Inside track
THE COURT of Final Appeal did something rather regrettable in its recent right-of-abode ruling. That might seem a strange thing to say, especially when the judgment has been so widely praised for insisting on following common-law principles rather than those set out in an earlier interpretation of the Basic Law by the National People's Congress Standing Committee.
And when it shows the court once again prepared to risk the wrath of Beijing, which was quick to express its 'deep concern' at the July 20 ruling that all Chinese children born in Hong Kong enjoy the right of abode, even if their parents do not have any right to live here.
But the problem is that, in a clear attempt to limit Beijing's anger, the court went out of its way to emphasise - again and again - that it would have to follow any interpretation from the Standing Committee that directly concerned the issues in this case. It was only because the July 1999 interpretation did not, instead relating to a quite different right-of-abode issue, that the court was not bound by it in this instance.
That, in itself, is unobjectionable: Article 158 of the Basic Law explicitly states as much. But unfortunately the court did not stop there in its apparent effort to show its deference to Beijing, adding it was also bound to follow such interpretations - when they relate to the case - by virtue of Article 67(4) of the Chinese Constitution, which gives the Standing Committee the power to interpret all laws.
That, too, might seem unobjectionable at first glance. After all, as Hong Kong is part of China it might seem logical that all of China's constitution should be binding on the SAR. Except this is not how 'one country, two systems' works - and if the constitution was so applied, there would be nothing left of capitalist Hong Kong. Birth control and military service would, for example, be mandatory. As would support for Marxism-Leninism and a 'people's democratic dictatorship' under the outdated constitution, which is still full of rhetoric from China's socialist past. So much so that even such an innocuous step as adding a copy of the constitution to the bound volumes of the Laws of Hong Kong provoked outrage from legislators a few years ago, forcing the Government to quickly clarify it was only included for reference and not as a law of the SAR.
Even Beijing knows any attempt to impose the whole constitution would spell the death of Hong Hong's separate system. NPC Law Committee vice-chairman Qiao Xiaoyang made plain during a visit last year that those parts relating to politics, economics, culture and education should not apply in the SAR.
So it seems clear the court acted unwisely in quoting from a constitution, much of which even Beijing accepts should not apply to Hong Kong. Especially when there was no need to do so, as it could simply have relied on Basic Law provisions that say exactly the same thing.
It is a practice which has alarmed local academics ever since it first surfaced in an earlier right-of-abode ruling.
Constitutional expert Yash Ghai has warned it casts doubt on the protection offered by the Basic Law, as parts of this conflict with the constitution. And his University of Hong Kong colleague Dr Fu Hua-ling has suggested it might even oblige the SAR to recognise the leading status of the Chinese Communist Party, as that is also stated in the constitution.
All of which means, although there is much to be admired in the recent right-of-abode judgment, it also contains more-regrettable aspects - which, hopefully, will be avoided in any future court rulings.
Danny Gittings is the Post's Editorial Pages Editor
