The Bar's Views on the Right
of Abode CasePress Release
9 February, 1999
COURT OF FINAL APPEAL JUDGEMENT ON RIGHT OF ABODE
The Bar is deeply concerned about the views and criticisms expressed on the Mainland regarding the recent Judgment of the Court of Final Appeal.
Such view and criticisms are based on a mistaken understanding of the Judgement. It is clear from the Judgment that the Court of Final Appeal does not assume unlimited jurisdiction to examine acts of the National People's Congress or its Standing Committee which affect the Region. The Court of Final Appeal fully recognizes the acts of the NPC and its Standing Committee as acts of the Sovereign.
The jurisdiction of the Court of Final Appeal is derived from the NPC through the enactment of the Basic Law under Article 31 of the Chinese Constitution. It is worth remembering that the Basic Law is the Basic Law of the HKSAR of the People's Republic of China. The following articles are of particular relevance:
Article 2:
"The [NPC] authorizes the [HKSAR] to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication in accordance with the provisions of [the Basic Law]."
Article 4:
"The [HKSAR] shall safeguard the rights and freedoms of the residents of the [HKSAR] and of other persons in the Region in accordance with law."
Article 19:
"The [HKSAR] shall be vested with independent judicial power, including that of final adjudication. The courts of the [HKSAR] shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained.
The courts of the [HKSAR] shall have no jurisdiction over acts of state such as defence and foreign affairs............"
Article 158:
"The power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress.
The Standing Committee of the National People's Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudication cases, the provisions of this Law which are within the limits of the autonomy of the Region.
The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the Court of Final Appeal of the Region. When the Standing Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee. However, judgments previously rendered shall not be affected.........."
In its Judgment, the Court of Final Appeal interpreted Article 24 as not being a provision which falls outside the jurisdiction of the Court of Final Appeal. Indeed, the Court had emphasized that on a matter concerning affairs which are the responsibility of the Central Government or the relationship between the Central Government and the Region, the Court would be duty bound to refer the question of interpretation to the Standing Committee of the NPC.
Furthermore, it was not part of the Government's case before the Court of Final Appeal that there was a previous interpretation of Article 24 by either the NPC or its Standing Committee which was inconsistent with the interpretation preferred by the Court of Final Appeal.
Any suggestion that the Court of Final Appeal was acting contrary to the authority of the NPC or the Basic Law is thus ill-founded.
The Bar supports the decision of the CFA and its reasoning without reservation. They are consistent both with the Basic Law and the principle of "one country, two systems".
The Bar regrets the publicity generated by some who wrongly attribute to the Court of Final Appeal a statement that it was conferring upon itself an "overriding" status above the NPC and its Standing Committee. Views and criticisms of this nature are not only wrongly directed but will also tend to undermine the authority of the Courts of the SAR and the Rule of Law in Hong Kong.
A credible and independent Judiciary is vital to the success of Hong Kong and the concept of "one country, two systems" to which both the Central Government and the Government of the HKSAR are fully committed. We call upon the Government of the HKSAR to closely work with the Central Government to dispel any controversy generated by misunderstanding and to resolve the current apparent conflict in line with the spirit and letter of the Basic Law.
For further enquires please contact Mr. Philip Dykes, S.C. at 2810 7222
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