Judicial crisis must not happen again

PUBLISHED : Saturday, 10 September, 2011, 12:00am
UPDATED : Saturday, 10 September, 2011, 12:00am


Of all the Hong Kong files made public by WikiLeaks recently, there is one of deep significance. A cable to the US state department said five judges of the top court seriously considered resigning over the right of abode controversy in 1999. If true, this means our city was on the brink of a much deeper crisis than had been appreciated.

This was a sensitive time. The newly established Court of Final Appeal had delivered its first judgment in a constitutional case, less than two years after the handover. That ruling was then effectively overturned by the Standing Committee of the National People's Congress at the request of the Hong Kong government. The one country, two system arrangements - still in their infancy - were severely tested.

Thankfully, Hong Kong overcame the crisis and moved on. But that would have been much more difficult to achieve if the top five judges had all resigned. The impact would have been devastating. It is to their credit if, as the US cable stated, they ultimately decided not to resign because they considered this to be in Hong Kong's best interests.

The judges concerned went on to apply Beijing's interpretation of the Basic Law. Since then, they and their fellow judges have continued to rule on sensitive cases in accordance with established legal principles. The government has won some and lost some. Confidence in the rule of law has returned.

Three further interpretations have been made by the Standing Committee, but none of them have followed a final ruling by the Court of Final Appeal. The latest interpretation, delivered last month, marked new ground for our legal system. This time the matter was referred to the Standing Committee by the court itself. It concerned an application for state immunity claimed by the Congo government in a commercial case. The court requested clarification from Beijing of legal issues arising. The Standing Committee returned with answers which accorded with the court's preliminary findings and a final judgment was sealed by our judges on Thursday. The entire process was carried out smoothly and in accordance with the Basic Law.

The right of abode controversy raised concerns about judicial independence under the one country, two systems concept. Since then restraint has been exercised and care taken not to seek interpretations after the top court has ruled. But the issue has not entirely been resolved. A bid by foreign domestic helpers for permanent residency has prompted calls for an interpretation if the government loses the case.

Lessons should be learned from the events of 1999 and every effort made to ensure a crisis of that kind never occurs again.