Asking Beijing for legal interpretation will affect rule of law: chief justice | South China Morning Post
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Asking Beijing for legal interpretation will affect rule of law: chief justice

PUBLISHED : Tuesday, 09 April, 2013, 12:00am
UPDATED : Tuesday, 09 April, 2013, 4:20am
 

Hong Kong's top judge says the rule of law will be affected if the government seeks a Basic Law interpretation from Beijing after the Court of Final Appeal turned down a request to seek one itself.

Chief Justice Geoffrey Ma Tao-li made the remarks in a talk at the University of Hong Kong yesterday.

It came a fortnight after the Court of Final Appeal rejected the government's application for an interpretation of the powers of the National People's Congress under Article 158 of the Basic Law to interpret the Law. The request was meant to clarify the binding effect of its 1999 interpretation on right of abode.

The ruling thwarted the administration's attempt to resolve right-of-abode issues involving foreign domestic helpers and children born locally to mainlanders in a single case.

The government has not ruled out seeking an interpretation from Beijing.

Ma was asked yesterday if he agreed with the remarks of his colleague, Mr Justice Kemal Bokhary, that Hong Kong's rule of law was facing "a storm of unprecedented ferocity". He said: "I accept this point: if every time, let's say somebody - or the government - loses in the Court of Final Appeal, but then again goes off for an interpretation under [Article] 158, there comes a point when some people may say 'that's just not on'.

Let's say somebody - or the government - loses in the Court of Final Appeal, but then again goes off for an interpretation under [Article] 158, there comes a point when some people may say 'that's just not on'

"I don't disagree with him [if that was what he meant]."

Ma said there was far less flexibility on the issue of children born to mainland parents in the city than on foreign domestic helpers seeking right of abode. The court, in its ruling last month, found helpers ineligible to apply for right of abode.

Asked whether the top court could overturn its precedents - suggested as a possible way of tackling the issue of right of abode for mainlanders' children - Ma said: "The Court of Final Appeal … will not disturb the effect of a previous decision unless, quite simply, it's wrong."

Ma said Article 158 must be invoked when necessary - requiring his court to refer certain matters to Beijing for interpretation - even if, as a student in the audience suggested, the latter's ruling could remove constitutional rights and freedoms.

"Whether the court thinks that the interpretation made by the Standing Committee is so absurd or so unfair, would the court then follow it - well, that's a purely hypothetical question," Ma replied. "But I answer the question in the way that you asked it, which is that Article 158 states quite clearly what the role of the court is."

Barrister Jat Sew-tong asked Ma if he thought any aspect of the Basic Law needed amendment, to which Ma swiftly replied: "From a personal point of view … all those provisions have caused me difficulties."

 

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