IT SEEMS expatriate civil servants should now be equated with murderers and drug dealers following last week's defeat of their legal battle against localisation: a verdict that should shatter any illusions that the judiciary will restrain any excesses of the Special Administrative Region (SAR) Government after 1997.
The court found the demotion of expatriates to be a breach of the Bill of Rights, which guarantees all Hong Kong permanent residents equal access to the civil service. It described the demotion as 'not capable of being justified on its merits' and 'compromising over rights which should never have been compromised'.
Most people might assume that would be enough to make the policy illegal. But not Mr Justice Keith, who delivered the judgment. He was not entirely happy about his decision, admitting it was made with 'considerable hesitation'. And well he might.
For his conclusion was that the Bill of Rights can be breached if it stands in the way of 'the achievement of an important objective on the part of the Government, and that objective could not have achieved by means which did not involve a departure from constitutionally entrenched rights'. In short: the law must not be allowed to get in the way of the government doing what it wants.
That verdict may be politically convenient in the short-term. It does not take much to imagine the furore which would have erupted had the judgment gone the other way and such a key element of the localisation policy been struck down. It would certainly have given China powerful new ammunition with which to attack the Bill of Rights.
But the long-term consequences of granting such sweeping immunity to the administration could be immense. Perhaps the SAR Government will argue it is 'an important objective' to stop the Democrats winning future elections and that this 'could not have been achieved' without disqualifying some of their supporters. Similar arguments could equally be advanced to justify anything from press censorship to the expulsion of dissidents.
It all makes recent fears over the acts of state exception to the Court of Final Appeal accord seem rather misplaced when an even larger loophole can be created in the Common Law without causing any fuss. It also calls into question whether it is worth fighting so hard to save the Bill of Rights if judges can simply create exceptions wherever they please.
