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  • Dec 19, 2014
  • Updated: 8:09am
My Take
PUBLISHED : Saturday, 15 December, 2012, 12:00am
UPDATED : Saturday, 15 December, 2012, 3:30am

Devil in the detail of government's case for interpretation

Many government critics are barking up the wrong tree. The government has every right as a litigant to suggest the top court ask Beijing for an interpretation of residency rights.

Rather, the problem is the scope of the question that the Department of Justice is asking the court to submit to the National People's Congress Standing Committee for clarification. It is short-sighted, wrong in principle and against the public interest.

The case in question involves the right of abode of foreign maids and is due for a hearing in the Court of Final Appeal in February.

In our adversarial legal system, litigants use whatever legal tools are available to win.

It would be exceedingly odd - you can even argue government lawyers are not doing their duty - if they don't use their strongest weapon, an NPC Standing Committee interpretation. The top court is, of course, perfectly free to refuse their request.

But the government is being more ambitious than that, and that's the problem and the real danger. The maids' appeal essentially involves interpreting a single provision in Article 24 of the Basic Law. Government lawyers can and should restrict their court request for an NPC interpretation to just that.

But no, they want an NPC interpretation that involves the whole of the Article, which also deals with the residency rights of expatriates, mainlanders and their children born in Hong Kong.

You can appreciate why the government would want to do that. In one fell swoop, it hopes to resolve all the other outstanding controversies over the residency rights of children of mainlanders born in Hong Kong, and mainland children with at least one Hong Kong parent; never mind that they are really separate from the foreign maids case.

By asking for a wholesale interpretation of the entire Article 24, it is essentially inviting the NPC to rewrite a key article of the Basic Law through the back door - without going through the constitutional process.

Secretary for Justice Rimsky Yuen Kwok-keung is right that the mere fact of the NPC interpretation request does not pose a challenge to our judiciary. But the wide scope of the request, if granted, is clearly a threat to our judicial and legislative autonomy.


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This article is now closed to comments

it sounds funny.. the CFA had ruled on the mainland baby case.. then the gov ask them to look into the case again.. its like telling the judges you dont know what the heck ur talking abt.. look into it again!!!.. Final should mean Final!!! next case plz!!!
Also, why do you think they called it the Basic Law?
nwong, you rightly say that a constitution is the cornerstone of a country. The inescapable fact is that Hong Kong is not a country. Simple.
I agree with the opinion that the scope of interpretation should be considered carefully. If the interpretation is about the entire Article 24, I think that it may damage the independence of Hong Kong's legislation. Interpertation is common in every legislation, it will clean doubts and strength the law; but rewriting an Article in Constitution rarely happens. Constitution is the cornerstone of a country, it is supposed to be leaved untouched. The Basic Law has been practiced in Hong Kong for 15 years only, this period is less than half of 50 years promised to be kept unchanged. It seems that our Basic Law, the backbone of our jurisdiction, is so fragile. I really doubt that breaking our backbone will do any benefit to Hong Kong.
And the CFA must bring in more NPJs to hear the case. It is patently wrong in principle to let Chan, Ribeiro or Ma sit on the panel to deal with this application.
The CFA must reject this request or it may as well be disbanded.


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