Unseemly recipe

PUBLISHED : Sunday, 21 December, 1997, 12:00am
UPDATED : Sunday, 21 December, 1997, 12:00am

It is always to be regretted that any author of a column which by appearances represents an attempt at conveying informed opinion (Danny Gittings, Inside Track, Sunday Morning Post, December 7) should resort to picking and choosing among fact and law to promote a partisan viewpoint.

The restoration of Hong Kong to the sovereignty of China was never intended to be an excuse for a swing in the pendulum of the thankfully long-defunct (and outlawed) racial politics of the colonial era to some opposite anti-foreigner equivalent in the post-colonial era.

The words of a spokesman for the Association of Expatriate Civil Servants (AECS) on RTHK, selectively quoted by Mr Gittings ('the language of the Hong Kong Government is English'), of course do not fully reflect the Basic Law.

But that is no excuse for Mr Gittings to ignore the context of the other words used by the AECS spokesman to the effect that Chinese language proficiency was not objectively required for the performance of his job.

This has nothing to do with pretending, in Mr Gittings' words, 'that English still enjoys a superior status' or 'trying to pretend that the handover never happened'.

As Mr Gittings may know, Chinese and English were given equal status as official languages of Hong Kong under the Official Languages Ordinance well before the handover.

Since the handover, that equal status is enshrined in Article 9 of the Basic Law. Nor do Mr Gittings' words 'where necessary' (or anything like them), qualify Article 9's provision that 'English may also be used'.

Equality of status of the two official languages was also recognised by the National People's Congress in its February 23 1997 decision adopting the laws of Hong Kong as laws of the Hong Kong SAR under which, without subordinating English, provisions which relate 'to the superior status of the English language as compared with the Chinese language shall be construed as providing that both the English and Chinese languages are to be official languages'.

Mr Gittings has also ignored Article 39 of the Basic Law which gives legal effect to UN human rights covenants applied to Hong Kong - and outlaws discrimination, including on the grounds of language.

The reason for this is that language is socially generic and can serve as a veil for discrimination on the grounds of race or place of origin where it is not a genuine requirement for the job.

As for Mr Gittings' assertion of a 'policy of encouraging AECS members to remain in the public service', this would be surprising to those AECS members languishing in unemployment after being localised contrary to their rights as permanent residents, and to those who, contrary to court declarations, are denied access to permanent and pensionable (P & P) terms of service by a new Chinese language requirement which the Civil Service Branch expressly linked in the Legislative Council (December 23, 1996) with 'concerns' that following the Court of Appeal's November 1996 ruling 'overseas agreement officers suddenly and automatically have the right to transfer to local P & P terms'.

Mr Gittings may be aware of the public law, much less human rights law, implications for decisions taken by public authorities on such grounds so flagrantly expressed.

Equally, the framers of the Basic Law may be surprised by Mr Gittings' description of permanent residents of foreign origin as 'guests' whose right of abode is a matter of the grace and favour of officials who like what they hear rather than a matter of plain constitutional law.

The Hong Kong SAR is too sophisticated, modern and cosmopolitan - with human rights values enshrined in law - for the basic rights of participation in Hong Kong society to be dependent on Mr Gittings' unseemly recipe of a switch from running with pre-handover hares to hunting with post-colonial hounds.

The very function of a written constitution such as the Basic Law is to ensure that not even a change of zeitgeist is permitted to override fundamental principles of justice and the rule of law.

MICHAEL SCOTT Vice-President Association of Expatriate Civil Servants of Hong Kong