Taking the easy route on influx
WHEN Secretary for Security Regina Ip Lau Suk-yee last month unveiled the figure of 1.67 million mainlander arrivals, the basis of the Government's case for overturning the Court of Final Appeal (CFA) ruling on right of abode, she listed several ways the ruling could be changed.
One was for the court to deliver another judgment reversing its earlier ruling. Mrs Ip even cited a Privy Council ruling in 1966 which she claimed showed this was acceptable in cases of great importance.
But by the time Chief Executive Tung Chee-hwa appeared before the Legislative Council a week later this option had gone. Mr Tung insisted the only choices were amendment or re-interpretation of the Basic Law.
Nonetheless it is now clear there was serious discussion within Government about the possibility of trying to persuade the court to change its mind.
Secretary for Constitutional Affairs Michael Suen Ming-yeung, Acting Chief Secretary for part of the period, favoured the idea. So did Information Co-ordinator Stephen Lam Sui-lung.
There were even suggestions on how to make such an application. One idea floated in internal meetings was to revive litigation dropped more than a year ago. This involves mainland children in a similar, but not identical, situation as the five test cases that led to the January 29 judgments.
These were said to have unresolved legal points which could be litigated. When these cases reached the Court of Final Appeal, it would have a chance to overturn its recent decision.
It was claimed there was a good prospect of this. After all the Preparatory Committee decision on right of abode, which the Government will this week rely on in its application for Beijing to re-interpret the Basic Law, was never cited in the recent court case.
It is not widely realised there were two judgments on January 29. The one which did most to open the floodgates was not the unanimous ruling on behalf of the whole court by Chief Justice Andrew Li Kwok-nang. It was a separate judgment by Mr Justice Kemal Bokhary, to which his colleagues concurred.
This led to the - almost certainly forlorn - hope that the ruling on this key point, about the status of children born before their parents had right of abode, was mainly the work of one judge and so might be easier to reverse.
As one basis for Mr Justice Bokhary's decision was his insistence that there was little danger of this provoking a mass influx, it was also thought this could be revisited given the statistics which now suggest otherwise.
If there was any real prospect of solving this crisis by the court changing its mind this would certainly attract widespread support. Professor Peter Wesley-Smith of the University of Hong Kong called it 'the most satisfactory solution to the practical problem' at a conference last week.
But he dismissed it as unrealistic. That was also the view taken in government. Mr Suen and Mr Lam found themselves hopelessly outnumbered as other officials rubbished the idea.
The majority view was that there was little chance of the court being persuaded to overrule its judgment so quickly. In other common law jurisdictions such as the United States, the Supreme Court rarely overturns its earlier decisions and only after a long time has elapsed.
The decisive factor in government was that there was 'no certainty of results' in going back to the court. In other words, although it is unlikely to have been put so bluntly, judicial independence was a problem, as it meant there was no certainty what the court would decide.
As Professor Wesley-Smith said: 'The course of litigation is uncertain: no one can ensure that the desired issues are presented again for discussion, and no one can predict whether in fact the court would be persuaded it was previously wrong.' Some officials feared any fresh ruling might be even worse. That is not a problem with the route that has now been chosen, of asking the National People's Congress Standing Committee to re-interpret the Basic Law.
Even if this body has recently become a little more independent-minded, there is still no danger of a lack of 'certainty of results'. In going to Beijing instead of back to the court, the Government has chosen the path of least resistance.