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  • Dec 18, 2014
  • Updated: 8:51pm
NewsHong Kong

Johannes Chan, HKU law dean, says Court of Final Appeal's authority at risk

HKU dean of law says government created damaging political dilemma for judges with its request for a referral to Beijing over right of abode

PUBLISHED : Monday, 24 December, 2012, 12:00am
UPDATED : Monday, 24 December, 2012, 5:07am

The authority of the Court of Final Appeal (CFA) would be jeopardised if the government continues to put judges in a political dilemma "unnecessarily", according to the head of the University of Hong Kong law school.

His warning comes as some lawmakers are urging the Secretary for Justice to withdraw the government's controversial request to the court to refer to the National People's Congress Standing Committee for clarification its own 1999 interpretation of the right to permanent residency under the Basic Law.

"We have no doubt about our judges, who are of strong integrity to safeguard the rule of law for Hong Kong. However, the government continues to politicise the court and is unnecessarily placing the judiciary in a political dilemma.

"If one day the public has lost its trust in the court, the legitimacy and the authority of the judiciary will be seriously damaged, and such damages are irreversible," Professor Johannes Chan Man-mun warned.

"One of the worst scenarios would be that the government directly seeks clarification from the standing committee after the court has decided against it. That is going to harm the authority of the CFA," he warned.

The government wants a clarification in light of both the surge in the number of mainland women giving birth in Hong Kong, where their children get residency, and challenges by domestic helpers to the law preventing them from seeking permanent residency.

Chan said Secretary for Justice Rimsky Yuen Kwok-keung had put the Court of Final Appeal in a doomed political dilemma; whatever decision the court makes on the government's request for clarification by Beijing of the Basic Law, public opinion would be split over right of abode.

"While there are voices against the standing committee's clarification or interpretation of the Basic Law, with fears of judicial independence being undermined, there are strong voices from those who are anxious to see a stop to the influx of mainland mothers. Therefore, the court will face criticism from either side no matter what decision it makes. The issue is so politically and socially controversial the government is obviously passing the buck to the judiciary and washing its hands clean."

On Friday, Yuen refused to rule out the possibility of the government approaching the standing committee directly if the top court decides in February not to ask Beijing for a clarification.

"With the rapid economic development of the mainland after 1997, Hong Kong has started to lose its political and economic power. Its judiciary is the only thing left [intact]. Judicial independence and rule of law are the last pillar for Hong Kong, without which the principle of 'one-country, two systems' would vanish," Chan warned.

He said Hong Kong people should stand up to protect the authority of the judiciary, a major pillar of governance which he described "the most fragile in the government" compared to the executive and legislative arms.

"The court does not have a military or a police force, and it has no actual ruling power. Its power comes from the recognition and respect from the public. So people should speak out to protect the judiciary from political pressures," he added.

Meanwhile, Civic Party lawmaker and barrister Ronny Tong Ka-wah said it was not too late for Yuen to withdraw his request, to save the judiciary from a political crisis. "It is the best solution to end the dilemma," Tong said.

Civic Party leader Alan Leong Kah-kit agreed withdrawing the request was the best way out to safeguard judicial integrity. Failing that, Yuen should give an undertaking not to refer the matter directly to Beijing.


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This article is now closed to comments

I like Prof J Chan’s photo
which shows him obligatorily holding an open book
before inevitable shelves of legal bibles.
It resembles Hugh Hefner’s promotional photos
with the pro emphatically embracing a bunny
against a backdrop of girls.
These trade photos aim to make us believe
In the pros’ knowledge of their respectively subjects
Despite his love and because of his knowledge of girls
Hefner supports same-gender marriage
Despite his legal knowledge and because of his trust (or distrust) of judges
J Chan wants the public not to try the court
that we shouldn't ask it to try controversial issues
Judges and the law serve the public
And not the public, judges and the law
What J Chan wants for his book shelf is David O’Brien’s
Storm Center: The Supreme Court in American Politics
That should teach him that we can't anchor the top court in typhoon shelter
Leaving the public in the open to brave the storm.
I don't think it is a storm at all. Even if it is, it is not justified to sacrifice the integrity of the Rule of Law. And the storm will be over sooner or later.
German civil law codes are based on Buergerliches Gesetzbuch. There were past occasions that German courts had consulted Bundestag (Parliament) before they adjudicated cases relevant to new statutes.
Basic Law is new to us. There is no common law precedent in the interpretation of Article 22 (4) and Article 24 (2&3). Our Court of Final Appeals probably “erred” in its original ruling.
Presumably, the spirit of rule of law doesn’t differentiate between civil law and common law. Ironically, our CFA claimed that its 1999 opinion is based on International Covenant of Political and Civil Rights. Need I remind our judges the word “International” counts more countries on the side of civil law such as Germany and France than countries practicing common law?
In case our erudite professor is unaware, the conservative justices -- a majority of five -- of the US Supreme Court do not favor using foreign legal precedents to be basis for their judicial opinions.
If there is no formal trigger mechanism for our CFA judges to seek consultation with the Standing Committee of National People’s Congress, my advice for them is to request the SAR government and Legco to establish one pronto.
no formal trigger mechanism ! really ? Isn't it there was a case referred to the NPC by CFA before.
NPC has right to amend HK's Basic Law; it is the Court of Final Appeal that makes the final
interpretation and ruling. To have the NPC to make "interpretation" is equivalent to NPC being
the higher court, mixing up judiciary with legislature with the latter colluding with the executive branch. Imagine the case in the U.S.: Congress making interpretation of laws for the Supreme Court at the request of the Department of Justice!


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