Population policies matter to lawyers

I am writing in my personal capacity in relation to the Forum on Population Policy Consultation (the “Forum”), which was held on 6 January 2014 (for details, please refer to http://www.hkpopulation.gov.hk/public_engagement/en/doc.html).

You might have seen or heard the advertisements for the consultation exercise, which have been broadcast publicly since October 2013. The issues concern high-level executive policies, complex socio-economic phenomena and inter-generational timescales. These seem to be matters extraneous to usual legal practice but I believe population policies are highly relevant to lawyers.

As the population policy consultation paper “Thoughts for Hong Kong” highlighted, Hong Kong has a set of urgent demographic challenges. In 2013, our total fertility rate is ranked 221st out of 224 economies. Our labour force will start to decline in 2018. By 2041, almost one-third of Hong Kong’s population will be aged 65 or above. An ageing population will slow down the economy, and compress our narrow tax base due to public expenditure, as noted in the consultation press release. Meanwhile, immigration gradually surpasses births in contributing to population growth rate. Yet, not all demographic trends are readily quantifiable. Social cohesion and quality of life must be considered as part of the consequences of changing demographics, which are both numerical and structural.

Population policy arguments have featured in several landmark cases. The Government has relied on population policies to devise administrative regimes in relation to social welfare, public healthcare and foreign labour importation, and these regimes have been judicially challenged respectively in Kong Yunming v The Director of Social Welfare (FACV 2/2013, unreported, 17 December 2013); Fok Chun Wa & Anor v The Hospital Authority & Anor (2012) 15 HKCFAR 409; and Julita F Raza & Ors v Chief Executive in Council & Ors [2005] 3 HKLRD 561. In Kong Yunming, Ribeiro PJ noted in obiter at paragraph 111 that the Government’s reliance on population policies (at the expense of social welfare policies) in developing Comprehensive Social Security Assistance rules led to an impaired recognition of constitutionally protected social welfare values.

Beyond case law, population policies matter too. For example, an ageing population in a sophisticated economy drives the growth of financial services protection for the elderly, and demand for innovative investment and insurance products to reduce costs arising from longevity. These create opportunities for banking and capital markets practices. At the Forum, representatives for engineering and medical professionals discussed the prospect of biotechnology and geriatric care markets that will emerge from changing demographics. Internally, different professional bodies are planning on capturing new opportunities and adapting to demographic changes. While we have clear policies in relation to attracting foreign talent and training young people, how will the legal profession address other thematic areas of the consultation, including active ageing, social inclusiveness and family-friendly environment? This will need much further thought.

Population policies have wide macro-economic impact as well as personal consequences. The policies are implemented widely in fields like environmental protection, healthcare, human rights, labour rights, immigration and social welfare. In parochial societies, population policies have been implemented in shocking ways; especially policies relating to reproductive health and family planning that tend to violate women’s rights and status. Liberal societies tend to implement population policies in subtle or benign ways (eg. economic measures). Fortunately, we live in the latter. But we must yet work hard to translate ”umbrella” policies into policies that are directly useful. To enhance and extend the careers of parents and the elderly, for example, we must refine further our anti-discrimination, labour and tax laws to create conducive working arrangements. We must ensure that long-term and multi-faceted objectives are reflected faithfully in the everyday government.

Collaborative efforts between the public and private sectors as well as different disciplines are paramount. Lawyers have vital roles in advising and overseeing the design and implementation of policies in accordance with the law. Let us share our thoughts with Hong Kong in this consultation! 

 

By Sebastian Ko, Solicitor