A court battle over claims by foreign domestic helpers to the right of abode in Hong Kong has not yet begun, but already the government is talking about the possibility of seeking an interpretation of the Basic Law from Beijing. Officials say they would not take such a step until the court case scheduled for later this month has been completed, out of respect for the judicial process. But the suggestion that such an interpretation might be sought after the case ends puts pressure on the courts and raises the potential for a series of events which would undermine Hong Kong's rule of law.
The government has previously promised that interpretations of the Basic Law would only be sought from Beijing in the most exceptional circumstances. Once the dust settled on the 1999 right of abode controversy that saw the first such interpretation by the NPC Standing Committee, there seemed to be a general understanding that the government would refrain from taking such a step once a court had already given its ruling. There are good reasons for this. The government would, presumably, only seek an interpretation in the maids' case if it lost in court. Then the Standing Committee would be put in the uncomfortable position of being asked to overturn a decision by a Hong Kong court.
There is no disputing the Standing Committee's ultimate power to interpret the Basic Law. Since the handover, this has been done four times. But eligibility for permanent residency is clearly within Hong Kong's high degree of autonomy and therefore a matter for our courts.
Resorting to the highest state organ for a final ruling in such a case would raise concerns about Hong Kong's rule of law and separate legal system. The residency issue is very different in nature from the recent case involving state immunity in which the Court of Final Appeal itself referred a matter for interpretation by Beijing.
Requesting an interpretation in the maids' case may be tempting for the government because it offers a quick fix to the problems officials claim would arise from a court victory for the maids. But there would be a big price to pay. The lessons from previous controversies involving interpretations should be learned. People must have confidence in the ability of the courts to rule on such cases without fear or favour - and in the belief that the ruling will determine the law.
The government has every right to prepare for any impact the case may have. Chief Executive Donald Tsang Yam-kuen and his cabinet members have held a special meeting to discuss the contingency plans and prepare for different eventualities in the event the court rules in favour of the maids. But in the interests of confidence in the 'one country, two systems' concept, any temptation to resolve the matter by seeking an interpretation from Beijing should be resisted.