SENIOR NON-EXPATRIATE OFFICERS' ASSOCIATION and Others v. SECRETARY FOR THE CIVIL SERVICE

1996, No.MP2937

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H E A D N O T E

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On 13th August, the Government issued a Circular 13/1996 to Civil Servants. A bank was placed on directorate officers being nominated for the Selection Committee. Some officers sought to challenge that Circular. On an application for judicial review seeking to quash the Circular on the ground that it was unreasonable to ban all grades of directorate officers.

Held refusing the application

(1) The Circular was reasonable and necessary, as the directorate was a specific class of Civil Servants who had been previously banned from actively participating in political activities and service on the Selection Committee was equivalent to political activity.

(2) In order to preserve the integrity of the Civil Service, Senior Civil Servants had to forfeit some civil rights enjoyed by others.

(3) The Circular did not contravene the Bill of Rights.

1996, No.MP2937

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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Background

1. On July 1st next year, the colony of Hong Kong ceases to exist. It becomes the Special Administrative Region of the People's Republic of China. The position of Governor and the legislature also disappear. In its place will be a Chief Executive and a new legislature.

2. China has stated categorically that the provisional legislature will be established and that the Chief Executive will be named, before the transfer of sovereignty occurs. The process by which these two aims will be achieved will be by a Selection Committee.

3. The method for its formation is set out in a recent document dated 10th August 1996 passed by the Fourth Plenary Session of the Preparatory Committee for the Hong Kong Special Administrative Region, National People's Congress of the People's Republic of China. It sets out the formation of the Selection Committee which is prescribed in accordance with the Basic Law.

4. The Selection Committee shall be composed of 400 members, all of whom shall be permanent residents of Hong Kong. The Committee shall be broadly representative and consist of representatives from four sectors, 100 from the industrial, commercial and financial sectors, 100 from among the professional sector, 100 from the labour, grassroots, religious and other sector, and 100 from among former political figures, Hong Kong deputies to the National People's Congress, and representatives of the Hong Kong Members of the National Committee.

5. By Article 4, members of the Selection Committee must satisfy the following qualifications and conditions. They must :

(1) have attained the age of 18;

(2) meet the qualifications and conditions for permanent residents of Hong Kong as stipulated in Article 24 of the Basic Law; and

(3) uphold the principle of "One Country, Two Systems" and the Basic Law; and

(4) be willing and ready to perform the functions and duties of the Selection Committee as prescribed by the National People's Congress and the Preparatory Committee in their decisions pertinent to this matter, that is, to recommend a candidate for the office of the First Chief Executive and to elect members of the Provisional Legislative Council.

6. In order to serve, the applicant must make a declaration. He must say that he does support the principle of "One Country, Two Systems" and the Basic Law, and that he is willing and ready to perform the following two duties, that is, to recommend the candidate for the office of the First Chief Executive and to elect members of the Provisional Legislative Council.

7. It can be readily appreciated how important the Selection Committee is. It will be representative of all of Hong Kong.

The Circular

8. On August 13th this year, the Government distributed a circular to all members of the Civil Service, both in English and Chinese. It is called "Civil Service Branch Circular 13 of 1996" and deals with civil servants and membership of the Selection Committee for the First Government of the Hong Kong Special Administrative Region.

9. It sets out at a paragraph called "Prevention of Conflict of Interest Situations" that the Government's policy on civil servants taking part in the conduct of public affairs is to ensure that civil servants should enjoy their civil and political rights as citizens, but at the same time the Civil Service should remain apolitical and no conflicts of interest should arise.

10. In paragraph 4, it says that the Government is committed to co-operate with the Preparatory Committee on the basis of three established parameters.

(i) that the arrangements for co-operation are fully consistent with the Joint Declaration and the Basic Law, ...

(ii) that the authority and credibility of the Hong Kong Government are not compromised; and

(iii) that the morale and confidence of the Civil Service are not affected, and that civil servants are not subjected to conflicting loyalties.

11. At the end of this circular, it was stated that civil servants may decide for themselves whether they wish to put forward their names. Service will be strictly in an individual capacity and will be subject to there being no actual or potential conflict of interest and all relevant Civil Service Regulations and Circulars are observed. But (b) :

"notwithstanding (a) above, all Directorate Officers, Administrative Officers, Police Officers, and Information Officers may not serve on the Selection Committee."

12. The applicants before me are directorate officers, and they wish to be nominated for election to the Selection Committee so that they can play a part in the shaping of the future of Hong Kong. The 1st Applicant is the Association.

13. The nomination for election to the Selection Committee must be done by Saturday 1 p.m. Therefore, this judgment is in oral form, and it has been necessary for an urgent hearing to take place. I am grateful to the parties for providing a large amount of information which has assisted me. I apologise if I do not deal with all the points Counsel have made.

14. The applicants therefore bring this challenge by way of judicial review of that August decision. They assert that it is unlawful, as it unreasonably restricts their civil rights of taking part in the Selection Committee.

15. It is common ground that the circular has the force of a Civil Service Regulation, and that it is a total ban on all Directorate Officers, and its breach can lead to dismissal and loss of pension.

16. The applicants do not wish to risk their future and therefore ask this court to declare that they can lawfully participate in this important public duty.

The Civil Service

17. There are some 182,000 civil servants representing 6% of Hong Kong's work force, and some 1,170 directorate officers which is 0.7% of the Civil Service. They range from a grade called D1 to D10. The lower grades are persons such as Chief Professionals, Principal Assistant Secretaries, Assistant Directors, a Deputy Head of a group II or III department, a Deputy Secretary of the Government Secretariat, and at the top of the tree is D10, Mrs Anson Chan, the Chief Secretary.

18. As one would expect, their salary increases with their grade. The main difference with regard to the most senior of the civil servants when compared with, for example, the British civil service is that in Britain they serve the Ministers, whereas in Hong Kong they are the Ministers.

19. Hong Kong was never a democratic country similar to many other countries. It was only from 1991, just a few years ago, that democracy has emerged and then only in a limited form.

20. The Civil Service here has never had a change of political master. There has always been a Governor. Although personalities change, the structure of government has remained constant. The Civil Service has never been exposed to the sudden change of political influence as experienced in true democratic societies. Soon that position will alter. The Governor will be replaced by a Chief Executive, and a new legislature will be put in place and the sovereignty reverts to China. This is a far more dramatic change for any Civil Service than has been experienced ever before in history, other than countries which have been conquered. The reversion to China is lawful and peaceful.

21. The Civil Service therefore requires special protection, because if there is to be a smooth and efficient transition of all the variety of governmental matters, it is the Civil Service, and in particular the senior civil servants, who can bring this about.

22. Politicians no doubt will air their points of view but it is the Civil Service which effectively will control the transfer of power.

The Selection Committee

23. I have already described the Selection Committee.

24. From a recent report - I only have it in English in the South China Morning Post - of the 6th September which reads :

"The Preparatory Committee is set to approve a set of proposals to make the selection of the chief executive more open.

The sub-group proposing criteria for the process said that names of members nominating candidates would be made public and that the media should be allowed to attend Selection Committee questioning of hopefuls."

25. It is apparent that the members of the Selection Committee will have a high profile. We have in Hong Kong a vigorous, free and varied press, efficient and effective radio and television services. I have no doubt that once the nominees' names are known, and although there is currently only one, I must assume that other worthy contenders will step forward, there will be a frenzy of media attention focused on the Selection Committee and its members. The 400 will take an active part in discovering who is the best candidate. Every single bit of gossip or innuendo will be pounced on by the media.

26. I do not say this in any way critically, because it is right that the Hong Kong public should know what is going on, and what the members of the Selection Committee are thinking. Although the ballot may be secret, the publicity behind the whole process will in my judgment be enormous.

27. The Government has taken the view that all directorate officers should be excluded from service on the Selection Committee. Why is this?

28. In all major democratic societies, the general principle has always been that Civil Servants, particularly Senior Civil Servants, should remain neutral and apolitical so that there is no perception or accusation of bias, or conflict of interest and that they are seen to be loyal to the Government of the day.

29. Mr McCoy for the applicants does not suggest otherwise. He submits that the problem is "A Question of Demarcation", and I quote :

"The Applicants are not challenging the legitimacy of the principles deployed to justify the prohibition of certain civil servants from serving on the Selection Committee, namely the maintenance of the efficiency, integrity, and impartiality of the civil service. The Applicants are challenging the demarcation of such a prohibition.

The Applicants submit that it is common ground that the qualification for identifying civil servants as subjects of the prohibition is the potential or risk of conflict of interest engendered by service on the Selection Committee."

30. Why has the Government chosen the directorate level as a class?

Directorate Officers

31. Mr Michael Stone who is the Deputy Secretary for the Civil Service, one of three Deputy Secretaries to Mr Lam Woon Kwong, has sworn an affidavit which I found very helpful. He describes - in terms of the structure of Government,

"... the directorate are a unique and distinct group. There is a separate Advisory Body - the Standing Committee on Directorate Salaries and Conditions of Service - which gives advice to the Governor on terms and conditions of service of directorate officers. Creation of directorate posts must be individually approved by the Establishment Sub-Committee and Finance Committee of LegCo : non directorate posts are created under delegated authority. It is a requirement for a directorate officer to attend before the Establishment Sub-Committee for discussion on creation of directorate posts. They enjoy certain fringe benefits not enjoyed by non directorate officers, for example, leave passages allowance for local directorate officers. A civil servant cannot enter the directorate merely because of length of service. He must be promoted to the directorate level on the basis of character and ability. It represents a very significant and important step in the career advancement of the civil servant concerned."

32. The directorate officer level is in my judgment a well recognized class of civil servant. It is recognized in the Civil Service Regulations as being a distinct group. See, for example, Regs.103, 160(2) and 172. Indeed even the applicants themselves recognize that the directorate officers form a distinct class of civil servant. (Para.5 of their Constitution)

33. There have been a number of government circulars.

34. When a democracy was about to emerge in Hong Kong, this problem, of course, had never arisen before, unlike other civil services throughout the world where there had been potential conflict because Hong Kong did not have any democracy, so there was no potential conflict of interest between a civil servant and political organizations. However, it did emerge, a circular was published dated 18th October 1990 dealing with civil servants joining political organizations and participating in political activities, and the principles are set out. I do not repeat them, but one finds this at paragraph 8 :

"... while there is no objection in principle to civil servants joining political organizations, certain officers at the senior level and those who may be particularly susceptible to accusations of bias because of the nature of their duties, are prohibited from participating in political activities within the Hong Kong context - all Directorate Officers, Administrative Officers, Information Officers and officers that might act up."

35. So from that initial moment, the Government recognized that directorate officers should have restrictions placed on them.

36. In 1995 there was the approach of elections to LegCo, and so another guideline was published by the Government, and it said :

"We have also had questions about whether civil servants may nominate candidates or indicate their support in other ways. For the majority of civil servants this is allowable. But for Directorate Officers, Administrate Officers, Information Officers and other involved in organizing the elections, there is a very real risk that any indication of support including nomination, could compromise the impartiality necessary for the conduct of the officer's duties."

And so again the directorate officers were excluded from the right to nominate.

37. In my judgment there has been a consistency of approach as to the separation between directorate officers and others. Whilst it is obvious that the level of responsibility increases with the grade, and the actual decision makers may be few, it is far more sensible and reasonable to exclude the whole class rather than tinker about and keep some in and others out, to say, for example, that grades D1, 2 and 3 should be excluded, as those who work in these jobs pose no risk of potential conflict of interest, would in my judgment jeopardize the essential structure of the Hong Kong Civil Service which maintains that its senior civil servants should stay away from political activity.

38. I am in no doubt that being on the Selection Committee is a form of political activity. It is not party politics, but it involves all those attributes which are well recognized in politics.

39. Mr McCoy submits that if a civil servant was on the Selection Committee and was approached by a reporter about a candidate, or was encouraged to support a candidate, he would decline to talk or to act, as this would be in breach of his general duty. I find that submission unreal and somewhat naive.

40. Service on the Selection Committee, as I have said, will be a high profile activity. Civil servants owe loyalty to the Government. One of the unusual features of the transfer which this case has highlighted is the establishment of the provisional legislature. There is not doubt that it will be established once the Chief Executive is known.

41. The Hong Kong Government, and also the British Government, considers it unnecessary and conflicts with the Basic Law. China disagrees. This appears to be the major source of concern likely to affect Hong Kong in the next few months. It is not my function to say whether this provisional legislature is or is not necessary, or is or is not legal, but there is no doubt that the Hong Kong Government is firmly committed to a policy of non-co-operation over the provisional legislature, and they expect their senior civil servants to toe the line.

42. I am not permitted to question this policy, but in the context of this case, and knowing that the provisional legislature is a certainty, the position of senior civil servants has been made difficult. On the one hand, they must support the Government and have nothing to do with the provisional legislature. And on the other, as soon as July 1st arrives, they must support the new administration and the new legislature. This highlights the invidious position which a senior civil servant may find himself in if he sat on the Selection Committee.

43. It is not necessary to set out all the well-known authorities. However, the most recent pronouncement on irrationality by the Court of Appeal in England is R. v. Ministry of Defence Exp. Smith [1996] 2 WLR 305 where at p.336 Sir Thomas Bingham M.R. said :

"The court may not interfere with the exercise of an administrative discretion on substantive ground save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."

44. I have come to the clear conclusion that the restriction imposed by the Government by excluding all directorate officers is both reasonable and rational, and that any member of the public would recognize the Government's action as reasonable.

Bill of Rights

45. The Bill of Rights has been raised. This is part of the law of Hong Kong and must be supported by judges. They must be fearless in stating whether or not any action by the Government is or is not contrary to the Bill of Rights. However, it must be recognized that "The issues involving the Bill of Rights should be approached with realism and good sense, and kept in proportion" per Lord Woolf in A.G. of Hong Kong v. Lee Kwong-kut [1993] AC 951.

46. Reference has been made to Article 21(a) called "The Right to Participate in Public Life" :

"Every permanent resident shall have the right and the opportunity, without any of the distinctions mentioned in article (1)(1) and without unreasonable restrictions - to take part in the conduct of public affairs, directly or through freely chosen representatives."

47. By being a civil servant, a person forfeits certain rights. The restriction placed by the Government on the directorate officers is in my judgment both reasonable and necessary, and I find on the evidence before me fully justified.

Conclusion

48. I have sympathy for the applicants. I am sure they are honourable men who have faithfully served the Government and have faithfully carried out their duties. At the end of the day, senior civil servants must recognize that the loss of some rights enjoyed by other citizens is a small price to pay to preserve the integrity of the Civil Service and to ensure that there is good government. These applications are dismissed.