The Bar's Views on the Right
of Abode CasePress Release
9 May1999
NEED TO AVERT CONTROVERSY QUICKLY
1. Despite the Government's announcement that it would consult the public as to how to deal with the problems arising from the Right of Abode Case, there are strong indications that the Government had already decided to refer some of the provisions of the Basic Law to NPC Standing Committee for "interpretation" and is presently only waiting for the Department of Justice to come up with the necessary legal justifications for so doing. If so, then the position is truly regrettable.
2. Assuming the possible influx of mainlanders having the right of abode here in mass numbers is not acceptable to our society, one of the Government's primary concerns must be to avert the present controversy as quickly as possible so as to avoid a constitutional crisis as regards whether the grand concept of "One Country, Two Systems" can be implemented. To achieve this, the Government should adopt the least controversial alternative in dealing with the present social and economic problems created by the possible influx of mainlanders.
3. Whatever legal arguments the Government can come up with to justify a reference to the NPC Standing Committee, the following questions are bound to arise:-
(a) Whether the NPC Standing Committee has the power to interpret a provision like Article 24 of the Basic Law which solely concerns the internal rights of the people of Hong Kong under Article 158 (See Article 158(2) );
(b) Assuming the NPC Standing Committee does have the legal power to do so:-
(i) Whether the Government, as opposed to the CFA, has the legal right to refer any article to the NPC Standing Committee for interpretation in the absence of a dispute pending before a Court;
(ii) Even assuming the Government has the legal right to do so, whether it should exercise this right if to do so would contravene the letter and/or spirit of Articles 2, 8, 18, 19, 158 and/or 159 and the concept of "One Country, Two Systems" enshrined by the Joint Declaration and the Basic Law;
(iii) Whether the NPC Standing Committee should exercise its power if to do so would contravene the same provisions set out above;
(c) Assuming NPC Standing Committee interprets Articles 22 and/or 24 in the way the Government wants, whether the Government can get round the prohibition against retrospective effect under Article 158.
4. Each of these steps is controversial and liable to legal challenge in Court. Any person affected by this move has a right to question whether, in referring any provision of the Basic Law to the NPC Standing Committee, the Government's action is in fact lawful.
5. Should such a court challenge be mounted, the present controversy will escalate into a major constitutional crisis which will not be resolved for a long time. The international reputation of Hong Kong, and perhaps even that of China, may be tarnished. The Rule of Law in Hong Kong will suffer. People's confidence in the implementation of the grand concept of "One Country, Two Systems" will be seriously, if not irreversibly undermined.
6. These are very heavy consequences. Perhaps far more so than the need to quickly cope with some 600,000 people arriving in Hong Kong over a short space of time. On the other hand, if the Government is to decisively and quickly announce that it will seek to amend the Basic Law under the procedure already established under Article 159, the imminent danger of a major constitutional crisis can be averted.
7. The Bar strongly and seriously hopes the Government will announce as quickly as possible its intention to amend the Basic Law under Article 159 and end the present controversy which is threatening to deeply divide our community. We urge the Government to do so. Now.
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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