"ONG.
CONFIDENTIAL
27.
On balance, The point is debateable.
we are inclined to
think that the latter argument is a sound one.
But if that
is wrong, there would be a risk of the Court finding that
Article 22 is also infringed.
Possible defences?
Colonial Regulations and CSRs
28. We have
argument
equality.
already discussed the merits of the possible
arising
from the phrase "general terms of
See para.20 above. Apart from that possible
argument, we have considered two other possible defences.
Colonial
Regulations is
on
he
First, the nature of
subsidiary legislation and CSRS are part of the contract of
employment. See Lam Yuk Ming v. Attorney-General (1988)
HKLR 815 at 826ff. Could it be held against the overseas
officer that by accepting employment with Government
terms contained in the Colonial Regulations and CSRS,
had accepted the localisation policy and could not now
complain? In our opinion, this could not be held against
the overseas officer. What the overseas officer who is a
permanent resident would be relying on would be the BOR.
This would have the effect of invalidating the relevant
Regulations in so far as they are inconsistent with it.
Redressing past discrimination
29.
Secondly, in various jurisdictions, discriminatory action
could be justified in order to redress past discrimination.
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