LegCo Panel on Home Affairs (Papers) 22 Sep 98

LegCo Panel on Home Affairs Racial Discrimination

Special Meeting on 22 September 1998 We have been invited to attend this meeting and to provide a written submission to facilitate discussion on the subject of racial discrimination.

Our particular concern is racial discrimination within Hong Kong's civil service and we will confine our comments on racism to this demographic group. This is not to say that we do not see nor are concerned about racism in other areas, far from it. But we will comment only on those members of the community we represent, that is, civil servants who were recruited overseas and Hong Kong permanent residents who would seek employment in the civil service but who lack proficiency in Chinese. Let us begin by confirming that racial discrimination in the civil service not only exists but is endemic. It is institutionalised in the Basic Law (Article 101 whereby only persons of the Chinese race may aspire to the highest levels of the civil service) and in the government's Localisation Policy which has been described as the sinovization of the civil service.

Localisation a euphemism for racial purity

Since the signing of the Joint Declaration in 1984 the Localisation Policy has been actively pursued. The results are plain enough; in 1990 there were 2,485 overseas officers but by 1 April 1998 only 1,089 remained, a 56% reduction in an 8 year period. Make no mistake about it, the localisation policy is and has always been RACIAL DISCRIMINATION. There is absolutely no other term to describe it. Article 1 of the United Nations International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) defines racial discrimination as follows -

"In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic social, cultural or any other field of public life." Civil Service Regulation 115 creates the distinction by providing for the offer of employment on local status and local conditions of service to persons having their general background and social ties and being habitually resident in Hong Kong, Macau, China or Taiwan only, that is to say, those who are ethnically Chinese.

The Localisation Policy, being ethnically and nationality linked to habitual residents of Hong Kong, Macau, China or Taiwan so as to include that prohibited distinction, is therefore racial discrimination within the meaning of the United Nations Convention.

The prohibited distinction of national or ethnic origin has now been modified to include another prohibited distinction based on language as a condition, primarily, for transfer from agreement terms to permanent and pensionable terms.

The Government in the continuance of its racial discrimination against our membership on language grounds, hangs its hat on a general comment in the 1989 report of the UN Human Rights Committee that -

"...not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the covenant." This position has been affirmed by the European Court of Human Rights which, drawing on international law, has held that differential treatment will amount to discrimination if the distinction has no "objective and reasonable justification". In determining whether such justification exists, the Court requires that the difference of treatment must have been adopted in pursuit of a legitimate aim and that there must be a reasonable relationship of proportionality between the means employed and the aim to be realised.

AECS compelled the Government to comply with the law

In July 1993, faced with impending Court action by the AECS over its unlawfully discriminatory policies the Government conceded to our arguments that overseas agreement officers who had become permanent residents were entitled by virtue of the Hong Kong Bill of Rights Ordinance, to access on general terms of equality to public service and could apply for transfer to local terms and continue their service on the same terms as local officers.

It has to be emphasized that the Government did not initiate this move. They did so only because the AECS had threatened court action to attain their lawful rights - rights wrongfully denied them by the Government.

However, on making the concession, the Government then imposed onerous restrictions on transfer including a demotion scheme, blockage on promotion, and a fraudulent opening-up scheme whereby long-serving officers are required to compete for their jobs and to comply with retrospectively imposed language requirements.

These restrictions resulted in AECS court action and in the event, 14 Government decisions designed by the Government to frustrate the transfer by overseas agreement offices to local terms were declared unlawful both in the High Court and in the Court of Appeal.

In a landmark judgment handed down by the Court of Appeal [1995 No 260 (Civil)] Bokhary J. commenced as follows with some moving words -

"...It is a poignant reminder of the fact that the world in which we live is a far from perfect one. The courts cannot cure all ills. What we can do is maintain the Rule of Law. And that we will do." This was a comment on the sadness that racial discrimination had been resorted to in Hong Kong and by the Government.

The fraudulent Opening-Up Scheme

One of the measures introduced by the Government to rid the civil service of overseas officers was the so-called "opening-up scheme" whereby officers of many years experience were required to compete for their jobs with other less experienced officers. To be successful a candidate did not have to be able to perform better than the incumbent but merely be able to do the job. If he lost the incumbent is required to leave the service.

In the court proceedings, the Government had presented the scheme as having nothing to do with localisation, not being based on any distinction between local and overseas officers, and being based solely on the principle of finding the best person for the job.

In fact, the scheme is simply another means being used for the sinovization of the civil service. The reality is that in the months following its introduction, all of the 15 officers who lost their jobs in opening-up competitions were overseas agreement officers, comprising 14 who were seeking to transfer to local terms and one who had already transferred. Eleven were replaced by demoted overseas officers, the other three by local officers. In other words, not a single local officer lost their job in an opening-up competition. Not only that, local agreement officers were permitted to escape possible dismissal under the scheme by applying to join the local permanent establishment and there is a documented case in the Civil Engineering Department where the posts of 11 overseas senior engineers and two local senior engineers who were finishing their contracts between 1 September 1995 and 30 September 1996 were, in the case of the 11 overseas senior engineers, opened up on 13 October 1995 so as to compete with 14 overseas engineers who had been demoted to engineer grade; and in the case of the two local senior engineers opened up only on 11 April 1996 with the result that they did not have to compete with the 14 demoted overseas engineers.

In that exercise on 13 October 1995, seven incumbent overseas senior engineers lost their jobs. Having lost, they were forced to leave the service and they were not eligible to enter and could not compete against the two local senior engineers in the later 11 April 1996 competition.

Those who lost an opening-up competition also were, unlawfully, denied the opportunity to transfer to local permanent and pensionable terms while at the same time the Civil Service Branch, by letter dated 31 August 1994, was actively encouraging local officers to so transfer. Further in another documented case, involving the Environmental Protection Department where local officers were concerned about the opening-up of their posts to competition, Civil Service Branch replied on 7 February 1997 that "going through an opening-up exercise should not cause too much difficulty for any officer performing reasonably well" contradicting affidavit evidence that the aim of the opening-up scheme "is to select the best person for the job.

Discrimination based on language

Having been rebuffed on several methods used to pursue localisation (in all, 7 appeals by the AECS against the government's localisation policies were upheld by the Court of Appeal), a new rule has recently been introduced which is designed to block overseas officers from joining the permanent establishment and thus securing their employment. This Chinese language test, which is racial discrimination being pursued under the guise of language, is simply another means to achieve the sinovisation of the civil service.

The Court of Appeal had already determined that it was unlawful to impose a Chinese language test on overseas officers seeking renewal of their agreements. It had also held that overseas officers who were Permanent Residents could transfer to the permanent establishment. What the Government is now attempting to say, a full year after the judgment, is that the Court of Appeal had not ruled on a language requirement for transfer to the permanent establishment so it is lawful to bring in this new rule.

The AECS has instituted further court proceedings over the Government's latest move which are due to be heard on October 26 and 27.

Serving officers and the language requirement

The Government's new rules for transfer to permanent terms are unlawful on a number of grounds including, in particular, in relation to its Chinese language proficiency requirement -

In relation to serving officers, it infringes the principle against retrospectivity and against any unilateral derogation of existing conditions of service. Under Article 100 of the Basic law, all public servants in service prior to the establishment of the SAR "may all remain in employment and retain their seniority with pay, allowances, benefits and conditions no less favourable than before".
It is discriminatory and inconsistent with Article 9 of the Basic Law which states "in addition to the Chinese language, English may also be used as an official language".

A language policy which permits access to the permanent public service only to a trilingual biliterate elite is both discriminatory and inconsistent with the intention of the Basic Law to enable the best possible service to be developed or delivered by the best available talent in either of the official languages. Like any other policy which provides a prohibited distinction it requires careful assessment. Such requirement constitutes discrimination on the basis of the prohibited distinction of language (and indirectly, race, culture and national or social origin) since it denies access to the public service by means of a blanket policy which is objectively unrelated to the merits of performing public service tasks. The policy over-emphasizes language skills at the expense of the substantive skills which are of critical importance to ensuring the excellence of the public service.

The flexibility of Article 9 implicitly recognises not only the continuing importance of the English language in addition to Chinese but also the rights of the many people in Hong Kong of different ethnicity or background who under the Government's education policies - or more fundamentally the educational choices made for children by their parents - are expected to be fluent in either Chinese or English, but no necessarily in both, upon the completion of their formal education.

Language requirement excludes 12% of Hong Kong permanent residents

In relation to new recruits the policy denies access to the civil service of a significant portion of Hong Kong permanent residents whose mother tongue, other than Chinese, follows that of their background. Language skills are socially generic. Language fluency is primarily a product of a person's racial, cultural, and social or educational background. As such it is typically closely linked to other prohibited distinctions such as race, colour, and national or social origin. Persons of one race, culture or origin may find it either impossible or prohibitively difficult to master the language of persons of another race, culture or origin. They would be unable to comply with the proposal merely by reason of their ethnicity, national or social origin, culture or education.

Since language skills are socially generic, language requirements are more exclusionary still in respect of Hong Kong people who are not of Chinese culture. The policy is nothing other than discrimination on the basis of language. Some 12% of Hong Kong's population reported that languages other than Cantonese were their mother tongue in the 1991 census. Therefore the minority of Hong Kong people which will now be excluded by the Chinese language requirement will be large. Any of that minority being a permanent resident can take court proceedings against the Government under Article 21 of the Bill of Rights. Notwithstanding the predominance of Chinese as a mother tongue, Hong Kong is a multicultural society in which English is the unifying language amongst its may diverse communities. The Government is duty bound to avoid policies which discriminate against minority communities - in this case, in respect of their right to equal access to the public service.

The practice in other jurisdictions

Contrast what is happening in Hong Kong with the situation in other official bilingual jurisdictions. In those (Canada, for example) employment in the civil service is open to any resident of Canada who is proficient in either of the official languages. The only exception is for a small number of posts where bilingual proficiency, or proficiency in one particular language, is essential to the effective performance of the job.

In the Hong Kong civil service it cannot be doubted that in most posts that have been subjected to the localisation policies (mostly professional or technical), proficiency only in English is more than satisfactory for the effective performance of the job (all of the civil service Chinese colleagues are, after all, proficient in English). To impose a Chinese proficiency requirement for these posts does little to improve job performance and does everything to drive unilingual English speakers out of service (or deny them entry) leaving only bilingual or unilingual Chinese speakers of the Chinese race. To suggest that persons not brought up in the Chinese language can simply learn spoken and written Chinese to gain equality is to conveniently overlook the enormous barrier that poses.

Paradoxically, the Australian politician, Pauline Hanson, is regularly attacked in the Hong Kong press for her racist policies. What Ms Hanson talks about doing in Australia is already institutionalised in Hong Kong's civil service. Before criticism is given to another country which is contemplating racism, Hong Kong should look at itself and what it does to its own citizens (permanent residents) and acknowledge the hypocrisy. If further proof is needed a recent book entitled The Civil Service In Hong Kong - Continuity And Change has been published just this year. Two quotes are put before you to judge for yourself:-

"Some supporters of localization argue that positive discrimination has also been lawfully practiced for years in other jurisdictions. Therefore, it may be suggested that the government should adopt a simple and clear definition of 'locals' to denote 'the overwhelming majority of the population which is Chinese in origin' as suggested by Podmore (1971:36). The use of this simple definition will help to remove some of the confusion over the definition of 'locals' in the process of localization." - page 78.

"There may well be some short-term problems, but no one can doubt the high level of ability of local civil servants or the excellence of their experience gained in the expatriate-dominated civil service. But the world moves on - and so must the expatriates!" - page 81.

This is intended as a text book for Hong Kong's students. If these are the ideas we wish to promulgate to our students, then racial discrimination not only exists and is condoned but is sanctioned and encouraged. It is already too late to undo the harm done to individuals but it is not too late to change and rid Hong Kong of this ugly policy. Is Hong Kong an international and cosmopolitan city or, as the book confidently states, "a Chinese city" - (page 15)? It cannot be both and racial discrimination will determine ultimately that the book is right despite the Chief Secretary of Administration's words in the latest Civil Service Newsletter (Issue No. 42/July 1998 at page 15) where the C.S. for A. talks about the importance of English and that "We mustn't just become like any other Chinese city otherwise we lose our competitive edge." In the same article the C.S. for A. also says "... we are an international, cosmopolitan city, and we must never forget that."

An ethnically cleansed civil service

So our membership is gradually dwindling and the Government's drive to remove our members from the civil service continues unabated. But at what cost. The Government has already stated that some 81 locally modelled term officers who started their agreements on local terms may apply for transfer to the permanent establishment without being subject to a Chinese language proficiency requirement. So for the sake of a miniscule number of officers in the civil service affected by the language requirement, the Government is continuing to allow itself to be taken to court, for the court to determine whether its racial discrimination has been adopted in pursuit of a legitimate aim and whether there is a reasonable relationship of proportionality between the means employed and the aim to be realised.

So racial discrimination is alive and well in the civil service. And it is being successfully inflicted. At the present rate the civil service should be 100% ethnically cleansed within five years. Is this really what a cosmopolitan society such as Hong Kong want?

The fact that a group of otherwise loyal civil servants have to continually take the Government, their employer, to court just to enforce their rights under the law in relation to racial discrimination will forever remain a blot on the history of the Hong Kong Civil Service.

14 September 1998

LegCo Panel on Home Affairs
Racial Discrimination

Special Meeting on 22 September 1998
Bullet Points

We have been invited to attend this meeting and to provide a written submission to facilitate discussion on the subject of racial discrimination.

Our particular concern is racial discrimination within Hong Kong's civil service.

Localisation a euphemism for racial purity

AECS compelled the Government to comply with the law

The fraudulent Opening-Up Scheme

Discrimination based on language

Serving officers and the language requirement

· A language policy which permits access to the permanent public service only to a trilingual biliterate elite is both discriminatory and inconsistent with the intention of the Basic Law to enable the best possible service to be developed or delivered by the best available talent in either of the official languages. Language requirement excludes 12% of Hong Kong permanent residents

· In relation to new recruits the policy denies access to the civil service of a significant portion of Hong Kong permanent residents whose mother tongue, other than Chinese, follows that of their background. Language skills are socially generic so language requirements are more exclusionary still in respect of Hong Kong people who are not of Chinese culture. The policy is nothing other than discrimination on the basis of language. The practice in other jurisdictions

· Contrast what is happening in Hong Kong with the situation in other official bilingual jurisdictions. In Canada, for example, employment in the civil service is open to any resident of Canada who is proficient in either of the official languages. An ethnically cleansed civil service

14 September 1998

LegCo Panel on Home Affairs Racial Discrimination

Special Meeting on 22 September 1998 Bullet Points

Special Meeting on 22 September 1998
Bullet Points