Who is putting pressure on the Court of Final Appeal?

2013-01-15 04:25  来源:大公报

    At a forum the day before yesterday, some Hong Kong law scholars expressed their opposition to the interpretation of the Basic Law by the Standing Committee of the National People's Congress (SCNPC).Secretary for Justice Rimsky Yuen Kwok-keung earlier had suggested the Court of Final Appeal (CFA) to follow Article 158 of the Basic Law and ask for SCNPC clarification on right of abode cases involving children born in Hong Kong to parents who are not permanent Hong Kong residents and foreign domestic helpers, before it handed down its final and irrevocable verdicts.

    The anti-(Basic Law) interpretation scholars accused Secretary Rimsky Yuen of "putting pressure on the CFA" with his request, saying the effect of such an interpretation of the Basic Law was equivalent to "castration" as the Central Government thereafter could make its own interpretation on all internal affairs of the SAR┅

    These anti-interpretation scholars were obviously making an exaggeration in this regard.Upon seeing them making such a strong reaction over the issue, one could not help but wonder whether it was Secretary Rimsky Yuen or these scholars who were putting pressure on the CFA, Geoffrey Ma Tao-li and Rimsky Yuen himself.

    As a matter of fact, Rimsky Yuen's suggestion for CFA to ask for SCNPS clarification on right of abode cases involving children of non-HK resident parents and foreign maids was exactly to safeguard the principles of the rule of law and respect judicial independence, rather than "intervening in the rule of law" as charged by the opposition.

    First of all, in such right of abode cases, the Immigration Department, on behalf of the SAR Government, is the defendant.According to the Common Law practice in Hong Kong, both the plaintiff and defendant are entitled to submit to the court their judicial and legal requests, such as hiring a foreign Queen's Counsel as their representative.Therefore, as the defendant, Rimsky Yuen made his request for CFA to ask for an Interpretation of the Basic Law.Such request is reasonable and legal, not an "intervention" at all.

    More importantly, several such right of abode lawsuits already occurred last year with the "Party of Barristers" giving advices and suggestions as well as acting on behalf of children of non-HK resident parents and foreign maids. If the CFA won't ask for an SCNPC interpretation to have the final word , there will be endless judicial reviews.Once the Immigration Department loses in the lawsuits, the only outcome would be that hundreds of thousands of children of non-HK resident parents as well as foreign maids and their children born in the Philippines and Indonesia would flood into Hong Kong, to "share"the SAR's public housing, social security, free medical care and education┅Isn't this exactly the consequence politicians from the "Party of Barristers" would love to see, who speak glibly about the rule of law but in fact desire to see Hong Kong plunge into chaos?

    In order to prevent an SCNPC interpretation, they are even willing to contradict themselves and slap on their own face by refuting their own argument in the past.Years ago, in order to stop children of Hong Kong residents born in the Mainland from flooding into Hong Kong, the SAR Government under then Chief Executive Tung Chee-hwa asked on its own initiative the SCNPC for an interpretation of the Basic Law.It was then accused by the "Party of Barristers" as an "administrative intervention in judiciary". They even took to the street in black to mourn the "death of the rule of law".Now the SAR Government strictly follows Article 158 of the Basic Law to have the Secretary of Justice suggest the CFA for asking for SCNPC clarification.This fully abides by rules and procedures.But now it is charged by the "Party of Barristers" for "putting pressure on the CFA", who even "suspect", by naming, whether Geoffrey Ma could "stand the pressure". This shows they are not only sore losers, but also openly put pressure on the Chief Justice.What aim can they achieve if not to obstruct the implementation of the Basic Law and interpretation of the Basic Law by SCNPC?

    In fact, as pointed out by Albert Chen Hung-yee, a member of the Basic Law Committee law and law professor with the University of Hong Kong, the four SCNPC interpretations of the Basic Law since Hong Kong's return to the Motherland have done no harm at all to Hong Kong's rule of law and judicial independence.From the dispute over the right of abode of Mainland-born children of Hong Kong residents, to last year's case of an African government involving in a huge bank transaction, these lawsuits could not have been really settled without SCNPC interpretations of the Basic Law. And in the due process, the very foundations of judicial independence and the rule of law so much treasured by Hong Kong society have been further consolidated, rather than damaged.

    At the forum the day before yesterday, a certain law scholar even said they wanted to follow the example of "Long Hair" to practice "civil disobedience" by lying down on busy roads in protest of interpretation of the Basic Law.As an otherwise respectful university law professor, he uttered such "lawless" words.Did he really know fear of leading young people astray and becoming a laughing stock?

    That the SCNPC has the power to interpret the Basic Law is stipulated by Article 158 of the Basic Law, which is also an integral part of Hong Kong's rule of law and judicial system. Facts have proven that SCNPC interpretation of the Basic Law is for the benefit of citizens and Hong Kong, and is by no mean a "great scourge". 08 January 2013

    

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