups, the labour as well as business sectors, academics and professionals. The Principles provide for Government representation. Our legislation stipulates that no public officer should be appointed as a member of the EOC. We consider that we have even gone beyond the Paris Principles in this regard and this better safeguards the Commission's independence from Government.

The Principles also require that national institutions have an infrastructure suited to the smooth conduct of its activities, in particular adequate funding. We have examined the position of the EOC against that of national human rights institutions in other jurisdictions and believe that - by comparison - the Commission is amply endowed in terms of its finances and its human, and other, resources.

Other requirements are that national institutions should:

(i) freely consider any questions falling within their competence, whether they are submitted by the Government or taken up by it without referral to a higher authority, on the proposal of its members or of any petitioner;

(ii) hear any person and obtain any information and any documents necessary for assessing situations falling within its competence;

(iii) address public opinion directly or through any press organ, particularly in order to publicise its opinions and recommendations;

(iv) meet on a regular basis and whenever necessary in the presence of all its members after they have been duly convened;

(v) establish working groups from among its members as necessary, and set up local or regional sections to assist it in discharging its functions;

(vi) maintain consultation with the other bodies, whether jurisdictional or otherwise, responsible for the promotion and protection of human rights (in particular ombudsmen, mediators and similar institutions);

(vii) develop relations with non-governmental organisations; and

(viii) hear and consider complaints and petitions concerning individual situation. In so doing, they should be able to seek amicable settlement through conciliation, inform the petitioners of their rights, including the remedies available to them, hear complaints or petitions or refer them to other competent authorities, and make recommendations to the competent authority.

These requirements closely encapsulate the operational functions of the EOC within its mandate as prescribed in the relevant legislation.

(b) We have examined the practices of statutory human rights commissions in several other jurisdictions. Most of them do have some requirements in regard to transparency, impartiality, and accountability. However, we are unable to ascertain whether they have codes of practice for ensuring transparency, impartiality and accountability. Like them, the EOC is established by statute. Its powers and functions are clearly set out in the law and it operates independently of Government. The law also stipulates that the EOC shall not be regarded as a servant or agent of the Government. The EOC can decide what measures it wishes to adopt to enhance its transparency. It currently has its own website; it publishes an annual report in accordance with the law; and periodically attends the Legislative Council to inform Members about its work.

(c) The EOC is an independent statutory organisation set up since 1996. It has a proven track record and its credibility has been built up in the last seven years. While the recent incidents may have had some impact on how people perceive the Commission, we are grateful that its staff have continued capably to carry out its functions. It still has 16 members, some of whom have been with the Commission since its establishment. The best course of action now is to be forward looking. We will try to appoint the new Chairperson as soon as possible. The new Chairperson - with the support of other members - will continue to safeguard the reputation of, and ensure public confidence in, the EOC. The Government will continue to respect and safeguard the EOC's independence. We will also ensure that the composition of the EOC remains pluralist and representative. Last but not least, we will ensure that the EOC remains adequately funded.

Ends/Wednesday, November 12, 2003

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