CHIEF Justice Andrew Li Kwok-nang has recently been heard to complain in private that the Government never gave him any real warning of the scale of the social consequences of his landmark right-of-abode judgment earlier this year. After the ruling, officials estimated it could open the floodgates to an influx of up to 1.67 million migrants. They used this to justify the controversial decision to seek a reinterpretation of the Basic Law from the National People's Congress Standing Committee. This, in effect, over-ruled the judgment. But the fact that these alarming figures were never presented by government lawyers during the court case is apparently the cause of Mr Li's unhappiness. That does not necessarily mean he and his fellow judges would have ruled any differently had they been given such information at the time. Courts make their decisions based on the law, although it is naive to suggest they are immune to the social consequences. Nonetheless, his private complaint is of particular interest as Hong Kong's highest court gears up for two controversial cases. Just over a week from now, it will hear arguments over the legality of the reinterpretation of the Basic Law, in an appeal involving mainland 'overstayers' anxious to avoid deportation. Before that, starting on Wednesday, comes a potentially even more explosive case: the Government is appealing against the overturning of the convictions of two young men who desecrated the national flag last year. In March, the Court of Appeal was unequivocal in holding that the ordinance prohibiting such acts breached the Basic Law. That was because the mini-constitution enshrined into Hong Kong law the International Covenant on Civil and Political Rights. This severely limits the ability of the Government to enact legislation restricting civil liberties. Despite that clear-cut judgment, the administration seems remarkably confident that its appeal will succeed. Officials say they have gathered material on other countries that also have laws protecting their flags against desecration. Some have apparently also adopted the international covenant. This means the Government can use their experience to argue that prohibiting desecration need not breach such human rights safeguards. It is not even initially planning to propose that the court seeks an interpretation from the Standing Committee of the relevant provisions in the Basic Law before delivering its judgment. Such a step is expressly allowed under Article 158 and is different from the administration's more dubious decision to seek a reinterpretation after losing the right-of-abode case. But officials are so confident their appeal will succeed in the national flag case that they see no need to request this at present. However, some say that if the Government's prospects take a turn for the worse during the case, with the judges criticising its arguments, the fallback option of asking the court to consult the Standing Committee may be invoked. Under this scenario, they would then point out that the law banning flag desecration is a locally enacted version of a national law. So if it is seen as being at odds with the human rights safeguards in the Basic Law, this is clearly a discrepancy that concerns Hong Kong's relations with Beijing. Under Article 158, the court is compelled to refer issues involving such relations to the Standing Committee. Although the court avoided doing so in the right-of-abode case, by insisting this was not the main issue at stake, that argument would probably not apply in the national flag case. The Government has often expected to win in the past, only unexpectedly to lose in court. So it would be wrong to read too much into its confidence ahead of this week's case. However, taken together with Mr Li's private remarks, which do suggest some willingness to consider external factors in hearing a case, it does add up to a climate in which it would not be surprising to see the administration prevail. Those predicting that the judges, angered at being humiliated by the reinterpretation earlier this year, are poised to exact their revenge are more than likely to be disappointed.
