Travel ruling just the ticket for freedoms

Returning to Hong Kong after trips abroad should be less worrying for the one million non-permanent residents following Tuesday's ruling by the top court upholding their right to travel freely. While many may not have realised it, the law extinguished their right to remain in Hong Kong every time they left, even for a day trip to Macau or Shenzhen. In practice, the vast majority were allowed back in without any trouble, effectively being granted fresh permission to stay each time they passed through the immigration counter. But officials could, and did, refuse to let some people back in, even if they had a valid visa stating they were permitted to stay until a future date. Nepalese businessman Gurung Kesh Bahadur, 40, brought the case after being refused entry in November 1997, despite having more than a year to run on his visa. Another case, involving a mainlander similarly denied permission to enter, is pending. The law made the position of non-permanent residents uncertain. It led barrister Paul Harris, in an earlier court hearing, to describe visas for such residents as amounting to 'an embossed lie'. This uncertainty ended on Tuesday when the Court of Final Appeal ruled it unconstitutional to apply these immigration restrictions to non-permanent residents with valid visas. 'The rights to travel and to enter are constitutionally guaranteed by Article 31 of the Basic Law. In the case of a non-permanent resident whose permitted limit of stay had not expired, his right to re-enter Hong Kong after travelling is an essential element of these rights,' the judges said. While easing the travel worries of residents is important, the case had much wider implications. Arguments put forward by the government, had they been accepted, would effectively have lowered the legal status of non-permanent residents and made it possible for many of their rights to be swept away. This approach was described by Chief Justice Andrew Li Kwok-nang as 'unattractive' and has led to the government's handling of important constitutional cases being called into question, with suggestions it adopts a win-at-all-costs attitude, regardless of the broader implications. 'I find it astounding that the government itself would argue for such a restrictive interpretation of rights and freedoms. It is supposed to protect them, not try to cut down the scope of what is granted in the Basic Law,' solicitor William Clarke said. He blamed the approach on the Immigration Department, which fought the case against Mr Bahadur and has put forward similarly controversial arguments in other court battles: 'One has to wonder whether the Immigration Department is out of control. Do they answer to the Chief Executive and the Executive Council for the stance they take?' Mr Clarke said the impact of submissions put forward to win a case involving just one or two people could, if accepted, lead to the 'obliteration of the whole system of protection of rights and freedoms in the Basic Law'. The argument offered by the Director of Immigration in the Bahadur case was that rights which exist in the Basic Law, but not in the International Covenant on Civil and Political Rights (ICCPR), could be subjected to unlimited restrictions as long as the restrictions were imposed by legislation. It based the submission on part of the Basic Law which states that the rights and freedoms of residents can only be restricted if 'prescribed by law'. There was also an obligation to comply with certain international covenants, including the ICCPR. But that did not affect rights which existed only in the Basic Law, the government argued. The wording of the Basic Law is often different to that of the Bill of Rights, which incorporates the ICCPR into Hong Kong law. Rights to be found in the Basic Law but not the Bill of Rights include the right of all residents to demonstrate, strike and claim social welfare. Another is the freedom of non-permanent residents to travel. This, the government argued, could therefore be restricted by immigration laws. But the court rejected the argument and made the wider implications of it clear. 'It does not follow that rights found only in the Basic Law can be restricted without limitation provided the restrictions are prescribed by law,' it said. Otherwise, rights to be found only in the Basic Law, but not the ICCPR, could be 'swept away by domestic legislation', the judges added. Such a situation would make these rights less secure than those also found in the ICCPR and that 'could not have been the intention of the Basic Law', they said. This was not the first time arguments had been advanced by the Immigration Department which would have had far-reaching and controversial implications if accepted by a court. Lawyers are asking whether it is appropriate for the government to act like a member of the public bringing a court action and to put forward any argument which may help its case, or whether it has a wider duty to consider the effect its arguments may have on the legal system. Senior Counsel Gladys Li said certain arguments should not be viewed simply in terms of whether they may help the government win a particular case. 'They ought to consider the implications more carefully,' she said. One example was in a right of abode case last year in which the government pushed for greatly broadening the circumstances in which cases would have to be referred to Beijing for interpretation. Ms Li said she found the argument 'most extraordinary in terms of its implications'. While some blame the Immigration Department for the arguments put forward, others argue that the fault lies with the Justice Department, which prepares the government's case in court. But Solicitor-General Bob Allcock said: 'In cases of constitutional importance, it is vital that the court should be fully informed of all legitimate arguments on both sides. If it is not, it may fall into error. In deciding what arguments to put to the court, the Department of Justice considers both the immediate issue before the court and broader implications of the case.' He pointed out that the arguments in the Bahadur case had been accepted by a judge in the Court of First Instance, a decision overturned by the higher court. Mr Allcock said an important constitutional principle had been established as a result of arguments raised in the case and the putting forward of such submissions was not inconsistent with the government's 'unwavering' commitment to the Basic Law. Tuesday's ruling is also being seen as significant in another respect. The judges stated that even if the rights of non-permanent residents can be restricted, this cannot be done merely by administrative rules or procedures, or by the exercise of a general discretion given to immigration officers. It must be done by the introduction of clearly stated laws 'so that the individual may be given some indication as to how he may regulate his conduct'. Lawyers believe this may prove to be significant in other cases yet to come to court. Ms Li suggested it was of potential importance because courts tend to have greater control over restrictions imposed by law and this makes them easier to challenge. Those exercised by way of general powers given to immigration officers are 'in a different ball park', she added. But there are still ways in which the government can remove non-permanent residents. The Chief Executive has the power to curtail the period for which a resident has been permitted to stay. He also can issue a removal order against a non-permanent resident who has been here less than three years if it appears to him the person concerned is 'undesirable'. Solicitor Peter Barnes said these weapons were less easy to for the Government to use than simply preventing non-permanent residents from re-entering Hong Kong. To cut the length of stay in someone's visa would require a very good reason. 'It may be that as a consequence of this judgment, the Immigration Department will say it wants an opinion from the Department of Justice as to how to modify the system so it is a little bit easier to curtail someone's permission to remain,' Mr Barnes said. Cliff Buddle edits the Post's opinion pages CLIF02GET