Population policy and the law

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I have published in the February edition of the Law Society of Hong Kong’s official journal “The Hong Kong Lawyer” an open letter inviting members of the legal profession to participate in population policy development (the “Letter”). The Public Engagement Exercise on Population Policy (the “Engagement Exercise”) was conducted by the Chief Secretary for Administration of the Hong Kong SAR Government between 24 October 2010 and 23 February 2014. The Letter was inspired in particular by the Forum on  Population Policy Consultation, which was organised by the Hong Kong Coalition of Professional Services and held on 6 January 2014 to explore issues arising from the Engagement Exercise that concern professionals in Hong Kong.

Some observations from the Letter:

[Population policy] 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.

So, how do population policies relate to the law?

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.

While it is  interesting to pontificate about the workings of public policy and the law, I struggle to understand how the Government can effectively translate population policy objectives into practical goals and the systemic implementation, given the complexity and broad scope of the issues involved.

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.

Population policy development must be seriously engaged, as it is a matter of collective interest and – ultimately – survival! Yet, population policies run wide and deep; cross-cutting  various topical domains that could be highly technical and controversial. Elderly care, for example, can be seen as an important economic issue in terms of structuring Hong Kong’s social welfare system as well as a matter of public health policy. But it is only part of the thematic area of “active ageing” in the Engagement Exercise. Forecasting the effects of promoting extended retirement age, another part of the “active ageing” theme,  could be essential to answering financial sustainability issues arising from the gradual increase in expenditure on elderly care in the future (eg. formulating cross-subsidisation plans). If the right questions are not asked, how do we collect data to inform our decisions on the relevant issues? The Engagement Exercise invites us to avoid “silo” discussions, and to think about how the big picture fits together. As such, much coordination would be required  amongst different governmental departments. Indeed, “[c]ollaborative efforts between the public and private sectors as well as different disciplines are paramount”. I hope to delve into specifics in future entries. Stay tuned.

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