Former Secretary for Justice Elsie Leung calls for an ‘interpretation’ of the Basic Law to solve the problem of Mainland women coming to Hong Kong to give birth. Although theoretically a legally informed verdict by a part of the nation’s legislative body, an ‘interpretation’ is in fact an overturning of a Hong Kong court decision via an edict issued by China’s executive authorities. Local loyalists to the Communist Party like interpretation as it degrades judicial independence in Hong Kong. Indeed, the procedure should come under the category of evils we now label ‘Mainlandization’.
Chief Secretary Carrie Lam makes a pointed response…
Responding to Leung’s remarks, Lam said: “Hong Kong is a law-abiding community and judicial independence is its core value.”
She added: “Dealing with the issue of the influx of mainland mothers giving birth in Hong Kong involves complicated legal matters,” pointing out that [current Justice Secretary Rimsky] Yuen had already been investigating the matter in person.
Last month the government invited a Queen’s Counsel from the United Kingdom to advise on how to reverse a law that automatically grants right of abode to all babies born to mainland parents in the city. The Court of Final Appeal ruled in 2001 that mainland babies born in Hong Kong had right of abode regardless of their parents’ nationality.
(Note the implicit slapping Carrie gives technically high-ranking old Elsie in the first sentence. Note also the symbolism of the government turning to Britain rather than to Beijing for a solution.)
Amending the Basic Law is a no-no, for reasons that are not exactly clear but seem to have something to do with the infallibility of the Chinese Communist Party and its offshoots. Essentially, the Party cannot admit that it made an error that must now be rectified. Leung refers to amendment as ‘complicated’ – official CCP-speak for ‘embarrassing’. China’s pre-1970 silence on Japanese sovereignty over the Senkaku/Diaoyu Islands is also described as ‘complicated’.
Interpretation as a possible mechanism to veto decisions made by Hong Kong judges is essential to the maintenance of one-party rule in China. No alternative or rival source of power to the CCP may exist. This is what Elsie Leung meant in lamenting that the ‘legal profession in Hong Kong, including judges, lacked an understanding about the relationship between the central government and the special administrative region’. It is irritating – if not worse – to Beijing’s true-believing followers when these judges willfully challenge the nation’s only permitted source of power. They and the legal system they work for should, in her view, automatically yield on the rare occasions there is such a conflict.
Right of abode for Mainlanders was the subject of the very first ‘interpretation’ in 1999 (as Yash Ghai points out, the Standing Committee in Beijing overturned a 90-page decision by Hong Kong’s Court of Final Appeal in a one-paragraph ruling). Although legal types were outraged, public opinion was more forgiving. Today, Hong Kong is physically inundated with Mainland visitors and residents’ patience with the crowding, upheaval and price rises is being stretched. We have already seen Mainlanders portrayed as insects, and one video on YouTube shows a sizable crowd at Sheung Shui station chanting ‘dai luk gau’ or ‘Mainland dogs’ at groups of understandably intimidated-looking visitors. Something really nasty is waiting to happen (I am amazed no-one has thrown any tourists off the Mid-Levels Escalator yet; it’s only a matter of time, and it might be me).
So ‘interpretation’ in the case of Mainland mothers would be publicly popular. If we were paranoid we might imagine that Beijing is stuffing Hong Kong with Mainland mothers in order to prompt an action that degrades the rule of law here with local people’s approval. Even if that’s probably not the case, the crush of Mainland mothers threatens the courts as well as the hospitals. Finding an administrative solution is important if, like Carrie Lam, you value our 99.9% independent judiciary.
Speaking of Hong Kong residency and Rimsky Yuen… What do Fanny Sit, Moses Chan, and Dodo Cheng have in common? The answer, of course, is that they are all Hong Kong actors. Fanny is the one whose family name should, under some systems of Romanization, be spelt ‘Shit’ but usually isn’t; Moses is the one we can’t recall anything about; Dodo is the one who had a boob job. And what do they all have in common with Rimsky? Nothing much, you might think. But that’s because you have had right of abode in the Big Lychee for so very, very long. Atlantic knows better.
“China’s pre-1970 silence on Japanese sovereignty over the Senkaku/Diaoyu Islands is also described as ‘complicated’”
Though not as ‘complicated’ as its pre 1970 silence over the Rape of Nanking.
The weird names thing always gets a laugh. I’ve encountered Ivan HO, Hitler CHAN, Debbie DUN and Spoon LAM. My favorite, seen on a staff badge at McDonald’s in Shatin, is Clit HUNG!
I still think the CCP is more democratic than Congress.
At least they shoot wrongdoers sometimes.
With regard to names, I’m still waiting to meet iPhone WONG. Having said that, some of the all-Chinese names also sound funny to English speakers, such as WANG Kin-man, whom I have come across … although probably not as amusing as my English name sounds to Chinese speakers. Don’t let us become a humourless society …
My dental hygienist is called Kuchi Koo.
Works on so many levels.
WDH, my fave apart from Darth, Cool, Koala, Mouse, Monkee, Coke, Biscuit and Anubis is Kinky Ho.
My favourite is “Lonely Man”. I had to call a company to ask for this person once. Feeling rather silly asking for Lonely Man, I just asked to speak to Mr Man. Of course, the receptionist said they had two Mr Mans, which one did I want. With horror I found myself saying “the Lonely one…”
A stunning young lady named Fanny Or Suk-fun. I’ve still got her card. When I make up my mind, I’ll call…
It’s always been a mystery to me why Elsie Leung is so venerated. The commenter here (So, So Thirsty) who painted a picture of her sitting in the front row with her knitting while HK burned was right on the mark.
I’ve never been a fan of Rimsky Yuen, who was politically compromised as Bar chairman and is frankly no great intellect, but at least he’s made the right noises on judicial independence so far.
Next, why oh why do we require the opinion of an English QC on the operation of the Basic Law? England doesn’t even have a comparable written constitution!
There are many competent HK lawyers, whether in practice or academia, who would do a better job, but most of the sharpest ones have pro-dem leanings which is of course a problem for our little administration.
As for amending laws, the PRC does routinely amend and update its domestic laws. Constitutional amendment is a different kettle of fish, and far trickier and higher profile, particularly in this case where the constitution is based on the terms of an international treaty.
An NPCSC interpretation is clearly an horrendous slight on the rule of law and judicial independence. Any lawyer who calls for it is a poor lawyer, and any politician who does so does not have HK’s interests in mind.
Nury been in?
Predictably, the legal profession is being hollowed out, to winkle out the last vestiges of HK autonomy — as if having the atrocious Elsie was not enough. Howard Winn has pointed out the increasing lack of senior public prosecutors. Soon there will be little point in having the Court of Semi-Final Appeal, since the mere threat of kicking it in the balls again will have it cowering in the corner.
It’s true that since the first “interpretation” — incidentally, why do such interventions always reverse the decisions from HK’s legal system, is the result known in advance? — public opinion here has been transformed, from the post-handover apathy to a political force in its own right. Peking is surely planning something nasty to smother this second stove: a show of force, perhaps directed at some foreign target?
I blame Richard Nixon. Wonder if there’ll be any flag spectacle this Wednesday, somewhere, in Hong Kong?
Why is Elsie Leung the Deputy Director of the Basic Law Committee ? Is it to ensure the document is thrown into the dustbin of history ?
Her atrocious performance as Justice Secretary (Sally Aw, first interpretation of the BL) would make her fit only to to “serve” on one of those pointless CCP rubber stamp committees. Does anyone still listen to this witch?
@ Jonathan Stanley – No. I remember Double Ten 1997. All police leave cancelled as they worked throughout the night to remove all ROC flags throughout the HK.
BTW I met a Rommel and an Attlee but perhaps I should send this part of my comment to Nury – I doubt he gets much traffic?
It works in English too … I went to school with a girl called Joanna Dance, and her dad was called Morris.
@Stephan – Though in 1st July protests since, both the Colonial Hong Kong flag and the RoC flag can be seen. My own hunch is that those waving the British HK flag can and should do it with the RoC one together. However, maybe that is their point? *shrugs*
A teller at the North Point Jockey Club is called P.K. Boo. Scary stuff.
I met a bloke ‘Puffin Huang’ – we didn’t become friends.
@Jonathan Stanley – I can (well not entirely) remember a drunken south stand sevens, probably 1998, where feeling rather sorry for “Chinese Taipei” (FFS call it Taiwan) having no flag we decided to waive the ROC flag. Approximately 10 security guards jumped us and nicked the flag “on the orders of the police”
Perhaps the young officers on duty on 1 July don’t recognise the flags and their relevance?
Judges in the common law system, but not in the civil law or sharia law systems, claim independence.
But it aint so. Take a certain relative on the High Court bench in London who was told by the Lord Chancellor of the day that he would never get preferment unless he decided a certain case a certain way, involving the IRA.
Not an isolated case at all. And the relative told the LC to shove it and went back to Bar to make a fortune.
The choice is yours.
gunlaw: which of those three legal systems would you choose to be tried under?
Don’t tell me you’re an anarchist. That would be so cute!
Anarchy for the HK. We’re almost there now.
1. No one in their right mind would trust the opinion of an HK SC over an English QC. Who do you think the tycoons go to when they are in a real fix. London QC’s.
2. Elsie Leung’s comments reveal the sheer stupidity of the Standing Committee approach . She, like us, has no idea how or why the 2004 “interpretation” overruled the Court of Final Appeals’s judgement other than it did so. It seems implicit she agrees the Standing Committee reached the wrong decision, but she cannot say why it disagreed with the HK Court – and she’s then put in the wholly absurd position of welcoming an English QC’s opinion (note she did not say HK SC).
3. She and the rest of us should press for is a set of rules and procedures, that need only apply in HK cases, by which appeals are heard and judgements delivered in “interpretation” cases.
4. Is there a chapter in the National Education handbook explaining why there are no rules and procedure? If not, can someone write a draft for circulation?
My two local favourites – absolutely true I swear – are Superman and Stingray.
But we’re all guilty – there used to be a guy in Chepstow (Mon) called Isaac Hunt and a friend of mine in Oz is called Richard Haire – geddit?
Parents can be so cruel!
PS: I should have mentioned that at the FCC we have both a Winky and a Kinki. Sadly Rover left us some years ago – woof!
I had a Killer in one of my classes once. He was a right charmer.
I get funny looks sometimes.
Actually Winky’s “real” name is “Windy”, but clearly she was advised that might not be the best think to have on her name tag! 🙂
I knew a guy called Keyboard Wang, but that was because a right c*nt of a Western manager had decided his name couldn’t be Michael or something like that because there was another Michael in the managemet team, so Michael #2 became “Keyboard” because he worked in IT.
Not the worst peripheral, I guess. Would you want to introduce yourself to the ladies as “Mouse Wang”?
There are some good HK SCs and some good HK academics. Some are ‘local’ (Chinese) and some are not. The English QC addiction is simply snobbery.
There was once a set of sensible, clearly enunciated rules and procedures for a referral to the NPCSC. Read the CFA’s first judgment in the right of abode cases, which was then overturned by said committee.
As I said to Stanley and Stanley in the mail room this morning, waaaaaaaa, you gweilos just have a thing about names.
Doubtless you are correct in terms of intellectual ability about HK SC’s
However, the difficulty for local SC’s is that the volume of high quality instructions – cases – is simply not there for them to train on and most especially (even most of the best spend time training abroad) maintain high skill levels. HK is an expensive place to litigate and goes not generate a similarly large number of cases to other common law or developed jurisdictions. It’s rather like a footballer going down to a Division 2 club and expecting to play against Division 1 quality.
A further problem is that HK SC’s are very expensive for what you get. It’s often cheaper to instruct English (or even Aussie or NZ barristers) who provide excellent, practical advice detailed on a fast turn around and at a significantly lower price. A legitimate complaint is that HK SC’s are slow and often don’t think things through.
The somewhat odd thing is that in HK the major law firms (often now English or US in origin) are of a much higher quality in all aspects because they can invest in knowhow skills, salaries, education, which the Bar does not or cannot, and the volume of instructions – given the regional/China practice bases – is much higher. A solicitor/lawyer in a HK office will almost always go to England or Australia or New York if they want definitive advice.
You are also technically correct about the quality of academics. However, there is a similar problem to the quality of the Bar to the effect that HK is simply not a jurisdiction that has committed itself (cf Australia, for example) to producing judicially detailed and strongly argued judgments that academics can dissect. One often emerges from a trial/appeal in HK and wonder why one put all the effort in when the quality of the judgment is so miserable. Look at the Final Court of Appeal. It’s generally the overseas Judge who gives the leading opinion and everyone else agrees.
I’m not sure you are right about the rules previously set out, but lets not argue. The point is – and I think Elsie Leung peculiarly would probably not disagree – is that (a) there is not explanation or not following those rules, and (b) to be intellectually coherent you have to have a system that demands difficult and argued written and oral arguments, and requires the Judges to explain their reasons in detail addressed to the arguments, particularly if an appellate court overrules a subordinate court. There’s no point simply saying Yes or No without explaining why. What can an academic say, other than to (re) state the bleeding obvious.
We (which includes I) may not like Elsie Leung’s view, just like I don’t like the doctor telling me that I have incurable cancer, yet her view represents beyond doubt the view of the Central government, whether H K judges, lawyers or the public like it or not.