Are Civil Servants Sub Human?

Is there a law somewhere that says civil servants are a sub-human breed, entitled to fewer human rights than other people?

If there is, then I think we are entitled to know which legislature enacted it and how we can go about amending or repealing it.

But if there is no such law, then we need to take a hard look at the restrictions on the right of retired civil servants to undertake employment, through spectacles untainted by the crass errors of the C M Leung saga.

Article 6 of the International Covenant on Economic, Social and Cultural Rights specifically recognizes the right of an individual to work. Article 39 of the Basic Law makes clear that the provisions of this Covenant continue to apply to Hong Kong, and also provides that the rights and freedoms of Hong Kong people cannot be restricted unless prescribed by law. Other provisions of the Basic Law, and of the Hong Kong Bill of Rights Ordinance, are also relevant and should put it beyond doubt that all Hong Kong residents - a term which of course includes retired civil servants - must be treated equally.

It is not disputed that there is another relevant consideration, and that is to maintain an impartial and honest civil service. No-one who remembers the bad old days pre-ICAC when corruption was rampant would ever wish to open that door again.

So there is a right to work, but it is also legitimate to ensure that there is no conflict of interest between past official duties and future employment. We have not yet found a fair and reasonable way of balancing off these two policy imperatives. The existing control regime is linked to the pensions legislation which gives the Government the power to suspend pension payments in the event a retired civil servant undertakes work without permission.

This arrangement is fundamentally flawed on two counts: it implies that the pension is some sort of gift which can be withheld, whereas in fact it is part of the employee's career earnings to which he is entitled; and it puts the onus on the retiree to prove the lack of a conflict (it is always difficult to prove a negative) whereas his right to work for the employer of his choice must be respected unless there are cogent reasons why he should not be allowed to do so. A right ceases to be a right if it has to be justified on each occasion when it is exercised.

An admittedly difficult situation has been rendered almost impossible to handle by the C M Leung case. Why on earth New World thought it would be reasonable to offer a senior position to someone with whom they had had such extensive official dealings, and why on earth CM thought it would be reasonable to accept, and how on earth the Minister responsible thought this was all hunky dory - well these have to be three of the great mysteries of our time.

Mention of the Minister brings to the fore another relevant factor, which is the control regime for political appointees. Since the introduction of the Accountability system in 2002, power has shifted from the civil service where it previously resided and now rests with the Ministers and their deputies/assistants.

Conflict of interest is directly related to abuse of power. So how does the government deal with the employment of political appointees after completion of their public service? Answer : with kid gloves. Where a civil servant is barred from working for a set period of time, and is subject to a mandatory and strict control regime for a further lengthy period, his Minister may work straight away being required only to consult a committee (but not being required to follow its advice).

Those with less power are subject to more controls than those with most power. Fairness surely requires that it be the other way round.

We now have to turn our attention to the report of the Arculli committee, appointed by the government in a vain attempt to head off a formal LegCo enquiry into the CM Leung case. The committee's recommendations are of no assistance whatsoever because they would make the existing system even more lopsided than it is already. Going from bad to worse might be movement but it hardly constitutes progress.

Members of our legislature - some of whom sat on the Arculli committee - have not acquitted themselves creditably. On the contrary, they have been in the forefront of those demanding a tougher regime for civil servants. More than one is on record as saying "no civil servant should ever be allowed to work again". The very Members who talk most about democracy, freedom and human rights feel no shame in advocating the opposite for civil servants if they deem such statements to be more politically popular.

Let me conclude with some conclusions and a prediction.

The existing control regime governing post service employment of civil servants is unlawful and unconstitutional. Those at senior level in the relevant bureau and departments must know this. Those who might normally have been counted on to advocate human rights are more concerned with courting political popularity. Stalemate.

And as a result I predict that the Arculli recommendations will never see the light of day. It is bad enough to have barrels of legal gunpowder lying around. It would be foolhardy to start waving matches around next to them.