TNAG-2668-FCO40-3865-Hong-Kong-Civil-Service-1993 — Page 155

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Right to participate in public life

Every permanent resident shall have the right and the opportunity, without any of the distinctions mentioned in article 1(1) and without unreasonable restrictions -

(a) to take part in the conduct of public affairs . . .;

(b) to vote and be elected...;

(c) to have access, on general terms of equality, to public service in Hong

Kong.

Equality before and equal protection of law

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Prima facie breach of Bill of Rights

18. It cannot be doubted that the criteria used in CSR 115 to determine whether a person is employed as an overseas officer are substantially the same criteria that the Bill of Rights seeks to prohibit. Although race is not one of the criteria expressly used in CSR 115, the dominant effect of the criteria is to prefer candidates of Chinese race. The present Chief Secretary in responding on behalf of the Governor to our petition in 1988 said that to make merit, rather than ethnicity, the major consideration in renewal of contracts would have the effect of abandoning the localisation policy!

Justifications for breach on recruitment

19.

In some circumstances, a prima facie breach of the Bill of Rights can be legally justified to meet a rational social or government objective. It could be argued that at the recruitment stage it is necessary to offer better terms of service to attract persons from overseas for posts that cannot be filled locally, and that it is economically unrealistic to offer those terms generally to all civil servants. We do not contest this argument.

Justification for non-renewal?

20. However, we dispute that there are any rationale arguments to justify preventing an overseas employee who has acquired permanent residency status from converting to local terms of service to avoid the risk of non-renewal under CSR 281. The only argument that has been put forward is that posts held by overseas officers have to be made vacant for local officers to be groomed as successors to the senior posts reserved under the Basic Law. The fact is that very few agreement service officers are in line for these posts or interfere with the promotion path to these posts.