THE ASSOCIATION OF EXPATRIATE CIVIL SERVANTS OF HONG KONG v. THE SECRETARY FOR THE CIVIL SERVICE and Another

1995, No. 260
(Civil)

H E A D N O T E

This case concerns a judicial review challenge to the lawfulness of a number of administrative steps taken by the Government pursuant to its policy for the localisation of the civil service.

On the appeal, the appellant contended that there were 13 matters which the judge had wrongly failed to declare were unlawful.

Allowing the appeal in part, the Court of Appeal held that of those 13 matters: two were mere provisional proposals not susceptible of judicial review; four were lawful decisions; one was an unlawful decision because it abrogated accrued rights; another was an unlawful decision because it took an irrelevant consideration into account; and five were unlawful decisions because they were contrary to article 21(c) of the Bill of Rights, so that any adversely affected permanent resident could complain.

On the cross-appeal, the respondents contended that there were two decisions which the judge had wrongly declared were unlawful.

Dismissing the cross-appeal, the Court of Appeal held that both of those decisions were unlawful under article 21(c) of the Bill of Rights.

AS TO THE MEANING OF THE TERM "PERMANENT RESIDENT" IN ARTICLE 21 OF THE BILL OF RIGHTS:

Article 21 of the Bill of Rights should be construed so as to conform as closely as possible with the article in the International Covenant on Civil and Political Rights from which it is taken, namely article 25 thereof. Article 25 speaks of every "citizen" and of "his country". But Hong Kong, not being a country, does not have citizens as countries do. So article 21 speaks instead of every "permanent resident" and of "Hong Kong". In article 25, the term "citizen" connotes a national with full political rights. The closest thing Hong Kong has to such a person is a person with the right to participate in public life guaranteed by article 21. But such a right would be a hollow one unless you can enter Hong Kong at will and remain here as long as you like. So the closest thing Hong Kong has to a citizen is a person with the right of abode here. Consequently, the term "permanent resident" in article 21 means a person with the right of abode in Hong Kong. And the persons who have that right of abode are Hong Kong permanent residents within the meaning of the Immigration Ordinance.

AS TO WHETHER ANY GIVEN DISTINCTION IS LAWFUL OR UNLAWFUL:

Whenever there is a distinction, the question under article 21 of the Bill of Rights is whether that distinction is fair and therefore lawful or discriminatory and therefore unlawful. In short, can the distinction be justified?

To justify the distinction it must be shown: one, that sensible and fair-minded people would recognize a genuine need for some such distinction; two, that the particular distinction made to meet that need is itself rational; and, three, that such distinction is proportionate to such need.

That is the test as to justification, being one of fairness, genuine need, rationality and proportionality: designed to answer the question whether a distinction is fair and therefore lawful or discriminatory and therefore unlawful.

AS TO THE APPLICATION OF THAT TEST:

Its application in any given case calls for a careful assessment of the circumstances of that case. If it is contended that a distinction is needed because problems would otherwise arise, then that contention must be scrutinized. And it will not be accepted unless it is clear that there really would be serious problems which would be very difficult even if not impossible to overcome. Human rights are involved here. And courts and tribunals must guard such rights by guarding themselves against being persuaded to make too much of problems put forward with a view to justifying distinctions in the way people are treated.

IN THE COURT OF APPEAL

1995, No. 260
(Civil)

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J U D G M E N T

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Bokhary, J.A.:

INTRODUCTION

1. This case concerns a judicial review challenge to the lawfulness of a number of administrative steps taken by the Government pursuant to its policy for the localisation of the civil service. 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.

2. It is well known that the Government has a policy for the localisation of the civil service, pursuant to which it has taken many administrative steps: making decisions, adopting stances and putting forward proposals.

3. There is no suggestion that localisation is in itself unlawful. But the lawfulness of a large number of the things done by the Government in the name of localisation was challenged in judicial review proceedings before Mr Justice Keith in the High Court last autumn.

4. Those proceedings were brought by the Association of Expatriate Civil Servants of Hong Kong, which was the 1st applicant, and four of its individual members, who were the 2nd to 5th applicants. They were brought against the Secretary for the Civil Service ("the SCS') and the Attorney General.

5. The judge gave judgment on October 31 last year. For various reasons, he held against the applicants on the bulk of their judicial review challenge. He declared that five of the Government's decisions were unlawful. But he dismissed the remainder of the challenge.

6. We now have before us an appeal and a cross-appeal from his judgment.

7. There is only one appellant, namely the applicant association. The SCS and the Attorney General who were the respondents to the application are now the respondents to the appeal.

8. Each side accepts part and disputes part of so much of the judge's judgment as went against it.

9. As to the appeal, the appellant seeks relief at our hands in respect of 13 matters. I use the general expression "matters" because, although 11 are decisions which the judge refused to declare unlawful but which the appellant asks us to declare are unlawful, two were viewed by the judge as unjusticiable provisional stances while the appellant asks us to declare them unlawful decisions or proposals having the substance and effect of decisions.

10. Turning to the matters the subject-matter of the cross-appeal, they consist of two decisions which the judge declared unlawful but which the respondents ask us to say are lawful.

11. Being able to see things in their historical context is generally an advantage. Sometimes it is a very great advantage indeed. But history is by no means always free from controversy. The parties to this case disagree as to its historical context. And the material before us does not enable us to resolve such disagreement.

12. All that can usefully be said by way of background before going to the actual matters now in issue is as follows.

P & P/Agreement; Local/Overseas

13. There are, the parties agree, four main categories of employment in Hong Kong's civil service. They are: (i) local permanent and pensionable ("P & P") terms; (ii) local agreement terms; (iii) overseas P & P terms; and (iv) overseas agreement terms. But the appellant says that local agreement terms now include what it calls "locally modelled terms".

14. Before a successful candidate is offered employment in the civil service here, a decision is made as to whether he is to be offered local terms or overseas terms. The parties are agreed as to the criteria which determine which he is to be offered. He is offered overseas terms if: (i) he was not habitually resident in Hong Kong, Macau, China or Taiwan; (ii) his general background or social ties were somewhere other than in any of those four places; and (iii) it is considered that he would experience a material degree of dislocation or uprooting if employed on local terms. If those criteria are met he would be offered employment on overseas terms. Otherwise he would be offered employment on local terms.

15. The difference between local and overseas terms is a matter of some controversy and, it must be recognized, a source of some bitterness. Generally speaking, it is in regard to leave, passage and overseas education allowance that overseas terms are more favourable than local terms. Those distinctions tend to dwindle and virtually disappear towards the highest echelons of the civil service. But lower down they do exist.

IDENTIFYING THE ACTUAL MATTERS NOW IN ISSUE

16. Turning to the actual matters now in issue, I think that it is best to begin by simply identifying them one-by-one.

Those in respect of which the appellant appeals

17. Listed in the order in which they were dealt with in the course of the hearing, the 13 matters which the appellant says that the judge wrongly failed to declare unlawful are:

(1) The decision of the Governor-in-Council (set out in paragraph 3(a) on page 2 of the SCS's memorandum dated July 30, 1993, and bearing the reference SPH 1/1/C(C) (93) III) that one of the things which an officer employed on overseas terms has to demonstrate when applying to transfer to local terms is "his or her commitment to Hong Kong by becoming a permanent resident as defined under the Immigration Ordinance".

(2) The SCS's decision (set out in paragraph 3(a)(ii) on the first page of his memorandum dated September 13, 1993, and bearing the reference (5) in LM (1) to SPH 1/1/C (C) (93)) that when an officer transfers from overseas agreement terms to local agreement terms "all accrued vacation leave should be taken before the commencement of the local agreement".

(3) The SCS's decision (set out in paragraph 2 on the first page of his memorandum dated September 21, 1993, and bearing the reference (78) in SPH 1/1/C (C) (93) VI) that in considering an application for transfer from overseas agreement terms to local agreement terms, it is "necessary to take into account the operational requirements of all posts in the rank to which the applicant belongs and see whether he is capable of effectively performing all the required duties of any of those posts which is or could reasonably be made available [so that] if all officers in the same rank are required to communicate directly with people in Chinese, the applicant's ability to perform effectively and efficiently without an interpreter may well be a consideration".

(4) The SCS's decision (set out in paragraph 3 on page 2 of his memorandum dated July 28, 1994, and bearing the reference SPH 1/1/C (C) (94) XIV) that if an officer transfers from overseas terms to local terms and there is a "suitable local replacement" who is promoted to the transferee's existing rank, then the transferee "will be offered appointment at one rank below his existing rank but with personal salary and conditions of service as if he were employed at his original rank on local conditions".

(5) The SCS's decision (set out in paragraph 2 of his one-page memorandum dated October 14, 1994, and bearing the reference SPH 1/1/C (C) (94) XV) that in regard to overseas agreements which were due to expire before September 1, 1995, "transferees to local conditions who have less than twelve months service to give before the current overseas agreement expires, and who have been or are likely to be offered an agreement modelled on local conditions with promotion restrictions should not be considered for promotion to fill normal vacancies arising from wastage and creation of posts, or potential vacancies created by other transferees to local conditions".

(6) The SCS's decision (set out in paragraph 5 on page 2 of his aforementioned memorandum of July 28, 1994) that officers who transfer from overseas terms to "an agreement modelled on local conditions of service will not be eligible for promotion for the duration of their agreement unless the [SCS] is of the opinion that in the interests of the public service, an exception should be made."

(7) The SCS's decision (set out in paragraph 4 on page 2 of his aforementioned memorandum of July 28, 1994) that when an officer transfers from an overseas agreement to one modelled on local terms "any extension(s) granted to the previous overseas agreement for completion of naturalisation procedures and/or as a result of the Public Officers (Variation of Conditions of Service) (Temporary Provisions) Ordinance will be deducted from the period of the agreement."

(8) The SCS's decision (spread out over his two memoranda each dated December 19, 1994, and bearing the reference AP 3/8(C) (94) II, one numbered 24/94 and the other numbered 79/94) that when any agreement officer (whether overseas or local) whose agreement expires on or after September 1, 1995, seeks an extension: (i) his position will be "opened up for competition" and (ii) he "should leave the service upon the expiry of his current agreement" if he loses such competition.

(9) The SCS's decision (set out in paragraph 14 on pages 3-4 of his aforementioned memorandum of December 19, 1994, numbered 24/94) that "in assessing the relative merits of [those competing under the "opening-up" scheme] it will be necessary to take into account the operational requirements of all positions in the rank concerned to see whether an officer is capable of performing efficiently and effectively the required duties of the rank [so that] if a substantial portion of officers are required to communicate directly with people in Chinese, a candidate's ability to perform effectively and efficiently without an interpreter would be a consideration."

[Note: This decision talks about " a substantial portion" of officers in the same rank being required to communicate in Chinese. The decision numbered (3) in this list of matters talks about "all" such officers being required to do so.]

(10) The SCS's decision (set out in paragraph 9 on page 2 of the paper attached to his circular letter dated June 15, 1994, and bearing the reference Ad 6/15 - C) that there should be a "ceiling" of two overseas officers in Administrative Officer Staff Grade A ("AOSGA") posts and four overseas officers in Administrative Officer Staff Grade B1("AOSGB1') posts.

(11) The Attorney General's decision (set out under the sub-heading "New Initiatives" on page 115 of his 1994 Policy Address paper) that the Legal Department "will introduce a new Succession Posts Scheme to accelerate the promotion of local counsel to the senior directorate."

(12) The SCS's decision, proposal or stance (set out in paragraph 8 on page 2 of the paper attached to his memorandum dated June 24, 1994, and bearing the reference PSU/GEN/490(C) (94) Pt VII) saying, after setting out various suggestions as to how a "local" is to be defined, that: "It is therefore proposed that a 'local' be defined as a permanent resident under the Immigration Ordinance for the time being. As and when the latter is amended to align with the Basic Law, the definition of a 'local' can be changed accordingly."

(13) The SCS's decision, proposal or stance (set out in paragraph 10(a) on page 3 of the paper attached to his aforementioned memorandum of June 24, 1994) saying that: "In view of the increasing importance of the use of Chinese language in the run up to 1997 and beyond, we consider that the proposals in [the consultation paper released in October 1993] should be reaffirmed, viz - ... for appointment to new P & P terms, on which an officer can normally serve until retirement, a norm should be set at a pass in a Chinese subject in the Certificate of Education Examination but with an alternative (for those having no formal education in Chinese) of a pass in a basic Chinese language proficiency test ..."

18. I propose to refer to the foregoing 13 matters as 'Appeal

Matter (1)", "Appeal Matter (2)", "Appeal Matter (3)" and so on down to "Appeal Matter (13)".

19. Appeal Matter (1) to Appeal Matter (11) are the decisions which the judge refused to declare unlawful but which the appellants ask us to declare are unlawful. Appeal Matter (12) and Appeal Matter (13) are the matters which the judge considered to be tentative proposals beyond the scope of judicial review but which the appellant asks us to declare are unlawful decisions or stances.

The matters in respect of which the respondents cross appeal

20. There are two matters which the respondents say the judge wrongly held were unlawful decisions and should instead have held were lawful decisions. They are:

(1) The SCS's decision (set out in paragraph 3(g) on page 4 of his aforementioned memorandum of September 13, 1993) that the Civil Service Regulation which permits local agreement officers to transfer to the P & P establishment, namely CSR 121(1), will not apply to officers who had transferred from overseas agreement terms to local agreement terms under the transitional arrangements of that period.

(2) The SCS's decision (set out in paragraph 31 on page 8 of his aforementioned memorandum of December 19, 1994, numbered 79/94) that that regulation will not apply to overseas transferees under the opening-up scheme either.

21. I propose to refer to the foregoing two matters as "Cross-Appeal Matter (1)" and Cross-Appeal Matter (2)" respectively.

22. Having identified the 13 matters in respect of which the appellant appeals and the two matters in respect of which the respondents cross appeal, I will now adjudicate upon them one-by-one. In expressing my reasons, I will in each instance go straight to the heart of the matter as I ultimately see it. But both sides should know not only that I have considered all their arguments with care but also that I am very grateful to them for the same.

APPEAL MATTER (1) : MEANING OF "PERMANENT RESIDENT"

23. As we have seen, Appeal Matter (1) consists of a decision that one of the things which an officer employed on overseas terms has to demonstrate when applying to transfer to local terms is "his or her commitment to Hong Kong by becoming a permanent resident as defined under the Immigration Ordinance".

Article 21(c) of the Bill of Rights

24. In my view, whether that decision is unlawful depends on whether it infringes article 21(c) of the Bill of Rights.

25. Article 21 reads:

" Every permanent resident shall have the right and the opportunity, without any of the distinctions mentioned in article 1(1) and without unreasonable restrictions -

(a) to take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) to have access, on general terms of equality, to public service in Hong Kong."

(The distinctions mentioned in article 1(1) are "of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.")

26. And article 22 reads:

" All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

27. Since article 22 is general while article 21(c) is specific for present purposes, it is upon article 21(c) that the lawfulness or otherwise of the decision in question turns.

Covenant

28. Article 21 of the Bill is taken from article 25 of the International Covenant on Civil and Political Rights. And article 25 of the Covenant reads:

" Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) to have access, on general terms of equality, to public service in his country."

29. In general, mere presence in Hong Kong attracts the rights guaranteed by the Bill just as mere presence in the territory of the state party concerned attracts the rights guaranteed under the Covenant.

Bill : "permanent resident"/Covenant : "citizen"

30. But, as can be seen, both article 21 of the Bill and article 25 of the Covenant requires more than mere presence.

31. The differences between article 21 of the Bill and article 25 of the Covenant are that the former speaks of every "permanent resident" and of "Hong Kong" while the latter speaks of every "citizen" and of "his country."

32. Those differences are unavoidable because Hong Kong is not a country and does not have citizens as countries do.

Conformity with covenant

33. Subject to those unavoidable differences, we must interpret article 21 of the Bill so that it conforms with article 25 of the Covenant as closely as possible.

34. That interpretation is dictated by these considerations.

35. First of all, the purpose of the Hong Kong Bill of Rights Ordinance, Cap. 383, is, as its long title tells us, the incorporation of the Covenant into our law. And, as section 2(3) of the Ordinance provides in terms, regard is to be had to that purpose in interpreting and applying the Ordinance. Clearly, such interpretation is essential if such incorporation is to be effective. And if it is not effective, then the whole purpose of the Bill would be defeated.

36. Secondly, what entrenches the Bill is the provision in the Letters Patent prohibiting any legislative inroad into the Covenant as applied here. The Bill is (as we said in The Queen v. Chan Chak Fan [1994] 2 HKCLR 17 at p. 23) the "embodiment" of the Covenant as applied here. And it can only be that if it is interpreted so as to conform with the Covenant as closely as possible.

37. So the search is for the correct interpretation of the term "permanent resident" in article 21 of the Bill which most closely conforms with the term "citizen" in article 25 of the Covenant. And that search must begin with a proper appreciation of the latter term itself.

38. As a treaty, the Covenant leaves each state party to define its citizens by its municipal law. That is wholly consistent with international law.

Full political rights

39. It is of course a general principle of international law that in the field of international relations other states are not bound to recognize a state's municipal nationality law unless such law is consistent with legal principles enjoying general recognition internationally. But international law does not operate to determine for a state's internal purposes who are that state's nationals. Such determination is made by the state's municipal law.

40. It will be noticed that I have been speaking of nationality rather than citizenship.

41. The terms "citizenship" and "nationality" are often used interchangeably. But there is a distinction between them. Whether that distinction matters depends on the context.

42. As far as international law is concerned, the distinction is generally without a difference. A state may by its municipal law distinguish between its nationals. Thus it may confer full political rights on some but not on others. And it may use the term "citizen" to denote those upon which such rights are conferred. That has happened in practice. But the lack of such rights does not of itself mean that those lacking them are not nationals in the eyes of international law.

43. The significance of the distinction for municipal purposes is, however, axiomatic.

Right of abode

44. With that appreciation of the term "citizen", I turn to the question of whether a "Hong Kong permanent resident" within the meaning of the Immigration Ordinance, Cap. 115, is the closest thing Hong Kong has to a citizen.

45. The term "Hong Kong permanent resident" is defined by that Ordinance in this way. Section 2(1) provides that it means "a person who belongs to a class or description of persons specified in Schedule 1".

46. Turning to that schedule, you find that it reads:

"1. Any person who is wholly or partly of Chinese race and has at any time been ordinarily resident in Hong Kong for a continuous period of not less than 7 years.

2. Any person who is a British Dependent Territories citizen and who -

(a) belongs to a class or description of persons specified in Article 2 of the Hong Kong (British Nationality) Order 1986 (L.N. 233 of 1986) as having a connection with Hong Kong; or

(b) is such a citizen by virtue of his having a connection with any of the British Dependent Territories (other than Hong Kong) mentioned in Schedule 6 to the British Nationality Act 1981 (1981 c. 61 U.K.) and has at any time been married to a person specified in subparagraph (a).

3. Any person who is a Commonwealth citizen and who immediately before 1 January 1983 had the right to land in Hong Kong by virtue of section 8(1)(a) as then in force."

47. Section 8(1)(a) as then in force conferred a right to land in Hong Kong on "Hong Kong belongers". And the term "Hong Kong belonger" was defined by section 2(1) to mean any person who immediately before January 1, 1983, was:

"(i) a British subject who was born in Hong Kong;

(ii) a British subject by naturalization in Hong Kong;

(iii) a British subject by registration in Hong Kong under section 7(2) of the British Nationality Act 1948;

(iv) a British subject married or who had been married to, or was a child of, a person mentioned in sub-paragraph (i), (ii) or (iii)."

48. At this point, I should pause to address the appellant's argument that the way in which the Immigration Ordinance defines Hong Kong permanent residents is itself racist because of the favoured position in which it puts persons who are "wholly or partly of Chinese race".

49. Undoubtedly, that brings in race as a criterion. And the instinctive reaction of right-thinking people in the modern world is against any such criterion, whether it operates to their material advantage or against it. But colonialism may also be viewed as something which provokes that sort of reaction. And a failure on the part of a colonial power, however benevolent its stewardship, to make some concession to the ethnic group which forms the vast bulk of the indigenous population might itself be open to legitimate criticism. As a matter of substance and reality, I detect here no more than some such concession. Whether or not it is ideal, I am unable to condemn it as racist.

50. Moving on, the important thing about being a Hong Kong permanent resident is that such persons are the only ones who have the right of abode in Hong Kong. For section 2A of the Immigration Ordinance reads:

"(1) A Hong Kong permanent resident enjoys the right of abode in Hong Kong, that is to say he has the right -

(a) to land in Hong Kong;

(b) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed shall have no effect;

(c) not to have a deportation order made against him; and

(d) not to have a removal order made against him.

(2) Notwithstanding subsection (1)(c), no person against whom a deportation order was made prior to 1 July 1987 enjoys the right of abode in Hong Kong unless the deportation order has expired or been revoked."

51. As we have seen, a citizen is a national with full political rights. Such rights, even if not synonymous with the right to participate in public life guaranteed by article 21 of the Bill of Rights, must at least include the same. And your right to participate in public life in a place would be a hollow one without the right to enter that place at will and remain there as long as you like.

52. Therefore, to interpret the term "permanent resident" in article 21 of the Bill to mean anything short of a person who has a right of abode here is open to this objection. It would be saying, on the one hand, that someone has an entrenched right to participate in public life here but, on the other hand, that he has no right at all to be here in order to do so. That would make a mockery of article 21.

Permanent resident means ...

53. In my view, the closest thing Hong Kong has to a citizen is a person with the right of abode here. And for all the foregoing reasons, I interpret the term "permanent resident" in article 21 of the Bill of Rights to mean such a person, in other words, a Hong Kong permanent resident within the meaning of the Immigration Ordinance.

54. Those reasons having of necessity been given at some length, it would be helpful if I were now to draw their essential elements together into a relatively condensed statement of principle. Doing so, I would put it thus.

55. Article 21 of the Bill of Rights should be construed so as to conform as closely as possible with the article in the International Covenant on Civil and Political Rights from which it is taken, namely article 25 thereof. Article 25 speaks of every "citizen" and of "his country". But Hong Kong, not being a country, does not have citizens as countries do. So article 21 speaks instead of every "permanent resident" and of "Hong Kong". In article 25, the term "citizen" connotes a national with full political rights. The closest thing Hong Kong has to such a person is a person with the right to participate in public life guaranteed by article 21. But such a right would be a hollow one unless you can enter Hong Kong at will and remain here as long as you like. So the closest thing Hong Kong has to a citizen is a person with the right of abode here. Consequently, the term "permanent resident" in article 21 means a person with the right of abode in Hong Kong. And the persons who have that right of abode are Hong Kong permanent residents within the meaning of the Immigration Ordinance.

Pepper v. Hart point

56. I pause here to mention that I have not forgotten the appellant's reliance, in regard to the meaning of the term "permanent resident" in article 21 of the Bill, upon what the then Chief Secretary said on that score when moving the second reading of the Hong Kong Bill of Rights Bill. The judge took the view that the statement so relied upon was not clear. I agree. That alone puts the statement outside the scope of the decision of the House of Lords in Pepper v. Hart [1993] AC 593. But I might add that, in my view, the other criteria laid down by the House of Lords are not satisfied either in the present case. Nothing more need be said about the then Chief Secretary's statement. And I move on.

Ultimately

57. Ultimately, as I have said and for the reasons which I have given, whether Appeal Matter (1) is unlawful depends on whether it infringes article 21(c) of the Bill. That matter, let us remind ourselves again, consists of a decision that one of the things which an officer employed on overseas terms has to demonstrate when applying to transfer to local terms is "his or her commitment to Hong Kong by becoming a permanent resident as defined under the Immigration Ordinance."

58. I see no reason at all why the Government cannot ask for a demonstration of commitment. Nor do I see any reason at all why the Government cannot specify that such demonstration should be made by becoming a permanent resident.

59. The real question is whether the way in which the Government has chosen to define the term "permanent resident" is lawful. I have come to the conclusion that such choice conforms with the Bill of Rights.

Result : lawful

60. In my judgment therefore, Appeal Matter (1) is a lawful decision, and the appellant's challenge to it fails.

61. Nothing which I have said on this part of the case affects the appellant's standing in regard to the rest of the case. For the respondents do not suggest that not even a single member of the appellant is a Hong Kong permanent resident within the meaning of the Immigration Ordinance.

APPEAL MATTER (2) : ACCRUED LEAVE

62. Turning to Appeal Matter (2), it consists, as we have seen, of a decision that when an officer transfers from overseas agreement terms to local agreement terms "all accrued vacation leave should be taken before the commencement of the local agreement."

Accrued rights

63. Lying at the heart of the appellant's attack upon that decision is its argument that the decision purports to abrogate accrued rights.

64. The judge rejected that argument, saying this:

"However, the CSRs do not bear out the argument that transferring officers had to give up accrued rights as a pre-condition of transfer. The CSRs already provided that both casual and vacation leave which had not been taken before the end of the agreement on overseas terms would lapse. It is true that untaken casual leave could be carried forward to an officer's next agreement if the officer had not been able to take all his casual leave due to operational needs. Moreover, untaken vacation leave could be carried forward to an officer's next agreement or to when he finally left the Civil Service if the officer had not been able to take all his vacation leave due to operational needs. But those exceptions continued to apply to transferring officers. There was, therefore, no question of transferring officers being required to give up accrued rights: they were merely being required to exercise their accrued rights in a way in which they were already required to exercise them."

65. What that analysis ignores is an officer's vacation leave carried forward from any previous overseas agreement or agreements as opposed to one which he was on immediately before transferring to local terms. Such carrying forward would have been with permission. The leave carried forward could be taken at any time the officer chooses right up to the end of his service in the civil service, leaving him on the payroll for the duration of such leave even after he had cleared out his desk. Nobody has suggested that he would be required to take accrued leave after completing one overseas agreement and before beginning a new overseas agreement.

66. Ordinarily, completing one agreement and beginning a new one is remaining in the service, pursuing a career from agreement to agreement. And that is no less so just because the old one was overseas and the new one is local. The courts always protect accrued rights. That is not done by taking too narrow a view of them.

67. The judge upheld the decision in question on one basis only, namely his view that it did not purport to take away rights. But, as I see it, the decision did do that.

Result : unlawful

68. In my judgment therefore, the decision of which Appeal Matter (2) consists is unlawful because it abrogates accrued rights, so that anyone whose accrued rights have been taken away thereunder can complain.

APPEAL MATTER (3) : LANGUAGE - TRANSFER FROM OVERSEAS AGREEMENT TERMS TO LOCAL AGREEMENT TERMS

69. I turn now to Appeal Matter (3). Going by the way in which this decision is worded in the memorandum in which it is set out, it comes to this. Even though officers in the post occupied by an overseas agreement officer applying to transfer to local agreement terms are not required to communicate directly with people in Chinese, the applicant's inability to do so may nevertheless be a consideration against him if in the rank within which his post comes there is any post which requires officers to communicate directly with people in Chinese, because the applicant should be capable of acting in such other post.

70. Mr Huggins for the respondents says that the decision intended is one which does no more than say this to applicants : even if you do not need it in your post, your lack of spoken Cantonese will be taken into account if officers in your post are normally expected to act in any post or posts which require spoken Cantonese.

Language as a distinction

71. Language is one of distinctions - race, colour, sex, religion, political or other opinion, national or social origin, property, birth or other status being the other ones - specifically but not exhaustively named as distinctions:

(i) free from which the rights recognized in the Bill of Rights shall be enjoyed (see article 1(1));

(ii) by reference to which article 21 rights may not be denied (see article 21 itself); and

(iii) in regard to which discrimination is prohibited, it being a fundamental law that everyone is entitled to the equal protection of the law (see article 22).

72. Having regard to the context of the present case, the focus is on article 21, particularly item (c) thereof. But the principles with which I am about to deal are just as relevant to the other anti-discrimination provisions in the Bill of Rights.

73. I begin with what I said in R. v. Man Wai Keung (No. 2) [1992] HKCLR 207 at p. 217 and repeated (with the concurrence of Litton VP) in Lee Miu Ling v. Attorney General [1996] 1 HKC 124 at p. 130 when dealing with article 22:

"Clearly, there is no requirement of literal equality in the sense of unrelentingly identical treatment always. For such rigidity would subvert rather than promote true even-handedness. So that, in certain circumstances, a departure from literal equality would be a legitimate course and, indeed, the only legitimate course. But the starting point is identical treatment. And any departure therefrom must be justified. To justify such a departure it must be shown: one, that sensible and fair-minded people would recognize a genuine need for some difference of treatment; two, that the difference embodied in the particular departure selected to meet that need is itself rational; and, three, that such departure is proportionate to such need."

Fair or discriminatory?

74. The cornerstone of that test is fairness. Is the difference in treatment fair or is it discriminatory?

75. I find this commentary (in "Nowak & Rotunda: Constitutional Law," 5th ed. (1995) at p. 595) on the United States Supreme Court's approach to the equal protection clause in the Fourteenth Amendment to the United States Constitution interesting and instructive: "... the Court has increasingly focused upon the concept of equal protection to guarantee that all individuals are accorded fair treatment in the exercise of fundamental rights or the elimination of distinctions based on impermissible criteria."

76. The reference to fairness is clear enough. That leaves the reference to "impermissible criteria". Does it mean that certain distinctions are always impermissible? Or does it mean that how and why those distinctions are made in any given instance determines whether or not they are permissible? Left to my own devices, I would say that it must be the latter. And I find my belief confirmed by Professors Nowak and Rotunda's statement (at p. 601) that the practice of the United States Supreme Court is to:

"(1)virtually prohibit governmental use of some classifications, (such as racial classifications); (2) independently examine the reasonableness and legitimacy of some classifications (such as gender classifications); and (3) presume that the use of some classifications is within the constitutional prerogative of the legislature (such as classification relating to economic or social welfare matters)."

77. It boils down to this in the present case. A category of persons, namely officers being considered for transfer from overseas terms to local terms, are being treated differently depending on whether or not they can communicate in Chinese. So a language distinction is being made. Is it a fair language distinction or a discriminatory one?

78. It may be discriminatory even though the decision-maker acted in perfect good faith, as I do not doubt that the SCS had.

Justification test : fairness, genuine need, rationality and proportionality

79. Whenever there is a distinction, the question under article 21 of the Bill of Rights is whether that distinction is fair and therefore lawful or discriminatory and therefore unlawful. In short, can the distinction be justified?

80. To justify the distinction it must be shown: one, that sensible and fair-minded people would recognize a genuine need for some such distinction; two, that the particular distinction made to meet that need is itself rational; and, three, that such distinction is proportionate to such need.

81. That is the test as to justification, being one of fairness, genuine need, rationality and proportionality: designed to answer the question whether a distinction is fair and therefore lawful or discriminatory and therefore unlawful.

82. Its application in any given case calls for a careful assessment of the circumstances of that case. If it is contended that a distinction is needed because problems would otherwise arise, then that contention must be scrutinized. And it will not be accepted unless it is clear that there really would be serious problems which would be very difficult even if not impossible to overcome. Human rights are involved here. And courts and tribunals must guard such rights by guarding themselves against being persuaded to make too much of problems put forward with a view to justifying distinctions in the way people are treated.

Approach illustrated

83. The proper approach is well illustrated by two sex discrimination cases from Scotland: Wylie v. Dee & Co. (Menswear)Ltd [1978] 1RLR 103 decided by the Industrial Tribunal and Etam Plc v. Rowan [1989] 1RLR 150 decided by the Employment Appeal Tribunal on appeal from the Industrial Tribunal.

84. In the first case, the operators of a men's clothing store refused to consider a woman for a vacancy as a sales assistant in their store. They refused to consider her because she was a woman. And they did so on the basis that sales assistants in their store had to take men's inside leg measurements. When she claimed compensation for sex discrimination, they sought to rely on a statutory exception, arguing that the job applied for needed to be held by a man to preserve decency or privacy because it was likely to involve physical contract with men in circumstances where they might reasonably object to its being carried out by a woman.

85. Their argument failed; and her claim succeeded. Why appears from this part of the report (at p. 104) of the Industrial Tribunal's decision:

"... The Tribunal were far from satisfied on the evidence that the measurement to measure inside legs arose on very many occasions. Many men know their measurements. An assistant also can make an estimate of the size through experience by looking at the man. The applicant, in fact, did have considerable experience. Furthermore, as pointed out, there are other methods of arriving at the correct measurements short of taking a direct measurement. One factor was that there were seven male assistants employed . The Tribunal, on the evidence, did not think there was much difficulty in asking one of these men to take the measurement of an inside leg on occasions where it appeared necessary to do so and where a man seemed hesitant about allowing a woman to do so. It is within the knowledge of the Tribunal that in some stores notices are put up stating that male assistants, if available, will take measurements if required. As stated, however, on the evidence, the Tribunal did not consider that the requirement to take an inside leg measurement arose on very many occasions. The Tribunal do not take the view that the job applied for needed to be held by a man to preserve decency or privacy. In these circumstances, the Tribunal did not consider that the exception applied."

86. In the second case, the operators of a women's clothing store refused to consider a man for a vacancy as a sales assistant in their store. They refused to consider him because he was a man. And they did so mainly on the basis that sales assistants in their store had to attend to women in the fitting room. When he claimed compensation for sex discrimination, they sought to rely on a statutory exception, arguing that the job applied for needed to be held by a woman to preserve decency or privacy because it was likely to involve physical contact with women in circumstances where they might reasonably object to its being carried out by a man.

87. Their argument failed; and his claim succeeded. Why appears from this part of the report (at p. 152) of the Employment Appeal Tribunal's decision upholding that of the Industrial Tribunal:

"In the present circumstances, it seems to us, having regard to the Industrial Tribunal's findings in relation to the amount of time spent in the fitting room by sales assistants, that if it became necessary for fitting or measurements to take place that could have been done by a female sales assistant."

Judge's approach here

88. In the present case, the judge upheld the decision here in question for reasons which he expressed thus:

"The efficient operation of the Civil Service requires officers to be able to stand in for colleagues at the same rank. Sensible and fair-minded people who are not civil servants would recognise that. How could that be achieved (in the case of officers who do not have specialist skills) without taking their proficiency in Chinese into account when assessing "service need"? The difference in treatment between overseas and local officers on agreement terms, if that is what it was, is in this respect entirely rational, and rationally connected to the need which justifies it. Nor do I think that it is disportionate to the need which justifies it. After all, it is not as if proficiency in Chinese is made a pre-condition of transfer: it is merely a factor to be taken into account in appropriate cases. I take the point that if a departure from Art. 21 (c) in the form of a language requirement is to be justified, a language requirement must be shown to be rationally connected to the performance of the job in hand. That requirement is satisfied in view of the need for officers in the same rank to deputise for their colleagues when necessary."

89. That approach to be contrasted with the approach adopted in the two sex discrimination cases which I discussed earlier. There the tribunals considered the distinction unjustified because, although the complainants could not do everything which the jobs in question required, there would be no real difficulty in getting others to help them out. Here the judge considered the distinction justified because, although the complainants can perform the duties of their own posts without Chinese, they should be able to stand in for persons in other posts in which Chinese is necessary and do so without the assistance of an interpreter.

90. The judge said, as we have seen, that: "The efficient operation of the Civil Service requires officers to be able to stand in for colleagues in the same rank." If that means the efficient operation of the civil service requires all officers to be able to stand in for all colleagues in the same rank, then that would be too sweeping. I wonder who, if anybody, would be qualified to discharge all the duties of every post in any given rank in the civil service?

91. Does the evidence in the present case warrant the view that the civil service will be unable to operate efficiently just because some agreement officers are, by reason of their lack of Chinese, unable or limited in their ability to stand in for some of their colleagues in the same rank? There is no evidence to warrant such a view. Nor indeed did the judge even take such a view.

92. There was no sufficient need for the distinction.

Result : unlawful

93. In my judgment, the decision of which Appeal Matter (3) consists is unlawful because : (i) it must be taken as expressed in the memorandum in which it is contained; and (ii) thus expressed it is contrary to article 21(c) of the Bill of Rights, so that any adversely affected permanent resident can complain.

But

94. But having said that, I must also say this.

95. First of all, I have already set out what Mr Huggins says was intended by the SCS's decision here in question. And I am of the view that a decision such as Mr Huggins says was intended would be lawful. Mr Huggins also says that the decision was never applied in any sense other than the one intended. If so, then no actual application for transfer would in fact had been dealt with unlawfully.

96. Secondly, even as expressed the only reason why the SCS's decision here is unlawful is because it is contrary to article 21(c) of the Bill of Rights. That being so, even if someone's application for transfer were indeed dealt with on the basis of that decision as expressed, he could only complain if he were a permanent resident. And I have already expressed my view as to the meaning of that term where it appears in article 21.

97. There can be no doubt as to the importance of the principle involved. But the practical implications of the SCS's decision here being unlawful would seem to be relatively narrow in the circumstances.

98. Nevertheless, however narrow the practical implications of such success may be, the appellant's challenge to the SCS's decision here as expressed must, in my judgment, succeed.

APPEAL MATTER (4) : ONE RANK LOWER

99. Appeal Matter (4) to which I now turn consists, as we have seen, of the decision that if an officer transfers from overseas terms to local terms and there is a "suitable local replacement" who is promoted to the transferee's existing rank, then the transferee "will be offered appointment at one rank below his existing rank but with personal salary and conditions of service as if he were employed at his original rank on local conditions."

Judge's explanation of how it works gratefully adopted

100. The judge gave a concise explanation of how that works. I gratefully borrow that explanation:

"(i) A determination would be made as to whether there was a qualified and suitable local replacement for the officer. If there was not, the transferring officer would continue to serve at his existing rank.

(ii) If it was determined that there was a qualified and suitable local replacement for the officer, a selection exercise would take place. A list of officers in the rank immediately below that of the transferring officer who were suitable for promotion to the rank held by the transferring officer would be prepared. The list would be drawn up entirely on merit, and could include overseas officers, though it would not include the transferring officer himself. If the best candidate on the list was an overseas officer, he would not be promoted, and the transferring officer would transfer at his existing rank. If the best candidate on the list was a local officer, the local officer would be promoted to the rank held by the transferring officer, and the transferring officer would transfer at the rank immediately below the rank which he had previously held."

Bases of challenge

101. I similarly borrow his summary of the bases of the challenge to the decision in question. Here he first pointed out that:

"The principal sting in the criticism of the decision challenged is that the transferring officer is demoted by one rank, and a local officer is promoted by one rank, even though the comparative merits of the two officers are not considered."

And he continued by saying that:

"There is another sting in the criticism of the decision challenged. It relates to an overseas officer on the list. Even if, in the selection exercise, he is found to be, apart from the transferring officer himself, the best person for the job, he is, unlike a local officer, not promoted. There is therefore inequality of treatment between the local officers on the list and overseas officers on the list, simply because some are local officers and others are not. This does not sit easily with the regulation that the selection of officers for promotion is considered on equal terms for all officers irrespective of their terms of service."

There was, the judge said, "no answer to these criticisms."

Judge's conclusion

102. Nevertheless, he ultimately held that the decision in question was lawful, giving this reason for that conclusion:

"But the dilemma which the Government faced after the legislative freeze on the original transfer scheme was simply not capable of being resolved without either an infringement of Art. 21 (c) or a significant deterioration in the morale of local officers as a result of the shameless breach of trust which they believed the original transfer scheme amounted to. The Government had to decide between the lesser of these two evils. That was a matter for mature political judgment. I do not say that the Courts are not equipped to review such judgment, but I cannot characterise as irrational the Government's decision as to which of the two evils should be avoided."

Rule of Law

103. Not for one moment can that approach be countenanced. It is singularly startling to hear compliance with an entrenched law guaranteeing human rights characterised as an "evil". To hold that the executive may ignore the law is to abandon the Rule of Law. In fairness to the judge however, I am bound to observe that the part of his judgment with which I am dealing at the moment is not typical of it or of him. He had a case of extraordinary ponderosity on his hands. And under the weight of that great burden, he said some things wholly out of character.

104. Even as fairness to the judge required that I say that, so fairness to the Government requires me to say this. Mr Huggins tells us that the Government does not suggest, and has never suggested, that it can choose to ignore the law. Rather, Mr Huggins says, the SCS's case is, and has always been, that the differential treatment accorded to overseas officers under the demotion scheme did not constitute unlawful discrimination but was within the acceptable parameters of general terms of equality.

Why lower rank?

105. In the course of the argument, Mr Huggins was asked why the officers concerned were being offered new contracts for ranks lower than the ones which they held immediately before.

106. It will be noticed that the question talks of new contracts rather than of transfers and does not talk of demotion. So the question is shorn of any possible emotional overtones.

Government's answer analysed

107. Mr Huggins' answer came to this. He pointed to the four objectives stated thus at p.14 of the part of his skeleton argument delivered separately under the heading "Principal Points in Opening Submissions for the [Hong Kong Government]" :

"(1) The need to have in place by 1997 a civil service which is ready and able to meet the requirements of the [Basic Law] relating to the constitution and operation of the public service, in particular limitations on those eligible to fill the [Principal Official Posts];

(2) The need to converge during the period leading up to 1997 with the [Basic Law];

(3) The need to introduce as soon as practicable (but obviously not overnight) a common and standardised set of conditions of employment within the Civil Service applicable to all civil servants.

(4) The need to implement its transfer arrangements without that process being halted or frustrated by the Legislative Council and without having a constitutional battle with [the Legislative Council] which would run the risk of [the Legislative Council] staying the transfer arrangements indefinitely or even amending the [Hong Kong Bill of Rights Ordinance] at a highly sensitive moment in [Hong Kong] history."

108. And then Mr Huggins said that it was to attain the fourth of those objectives that the Government did what it did here. I can readily understand that the fourth objective must have been the operative one in the present context. After all, the Government's case here is that what it had wanted to do, as opposed to what it says that it was in effect forced into doing, was wholly consistent with the first three objectives.

109. So let us look at the fourth objective.

110. One thing can be disposed of straightaway. There was no risk of the Legislative Council seeking to legislate away any of the rights secured by the Bill of Rights. First of all, I cannot imagine that the Legislative Council would want to do that even if it could. Secondly, it could not do so even if it wanted to. As this Court said in The Queen v. Chan Chak Fan (supra) at p.23 :

" The Letters Patent entrench the Bill of Rights by prohibiting any legislative inroad into the International Covenant on Civil and Political Rights as applied to Hong Kong. The Bill is the embodiment of the Covenant as applied here. Any legislative inroad into the Bill is therefore unconstitutional, and will be struck down by the courts as the guardians of the constitution. And the test of constitutionality is the same as the test of Bill consistency."

111. As to whether the Legislative Council would have stayed the transfer arrangements indefinitely, I am unable to say that the Government's fear that the Legislative Council would oppose those arrangements indefinitely were unfounded.

112. Even so, I am unable to hold that the decision here in question is lawful.

113. It will be remembered that the decision deals with what happens to an officer upon transfer. In other words, it affects him as a local officer. And, assuming that he is a permanent resident within its meaning, article 21(c) of the Bill of Rights gives him access to the public service without unreasonable restrictions and on general terms of equality.

114. Such equality is with other local officers generally. And the officers adversely affected do not receive such equality under the decision here in question. They go down a rank. That is not because of any lack of merit on their part. It is because of their status as ex-overseas officers. And the distinction made against them is not one which the Government wanted to make. Rather it is one which the Government felt forced into making against its better judgment.

115. I am prepared to accept that the Government found itself in something of a dilemma. The question is not whether the exit from that dilemma selected by the Government is an honourable one. The Government's morals are not on trial. And - it is fair to add - I would not find them wanting if they were. Rather, the question is whether that exit is a lawful one.

116. I am not persuaded that it is.

117. When a distinction is made by the Government, when that distinction is such that it would be contrary to the Bill of Rights unless it can be justified, and when the Government does not seek to defend the distinction on its own merits but rather on the basis that it was in effect forced upon the Government, then the courts must be extremely vigilant. Otherwise, the Rule of Law would be in danger if not at an end. Was there no other way out? And even if there was not, was the way out worth its price? Those are the questions which the courts must ask.

118. I am not satisfied here that the answer to the first question is "no". Nor am I satisfied that the answer to the second question is "yes".

Result : unlawful

119. In my judgment, the decision of which Appeal Matter (4) consists is unlawful because it is contrary to article 21(c) of the Bill of Rights. So any permanent resident whose rank was lowered as a result can complain.

But

120. But that does not mean that any promotion pursuant to the selection exercise is vitiated. Those remain lawful and effective.

APPEAL MATTER (5) : LESS THAN 12 MONTHS TO GO - NO PROMOTION

121. I turn now to Appeal Matter (5). As we have seen, it consists of the decision that in regard to overseas agreements which were due to expire before September 1, 1995, "transferees to local conditions who have less than twelve months service to give before the current overseas agreement expires, and who have been or are likely to be offered an agreement modelled on local conditions with promotion restrictions should not be considered for promotion to fill normal vacancies arising from wastage and creation of posts, or potential vacancies created by other transferees to local conditions."

122. The judge said that in reaching this decision, the SCS "was purporting to apply the logic behind CSR 109(1)(a)" and that it was "entirely appropriate to apply the logic behind CSR 109(1)(a) to transferring officers".

123. At the time of the decision in question, the part of CSR 109(1)(a) on which the SCS appears to have relied provided that :

"Officers who have less than twelve months' service to give before going on pre-retirement leave or terminal leave ... are not normally considered for promotion."

Irrelevant consideration taken into account

124. As can be seen, that regulation dealt with the position of officers who were leaving the service within 12 months. And it laid down what the position was normally to be in regard to promotion for them pending departure. It was therefore irrelevant to any decision to be made in regard to the position of officers who were remaining in the service and were merely transferring from one set of terms to another set of terms. And it was doubly irrelevant when the decision to be made was to lay down what the position was inevitably to be in regard to promotion for them pending transfer.

125. In taking the logic behind that regulation into account when making the decision here in question, the SCS took into account a consideration which was irrelevant to what he had to decide. That decision is accordingly vitiated by an elementary rule of administrative law. Whether he would have come to the same decision if he had not taken any irrelevant consideration into account is nothing to the point for present purposes.

Result : unlawful

126. In my judgment, the decision of which Appeal Matter (5) consists is unlawful because it took an irrelevant consideration into account.

APPEAL MATTER (6) : RESTRICTION ON PROMOTION

127. Turning to Appeal Matter (6), it consists, as we have seen, of a decision that officers who transfer from overseas terms to "an agreement modelled on local conditions of service will not be eligible for promotion for the duration of their agreement unless the [SCS] is of the opinion that in the interests of the public service, an exception should be made."

128. The judge was of the view that this decision was open to the same criticism, and was justified on the same basis, as Appeal Matter (4).

129. Mr Huggins, to the point and helpful as always, said that this decision stands or falls with Appeal Matter (4).

130. I agree. If lowering the rank of a transferee is lawful, then so would preventing that from being circumvented by a rapid promotion thereafter. But if lowering his rank is unlawful, this decision, which is an extension of it, is likewise unlawful. And that is the position here.

Result : unlawful

131. In my judgment, the decision of which Appeal Matter (6) consists is, along with the decision of which Appeal Matter (4) consists, unlawful because it is contrary to article 21(c) of the Bill of Rights, so that any permanent resident who has been adversely affected by it can complain.

APPEAL MATTER (7) : EXTENSIONS DEDUCTED

132. Appeal Matter (7), to which I now turn, consists, as we have seen, of a decision that when an officer transfers from an overseas agreement to one modelled on local terms "any extension(s) granted to the previous overseas agreement for completion of naturalisation procedures and/or as a result of the Public Officers (Variation of Conditions of Service) (Temporary Provisions) Ordinance will be deducted from the period of the agreement."

133. Here, the judge said this :

" The attack on this decision is based only on its supposed irrationality. In my view, the decision was one which the SCS could reasonably reach. The transferring officer had already enjoyed the benefit of a new agreement by virtue of the extension to his previous one. Without the proposed reduction in the length of his new agreement, the transferring officer would have received the windfall of the period of the extension. The complaints which the Applicants make - namely, that the transferring officers were not responsible for the extensions and that the reduction in the length of their new agreements did nothing to advance localisation - do not address this justification for the decision at all. On the contrary: during the period of the extensions, transferring officers continued to enjoy the fringe benefits which local officers did not enjoy. Accordingly, the decision complained of was not unlawful, and the challenge to it fails."

134. The judge was, in my view, right in holding that this decision is lawful.

135. When it comes to the merits of decisions of this kind, there is often scope for cogent arguments on both sides of the question. And that is so here. But at the end of the day, there was room for the SCS rationally to decide as he did here.

136. Before us, the appellant has also attacked this decision as having been made for "political reasons" and in bad faith. As I see it, there is nothing in the evidence on which such an attack can succeed.

Result : lawful

137. In my judgment, the decision of which Appeal Matter (7) consists is lawful, and the appellant's challenge to it fails.

APPEAL MATTER (8) : "OPENING-UP" SCHEME

138. I turn to Appeal Matter (8) consisting, as we have seen, of the decision that when any agreement officer (whether overseas or local) whose agreement expires on or after September 1, 1995, seeks an extension : (i) his position will be "opened up for competition" and (ii) he "should leave the service upon expiry of his current agreement" if he loses such competition.

139. On its face, this decision applies to all agreement officers whether local or overseas.

140. In response to the applicants' challenge to the "opening-up" scheme as a whole, the respondents filed affidavit evidence.

141. Mr C.I.C. Jackson, the Deputy Secretary for the Civil Service, is someone who would know why such a scheme was introduced and how it works. He said on affidavit that the renewal of agreements under the opening-up scheme "is based on a set of objective criteria applicable to all officers who enter the competition." He said that the scheme "ensures a greater emphasis on objectively tested merit". And he said that its "aim is to select the best person for the job."

142. Nevertheless, the applicants argued (as the judge outlined their argument) that :

"... this justification for the introduction of the scheme is a pretext. The true reason for the introduction of the scheme was to make those overseas officers on agreement terms who transfer to terms modelled on local conditions of service more vulnerable to replacement by local officers. The device used to achieve that end was a subtle but effective one. The long-standing prohibition on overseas officers on agreement terms applying to transfer to the permanent establishment was to apply to those overseas officers on agreement terms who had transferred to terms modelled on local conditions of service. Local officers on agreement terms could avoid the opening-up of their posts to competition simply by applying to join the permanent establishment, whereas that escape route was not available to overseas officers on agreement terms who had transferred to terms modelled on local conditions of service."

143. But (as the judge noted) no application was made for cross-examination of Mr Jackson on anything he said on affidavit.

144. In those circumstances, there is no basis for acceding to the applicants' invitation to brand the whole opening-up scheme as a pretext and condemn it root and branch. The judge was right when he declined to do so.

Judge's approach correct

145. What he did instead was to look at various features of the scheme's implementation as embodied in other decisions and to consider whether those decisions were lawful or unlawful. That approach is the correct one.

Result : lawful

146. In my judgment, the decision of which Appeal Matter (8) consists, which is simply the decision to introduce an opening-up scheme, is on its face and in itself lawful, and the appellant's challenge to it fails.

APPEAL MATTER (9) : LANGUAGE - UNDER THE OPENING-UP SCHEME

147. Coming now to Appeal Matter (9), it can be seen that the decision of which it consists differs from the one of which Appeal Matter (3) consists in only two respects. First, it applies to officers competing under the opening-up scheme while the earlier decision applies to officers applying for transfer from overseas terms to local terms. Secondly, it talks about "a substantial portion" of officers in the same rank being required to communicate in Chinese while the earlier decision talks of "all" such officers being required to do so.

Result : unlawful

148. Those differences are immaterial to the result.

149. For the reasons which I gave for holding that the earlier "language" decision is unlawful, I hold that this one is also unlawful : on the same basis; for the same reason; and with the same relatively narrow practical implications. Again, the importance of the principle involved is beyond doubt.

APPEAL MATTER (10) : "CEILINGS" ON AOSGA & AOSGB1 POSTS

150. I now turn to Appeal Matter (10) consisting, as we have seen, of the decision that there should be a "ceiling" of two overseas officers in Administrative Officer Staff Grade A ("AOSGA") posts and four overseas offices in Administrative Officer Staff Grade B1 ("AOSGB1") posts.

151. No point as to locus standi is taken by the respondents in regard to any of the other decisions. But they do dispute the appellant's standing to challenge this decision. I will come to the question of standing later on, at what I consider to be the appropriate stage in the circumstances.

Thinking behind this decision

152. The thinking behind this decision, taking it from the judge's judgment, is as follows :

"The Basic Law identifies a number of senior posts which can only be held by Chinese citizens who are permanent residents of the SAR with no right of abode in any foreign country, and who have ordinarily resided in Hong Kong for a continuous period of at least 15 years. The Government believes that these posts should be filled, well before 1997, by officers who are, at least potentially, able to continue in these posts after 30th June 1997. Most of these posts are in the Administrative Service or have traditionally been filled by members of the Administrative Service. Thus, it was decided that steps should be taken in the Administrative Service to ensure that there was a sufficient pool of officers who were potentially eligible for these posts. Accordingly, in June 1994, the SCS announced that there would have to be a limit on the number of overseas officers in the ranks in the Administrative Service immediately below that of Secretary. That ceiling was fixed at two AOSGA posts and four AOSGB1 posts."

And behind the Succession Posts Scheme decision

153. Side-by-side with that decision of the SCS, the judge dealt with the decision of the Attorney General which is the subject-matter of Appeal Matter (11). As to the thinking behind the Attorney General's decision, the judge said this :

"A similar scheme was established in the Attorney-General's Chambers. The post of Attorney-General will be a Principal Official post in the SAR Government. So too will any of the five Law Officers if any of them acts as his deputy. In the light of that, it was recommended that special measures be taken to build up a pool of local officers who would be potentially eligible for these posts. Those measures included the grooming of up to six local officers at the rank of Deputy Principal Crown Counsel for the posts of Principal Crown Counsel. The effect of the adoption of these measures would be the acceleration of the promotion of those local officers. These recommendations were adopted, and the scheme, which came to be known as the Succession Posts Scheme, was announced by the Attorney-General in the 1994 Policy Address."

154. The judge then went on to deal with both decisions together : describing them collectively as "the Succession Posts Scheme"; and treating them as if they stood or fell together.

155. I will deal with each decision separately. But one of the consequences of the judge's "collective" approach is this. Although I am dealing with only the SCS's decision at the moment, the statements which I am about to quote form his judgment were made in regard to both decisions. That does not create any difficulty. I mention it only to avoid any misunderstanding.

Irrational?

156. The judge said that two criticisms of the decisions in question were made by the applicants in the course of their argument that they are irrational.

First criticism

157. He summarised the first criticism thus :

" The Basic Law does not contemplate the creation of a pool of officers from which the Principal Officials will be selected. Indeed, it contemplates continued employment for all officers in post on 30th June 1997, including British and foreign nationals. It is therefore said to be irrational to groom officers for the Principal Official posts at all."

Second criticism

158. And he summarised the second criticism thus :

" Even if it is rational to groom officers to be Principal Officials, it is said to be irrational to include in the pool officers whose eligibility is only potential. Should not the pool be limited only to those officers who are in fact eligible to be Principal Officials? After all, officers who are only potentially eligible may never be eligible in fact."

Judge rejected both heads of criticism

159. He rejected both heads of criticism.

160. In rejecting the first, he said this :

"The fact that the Basic Law does not contemplate the creation of a pool does not make the creation of a pool irrational. Sensible manpower planning requires the creation of a pool of talent from which senior officers will be drawn in the future. And although the Basic Law contemplates continued employment for all officers in post on 30th June 1997, it excludes a class of officers from the Principal Official posts."

161. And in rejecting the second, he said this :

"Only Chinese citizens are eligible to be Principal Officials. It may be that few, if any, of the officers currently in line for the Principal Official posts are at the moment Chinese citizens. To include in the pool, therefore, only persons who are Chinese citizens now could mean that there would be no officers in the pool at all. It is therefore necessary to include in the pool officers whose eligibility to be Principal Officials is only potential. That means including in the pool officers who have the potentiality to become Chinese citizens by 1997, even though to do so might involve them having to divest themselves of their current nationality."

Article 21(c) argument

162. He then moved on to consider the applicants' contention that the Succession Posts Scheme infringes article 21(c) of the Bill of Rights. And he provided this outline of the argument advanced in support of that contention :

"That is because the scheme only applies to local officers. The opportunity for accelerated promotion to the post of Principal Crown Counsel is denied to overseas officers. That is attributable to their national or social origins, because it was their national or social origins which, by virtue of CSR 115(1), caused them to be classified as overseas officers in the first place. If local officers who are only potentially able to qualify to be Principal Officials are included in the scheme, so too should those overseas officers who are potentially able to do so."

163. Having provided that outline of the argument, he then proceeded to evaluate the argument. And he began thus :

" In evaluating this argument, it is necessary to draw a distinction between officers whose potentiality to be eligible for the Principal Official posts is only theoretical, and those whose potentiality to be eligible for them is very real. If only local officers have a real potentiality to be eligible for the Principal Official posts, the inequality of treatment is justifiable. Sensible and fair-minded people who do not serve in the Attorney-General's Chambers would recognise the need to afford only officers who have a real potentiality to become Principal Officials accelerated promotion to the post of Principal Crown Counsel. Limiting accelerated promotion to the post of Principal Crown Counsel to such officers is both rational and proportionate to that need. It may be that there is a tension between the eligibility requirements for the Principal Official posts in the Basic Law and Art. 21(c) of the BOR, but that does not make the need to groom officers who have a real potentiality to become Principal Officials any the less real."

Potential

164. Finally, the judge turned to the issue "whether it is factually correct that only local officers have a real potentiality to become Chinese citizens, and therefore eligible to be Principal Officials", saying this :

"On that issue, I have the expert evidence of Professor Anthony Dicks Q.C., an acknowledged expert on Chinese law. His evidence is not challenged, and there is no reason why I should not accept it. The thrust of his evidence is that an application for naturalisation as a Chinese citizen must be approved by the Ministry of Public Security. The power of the Ministry to approve such applications is entirely discretionary, but at the very least it must be satisfied that the applicant for naturalisation is a 'close relative' of one or more Chinese persons or has a 'fixed residence' in China, or that there are other 'proper' or 'legitimate' reasons for the application. 'Legitimate' reasons are 'almost certainly' limited to 'devotion to the cause of [China's] revolution or construction', and being adopted by a Chinese citizen. Professor Dicks accepts that 'it is not impossible for foreign nationals whose ethnic origin is not that of any of the numerous ethnic groups who together comprise the population of China to acquire Chinese nationality by naturalisation', but the thrust of his evidence is that they are unlikely to be able to do so."

165. As to that last observation, what I would say is this. What Professor Dicks, who needs no introduction in our courts, did was to : (i) refer to the conditions laid down and requirements imposed by the Nationality Law of the People's Republic of China in regard to the acquisition of Chinese nationality by foreign nationals; (ii) explain them; and (iii) consider their application to the deponents on the applicants' side, particularly in regard to any attempt by them to acquire Chinese nationality by naturalization. Then, at the very end of his affidavit, Professor Dicks said :

" For these reasons, while it is not impossible for foreign nationals whose ethnic origin is not that of any of the numerous ethnic groups who together comprise the population of China to acquire Chinese nationality by naturalization, on the basis of the matters thus far put before me I do not believe that any of the deponents in these proceedings have demonstrated that they satisfy the conditions under which such naturalization would normally be granted."

166. Anyway, having dealt with Professor Dicks's evidence, the judge said :

"Since the effect of CSR 115(1) is that local officers are overwhelmingly likely to be ethnic Chinese, and that overseas officers are not, it is the case that local officers have a real potentiality to become Chinese citizens, and overseas officers do not."

167. That may be putting it too high. But I think that it is realistic to say that by and large local officers have significantly greater potential for becoming Chinese citizens than overseas officers.

168. After saying what I have just quoted him on in regard to "real potentiality", the judge said :

"For these reasons, the Succession Posts Scheme is lawful, and the challenge to its legality fails."

Applying the test

169. The decision here in question involves treating people differently in a way which falls to be tested under article 21(c) of the Bill of Rights. And the test is, as we have seen, one of fairness, genuine need, rationality and proportionality. It is necessary to examine the precise difference of treatment.

170. To take into account a person's potential for filling Principal Official posts when deciding whether or not to promote him to a post bordering those posts is, in my view, justifiable.

171. With some hesitation, I have come to the conclusion that even an active policy of generally accelerating the promotion of persons with such potential because there happen to be too few of them occupying sufficiently senior posts can be justified.

172. One of the reasons for my hesitation is this. Potential is not an entirely convincing criterion. There is, after all, a world of difference between potential and willingness to exercise it. And, not surprisingly, it is not suggested that asking people whether they are willing to exercise that potential would be justified in deciding whether to promote them into "bordering" posts. At the end of the day, however, I have come to the conclusion that the policy in question can be justified.

173. But is going so far as to fix ceilings, as the decision here in question does, going too far? If so, the decision here would be disproportionate and, accordingly, contrary to article 21(c) of the Bill of Rights.

Pausing to deal with locus standi

174. This is the stage at which I consider it appropriate to pause in order to deal with the question of locus standi.

175. The respondents say that the appellant has no standing to challenge this decision. They say so for these reasons. The appellant, they say, has not been able to identify a single member of its : who is a permanent resident within the meaning of article 21 of the Bill of Rights; who is willing to have this decision challenged on his behalf; and who is or is likely to be affected by this decision. That is because, they say, the appellant has not identified a single member of its who is in any "ceiling" post or in line for promotion into one in the foreseeable future. Nor, they say, has the appellant shown any prospect of acquiring such a member in the foreseeable future.

176. In my view, the appellant does not have to do all of that in order to establish standing to challenge the decision here in question.

177. Undoubtedly, the appellant's membership includes a number of fairly senior civil servants who would feel the ripple effect of a bottleneck at the top of the service. In any event, the facts do not pose any problem. For Mr Huggins accepts - rightly in my view - that the appellant would have such standing if the following statement in De Smith, Woolf & Jowell : Judicial Review of Administrative Action, 5th ed. (1995) at p.122, para.2-041 is an accurate statement of the law :

"In summary, it can be said that today the court ought not to decline jurisdiction to hear an application for judicial review on the ground of lack of standing to any responsible person or group seeking, on reasonable grounds, to challenge the validity of governmental action."

178. And in my view, that is indeed an accurate statement of the law. Accordingly, I am of the view that the appellant has standing to challenge the decision here.

Reverting

179. So I revert to the question which I posed just before dealing with standing. Is going so far as to fix ceilings, as the decision here does, going too far?

Disproportionate

180. In my view, that is indeed going too far. As I have already said, if that is going too far, then the decision is disproportionate and, accordingly, contrary to article 21(c) of the Bill of Rights.

Result : unlawful

181. Therefore, in my judgment, the decision of which Appeal Matter (10) consists is unlawful because it is contrary to that article, so that any adversely affected permanent resident can complain.

APPEAL MATTER (11) : SUCCESSION POSTS SCHEME

182. I turn now to the decision of which Appeal Matter (11) consists. It is the Attorney General's decision which the judge dealt with together with the SCS's decision upon which I have just pronounced. As I have said, I am dealing with the two decision separately. But what I have already said about the SCS's decision does greatly reduce what it is necessary for me to say about the Attorney General's decision.

No ceiling fixed

183. The Attorney General's decision, which was to "introduce a new Succession Posts Scheme to accelerate the promotion of local counsel to the senior directorate", stops short of fixing a ceiling. It goes as far as - but no farther than - an active policy of accelerated promotion such as I have already said it may be possible to justify.

184. Applying to it the "fairness, genuine need, rationality and proportionality" test, I regard this decision justified even if very near the borderline.

Result : lawful

185. In my judgment, the decision of which Appeal Matter (11) consists is lawful, and the appellant's challenge to it fails.

APPEAL MATTER (12) : DEFINITION OF "LOCAL"

186. Coming to Appeal Matter (12), we have the SCS's consultation paper in which, after setting out various suggestions as how a "local" is to be defined, he said : "It is therefore proposed that a 'local' be defined as a permanent resident under the Immigration Ordinance for the time being. As and when the latter is amended to align with the Basic Law, the definition of a 'local' can be changed accordingly."

187. The judge took the view that no decision was involved. And he described the attraction which what he called the "conventional view" held for him, saying :

" There are two powerful reasons which justify the conventional view that mere proposals should not be susceptible to judicial review - even if the proposals are likely to be put into effect. First, there is always the possibility that they might not be put into effect. In that event, the proceedings would have served no useful purpose. Secondly, no one has the standing to challenge mere proposals. Until the proposals are put into effect, no one is affected by them."

188. Then he turned to the decision of the House of Lords in Reg. v. Secretary of State for Employment, ex parte Equal Opportunities Commission [1994] 2 WLR 409, giving this as his understanding and view of their Lordships' decision :

"In that case, the Secretary of State had been requested by the Commission to indicate whether he was willing to introduce legislation to remove discrimination which the Commission argued was inherent in existing legislation. The Secretary of State replied that the Government believed that the existing legislation was not discriminatory. The House of Lords held that (i) there had been no decision, but (ii) the Courts had the jurisdiction to declare whether the existing legislation was discriminatory, and (iii) proceedings by way of judicial review was the appropriate procedure for the determination of that issue.

The basis upon which the House of Lords held that there had been no decision was that the Secretary of State's reply did no more than express the view that the existing legislation was not discriminatory. I confess to being surprised by that reasoning. The reply had gone on to state that the Government had no plans to change the aspects of the existing legislation which were alleged to be discriminatory. I would have thought that it was strongly arguable that that statement amounted to a decision not to introduce amending legislation for the time being. Be that as it may, it is not for me to question the view of the House of Lords, and I proceed on the assumption that a decision is not a necessary prerequisite for an application for judicial review."

189. In finding himself surprised by the House of Lords' reasoning, the judge, who had a lot on his plate, unfortunately misunderstood their Lordships' decision.

190. The Equal Opportunities Commission considered that certain provisions of an Act discriminated against women. So the Commission wrote to the Employment Secretary asking him to reconsider the legislation. The Secretary replied by a letter in which he expressed the view that the provisions in question were justified. The Commission applied for judicial review. And admittedly its application set out the Secretary's letter as the reviewable decision. But the "real object" of the Commission's attack was the legislation itself. Lord Keith of Kinkel (with whom Lord Browne-Wilkinson and Lord Slynn of Hadley agreed on all points) makes that clear (at p.418) when dealing with whether there existed "any decision or justiciable issue susceptible of judicial review".

191. His Lordship then identified the question as whether judicial review is available for the purpose of securing a declaration that certain primary United Kingdom legislation is compatible with European Community law. And, in the result, the House of Lords answered that question in the affirmative and made declarations accordingly.

192. So searching for a reviewable decision by the Secretary would be barking up the wrong tree.

193. When he came to apply the House of Lords' decision to the present case, the judge said this :

" However, I do not think that this case assists the Applicants. Whatever else can be said, the Government had adopted a particular stance on whether the existing legislation was discriminatory. There was nothing provisional about that stance. The only way the Government's view was going to be altered was if the Courts declared that its view of the law was wrong. Contrast that with the present case. The Government's modified proposals for a uniform set of conditions of service were still provisional. A further consultation exercise was still to take place. In my view, even if there does not have to be a decision to warrant the invocation of proceedings by way of judicial review, there must have been a concluded stance on whatever it is sought to challenge. It is for that reason that I conclude that the Government's modified proposals for a uniform set of conditions of service are not amenable to judicial review."

194. The judge's misunderstanding of the House of Lords' decision finds its way into that passage.

195. But that does not mean that the result he reached must be wrong.

196. The appellant's contention, as I pointed out very early in this judgment, is that the SCS's proposal here amounted to a decision or at least a proposal having the substance and effect of a decision.

197. It would not if the judge was correct in characterizing it as provisional and saying that it was subject to a further consultation exercise. And in my view he was correct there.

198. As he rightly noted, the consultation paper containing this proposal concludes thus :

"We are consulting the major staff councils again and will seek further advice from the civil service advisory bodies. Thereafter the Administration will discuss the proposals with the Chinese authorities with a view to reaching an early agreement."

199. Mr Scott, the appellant's representative, said that even a tentative proposal can be a source of great anxiety to those who would be adversely affected if it firmed up into an actual decision to be implemented. I agree and I sympathize. But that kind of anxiety is an unavoidable part of life as a member of society. Not everything we fear materializes. Litigation is hazardous, expensive and a strain. The law would do people a great disservice if it were to encourage them to embark upon litigation in the absence of real and pressing need.

Result : mere provisional proposal not susceptible of judicial review

200. In my judgment, Appeal Matter (12) is no more than a provisional proposal and is not susceptible of judicial review. So the appellant's challenge to it must fail.

APPEAL MATTER (13) : LANGUAGE - FOR P & P

201. Finally in the appeal, I come to Appeal Matter (13) which is contained in the same consultation paper as the proposal with which I have just dealt. It is the repetition of an earlier proposal that "for appointment to new P & P terms, on which an officer can normally serve until retirement, a norm should be set at a pass in a Chinese subject in the Certificate of Education Examination but with an alternative (for those having no formal education in Chinese) of a pass in a basic Chinese language proficiency test".

Result : mere provisional proposal not susceptible of judicial review

202. In my judgment, for the reasons which I gave in regard to the immediately preceding matter, Appeal Matter (13), too, is no more than a provisional proposal and is not susceptible of judicial review. So the appellant's challenge to it must fail.

CROSS-APPEAL MATTER (1) : NO TRANSFER TO P & P UNDER TRANSITIONAL ARRANGEMENTS

203. So much for the appeal. As for the cross-appeal, there are two decisions which the judge held were unlawful but which the respondents ask us to say were lawful.

204. I have already identified those two decisions. But that was so long ago in this judgment that I will do so again by way of reminder. They are :

(1) The SCS's decision (set out in his aforementioned memorandum of September 13, 1993) that the Civil Service Regulation which permits local agreement officers to transfer to the P & P establishment, namely CSR 121(1), will not apply to officers who had transferred from overseas agreement terms to local agreement terms under the transitional arrangements of that period.

(2) The SCS's decision (set out in his aforementioned memorandum of December, 1994, numbered 79/94) that that regulation will not apply to overseas transferees under the opening-up scheme either.

205. Those two decisions are Cross-Appeal Matter (1) and Cross-Appeal Matter (2) respectively.

206. The judge said of them that "the two decisions challenged are in fact the same decision" in that "the latter is merely confirmation of the former."

207. But the former pertains to the transitional arrangements of its time, while the latter pertains to the opening-up scheme which came later. So there were indeed two decisions.

208. Perhaps all the judge meant was that the two decisions stand or fall together. That is certainly so.

209. Each decision carves out of the general body of officers on local agreement terms a small group consisting of those who had been on overseas agreement terms previously. And each decision takes away from that small group of officers on local agreement terms such access to the permanent establishment as officers on local agreement terms have in the normal way.

210. That is a distinction which, unless it can be justified under the "fairness, genuine need, rationality and proportionality" test, infringes article 21(c) of the Bill of Rights.

Judge's conclusion right

211. I share the judge's conclusion that it cannot be justified.

But his reasons gives rise to difficulties

212. The judge's reasons however, does give rise to difficulties. He said this :

" I agree with the Applicants that the decision challenged constitutes a departure from Art. 21(c). The question is whether the Respondents have discharged the heavy burden on them to justify it. In my view, they have not. I understand entirely the objectives which the Government sought to achieve. Those objectives were to avoid undermining the proposal in the uniform set of conditions that the only officers on agreement terms who will be permitted to transfer to the permanent establishment will be 'locals' who meet basic Chinese language proficiency requirements, and to prevent the permanent establishment from including a class of officers who the Chinese authorities ought to be consulted about first. Sensible and fair-minded people who are not civil servants would recognise the need to achieve those objectives. But those objectives could have been achieved without departing from Art. 21(c). Local officers on agreement terms could, for the time being, have been refused the right to transfer to the permanent establishment. I appreciate that that would have had the effect of temporarily denying them a right which they have always enjoyed, but that would not have infringed Art. 21(c) because, for the time being, there would have been parity of treatment between them and overseas officers on agreement terms who transferred to local conditions of service."

213. So the Government was faced with the judge's declaration that its decision is unlawful because it is discriminatory. But it also had his view that its objective could be achieved if it were to deprive all officers on local agreement terms of what it had deprived some officers on those terms. In those circumstances, it chose to do just that : deprive all of them.

214. That, says the appellant, is also unlawful.

215. Maybe.

216. Parity, even if it be parity of deprivation, does not look much like the stuff of a discrimination challenge. But here I lean towards "hardly ever" rather than "never". If someone cuts off everybody's noses to spite a minority's faces, it may be that the minority has a special reason for complaint.

217. However, the more obvious result is that everybody has a claim for redress and equal redress.

218. Be all of that as it may, the decision to deprive everybody is a new decision. If it is to be challenged in judicial review proceedings, then leave will have to be obtained for that purpose first. And this Court's jurisdiction, which is appellate, would not arise except on appeal from the High Court. The matter would have to go there first. I do not encourage, discourage, pre-judge or predict the result of any such proceedings.

Result : unlawful

219. All that I will say in regard to Cross-Appeal Matter (1) is that, in my judgment, the actual decision of which it consists is unlawful because it is contrary to article 21(c) of the Bill of Rights.

CROSS-APPEAL MATTER (2) : NO TRANSFER TO P & P UNDER OPENING-UP SCHEME

220. For the same reasons, I say the same thing in regard to Cross-Appeal Matter (2).

Result : unlawful

221. In my judgment, the actual decision of which it consists is unlawful for the same reason.

CONCLUSION

Appeal

222. On the appeal, I am of the view that the following are lawful decisions :

(i) Appeal Matter (1) : meaning of "permanent resident";

(ii) Appeal Matter (7) : extensions deducted;

(iii) Appeal Matter (8) : "opening-up" scheme; and

(iv) Appeal Matter (11) : Succession Posts Scheme.

223. Still on the appeal, I am of the view that the following are mere provisional proposals which are not susceptible of judicial review :

(v) Appeal Matter (12) : definition of "local"; and

(vi) Appeal Matter (13) : language - for P & P.

224. But I would allow the appeal to the extent of making the following declarations.

225. I would declare that

(vii) Appeal Matter (2) : accrued leave

is an unlawful decision because it abrogates accrued rights.

226. I would declare that

(viii) Appeal Matter (5) : less than 12 months to go - no promotion

is an unlawful decision because it took an irrelevant consideration into account.

227. And I would declare that the following are unlawful decisions because they are contrary to article 21(c) of the Bill of Rights so that any adversely affected permanent resident can complain :

(ix) Appeal Matter (3) : language - transfer from overseas agreement terms to local agreement terms;

(x) Appeal Matter (4) : one rank lower;

(xi) Appeal Matter (6) :restriction on promotion;

(xii) Appeal Matter (9) : language - under the opening-up scheme; and

(xiii) Appeal Matter (10) : "ceilings" on AOSGA & AOSGB1 posts.

228. Having said that, two things (which I have already said) must be remembered. First, Appeal Matter (3) is unlawful as expressed. But what the Government says that it intended thereby is lawful. And what the Government says that it has actually been doing thereunder is likewise lawful. Secondly, as to Appeal Matter (4), all promotions under the selection exercise are themselves lawful and effective.

Cross-Appeal

229. As to the cross-appeal, I am of the view that both

(i) Cross-Appeal Matter (1) : no transfer to P & P under transitional arrangements; and

(ii) Cross-Appeal Matter (2) : no transfer to P & P under opening-up scheme

are unlawful decisions because they are contrary to article 21(c) of the Bill of Rights, so that any adversely affected permanent resident can complain.

230. So I would dismiss the cross-appeal. But my observations as to the judge's reasons will have been noted.

Costs

231. In all the circumstances, I do not think that it would be appropriate to make even an order nisi as to costs. I think that we should leave the parties to agree costs if they can or, if they cannot, to have this matter restored for costs to be argued and decided.

Finally

232. Finally, I would like to express my thanks for the assistance which we have received from Mr Scott and those assisting him and from Mr Huggins and Mr Fok and those instructing them.

233. Mr Scott was courteous and restrained throughout the presentation of his arguments despite the obvious strength of his feelings on the issues. Mr Huggins and Mr Fok, typically of them, served their client, the Government, well by keeping its true interests at the forefront of their efforts throughout.

234. As for the judge, it should be understood that, although I have felt unable to support certain parts of his judgment, I fully recognize his valuable contribution to the disposal of this massive and by no means easy piece of litigation.

Mortimer, J.A.:

235. I have had the opportunity of considering my brother Bokhary, J.A.'s judgment in draft. Although in some respects we differ from the judge, I cannot usefully add anything to either his conclusions or his reasoning with which I agree. I also concur with the consequential orders which he proposes.

236. Finally, I also would pay tribute to Mr Scott, counsel and the judge for their contribution to the resolution of these matters.

Ching, J.A.:

237. I have had the advantage of reading the judgment of Mr Justice Bokhary, J.A., and I agree with his reasons, his conclusions and the orders that he proposes.