ENG-1996 — Page 48

CONSTITUTION AND ADMINISTRATION

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qualified and suitable local candidates available and the qualification for appointment cannot be modified to enable a local candidate to be appointed. The determination of a candidate's 'overseas' or 'local' status is not based on race or nationality, but on habitual residency, general background and social ties and potential dislocation or up-rooting when appointed.

Historically, the terms of appointment and conditions of service for overseas officers and local officers have been different. Over the years, the government has narrowed the gap and now local and overseas conditions of service are close.

Apart from the distinction between local and overseas conditions of service, officers may be appointed either on permanent and pensionable (P&P) terms or agreement (contract) terms. It is government policy to provide a long-term career for civil servants and thus civil servants are employed on P&P terms whenever possible. P&P officers may thus aspire to serve up to the normal retirement age, except where compulsorily retired, dismissed on disciplinary grounds, invalidated on medical grounds, removed from office for unacceptable performance, retired under the provisions of an abolition of office scheme or a compensation scheme.

For all agreement officers, each renewal of agreement depends on service need, satisfactory conduct and performance, and physical fitness. Agreement terms are used to employ staff only when there are circumstances that justify so, e.g. when P&P terms fail to attract and retain sufficient qualified and suitable candidates. As a result, officers on agreement terms comprise less than 2 per cent of the Civil Service. In furtherance of the localisation policy, the government requires that the renewal of agreements of officers on overseas terms should be subject to, apart from the normal criteria applicable, the lack of a suitable local replacement. Since March 1985 all overseas officers have been appointed on overseas agreement terms only. At October 1, 1996, the Civil Service had a total of 1 450 or 0.8 per cent overseas officers, 557 of whom were on overseas P&P terms and the rest on agreement terms. Local officers constitute about 87 per cent of the 3000 officers at senior management/professional level, and 72 per cent of the 1 400 officers at the directorate

level.

In the light of the provisions in the Bill of Rights that all permanent residents should have access to the public service on general terms of equality, the government decided that the localisation policy should be modified to reflect this. In July 1994, after extensive discussions with staff associations and the Legislative Council, a modified policy was introduced under which overseas agreement officers who were also permanent residents could apply to transfer to agreement terms modelled on local conditions of service.

In December 1994, the government announced long-term arrangements to deal with the renewal of agreements expiring on or after September 1, 1995. Under these arrangements, an agreement officer at a promotion rank, whether overseas or local, has to succeed in competing with eligible officers one rank below, if any, in order to obtain a further agreement on local or locally modelled conditions.

In 1995, the Association of Expatriate Civil Servants (AECS) applied for judicial review on various measures of the government in implementing the localisation policy in the Civil Service. The High Court judgement handed down on October 31, 1995, upheld the majority of the government's decisions save in four areas. The AECS appealed and the government cross-appealed on a range of matters.