Commentary: Tung Should Leave Hong Kong's Courts Alone

At a time when Hong Kong has lost much of its competitive edge, it still has one big advantage over Asian neighbors--a clean and open legal system. Preserving this legacy of its British past should be a top priority of Chief Executive Tung Chee-hwa's, the shipping magnate who got Beijing's nod to run Hong Kong. Yet Tung and his government are about to undercut Hong Kong's own judges. He's asking Beijing's rubber-stamp National People's Congress to intervene in a local legal dispute and rule in favor of Tung's government. This is the kind of poorly conceived approach that is putting Hong Kong at risk as a place to do business.

NO INSULT. As has become its habit, Tung's government is trying to find an expedient way of handling a knotty issue without thinking through the consequences. Tung doesn't like a ruling by the Court of Final Appeal, Hong Kong's supreme court. Four months ago, the court said the government was violating Hong Kong's Basic Law by refusing to allow children born in China of Hong Kong citizens the right of abode in the territory. Tung says that a wave of immigrants would swamp an unprepared Hong Kong. When Chief Justice Andrew K.N. Li and his four colleagues rejected Tung's argument, livid Chinese officials denounced the court. So Tung got the judges to say they did not mean to insult Beijing. But they did not change their ruling.

Tung may feel that his anger is justified. No government leader anywhere likes to lose a case in court. If honored, Tung claims, the ruling would force Hong Kong to fork out millions of dollars for additional services for the newcomers, overstretching its limited social-welfare system. Critics say Tung is exaggerating the cost. But the claim has helped scare Hong Kong residents, who have little sympathy for the would-be immigrants.

There are less ham-fisted ways to solve the dilemma that do not undermine the legal system. Tung could, for instance, ask the National People's Congress to exercise its legal right to amend the Basic Law, Hong Kong's mini-constitution, so that residency requirements are more stringent.

Having Beijing change the policy through constitutional procedures, rather than diktat, may seem like a fine point. But that is what having a rule of law is all about. The real problem is that neither Tung nor Beijing have the patience for it. Amending the Basic Law would take time and might involve major debate. That is why in democracies, where there is a clear separation of powers, constitutional amendments are not taken lightly. Government leaders simply accept a high court ruling.

By having the issue addressed through the proper legal process, Tung could establish an important precedent that would strengthen the rule of law in Hong Kong. He also could boost the role of the People's Congress, which in recent years has tried to take its job more seriously. Instead, Tung prefers quick fixes and would rather have Beijing nullify inconvenient court decisions. That's also easier than going to the people of Hong Kong, explaining the importance of the judicial system, and asking them for patience while his government works with Beijing to resolve the problem.

Tung's maneuvering may have serious ramifications for Hong Kong's independent courts. For one, it means that Hong Kong's Court of Final Appeal is in reality "a court of semi-final appeal," notes Martin Lee, leader of the main opposition party, the Democrats. "This makes it very difficult for the Final Court of Appeal to enjoy the support it deserves from the people." Other challenges to court decisions that displease Beijing are apt to follow. Human rights advocates warn that laws protecting political freedoms are now vulnerable. Beijing's intervention also means multinationals may be less willing to use the courts to resolve disputes with Chinese companies.

Tung could avert all this by exercising real leadership. But that's not his style. Selected by a tiny, handpicked committee of local Beijing boosters, and without a popular mandate, Tung is more worried about offending China's mandarins than building consensus at home for difficult policies. Unfortunately, in the process, he jeopardizes Hong Kong's legal system and its status as the fairest place in Asia.