The Bar's Views on the Right
of Abode CasePress Release
20 May1999
THE BAR'S RESPONSE TO THE GOVERNMENT PAPER TO LEGCO
Bar's Reaction
1. The Bar has expressed regret to the Government's decision to refer to Articles 22(4) and 24(2) & (3) ("the Relevant Articles") of the Basic Law to the National People's Congress Standing Committee ("NPCSC") for "re-interpretation". The regret expressed is not so much over the Government's determination to deal with a perceived potential major immigrational problem but over the manner in which and the means by which such a problem is tackled.
2. We have been repeatedly asked by the media for our reaction to the Government's Paper To Legco released in the afternoon of 18th May 1999 ("the Paper"). In view of the immense constitutional importance of the issue, we have decided to set out briefly how we consider some of the points made in the Paper.
Basic Premise
3. The basic premise for rejecting amendment and embracing interpretation appears to be the Government's conclusion that the Court of Final Appeal ("CFA") decision in the Right of Abode Case was wrong as being contrary to the "true legislative intent" of the Relevant Articles.
4. That conclusion was apparently based on the proposition that the CFA decision ran contrary to both the Joint Liasion Group ("JLG") agreement reached in 1993 and a resolution passed at the fourth plenary session held in August 1996 by the Preparatory Committee ("PC").
5. It is a matter of historical fact that the argument that the JLG agreement revealed the true meaning of the Relevant Articles was rejected by the Court of Appeal in the Right of Abode Case and was not pursued further by the Government before the CFA.
6. As to the resolution of the PC, the Government again never sought to argue it has any legal effect before the CFA.
7. If these arguments are truly pivotal to the court reaching a correct decision, it is a little surprising in these circumstances not to see them being pursued by the Government before the CFA. Not only that, but these same arguments are now being used to justify a decision to seek a "re-interpretation" in order to "correct" an erroneous decision of the CFA.
Sad Irony
8. It is important to remember that Annex I of the Joint Declaration and Article 159 of the Basic Law both were inserted for the very purpose of safeguarding the basic principles of the concept "One Country, Two Systems", namely, Hong Kong should enjoy a high degree of autonomy, independence of Judiciary and the power of final sad irony that these same provisions are now being turned around as a basis for not following the route provided under Article 159 to change the plain meaning of Article 24.
9. There is no sound legal basis for saying that there can be no adjustment of the categories of persons who are permanent residents. Nationality laws are changed from time to time to reflect changing needs and circumstances. But even if both the concepts of a never changing class of permanent residents and the "One Country, Two Systems" do constitute basic principles of our Basic Law, one would have thought we should not be sacrificing the latter for the former.
Practical Result
10. The practical legal consequence of the Government's present action and should the NPCSC accede to the request to interpret the Relevant Provisions is that from now on although the Courts in Hong Kong are empowered to interpret all the provisions of the Basic Law, in adjudicating disputes a CFA interpretation of a provision falling within the limits of the SAR's autonomy will not be final. It follows any adjudication based on such an interpretation will likewise not be final.
11. It is not inconceivable that the CFA in adjudicating matters falling within the limits of the SAR's autonomy, may feel constrained to seek a pre-emptive interpretation from the NPCSC lest its decision may be thereafter branded "wrong" and contrary to the legislative intent of the Basic Law. If this were to happen, then the true spirit and intent of Article 158(2) which empowers the local courts to interpret provisions of the Basic Law which are within the limits of the autonomy of the SAR and Article 158(3) which provides that the CFA needs only refer provisions concerning affairs which are the responsibility of the Central Government or concerning the relationship between the Central Government and the SAR to the NPCSC for interpretation will be irreversibly altered thereafter.
12. Whether these consequences are in the best interest of the Hong Kong people are matters for everyone to judge in the years to come. The Bar wishes to call on everyone in the legal community be they judges or academics to unite and be vigilant to issues involving the Rule of Law and the independence of our Judiciary and continue to strive for a fair and just society ruled by the supremacy of the Law.
For further enquires, please contact Mr. Alan Leong, SC at 2526-6182 for English and Mr. Johannes Chan at 2859-2935 or Mr. Ambrose Ho at 2524-2156 for Chinese.
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