The Bar's Views on the Right
of Abode CasePress Release
29 January 1999
BAR STATEMENT ON THE COURT OF FINAL APPEAL RIGHT OF ABODE CASES
The judgment in these cases demonstrates that Hong Kong has a Court of Final Appeal that is committed to upholding the basic rights and freedoms of Hong Kong permanent residents guaranteed under the Basic Law.
The Court of Final Appeal has met head on all of the difficult constitutional questions posed in the four appeals and answered in a way that is very satisfactory. The result is most encouraging. It will give many people reassurance that the Basic Law is a genuine constitutional instrument and that Hong Kong has judges who are prepared to make it live.
On the question of a reference to the Standing Committee of the National People's Congress the Court of Final Appeal has decided that merely because a provision of the Basic Law concerning the Central People's Government is relevant in the determination of a case it does not follow that there must be a reference. Rather, the test is whether the substance of the point of interpretation deals with a matter that must be referred. If not, then there can be no question of a referral. The question of substance is a question for the Court of Final Appeal and no other body.
This approach to the issue is welcome. It secures for the Court of Final Appeal what we believe the Basic Law intended, which is that it has the primary responsibility for interpreting the Basic Law and that referrals will be very rare indeed.
On the question of interpreting the content of the right of abode the Court of Final Appeal has adopted a broad and purposive approach underpinned by an acknowledgment of the principle found in the Basic Law that all permanent residents should be treated equally under the law. For this reason the Court of Final Appeal rightly rejected the argument that the enjoyment of the right of abode by one class of permanent residents could be made to depend on administrative bodies in the Mainland who issued one-way permits.
The Court of Final Appeal also found unconstitutional the retrospective application of the Immigration (No.3) Ordinance. It was encouraging to see that the court relied upon and applied Article 15 International Convent on Civil and Political Right (brought into play by Article 39 Basic Law) which prohibits the making of retrospective criminal legislation. This is an indication that the Court of Final Appeal is aware of the continuing importance of this international human rights instrument that was partly implemented through the Bill of Rights Ordinance in 1991.
We also welcome the Court of Final Appeal's observations on the correctness of the Court of Appeal's judgement in the David Ma case. The Court of Final Appeal upheld the legality of the Provisional Legco but condemned the legal route chosen by the Court of Appeal to justify its decision. The Court of Final Appeal made it quite clear that constitutional analogies drawn from the time when Hong Kong was a Crown Colony are outdated and unsuitable. It observed that the exercise of sovereignty by the People's Republic of China is constrained by the Basic Law. In appropriate cases it will judicially review an act of the National People's Congress if it is inconsistent with the Basic Law.
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