On the Right of Abode Ruling
by Xiao Li
On January 29, the Court of Final Appeal of the Hong Kong Special Administrative Region (HKSAR) ruled that hinterland children born to Hong Kong permanent residents had the right of abode in the territory, whether or not the parents were married or were residents at the time the children were born. Also, the ruling gave HKSAR courts the power to interfere with decisions of the National People's Congress. The ruling has produced strong repercussions in Hong Kong and aroused widespread concern in other parts of China. As the contents involve the right to interpret the Basic Law of the HKSAR and the relationship between the Central Government and the HKSAR, legal experts in Hong Kong and inland areas have been harshly critical of the decision.Tung Chee-hwa, first Chief Executive of the HKSAR, said on February 4 that the judgment would bring many negative effects to Hong Kong and must be dealt with carefully. Issues resulting from the judgment not only include structure alteration and the pressures of an increasing population, but also the large demand for housing, medical care, education, employment and other kinds of social services. Further, moral and ethical arguments and family contradictions also arise with the right of abode enjoyed by children born out of wedlock. Especially when the Hong Kong economy experiences a continuous negative growth, an increasing unemployment rate and sharply rising number of persons receiving comprehensive aid, the judgment has brought more worries to Hong Kong citizens. A member of the Hong Kong Basic Law Committee under the NPC Standing Committee pointed out that the judgment ran counter to the original legislative purpose of the Basic Law which allows the influx of immigrants in an orderly way.
Hinterland legal experts, who are members of the Drafting Committee of the Hong Kong Basic Law and the now-defunct Preparatory Committee, gave their own opinions.
Xiao Weiyun, professor in law at Peking University, said "the court's constitutional jurisdiction" in the ruling violates the "one country, two systems" principle. "One country" is the premise to the Basic Law. The HKSAR is first of all an inseparable part of the People's Republic of China. It is a local administration under the direct jurisdiction of the Central People's Government. The high autonomy endowed upon it was made on this premise. The position of the HKSAR has determined that its Court of Final Appeal has no right to examine legislation passed by the NPC and its Standing Committee and pronounce legislative items invalid. He said the jurisdiction of the Court of Final Appeal is limited. Though the Basic Law stipulates Hong Kong has an independent jurisdiction including a final appeal, Article 19 limits the jurisdiction of Hong Kong courts, which should be within the limits of former Hong Kong laws and principles. Also, Article 19 clearly states that the courts have no jurisdiction "over acts of State such as defense and foreign affairs".
Shao Tianren, a part-time professor at Peking University, said that the court, claiming its "constitutional jurisdiction", is overriding the power of the NPC and its Standing Committee and is trying to extend its jurisdiction to Beijing. The Basic Law does not and could not endow it with such a right. The ruling claimed that the right of the court derives from sovereignty and thereby the court could declare the legislation of the supreme state power organ invalid. This, in fact, is trying to turn Hong Kong into an independent political entity.
The ruling admitted that the legislation of the NPC and its Standing Committee is a sovereign act and that Hong Kong courts could not query the validity of British legislation. But it said arbitrarily that the court is no longer limited by it for it is the remains of a colony. If the logic is right, said Shao, any former Hong Kong laws can be abolished wantonly. Consequently, he added, Hong Kong will be in an indefinite and unstable position, and relevant articles of the Basic Law could not be implemented.
Wu Jianfan, with the Chinese Academy of Social Sciences, said that Article 19 of the Basic Law maintains the restriction on judicial power by former Hong Kong laws and principles. Accordingly, the courts can only enforce laws rather than impose doubt upon them. In accordance with the Chinese Constitution, the authority to interpret laws rests with the NPC Standing Committee, which is also made clear in the Basic Law. The power of HKSAR courts in interpreting the Basic Law while adjudicating cases is given by the NPC Standing Committee and is limited. Nonetheless, the recent ruling willfully expanded the court's right to partially interpret the Basic Law.
Prof. Xu Chongde with People's University of China also gave his opinion. He said Article 22 (4) of the Basic Law stipulates that approval procedures must be carried out for people in other parts of China to enter the HKSAR. This article involves the relationship between the Central Government and the SAR, therefore, it is up to the NPC Standing Committee to interpret "people in other parts of China". The Court of Final Appeal, however, made its own decisions. It should bear a historic responsibility. Talking about the right of abode, he said the option of the Preparatory Committee on implementing the second clause of Article 24 of the Basic Law and relevant regulations of the HKSAR incline to controlling the inflow of a large population. Events happened since the January 29 ruling as well as public opinions indicate that the ruling has had a negative impact on Hong Kong society. This was in direct opposition to the interests of Hong Kong residents and has hindered efforts to maintain stability and prosperity.
Tung Chee-hwa attached great importance to the opinions of the hinterland legal experts. On February 12, he sent Secretary for Justice Elsie Leung Oi-sie to Beijing. Leung had discussions with senior legal experts and officials from the State Council Hong Kong and Macao Affairs Office and Legal Commission of the NPC Standing Committee. They enhanced understanding. Leung felt that the hinterland officials adhere to the "one country, two systems" concept and the spirit of the Basic Law in handling the issue. She cited Tung Chee-hwa as saying that the "one country, two systems" implementation is an unprecedented historic enterprise and a new situation is bound to arise.
On February 26, Hong Kong's Court of Final Appeal provided a clarification on the judgment. The next day, the spokesman from the Legal Commission of the NPC Standing Committee issued a statement which goes as follows:
We have taken note of the language in the Court of Final Appeal's statement on February 26 that "the judicial right of courts in the HKSAR is entrusted by the Basic Law which stipulates under Article 158 (1) that the right to interpret the Basic Law is up to the NPC Standing Committee. In adjudicating cases, the court's power to interpret the Basic Law is entrusted by the NPC Standing Committee according to Article 158 (2) and 158 (3)." "The court's power to exercise and interpret the Basic Law is entrusted by the Basic Law and limited by clauses (including the aforesaid clauses) of the Basic Law." "The HKSAR courts must abide by the interpretation to the Basic Law by the NPC Standing Committee." What's more, it is unquestionable that the NPC Standing Committee has the power of interpretation to the Basic Law and the NPC and its Standing Committee can exercise any power according to the Basic Law and the procedures stipulated by it.
We think the clarification is a necessary step on the controversial judgment. The NPC is the highest body of State power of the People's Republic of China. The NPC and its Standing Committee will exercise their functions and powers according to the principle of "one country, two systems" and the Basic Law of the HKSAR.
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