29 January 1999
Democratic Party Welcomes Court Ruling
Establishing Right to Strike Down SAR and Central Government Actions As
The Democratic Party Chairman today reacted positively to
key aspects of the Court of Final Appeal's decision in cases involving the
interpretation of the Basic Law's provisions on the right of abode.
Chairman Martin Lee noted the courtís assertion of the right of
judicial review and the decision not to refer questions to the Standing
Committee of the National People's Congress.
However, Martin Lee questioned the basis of the Courtís ruling on the
constitutionality of the Provisional Legislative Council.
Democratic Party Chairman Martin Lee commented:
This unanimous ruling of the Court Final Appeal preserves the high
degree of judicial autonomy that was promised to Hong Kong.
The Court rejected the Government's bold
attempt to subordinate the Region's judiciary to the Central
Authorities by ruling that the Basic Law only requires questions of
constitutional interpretation be referred to the Standing Committee in limited
circumstances, The judgment is an
important sign that Hong Kong courts are functioning independently.
This decision stands as an unequivocal assertion of the power of the SAR
courts to interpret the Basic Law and strike down as unconstitutional those
actions which contravene the Law, whether they be actions of the HKSAR
government or of the Central government.
The Court explicitly overruled the Court of Appeals' judgment that
legislative acts of the National People's Congress and its Standing
Committee were beyond judicial scrutiny.
The Court of Final Appeal was firm in its ruling that Hong Kong courts
can and must exercise the power of judicial review even over the actions taken
by the mainland authorities.
The court's holding that the individual rights embodied in Chapter III
of the Basic Law must be given a generous interpretation is also promising.
I note that the Court stuck down portions of the immigration laws
passed by the Provisional Legislative Council that restricted the right of
abode and applied administrative requirements retroactively.
It also struck down the Provisional Legislative Councilís
discriminatory treatment of the right of abode for those children born out of
However, I am disappointed that the Court upheld as constitutional the
formation of the Provisional Legislative Council without providing convincing
reasons for this result. We
continue to believe the PLC was improperly constituted and see no basis for