29 January 1999

Democratic Party Welcomes Court Ruling Establishing Right to Strike Down SAR and Central Government Actions As Unconstitutional

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 wedlock.

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 finding otherwise.


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