Worrying Picture of Hong Kong's Judiciary

The erosion of the independence of Hong Kong’s judiciary is speeding up. Two decisions on March 28 gave worrying signs that judges are less and less willing to contradict the government by interpreting the law as it stands rather than what the government would like it to be.

They also both implied that there is diminishing space for ethnic minorities among officials concerned with emphasizing Han Chinese ethnic identity.

First, the Court of Appeal overturned a lower court decision which accorded to domestic helpers who had been in Hong Kong for more than seven years the right to apply for permanent residence. This right to apply was no guarantee of achieving that status as the Basic Law (Hong Kong’s mini constitution) provides that applicants must show that they have made Hong Kong their “place of permanent residence,” a phrase subject to varying interpretations. But the government opposed even allowing helpers, who work under fixed term but renewable contracts, the right to apply.

The Court of Appeal’s acceptance of the government’s argument was not so much based on an interpretation of the Basic Law as it in effect gave carte blanche to the government to ignore that law. The judgment written by Justice Andrew Cheung Kui-nung included the following: “It is a fundamental principle in international law that a sovereign state has the power to admit, exclude and expel aliens.”

Forget for a moment that Hong Kong is not a sovereign territory. These words simply enable the Hong Kong government to do what it likes for aliens – i.e. all non-Chinese nationals – regardless of what is in the Basic Law to which the government is supposed to be subservient.

Indeed the judgment goes even wider by saying that the legislature has the power to interpret the Basic Law by making laws itself, in this case to deem domestic helpers not to be “ordinarily resident.” In that case the Basic Law is worthless.

The racist implication of the judgment is also underlined by the fact that the government has only brought the case specifically to exclude domestic helpers. These persons are all from Southeast and South Asia, the brown-skinned people looked down upon by many Chinese.

It is noteworthy that Chinese are not permitted to join this underclass by becoming helpers, though doubtless many mainland women would volunteer if allowed.

The decision treats domestic helpers’ presence in Hong Kong as similar to those of refugees and inmates and it also suggests that aliens of all kinds in Hong Kong are not protected by the Basic Law regardless of what it says about rights of permanent residence. If there is a “sovereign right” to expel aliens as the government sees fit, the Basic Law is irrelevant, and thus the role of the courts to interpret it. The tens of thousands of other aliens who make Hong Kong an international city would do well to note that this judgment has implications for them, not just the underclass of maids. The decision has other implications as well. The fact that costs have been awarded to the government is sure to discourage other would-be claimants from bringing such cases.

The second decision was to force the retirement at age 65 of Kemal Bokhary as a permanent judge of the Court of Final Appeal. Bokhary has a reputation for his liberal views and sometimes dissenting judgments. He is also not an ethnic Chinese. Both these facts probably counted against him more than age, since he is being replaced by an even older judge, Robert Tang Ching. Bokhary will be able to act as a non-permanent judge but is unlikely to get cases involving politically sensitive issues.