Government says it's just an ordinary litigant. Think again

Administration must defend legal system and uphold rule of law, not just try to win its case

PUBLISHED : Tuesday, 05 March, 2013, 12:00am
UPDATED : Tuesday, 05 March, 2013, 3:50am

The American constitutional scholar Alexander Bickel noted that government actions and judicial decisions have two effects: an immediate, intended, practical effect and a perhaps unintended bearing on values of a more general and permanent interest.

In the right-of-abode saga, the government has argued that as a litigant it can make use of all available legal tactics - just like a private party in court.

But unlike a private litigant, the government has the added burden of defending our legal system and upholding the rule of law. Arguments pursued in sensitive areas under the Basic Law will almost always have a strong bearing on the wider values cited by Bickel, which in Hong Kong include the rule of law and the city's autonomy.

In the domestic helpers' right of abode case, argued before the Court of Final Appeal last week, the government wants the court to seek clarification from Beijing. But what does this mean for the greater principles at stake?

The government wants the National People's Congress Standing Committee to clarify the binding effect of its interpretation of the Basic Law under Article 158. The Court of Final Appeal gave an opinion in 2001 that the NPC Standing Committee can interpret all provisions of the Basic Law, and that such rulings are binding. The Hong Kong government now wants to make binding even non-interpretative Standing Committee statements.

These include the Standing Committee's 1999 endorsement of an opinion by the Preparatory Committee in 1996, spelling out the categories of permanent residence in Hong Kong.

The Preparatory Committee's opinion would deny residence to Chinese citizens born in Hong Kong of non-resident parents, contrary to the clear language of the Basic Law.

Yet in 2001, the Court of Final Appeal decided the committee's opinion - as opposed to its ruling - was not binding. The Preparatory Committee's opinion, if applicable, would deny permanent residence to domestic helpers - achieving the government's immediate goal in the current case.

The government accepts that such a ruling would have "wider consequences" for Hong Kong. Would such a robust approach encourage greater NPC Standing Committee intrusion into Basic Law interpretation? Would this open a back door to Basic Law amendments? Does it trim back the Court of Final Appeal's independence in interpreting the Basic Law? And how will Hong Kong's autonomy be affected?

The government claims such wider concerns are "irrelevant". That will be for the Court of Final Appeal to decide. But the administration's choice - to risk incurring this wider impact - is relevant to the government's duty to uphold the rule of law.

Furthermore, if the court refuses to make the referral, will the government sidestep it and make a request directly to the Standing Committee, as it did in 1999?

The risk of this seemed heightened at the weekend when veteran Basic Law Committee member Maria Tam Wai-chu praised the referral, arguing that "reinterpreting the Basic Law would be the only way to solve the problem".

Normally, a government faced with a Court of Final Appeal decision would simply comply, and explore other, regulatory, means to contain problems it foresees.

Professor Michael Davis, of the University of Hong Kong law faculty, is a constitutional law specialist.