tim's experiment

The left-wing line on the right of abode for people born in Hong Kong has been making surprising progress considering it is arrant nonsense. I was distressed to see it surface in Frank Ching’s column last week.

The basic situation goes like this. According to Article 24 of the Basic Law permanent residents of the HKSAR include “Chinese citizens born in Hong Kong.” To put it another way, if you are a Chinese citizen born in Hong Kong you are ENTITLED, under the Basic Law, to be a permanent resident. Rather surprisingly the government contested this point in a case some years ago. The Court of Final Appeal decided that the law meant what it says. Note that despite some efforts to sow confusion this has nothing to do with the right of abode issue which was subjected to reinterpretation in Beijing, because that concerned the status of people claiming residency through parentage, not through place of birth.

Now the line which is being pushed is that actually the judges are being obstinate. There was a body called the Preparatory Committee – apparently an offshoot of the National People’s Congress – which decided that people born in Hong Kong should not be permanent residents. All that is necessary is for the judges to take into account this statement of what was intended in the Basic Law. They are being sticklers for a peculiar common law tradition by refusing to do this.

Let us note first of all how far we have come from the pro-Beijing line as peddled in the run-up to 1997. In those days the Preparatory Committee was never mentioned. I am not sure that the general public even knew it existed. The Basic Law was drafted by a Basic Law drafting committee, which was presented as an autonomous body comprising mainly Hong Kong people, deciding matters on their merits subject to the limits set to Hong Kong’s autonomy by the Joint Declaration. Then there was the Joint Liaison Group, which was explicitly described as “not an organ of power”, and there was the shadow Legco, meeting in Shenzhen. These three bodies did the public part of the preparations. Of course we all supposed that there was a certain amount of string-pulling behind the scenes, but if anyone at the time had suggested that the Basic Law drafting committee was merely a front for a Preparatory Committee meeting in Beijing he would have been accused of outrageous cynicism and “lack of trust”. It is a recurring delusion among Chinese officials that trust is something they are entitled to, not something they have to earn.

Now to the Common Law. It is nonsense to suggest that judges in the common law tradition never interpret the law in creative ways. They have to do it all the time, either because the law is not clear or because the circumstances to which it applies were simply not envisaged by the legislature. There is an interesting recent book by a late Law Lord, Tom Bingham, devoted mainly to exploring where exactly the borders of judicial discretion lie. There is a string of “rules of interpretation” which judges apply and in difficult cases they may go through all of them to see which ones fit. But this creativity has to give way to one important priority, which is that if the statute is clear then it must be taken to mean what it says. The judge cannot overrule it, even if he suspects that parliament might wish him to do so, or that the result in the case before him would thereby be more satisfactory and just. This is elementary. Judges interpret the law; they do not overrule it. The Basic Law says that persons born in Hong Kong are permanent residents. There is no ambiguity, no wriggle room. The law is perfectly clear and judges are duty bound to apply it.

We should disabuse ourselves of the notion that outside the Common Law world things are different and more enlightened. It may well be that other jurisdictions are more interested in records of the legislature’s intention, when they are dealing with an ambiguous statute. But judges in Germany and France are in the same boat as judges in England and America when the law is clear. Their job is simply to apply it. This is a common feature of countries which enjoy the rule of law. If the law says that the speed limit in Sui Wo Road is 50 kph then no amount of fancy legal footwork is going to get a judge to contemplate the possiblity that what the legislature really intended was a limit of 70 kph.  The line between the places where judges enforce the law as written, and the places where judges enforce what is politically convenient, is not the line between Common Law countries and Civil Law countries. It is the line between countries which enjoy the rule of law and countries which do not.

This is the line which Mr Ching is apparently willing to see Hong Kong cross. Shame on him.