Reference.
A
4.
pre-date 1898 and are therefore applied by virtue of S13 NTO.
(d) Employment Practices
Statistical analysis has revealed widespread inequality in male and female pay. The most likely explanation is that discriminatory practices are operated by employers though the law neither requires nor prohibits discrimination.
The next question is whether these policies are open to challenge under the ICCPR, Article 26 (Article 23 in the Draft B/R). This Article refers to the right to be "equal before the law", which previous legal advice suggested could be given a fairly narrow interpretation (FCO Tel No 243, para 3).
However, in the light of recent detailed comment issued by the Human Rights Committee established under the ICCPR in November 1989 (esp para 12, copy attached), this line would now be much more difficult to sustain. The Committee has commented that Article 26 prohibits discrimination in law or in fact in any field regulated and protected by public authorities. This means that we could be exposed to criticism by the Committee in relation to all four policies, and actions in the HK Courts under Article 23 BR are likely. We would not necessarily accept that the Committee's view is a binding or authoritative interpretation but in view of Clause 2(3) (a) and (b) of the Draft BR, the Court would be likely to interpret Article 23 in accordance with it. We/HKG could certainly attempt to defend the NT policies by arguing that they are based on "reasonable and objective criteria" (as suggested in HK Tel 3626, para 6), but I cannot think of any. Please ask HKG to specify what they have in mind. It may be that the law on land succession would be somewhat easier to defend than the other two NT policies; the system of inheritance is an integral part of the centuries-old system of customary Chinese law, whereas the rent concessions and SH policy are administrative in nature, of recent origin, and, as I understand it, not an integral part of customary Chinese law as such. (However, although this distinction might be used by HKG to justify maintaining succession law intact for the time being, while reforming the other two policies, I am not confident that it would cut any ice in court).
5
I doubt that either the argument that property ownership is not a human right (HK Tel 1554, para 3) or the argument that the policies are not contained in a law as such (para 5) have any relevance to Article 26 ICCPR/Article 23 BR.
6. As regards discrimination in employment, HKG could be criticised by the HR Committee for failure to enact anti-discrimination laws, but it is unlikely anyone could
CODE 18-77
K12ABR
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