Hong Kong Basic Law

Public criticism of judicial edicts within reason

PUBLISHED : Friday, 26 October, 2012, 12:00am
UPDATED : Friday, 26 October, 2012, 2:10am


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Your editorial ("Elsie Leung's criticism of the city's top court may have been unwise", October 19) raises intriguing questions about judicial independence and free speech.

Judicial independence is a variable secular precept and not an absolute religious creed. It is neither infallible nor unquestionable. As Wikipedia explains, "different countries deal with the idea of judicial independence through different means". For social development, we should review whether the kind of judicial independence prescribed by the existing institution serves its intended social purposes. If judges are biased or incompetent, judicial independence becomes judicial tyranny.

Inside the law court, justice is determined by the application of legal principles. Inasmuch as public opinions shouldn't interfere in court proceedings, legal doctrines shouldn't intervene in public debate. The judiciary should earn public respect with wise decisions and not by deceptive intimidation to deter free and open discussion of court decisions. Free speech checks the law from becoming an anti-social ass.

Elsie Leung Oi-sie's extrajudicial remarks should be judged in Hong Kong's social context under the purview of the Basic Law - not by their compatibility with tendentious creeds. Her speech is wise if she rightly criticises the top court.

There are various reasonable ways to apply the Basic Law with regard to mainlanders' right of abode in Hong Kong.

For example, Article 22 provides that "people from other parts of China must apply for approval" to enter Hong Kong and that Beijing shall "control the number of people who enter the Region for the purpose of settlement". We may consider mainland mothers and the infants they intend to give birth to here as "people" under this article.

There are other relevant provisions for consideration. We don't have to simple-mindedly follow the black letters of Article 24 (1) and accord the infant "Chinese citizens" born here immediate residency, without regard to social and national interests.

It is futile to assert, as your editorial did, that "rulings should be based on nothing other than legal principles". Common law principles are judge-made. What matters is not whether judges have applied legal principles in their rulings, but whether the principles applied are reasonable and socially relevant.

Given the complexity of the right of abode issue, the judiciary should recognise the limit of legal resolutions. It should have requested the central government's interpretation of the Basic Law.

Julia Kwong, Mid-Levels