Human rights in Hong Kong; Looking beyond international human rights law for enforcement of the right to equality

Abstract

Amongst its neighbors, Hong Kong provides a unique but widely transferable example of how international human rights might be applied in an Asian jurisdiction. On the one hand, it is a democracy with a well-respected and enforced common-law legal system, it has a strong tradition of the rule of law, and has a strong Bill of Rights. It boasts a particularly distinguished supreme court, made up of both local and foreign judges which is slowly emerging as a champion of human rights, particularly in relation to the right to equality. On the other hand, the very concept of human rights and their enforcement is a relatively novel concept in this society. In many ways it arguably remains largely conservative and is subject to the limits of “one country, two systems.” Nowhere is this dichotomy better illustrated than in the field of disability rights. Though Hong Kong (and China) is party to the Convention on the Rights of Persons with Disabilities (“CRPD”) people with disabilities (“PWD”) continue to be openly discriminated against, and remain largely invisible in the community. This paper will focus on an area of law where human rights, and especially the right to equality, has be routinely denied to PWD. It is argued that Hong Kong’s criminal justice denies the right to equality both for defendants who have a disability, and also for victims with disabilities. Case studies will be used to illustrate the limited use and application of international human rights law in Hong Kong. In light of the limited application of the CRPD, and international human rights law more broadly, it will be argued that the right to equality for PWD may be better realized by Hong Kong’s own institutions. It will be argued that from the Supreme Court of Hong Kong, a new body of case law is emerging which is making the right to equality both recognizable and enforceable for minority groups. The implications of this may be far-reaching; Hong Kong’s common law legal system may well provide example to other multicultural societies which follow common law traditions, such as Australia and New Zealand, as to enforcing the right to equality for PWD. Perhaps even more significantly, within the Asian region, Hong Kong may become somewhat of a human rights beacon in how to implement human rights notwithstanding any absence of international treaty recognition or implementation.