The Bar's Views on the Right
of Abode CasePress Release
30 April1999
MEASURES TO MEET ECONOMIC AND SOCIAL PROBLEMS FOLLOWING THE RIGHT OF ABODE CASE
1. The SAR Government released on 28th April 1999 certain preliminary findings as to the possible numbers of mainlanders having the right of abode in Hong Kong following the judgment of the Court of Final Appeal ("CFA") in Ng Ka Ling v. Director of Immigration ("Ng Ka Ling Case").
2. The SAR Government, while remaining non-committal as to what, if any, administrative measures would be brought in place to deal with a possible influx of mainlanders having right of abode here, repeatedly emphasized the possible negative impacts such an influx might have on our economic and social resources thereby setting off yet another round of debate as to whether, and if so, how the Ng Ka Ling Case or its legal effect should be reversed.
3. The Bar considers that while a debate as to how the HKSAR should cope with the impact of the Ng Ka Ling Case on our society is healthy and should be encouraged, we have to exercise great caution and restraint not to allow such debate to lead to yet another constitutional crisis threatening the Rule of Law and the independence of our Judiciary in Hong Kong.
4. In this regard, some of the "alternatives" outlined by some as possible "solutions" to the perceived difficulties created by the Ng Ka Ling Case caused us considerable concern.
5. One of these "alternatives" was the suggestion that somehow, the CFA should either "correct" itself through some "self-correction mechanism" or further "clarification".
6. Such a course is unknown to our system. One of the most cherished characteristics of our legal system, which is preserved under the concept of "One Country, Two System", is the ability of our Judges to interpret the law solely based on legal considerations without fear or favour. A legal decision which produces unpalatable economic or social conditions does not, by itself, suggest it is either "wrong" or needs to be "corrected".
7. If it is suggested that a new internal self-correcting mechanism should be introduced to our legal system, then such a suggestion is even more dangerous, particularly if such a suggestion is to come from local deputies to the NPC. For it will be widely perceived that the Central Government is seeking not only to interfere with the internal affairs of the SAR Government but to change the local legal system which is expressly preserved under Article 81 of our Basic Law. This is not to forget that the independence of our Judiciary is also guaranteed under Article 2 of our Basic Law.
8. Nor is the suggestion that the "error" should be corrected by an interpretation to be given by the NPC an appropriate "alternative".
9. The CFA is the court of final appeal in Hong Kong. Its independence and jurisdiction as the final arbiter in legal matters are enshrined in our Basic Law and in particular, Article 2 thereof. The CFA has expressed its view on the proper interpretation of Article 24 after full arguments and careful consideration. An interpretation by the NPC which runs contrary to the decision of the CFA will be easily interpreted as an affront to Article 2 of our Basic Law and in any event, is likely to erode the integrity and authority of the Hong Kong courts. It also threatens the fundamental principle of the Rule of Law in Hong Kong as it will create a dangerous precedent that the decision of our court of final adjudication is not final. It is particularly worrying when the invitation is seen in the context of the Government having lost its arguments in the case and seeking to overrule the CFA by political, rather than legal means.
10. Article 158 makes it clear that any interpretation of the NPC Standing Committee can only be for future reference and cannot resolve the present problem. Nor will such interpretation affect judgments previously rendered. This must be the intention of the Basic Law whether the interpretation is made upon referral from the CFA or on the own motion of the NPC Standing Committee. Therefore, any person who is presently vested with a right of abode under Article 24 shall not be affected even if there is an interpretation by the NPC Standing Committee.
11. A more serious negative impact of an interpretation by the NPC is the public perception that the Central Authority is thereby intermeddling with the internal affairs of the HKSAR. Immigration pressures on the social conditions of the HKSAR is a matter of internal affairs. This is confirmed by the CFA in the Ng Ka Ling Case where it was held that the interpretation of Article 24 of the Basic Law did not require a reference to the NPC. This was not disputed by the SAR Government. To invite the NPC Standing Committee to reverse a judgment of the CFA will go against the principle of One Country, Two System and the concept "Hong Kong people ruling Hong Kong".
12. We strongly believe that neither the Central Government nor the HKSAR Government would like to see the concept of "One Country, Two System" and the Rule of Law in Hong Kong being undermined in the way described above. We are also firmly of the view that if our legal system is so fundamentally undermined, the long-term negative effect on the HKSAR is going to be far worse than the present economic and social problems perceived by the SAR Government.
13. We have not, of course, in any way underestimated the tremendous strain on our resources which might be brought about by the possible influx and if there be a need to change the law as regards the right of abode of Hong Kong people, the proper course is to amend the Basic Law. Under Article 61 of the PRC Constitution, a meeting of the NPC can be called if the NPC Standing Committee considers necessary or if a meeting is requested by 1/5 of the members of the NPC. There is no thus no immediate apparent difficulty in convening a meeting of the NPC.
14. However, we wish to once again remind everyone that the Basic Law is the constitution of the HKSAR. As a constitution it should not be lightly amended. Amendment should only be considered as a last resort. To suggest that the Basic Law be amended at the first sign of adversity without apparently considering any alternative administrative means appears to us to be a conclusion reached with unnecessary haste.
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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