Critics Call Hong Kong Ruling a Blow to Legal Independence

Not everyone liked the British when this bustling city was a crown colony. But even detractors grudgingly credited her majesty’s government with one achievement: establishing a modern, impartial judicial system. Hong Kong citizens, it was said, could count on getting a fair shake from their courts.

Now, this bedrock of Hong Kong society is at risk of blowing apart amid a constitutional crisis, critics say, and the planter of the dynamite is none other than Hong Kong’s own highest court.

On Dec. 3, the Court of Final Appeal issued a ruling that essentially reversed an earlier decision in which the court had claimed broad powers to interpret the Basic Law, the mini-constitution governing Hong Kong since its reversion to Chinese rule 2 1/2 years ago.

In the new ruling, the court in effect apologized for overstepping its bounds, agreeing instead that ultimate, “unqualified” authority to interpret the Basic Law lay a thousand miles away: with the Chinese Communist Party’s rubber-stamp parliament in Beijing.

Days of protests erupted after the ruling because the decision sealed the fate of thousands of immigrants from the mainland, whose push to be granted legal residency--and to be reunited with family members here--was doomed.

But the biggest victim may be Hong Kong’s vaunted legal system. Democracy and human rights activists accuse the justices of kowtowing to Beijing and putting at risk the “one country, two systems” formula that was designed to give Hong Kong autonomy over its domestic policies for 50 years after the 1997 hand-over.

Now, critics say, the courts are firmly under the thumb of a nonelected, unaccountable government on the mainland, which has carte blanche to meddle in Hong Kong’s judicial affairs.

Indeed, in a sign of the controversy and intrigue surrounding the decision, whispers are swirling that the chief justice, Andrew Li, was personally pressured by Chinese President Jiang Zemin.

“The court has lost credibility,” declared democracy activist Martin Lee, a Hong Kong legislator and lawyer. “Who will trust the court in a politically sensitive case?”

The case before the justices centered on 17 mainland immigrants who had applied for residency in Hong Kong on the basis of having at least one parent who was a legal resident.

Not surprisingly, the Communist regime was angered when the court in January ruled in the immigrants’ favor and asserted wide authority to interpret the Basic Law, even to the extent of striking down legislation from the central Chinese government.

The Hong Kong government, led by Beijing appointee Tung Chee-hwa, did an end run around the court. Painting nightmare scenarios of a sudden flood of 1.6 million immigrants if the January ruling were honored, Tung’s government asked the National People’s Congress in Beijing to step in. In June, the congress concluded that the Court of Final Appeal did not have the final say after all--and voided the decision.

In its new opinion, the court meekly conceded that the congress was right.

Regina Ip, Hong Kong’s secretary for security, defended the government’s appeal to Beijing.

“It’s not the case of us inviting interference or kowtowing to pressure from Peking,” she said in an interview. “They were there to listen to us, really. We invited their help.”

Ip noted that Hong Kong would only appeal to Beijing in extraordinary circumstances, such as the prospect, in this case, of “masses of humanity” pouring across the border and straining the territory’s resources. The Hong Kong government has refused to spell out what would qualify as an extraordinary situation.

Critics say the claim that 1.6 million immigrants would have taken advantage of the earlier ruling was sharply inflated to frighten the public into supporting the government.

Still hanging in the balance are the fates of people such as a bespectacled, earnest young man surnamed Lo, an immigrant who asked that his full name not be used.

Lo’s parents and younger brother live in Hong Kong legally, but he does not.

“I’m not here to enjoy Hong Kong’s economic fortunes,” said Lo, 23, who held down a good job in an import-export business in the neighboring mainland city of Shenzhen. “The sole reason I’m here is to be with my family.”

Lo is one of thousands hoping to stay in Hong Kong by arguing that the government should have granted him residency under the January decision in the five months before it was overturned. That class-action case is still pending before the court.