CONFIDENTIAL
115217
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MDLIAN 3201
5. THE AECS NOW CONTENDS THAT, IF ON GROUNDS OF LOCALISATION WE REFUSE TO RENEW THE CONTRACT OF AN OVERSEAS CONTRACT OFFICER WHO IS A PERMANENT RESIDENT OR WHO IS ELIGIBLE TO BECOME ONE, WE ARE NOT TREATING THAT PERSON ON GENERAL TERMS OF EQUALITY AND ARE CONSEQUENTLY IN BREACH OF THE BOR. THE ASSOCIATION CONSIDERS THAT OVERSEAS OFFICERS WITH SEVEN YEARS RESIDENCE IN HONG KONG SHOULD BE ALLOWED TO OPT FOR LOCAL TERMS. IT IS MAKING CREDIBLE THREATS OF LEGAL ACTION IF WE DO NOT CHANGE OUR POLICY OR AT LEAST INTRODUCE A MORATORIUM ON LOCALISATION.
6. WE HAVE RECENTLY TAKEN LEGAL ADVICE FROM COUNSEL IN LONDON (DAVID PANNICK QC) AND HIS OPINION GIVES SOME SUPPORT FOR THE AECS CONTENTION SO FAR AS IT APPLIES TO OVERSEAS OFFICERS WHO UNDER THE IMMIGRATION ORDINANCE ARE HONG KONG PERMANENT RESIDENTS OR RESIDENT BRITISH CITIZENS. WE ARE IN THE PROCESS OF SEEKING A FURTHER OPINION LOCALLY. LOCAL STAFF ASSOCIATIONS HAVE ALSO GOT WIND OF THE ISSUE AND HAVE MADE IT PLAIN THAT THEY OBJECT STRONGLY TO THE AECS STANCE.
ASSESSMENT
7. THE LOCALISATION POLICY HAS PROVED ITS WORTH OVER A LONG PERIOD OF TIME AND ENJOYS WIDE SUPPORT IN THE COMMUNITY. INDEED, LOCAL STAFF ASSOCIATIONS AND LEGCO MEMBERS HAVE BEEN PRESSING FOR A FASTER PACE. WE ARE INSTINCTIVELY RELUCTANT TO TAMPER WITH THE POLICY. HOWEVER BASED ON THE RECENT LEGAL ADVISE (AND SUBJECT TO THE SECOND OPINION WE ARE AWAITING) WE MUST NOW CONTEMPLATE THIS POSSIBILITY.
8. THE AECS POSITION MAKES SOME SENSE IN TERMS OF THE FUTURE. ARTICLE 24 OF THE BASIC LAW ALLOWS PERSONS NOT OF CHINESE NATIONALITY TO BECOME PERMANENT RESIDENTS OF THE SAR. ARTICLE 99 REQUIRES THAT PUBLIC SERVANTS MUST BE PERMANENT RESIDENTS. ALTHOUGH THIS IS QUALIFIED IN ARTICLE 99 FOR PUBLIC SERVANTS BELOW A CERTAIN RANK AND IN ARTICLE 101 FOR CERTAIN SENIOR POSTS THE BASIC LAW DOES NOT SEEM, FOR ALL INTENTS AND PURPOSES, TO ENVISAGE A LOCALISATION POLICY ON THE SAME TERMS AS THE PRESENT
ONE.
9. IF WE WISHED TO TAKE THE INITIATIVE TO AMEND OUR POLICY IN ORDER TO PERMIT PERMANENT RESIDENTS TO TRANSFER TO LOCAL TERMS OF APPOINTMENT, WE SHOULD IN THEORY CONSULT THE CHINESE. WE ESTIMATE THAT AT LEAST 700 OVERSEAS AGREEMENT OFFICERS COULD LAY SOME CLAIM TO BEING PERMANENT RESIDENTS. IT IS DIFFICULT TO SAY HOW
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