HONG KONG "MAID LEVY": LEGCO PUSHES THE

C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 000112 SIPDIS DEPT FOR EAP/CM E.O. 12958: DECL: 01/13/2019 TAGS: PGOV PHUM HK SUBJECT: HONG KONG "MAID LEVY": LEGCO PUSHES THE CONSTITUTIONAL ENVELOPE REF: 08 HONG KONG 2093 Classified By: Consul General Joe Donovan for reasons 1.4 (b) and (d). ¶1. (C) Summary: Hong Kong's "maid levy" -- a fee paid by employers of foreign domestic helpers to fund retraining of local workers -- is an odd issue for a constitutional challenge, but it became a battleground between the Legislative Council (LegCo) and the executive branch on who holds the initiative in making policy. At issue: the ability of LegCo to impose a substantive change on a government policy, particularly one in which public funding was at issue. In this case, independent Regina Ip proposed an amendment to a December government Legislative Notice suspending the maid levy for five years; Ip's amendment would have eliminated the levy permanently. LegCo, under the leadership of pro-Beijing president Jasper Tsang, chose to reject a government legal opinion which found LegCo's actions unlawful and allowed the amendment to proceed. End summary. ¶2. (C) Comment: This highly technical debate on a relatively minor issue is important for two reasons. First, a LegCo in which even "pro-government" parties are increasingly willing to criticize the government has gone a step further by asserting its prerogatives against the expressed wishes of the administration. Second, Jasper Tsang demonstrably put his role as LegCo President ahead of his role as a leader of the DAB (whom we believe opposed the bill at least in part to support the government against an encroachment by LegCo on its powers). Defeat of the amendment, however, means the legal merits of LegCo's action remain untested. Had LegCo passed the amendment, we believe the government might have challenged the action in court. The key question now is whether, having asserted itself once, LegCo will do so again. End comment. -------------- When the Levy Breaks -------------- ¶3. (SBU) Scrapping or suspending the maid levy -- effectively a HKD 400/month (just over USD 50) tariff paid by employers on foreign workers -- is one of many measures which were debated as relief for the middle class even before the financial crisis. The levy is part of a broader set of assessments on imported labor paid to the Employees Retraining Fund, which is intended to support programs to retrain local workers. The fact that the effectiveness of the Fund is subject to question adds to the drive to scrap, or at least suspend, the maid levy, which falls directly on working households. Chief Executive (CE) Donald Tsang has been criticized for his administration's past handling of this issue. The government gave in to public pressure in July by announcing a two-year suspension to begin in September, but then abruptly moved the date up to July when the public demanded immediate relief. As a result, a number of maid contracts were canceled so maids could be re-hired without the levy. The hoped-for benefit to the maids in higher wages was thus arguably canceled out, as helpers scrambled to process expensive paperwork to renew contracts and visas. ¶4. (C) Permanently suspending the levy became a politically popular issue, and became a cause for independent legislator Regina Ip. Ip has sought opportunities both to show her independence from the pro-Beijing camp and to burnish her credentials as a defender of the middle class. Late in the year, the government revisited the maid levy, and chose a compromise position of increasing the suspension from three to five years. The legal mechanism was by Legislative Notice (LN) -- a gazetted notification to LegCo that the CE was utilizing his authorities under the Employees Retraining Ordinance (ERO) to change the rate of levy assessed. Ip took this opportunity to move an amendment to this LN which would have suspended the levy permanently. -------------- Points of Order -------------- ¶5. (SBU) Under Article 74 of the Basic Law, LegCo members are only able to propose bills "which do not relate to public expenditure or political structure or the operation of the government," -- an extremely narrow window of initiative. Bills touching on those three areas may be introduced only with the written consent of the Chief Executive. Furthermore, Article 31 of LegCo's rules of procedure states that: "A motion or amendment, the object or effect of which may, in HONG KONG 00000112 002 OF 002 the opinion of the (LegCo) President or (select or standing committee) Chairman, be to dispose of or charge any part of the revenue or other public moneys of Hong Kong shall be proposed only by (a) the Chief Executive; or (b) a designated public official; or (c) a Member (of LegCo),if the Chief Executive consents in writing to the proposal." Legislative initiatives which originate in LegCo face an additional procedural hurdle: unlike ordinary bills introduced by the government, which pass or fail by simple majority vote, actions initiated by LegCo require approval by majorities of both the geographic and functional constituencies. ¶6. (SBU) The Hong Kong government, in a December 2 Labour and Welfare Bureau-prepared Submission to the President of the Legislative Council, declared Ip's amendment "unlawful." The government contended ending the levy would exceed the intended effect of the government's proposal and could deprive the CE of his authority to establish and maintain the Fund. Moreover, the ERO did not contemplate waiving a whole category of fee. The government also argued the amendment contravened Article 31 of the LegCo Rules of Procedure, since the levy constitutes "other government moneys." In a December 8 President's ruling, LegCo rejected the government's submission and allowed the amendment to go to the floor. In the ruling, LegCo argued that nothing in the ERO specifically forbid ending the levy or separating the levy on maids from other levies. LegCo also viewed the Fund as an independently-funded operation which the government was not obligated to support from the regular budget, thus dismissing the Article 31 objection. -------------- Floor Action -------------- ¶7. (C) Though LegCo President Jasper Tsang, former leader of the pro-government/pro-Beijing Democratic Alliance for the Betterment of Hong Kong (DAB),cleared the amendment to go to a vote, the DAB led the effort to defeat it. Its labor wing, along with the pro-Beijing Federation of Trade Unions (FTU), argued that the levy is a vital funding stream for the Employee's Retraining Fund, which in turn remains important for retraining local workers. Without the levy, they argued, the government would have to provide funds for this training out of the budget, putting a burden on taxpayers not importing foreign labor. Pro-establishment independents from the functional constituencies opposed the amendment without endorsing the Fund, proposing the government use the five-year suspension period to take stock of worker retraining programs and their funding. ¶8. (C) Ip found support from the pan-democrats, including their labor wing, and fellow independent Priscilla Leung, who is also trying to buck her press-assigned label as a "pro-Beijing" legislator. The Liberal Party joined Ip as well, arguing that the levy was unfair since workers brought in under the talent-seeking "Quality Migrant Admission Scheme" were not assessed a levy. The final vote was a win in the geographic constituencies of 21-7, but a 21-7 loss in the functional constituencies, thus sinking the amendment. DONOVAN