THE Government's victory in the long-running legal battle over civil service localisation comes at a politically opportune moment. It will make it much easier for the British to argue for the retention of the Bill of Rights after 1997, by showing how generous a view the courts may take of government actions, even when they are in clear breach of the rights the ordinance protects.
Yesterday's High Court decision is a bitter defeat for the Association of Expatriate Civil Servants, which has been campaigning for three years to prove the localisation policy is illegal. Although Mr Justice Keith diplomatically described the 'spoils of battle' as having been shared, the expatriates' only victories were in defeating a handful of less important parts of the policy, such as the restriction that educational allowances can only be used for studying in the United Kingdom. Even where the court found against the Government, Mr Justice Keith went out of his way to suggest how present practices could be modified to make them legal.
But expatriate civil servants are not the only ones who should have reservations about this judgment. Those who care about the rule of law must have misgivings that at least one key part of the localisation policy, which allows for the demotion of expatriates under some circumstances, was found to be a prima facie breach of Article 21(c) of the Bill of Rights - yet was nonetheless ruled legal. The reasons given for this were political: the court viewed it as a rational response to pressure from legislators and local unions, so constituting 'the lesser of these two evils'. Mr Justice Keith has taken a broad view of the executive's authority, citing Court of Appeal and Privy Council precedents to argue the Government need not be bound by Hong Kong's civil liberties legislation in pursuing 'an important objective', providing it can justify its actions in a 'cogent and persuasive' way, and show there was no alternative to any violation of rights which may have occurred.
That may be at odds with the popular perception of the Bill of Rights as a key constitutional safeguard against the excesses of government. It also calls into question whether it is really so vital to fight for the preservation of the ordinance if the protection it provides is incomplete. Some supporters of localisation may even wonder if the policy is worth pursuing at the price of making an exception to rights that apply everywhere else.
But unless successfully appealed against, this represents the law, and has to be reluctantly accepted as such. What is important is the Government does not now use it as excuse for breaching the Bill of Rights in other areas. Nor should there be any retaliation against the expatriates who fought this court case. Liberal Party leader Allen Lee Peng-fei once proposed they should be dismissed, if they lost. That suggestion must be firmly rejected.
It is not yet clear if this judgment will mark the end to two years of bitter divisions within the civil service over localisation. But, if it does, then it should be the start of a period of reconciliation rather than retribution.
