Government says it's just an ordinary litigant. Think again
Administration must defend legal system and uphold rule of law, not just try to win its case
The American constitutional scholar Alexander Bickel noted that government actions and judicial decisions have two effects: an immediate, intended, practical effect and a perhaps unintended bearing on values of a more general and permanent interest.
In the right-of-abode saga, the government has argued that as a litigant it can make use of all available legal tactics - just like a private party in court.
But unlike a private litigant, the government has the added burden of defending our legal system and upholding the rule of law. Arguments pursued in sensitive areas under the Basic Law will almost always have a strong bearing on the wider values cited by Bickel, which in Hong Kong include the rule of law and the city's autonomy.
In the domestic helpers' right of abode case, argued before the Court of Final Appeal last week, the government wants the court to seek clarification from Beijing. But what does this mean for the greater principles at stake?
The government wants the National People's Congress Standing Committee to clarify the binding effect of its interpretation of the Basic Law under Article 158. The Court of Final Appeal gave an opinion in 2001 that the NPC Standing Committee can interpret all provisions of the Basic Law, and that such rulings are binding. The Hong Kong government now wants to make binding even non-interpretative Standing Committee statements.
These include the Standing Committee's 1999 endorsement of an opinion by the Preparatory Committee in 1996, spelling out the categories of permanent residence in Hong Kong.
The Preparatory Committee's opinion would deny residence to Chinese citizens born in Hong Kong of non-resident parents, contrary to the clear language of the Basic Law.
