5/5/99 - Open letter to the Chief Executive on the Right of Abode Case

The Bar's Views on the Right of Abode Case

Press Release

5 May1999

OPEN LETTER TO THE CHIEF EXECUTIVE ON THE RIGHT OF ABODE CASE

The Hon. Tung Chee Hwa,
Chief Executive of the Hong Kong SAR
of the People's Republic of China
5th Floor Main Wing
Central Government Offices
Lower Albert Road
HONG KONG

Dear Sir,

The Bar has sought an appointment to see you and discuss with you the implications of a possible reference to the National People's Congress Standing Committee ("NPCSC") in respect of the right of abode case. It is regrettable that your busy schedule has not permitted such a meeting. Now that it has been announced that the Government wants to have wider consultation about the matter, we are taking this opportunity to express our views, which we would obviously be pleased to elaborate further when there is an opportunity to meet.

The Bar is gravely concerned that any reference to the NPCSC for interpretation of the Basic Law will seriously and irreversibly damage the independence of our Judiciary and the Rule of Law in Hong Kong.

We are acutely aware of the problems facing Hong Kong. We understand the figures released by the SAR Government last week are not the final figures nor was there any empirical study as to what percentage of these figures represented people seriously intending to come and reside in Hong Kong permanently. Nevertheless, any major influx must be a matter of concern for the SAR Government.

We do not, however, regard any reference to the NPCSC for interpretation of the Basic Law as an acceptable or indeed any solution at all to such social and economic problems as might arise through an influx of permanent residents now living in the Mainland who may want to exercise their right of abode to live in Hong Kong one day.

One of the basic premises on which the suggested reference to NPCSC was made was that the decision of our Court of Final Appeal ("CFA") was wrong. We do not accept this premise and we look to you, as the Chief Executive of Hong Kong, to explain and defend the role of CFA.

You, Sir, are well familiar with the characteristics of our legal system under the Basic Law. It is an essential feature of our Judicial System that Judges interpret and apply the law faithfully without fear or favour according to the letter of the law and according to their judicial oath. This is the case here.

On the question of illegitimate children, which is a matter of particular concern, the meaning of Article 24 is plain. It does not exclude illegitimate children. The modern trend in all major legal systems in the world including that of China and the international human rights instruments has been to eliminate differences between legitimate and illegitimate children. In Hong Kong the domestic legislation usually treats illegitimate children on an equal footing with legitimate children.

Likewise, Article 24 is apt to embrace children of Hong Kong permanent residents who are born before one of their parents has acquired permanent resident status.

Some people have suggested that the CFA should apply Chinese legal concepts in construing Article 24. This approach would be completely inconsistent with the Basic Law. Article 8 of the Basic Law preserves the common law which includes common law principles of interpretation. We look to you Sir, as our Chief Executive, to defend and uphold the Basic Law.

There is a further point. Article 24 quite plainly is an article which deals solely with the internal affairs of Hong Kong, namely, the right of abode of people of Hong Kong, who those people are and what rights they enjoy. Any attempt to make a reference to the NPCSC involving an interpretation of Article 24 would be contrary at least to the spirit of Article 158 which makes it necessary only to refer questions relating to matters other than the internal affairs of Hong Kong to the NPCSC. Where the CFA, being a court of final adjudication, has exercised its jurisdiction properly to interpret Article 24, such an attempt would effectively remove its power to finally adjudicate on matters concerning the internal affairs of Hong Kong. That would be contrary to Articles 2 and 19 of the Basic Law which guarantee independent judicial power of the local courts including that of final adjudication.

An attempt to make a more limited reference based on Article 22 only is no less damaging. The result would be that the CFA would lose its status as a court of final adjudication. That will not only destroy the concept of high autonomy which is to be enjoyed by Hong Kong but also the independence, authority and reputation the CFA has established since the Handover.

In any event, Article 158 makes it plain that any interpretation by the NPCSC shall not affect any previous decision of the CFA. Thus, an interpretation by the NPCSC cannot in any event, solve any of the immediate problems facing Hong Kong.

To, in effect, overturn the CFA decision reached in accordance with the Basic Law is tantamount to repudiating the concept of "One Country, Two Systems" and the high degree of autonomy guaranteed to the people of Hong Kong. Again, we look to you, as our Chief Executive, to defend and safeguard the Basic Law and the Rule of Law in Hong Kong.

Further, if the attempted reference to NPCSC seeks to redefine substantial parts of Articles 22 and 24 of the Basic Law so as to limit the number of people presently entitled to enter Hong Kong, it will be in effect an amendment of the Basic Law. This will be wholly inconsistent with Article 159 of the Basic Law which prescribes the procedure for amendment.

Not only is there strong local objection to a reference to the NPCSC but there is growing concern in the international community that such a reference would not be in the best interests of Hong Kong.

These are the major objections in outline. We still hope to be able to speak to you or indeed to any person who regards a reference to the NPCSC as an acceptable solution to explain the Bar's position fully. We very strongly and sincerely urge you to give the matters raised in this letter serious thought in the meantime and not be swayed by political considerations into adopting a course which will almost inevitably lead to the eventual dismantling of the concept of "One Country, Two Systems".

Yours faithfully,

Ronny K.W. Tong, S.C.

Chairman

Hong Kong Bar Association

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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The Bar's Views on the Right of Abode Case
Press Release 5 May1999 OPEN LETTER TO THE CHIEF EXECUTIVE ON THE RIGHT OF ABODE CASE The Hon. Tung Chee Hwa, Chief Executive of the Hong Kong SAR of the People's Republic of China 5th Floor Main Wing Central Government Offices Lower Albert Road HONG KONG Dear Sir, The Bar has sought an appointment to see you and discuss with you the implications of a possible reference to the National People's Congress Standing Committee ("NPCSC") in respect of the right of abode case. It is regrettable that your busy schedule has not permitted such a meeting. Now that it has been announced that the Government wants to have wider consultation about the matter, we are taking this opportunity to express our views, which we would obviously be pleased to elaborate further when there is an opportunity to meet. The Bar is gravely concerned that any reference to the NPCSC for interpretation of the Basic Law will seriously and irreversibly damage the independence of our Judiciary and the Rule of Law in Hong Kong. We are acutely aware of the problems facing Hong Kong. We understand the figures released by the SAR Government last week are not the final figures nor was there any empirical study as to what percentage of these figures represented people seriously intending to come and reside in Hong Kong permanently. Nevertheless, any major influx must be a matter of concern for the SAR Government. We do not, however, regard any reference to the NPCSC for interpretation of the Basic Law as an acceptable or indeed any solution at all to such social and economic problems as might arise through an influx of permanent residents now living in the Mainland who may want to exercise their right of abode to live in Hong Kong one day. One of the basic premises on which the suggested reference to NPCSC was made was that the decision of our Court of Final Appeal ("CFA") was wrong. We do not accept this premise and we look to you, as the Chief Executive of Hong Kong, to explain and defend the role of CFA. You, Sir, are well familiar with the characteristics of our legal system under the Basic Law. It is an essential feature of our Judicial System that Judges interpret and apply the law faithfully without fear or favour according to the letter of the law and according to their judicial oath. This is the case here. On the question of illegitimate children, which is a matter of particular concern, the meaning of Article 24 is plain. It does not exclude illegitimate children. The modern trend in all major legal systems in the world including that of China and the international human rights instruments has been to eliminate differences between legitimate and illegitimate children. In Hong Kong the domestic legislation usually treats illegitimate children on an equal footing with legitimate children. Likewise, Article 24 is apt to embrace children of Hong Kong permanent residents who are born before one of their parents has acquired permanent resident status. Some people have suggested that the CFA should apply Chinese legal concepts in construing Article 24. This approach would be completely inconsistent with the Basic Law. Article 8 of the Basic Law preserves the common law which includes common law principles of interpretation. We look to you Sir, as our Chief Executive, to defend and uphold the Basic Law. There is a further point. Article 24 quite plainly is an article which deals solely with the internal affairs of Hong Kong, namely, the right of abode of people of Hong Kong, who those people are and what rights they enjoy. Any attempt to make a reference to the NPCSC involving an interpretation of Article 24 would be contrary at least to the spirit of Article 158 which makes it necessary only to refer questions relating to matters other than the internal affairs of Hong Kong to the NPCSC. Where the CFA, being a court of final adjudication, has exercised its jurisdiction properly to interpret Article 24, such an attempt would effectively remove its power to finally adjudicate on matters concerning the internal affairs of Hong Kong. That would be contrary to Articles 2 and 19 of the Basic Law which guarantee independent judicial power of the local courts including that of final adjudication. An attempt to make a more limited reference based on Article 22 only is no less damaging. The result would be that the CFA would lose its status as a court of final adjudication. That will not only destroy the concept of high autonomy which is to be enjoyed by Hong Kong but also the independence, authority and reputation the CFA has established since the Handover. In any event, Article 158 makes it plain that any interpretation by the NPCSC shall not affect any previous decision of the CFA. Thus, an interpretation by the NPCSC cannot in any event, solve any of the immediate problems facing Hong Kong. To, in effect, overturn the CFA decision reached in accordance with the Basic Law is tantamount to repudiating the concept of "One Country, Two Systems" and the high degree of autonomy guaranteed to the people of Hong Kong. Again, we look to you, as our Chief Executive, to defend and safeguard the Basic Law and the Rule of Law in Hong Kong. Further, if the attempted reference to NPCSC seeks to redefine substantial parts of Articles 22 and 24 of the Basic Law so as to limit the number of people presently entitled to enter Hong Kong, it will be in effect an amendment of the Basic Law. This will be wholly inconsistent with Article 159 of the Basic Law which prescribes the procedure for amendment. Not only is there strong local objection to a reference to the NPCSC but there is growing concern in the international community that such a reference would not be in the best interests of Hong Kong. These are the major objections in outline. We still hope to be able to speak to you or indeed to any person who regards a reference to the NPCSC as an acceptable solution to explain the Bar's position fully. We very strongly and sincerely urge you to give the matters raised in this letter serious thought in the meantime and not be swayed by political considerations into adopting a course which will almost inevitably lead to the eventual dismantling of the concept of "One Country, Two Systems". Yours faithfully, Ronny K.W. Tong, S.C. Chairman Hong Kong Bar Association 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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