Faulty reasoning

PUBLISHED : Friday, 11 January, 2002, 12:00am
UPDATED : Friday, 11 January, 2002, 12:00am

With yesterday's Court of Final Appeal (CFA) ruling, a long-drawn-out saga that has tested both Hong Kong's Judiciary and administration has come to an uneasy close. The only good news is that this ruling is unlikely to result in the central authorities in Beijing being asked to intervene again, as they were in 1999.

The sad part is that the CFA ruling has denied the vast majority of abode applicants the right to stay in Hong Kong, splitting families and forcing several thousand people who have regarded Hong Kong as their home for the past several years to leave.

The CFA has used reasoning that seems to go against the principle of fairness. It has accepted that statements by the Chief Executive and other officials at various times in 1997 did create a legitimate expectation in the minds of right-of-abode claimants that their cases would be dealt with in accordance with two rulings on January 29, 1999 - rulings under which an earlier group of abode seekers had been allowed to stay in Hong Kong.

But it has given only a small number of this present set of abode seekers the prospect of remaining in Hong Kong - and that will be at the discretion of the Director of Immigration. It has barred the rest from doing so because their numbers are too large. In other words, the court appears to be saying that had the number of claimants been smaller, they might have been allowed in. It is difficult to understand why certain abode seekers are being penalised because they are part of a large group.

The court's reasoning is that allowing these 5,000-odd appellants to stay could set a precedent and allow others on the mainland to try the same route. It felt this would undermine the law as established by the reinterpretation of the Basic law by the Standing Committee of the National People's Congress. But there is little danger of such an influx now, as this route has been closed.

The CFA's decision to reject the claimants' argument that they should have been allowed to stay under the January 1999 rulings has also raised eyebrows. In those rulings, the court held that under section 24 of the Basic Law, persons of Chinese nationality born outside of Hong Kong of permanent residents had right of abode in the SAR, irrespective of whether they were born before or after their parents had acquired permanent residency.

The rulings were overturned by the reinterpretation on June 26, 1999. On the grounds that under common law 'the reasons for a decision do not bind persons who are strangers to the litigation', the CFA held yesterday that the claimants in the latest cases could not benefit from the January 1999 rulings because they were not a party in those actions.

But the fact was that before the rulings were overturned, they had become law and all those claimants who were already in the SAR should have been entitled to benefit from them, as Mr Justice Kemal Bokhary suggested in his dissenting judgment.

Moreover, as media reports at various times confirmed, many potential claimants were turned away by either the Immigration or Legal Aid departments, or both. So it would seem unjust that while several hundred who were fortunate enough to have their papers accepted by the departments were allowed to stay, those barred from doing so would have to be repatriated.

Stripped down to its basics, the latest right-of-abode case was about whether an individual could trust the Government and the courts to uphold his or her rights.

Unfortunately, the message that yesterday's CFA ruling sent to the community was that people should trust their innate sense of justice and take active steps to assert their rights rather than be led by official proclamations that deprive them of their entitlements.