TNAG-2668-FCO40-3865-Hong-Kong-Civil-Service-1993 — Page 161

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Court Action

All our advice says policy illegal

42.

We are convinced, from our own member's analysis and experience and from advice freely offered from experts in Bill of Rights law, that the Government's policy contravenes the law.

Court action inevitable?

43. Our members continue to be forced out of the civil service, at an ever increasing rate. Unless the Government can be persuaded to review and revise its policy, we must prepare for the possibility of challenging the Government in court. Our recent localisation survey of agreement service officers revealed that over 200 of our members are willing to participate in a court action if it became necessary.

Litigation costly to AECS and taxpayers

44. We would regret having to do this, not least because of the money involved. Both the Government and our members would incur significant costs, with estimates ranging up to several millions of dollars. Our Association does not carry large surpluses. We would have to undertake fund raising among our members and secure sufficient funds before commencing action.

Government avoiding political responsibility?

45.

What we sincerely hope is that the Government is not depending on our commencing action in order that it can be absolved from the need to take political responsibility for reviewing and changing the policy. Surely the arguments we have offered have sufficient credibility that the Government should at least feel compelled to offer counter justifications, beyond the mere assertion that the existing policy should continue.

Government should make its advice public

46. The Secretary for the Civil Service told our representatives at our meeting on 18 March that he hoped that we would not resort to court action. He also said that the Localisation policy, in the way in which it was applied, did not contravene the Bill of Rights. We responded that we had not yet heard anyone make an argument, as opposed to a mere statement, that the policy did not contravene the Bill of Rights. We said that if he had reasons to support the Government view, he should share them with us and make them public. One of the fundamental steps in resolving any legal dispute is convincing the opposite side that your position on the law is the correct one. No purpose is served by obfuscating, particularly by the Government which is charged with the responsibility of upholding the rule of law.