The terms of the 91-page judgment by the Court of Final Appeal on the right of abode was generally regarded at the time it was delivered as a clear verdict which even readers not versed in legal language would have no difficulty in understanding. But now the Department of Justice has taken the unprecedented step of calling on the court for clarification. The Government has been careful to assert its respect for judicial independence. But this action is bound to arouse questions about the final authority which it attributes to the most important court in Hong Kong. Politically, the Government's desire to get the whole matter straightened out with the authorities in Beijing before the National People's Congress meets is understandable. But anything which smacked of an attempt to get the court to modify its position for political reasons would be a grievous blow for the rule of law. While there is no way of knowing how the court will react tomorrow, there can be no doubt the Government's action yesterday leaves it in an extremely difficult position. If Beijing is already concerned by the judgment, any refusal by the court to accede to the Government's request is only likely to aggravate the situation. But the court cannot allow such factors to influence its decisions. If the judges agree to elucidate and expand on a judgment which they have already explained, they risk paving the way for every litigant who comes before them to resort to similar tactics to delay the dispensing of justice whenever the outcome is not to their taste. Apart from the legal implications of that, it could open up a political Pandora's Box which would shake international confidence in the SAR - the rating agency, Standard & Poor's, has this week pointed to the court ruling as a first major test of Hong Kong's status. The deeper danger is that the court and the Government will be seen to be parties in conflict, producing a test of strength between the judiciary and the executive. That would lead to a situation in which, despite its assurances, the Government would be seen as an opponent of judicial independence when this produced verdicts which did not go its way. The Justice Department must be hoping for clarifications which will quieten concerns in Beijing. Certainly a clear understanding of how the common law works and of the position of the courts will help relations between Hong Kong and the mainland. But this must not be at the price of undermining the judicial system in the SAR.
