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Web-only Exclusives
November 30, 2000

From Our Correspondent: Hirohito and the War
A conversation with biographer Herbert Bix

From Our Correspondent: A Rough Road Ahead
Bad news for the Philippines - and some others

From Our Correspondent: Making Enemies
Indonesia needs friends. So why is it picking fights?

Asiaweek Time Asia Now Asiaweek editorial

DECEMBER 17, 1999 VOL. 25 NO. 50

Slippery Slope
Asking China to intervene is one habit Hong Kong must avoid


    ALSO IN ASIAWEEK
No Compromise
That was the problem that crippled the WTO in Seattle

Slippery Slope
Asking China to intervene is one habit Hong Kong must avoid

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Why its next boss should be Asian and Japanese

Anyone who reads the two verdicts of Hong Kong's Court of Final Appeal (CFA) on the rights of mainland Chinese to local residency might wonder whether they were written by the same five judges. The first ruling, issued in January, was a ringing, almost arrogant, assertion of the territory's judicial independence. By contrast, the decision last week on the same issue seemed like an unqualified surrender to Beijing's authority. The court's flip-flop has raised fresh doubts about Hong Kong's all-important judicial autonomy under "one country, two systems."

What happened? The Basic Law, Hong Kong's constitution, states clearly that the Chinese National People's Congress (NPC) has ultimate interpretative authority over its provisions. But the charter delegates to Hong Kong's courts independent, final judgment on local matters. At the same time, it provides for NPC involvement on issues that also affect the central government. In its January ruling, the CFA explicitly denied there was any need to seek advice from the national legislature, even though the migrants case plainly touched on mainland concerns (exit procedures, etc.) as well as local ones. That persuaded the Hong Kong government to push for an interpretation itself, arguing that the ruling would mean 1.6 million Chinese flooding in just as Hong Kong was going through its worst recession in memory. And Beijing was miffed as the CFA's statements seemed to challenge its sovereignty.

So in June, the NPC effectively overturned the Hong Kong court ruling with a reinterpretation that closed several immigration loopholes. That itself was perfectly constitutional - and China's sovereign authority meant that the CFA's own reversal was virtually a foregone conclusion. But the court's meek submission, without any qualification of NPC interpretations, seems to vindicate the Hong Kong government's controversial move to seek mainland intervention in the first place. That could lead quickly to a very slippery slope.

Part of the problem is that "one country, two systems" is unique and untested. "We're in virgin territory," said a former Hong Kong solicitor general. The CFA could have spared everyone much anguish by consulting the NPC - as provided for in the Basic Law - before making its initial ruling. But that would also have sparked criticism about loss of autonomy. Indeed, what constitutes purely a Hong Kong matter and what is national in scope will often be a difficult and delicate issue.

Another test case is looming. Soon the CFA must decide on the constitutionality of a local law criminalizing the desecration of the Hong Kong and Chinese flags. The government has appealed against a lower-court ruling that the ordinance violates the Basic Law's protection of free expression. If only the Hong Kong banner were at issue, the question of any reference to Beijing would not arise. But since the national flag is included, an interpretation by the NPC is again a possibility.

If the CFA upholds the lower-court verdict, the Hong Kong government must think twice before seeking mainland intervention again, especially so soon. Local and international confidence in "one country, two systems" will be severely dented if Beijing intervenes regularly in Hong Kong affairs - whatever the technical rights and wrongs. That is particularly true with the rule of law, a pivot of the territory's success.


This edition's table of contents | Asiaweek home

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