A judge has ruled the government's decision does not contravene the Basic Law and pay can go down as well as up
The first legal challenge mounted by Hong Kong's civil servants against a controversial decision to cut their pay was defeated yesterday after a court ruled their constitutional rights had not been breached.
Delivering his ruling in the Court of First Instance, Mr Justice Michael Hartmann said the government was required by the Basic Law to seek fiscal stability, and the mini-constitution made allowance for the fact that civil servants' pay could be adjusted down, as well as up, in regular reviews.
The decision came in response to a judicial review launched against the Public Pay Adjustment Ordinance by the Government Park and Playground Keepers' Union and police inspector Bernard Lau Kwok-fai.
They argued it went against the private employment contracts of 160,000 civil servants.
They also were seeking a declaration that the ordinance was in breach of several articles of the Basic Law, some of which guarantee that the pay and other conditions of their service should remain 'no less favourable' after the 1997 handover.
When the ordinance took effect on July 19 last year, thousands of civil servants took to the streets to protest the pay cuts, which ranged from 1.58 to 4.42 per cent.
In his ruling, Mr Justice Hartmann examined the mechanism by which pay adjustments were made to ensure public sector levels were comparable to the private sector. He found that it had never ruled out reductions. The judge did not accept that a system that aimed to achieve 'broad comparability' between private and public sector pay was deemed acceptable if it maintained or increased pay but was condemned if it resulted in a pay cut.
'While historically, using the existing mechanism, there may not have been any pay reduction, that ... was due to the kind winds that directed the ship of Hong Kong's prosperity and could not give rise to the implication that in more stormy times, an adjustment by way of a reduction would not be possible,' he said.
But he also partially agreed with one of the union's main arguments centred on Article 35 of the Basic Law, which provides for access to the court system.
Mr Justice Hartman said 'it must be accepted that the enactment of the ordinance has had the effect of denying public officers the ability to seek redress through the courts for what they would contend is a breach of their contracts of service'.
But he said that what had to be determined was whether the enactment of the ordinance offended Article 35.
In conclusion, he said the right of access to courts was not absolute and could be balanced against other factors, such as Hong Kong's responsibility to achieve a fiscal balance as described under Article 107 of the Basic Law.
Mr Justice Hartmann also brushed aside submissions that Article 100 and 103 - designed to assure those civil servants employed before 1997 that they would keep their jobs and their conditions of service after the handover - ruled out the pay reduction legislation.
'I am satisfied that public officers have at all times, both before and after the transfer of sovereignty, been under the legitimate risk of having their contracts of service amended by way of legislation,' he said.
'The enactment of the ordinance has not therefore placed them in a position less favourable than before the transfer of sovereignty.'