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When Hong Kong people categorize the Basic Law as a ‘mini-constitution’, they assume that the Basic Law will step into the legal vacuum created by the disappearance of the colonial constitution. They envision a constitution that litigants can, at least in part, invoke. In their view, the Basic Law is two-dimensional: its policy/administrative portions are not directly enforceable in court, while the rest of it is. ... The mini-constitution position finds further support in the fact that the Basic Law will be applied in a common law jurisdiction; therefore, common law rules of interpretation should prevail. According to this position, the Basic Law will have constitutional status within the HKSAR, notwithstanding its being a Chinese national law, because it will be the region’s highest law.
This argument, however, leaves the Chinese at the border.[1]
The decision of the Hong Kong Court of Final Appeal (‘CFA’) in Ng Ka Ling has attracted considerable attention as an indicator of the wellbeing or otherwise of the legal system of the Hong Kong Special Administrative Region (‘SAR’) in the aftermath of its reversion to Chinese sovereignty from 1 July 1997. In Beijing, leading PRC[2] constitutional experts and government officials reacted variously with dismay and displeasure to the decision. In Hong Kong, the decision raised fears of a sudden influx of Mainland migrants. Concerns related to the SAR Secretary for Justice’s handling of the subsequent constitutional ‘fallout’ from the decision, compounded with suspicions about her handling of unrelated prosecutorial and extradition decisions, led to a motion of no confidence being tabled against her in the SAR’s Legislative Council (‘LegCo’) in early March 1999. Most significantly, however, a number of constitutional issues arising out of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (‘Basic Law’) that were decided by the CFA were effectively overruled through a subsequent interpretation of the Basic Law by the Standing Committee of the PRC National People’s Congress (‘NPC’).[3] In Australia, the CFA decision and the ensuing legal and political developments have been monitored closely by the increasingly ‘Asia-conscious’ legal profession sensitive to the legal and commercial implications of any perceived derogation from the ‘rule of law’ in the region’s principal centre of commercial law.[4]
An examination of the Court’s unanimous judgment and the reaction, clarification and interpretation that ensued presents contrasting impressions of the scope of the judicial autonomy enjoyed by the courts of the Hong Kong SAR under the ‘One Country, Two Systems’ framework. On the one hand, the CFA decision betrays a zealous judicial concern for the protection of individual rights and that seeks to safeguard as far as possible the jurisdiction and independence necessary to ensure the continued protection of the substantive and procedural rights enjoyed (if in some instances only belatedly) under Hong Kong’s colonial common law regime. However, the SAR Government’s subsequent request for a clarification by the Court of a critical pronouncement upon the extent of judicial review under the Basic Law within the original decision, and the differing interpretations made by the NPC Standing Committee in June 1999 of the provisions on which the original judgment was based, leave little doubt that the expansive tract of judicial autonomy staked out by the CFA in Ng Ka Ling has been significantly encroached upon by both the Hong Kong and PRC governments.
In large measure, this contrast can be explained as having arisen inevitably from a number of latent ambiguities within the structure and wording of the Basic Law and the differing expectations of Mainland and Hong Kong legal observers. In her article, ‘Lost in the Translation: Two Legal Cultures, the Common Law Judiciary and the Basic Law of the Hong Kong Special Administrative Region’, written prior to the return of Hong Kong to PRC sovereignty, Ann Jordan acutely identified a number of these ambiguities within the Basic Law and the contesting interpretations likely to be placed upon them by the respective representatives of the PRC’s socialist legal system and the Hong Kong common law regime.[5] In short, she discerns an unavoidable tension within the Basic Law between the common law notion of a constitution as an enforceable constraint upon the exercise of government power on the one hand and, on the other, the ‘socialist’ conception of PRC lawyers and officials that a constitution (or ‘Xianfa’) exists merely as a ‘programmatic set of policies’ or an ideological mission-statement of the state.[6] This tension may be clearly seen to underlie both the Court’s emphatic demarcation of its constitutional jurisdiction and the subsequent fate of its decision. As I intend to demonstrate, these developments undermine the assumption that the common law framework inherited by the SAR from Hong Kong’s colonial administration would continue to operate unaffected by the reversion of sovereignty and the entry into force of the Basic Law as the region’s primary constitutional document.
This case note was originally written as a commentary on the Ng Ka Ling decision and the CFA’s unprecedented clarification of its pronouncements upon the Basic Law. The conclusions I reached in the earlier version of the paper have been significantly revised since the SAR Government’s request for Standing Committee interpretation of the Basic Law provisions relating to the right of abode and the Standing Committee’s delivery of its interpretation in June 1999. I have retained the bulk of my earlier analysis of the CFA’s decision in order to provide the necessary background to a full consideration of the effect of the Standing Committee’s interpretation in the final section of the case note.
The CFA’s decision in Ng Ka Ling arose from three separate judicial review proceedings brought as test cases to assert the right of abode in Hong Kong of Chinese nationals born in the PRC to a parent who had acquired permanent resident status in Hong Kong after living in Hong Kong for a continuous period of seven years.[7] Each of the applicants reported to the Hong Kong Immigration Department to assert their right of abode in the days following the reversion of sovereignty on 1 July 1997, having either entered Hong Kong illicitly after the Handover or overstayed a temporary entry permit issued prior to the Handover.
The applicants each based their claims for right of abode on their status as permanent residents under article 24(2)[8] of the Basic Law. Article 24(2) stipulates six categories of people who shall be permanent residents of the SAR. The first three of the six categories relate specifically to Chinese nationals:
In each case, the applicants asserted permanent resident status under the third category in article 24(2). Their claims to right of abode were based on article 24(3), which states that permanent residents ‘shall have the right of abode in the Hong Kong Special Administrative Region’.
The applicants’ prima facie right of abode under the Basic Law was, however, significantly muddied by the provision in the Immigration (Amendment) (No 3) Ordinance 1997 (HK) (‘No 3 Ordinance’) of a statutory procedure for the establishment of permanent resident status by descent.[10] The inserted s 2AA of the Immigration Ordinance 1971 (HK)[11] provided:
(b) a valid HKSAR passport issued to him; or
(c) a valid permanent identity card issued to him.
(2) A person’s right of abode in Hong Kong by virtue of his being a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 can only be exercised upon the establishment of his status as such a permanent resident in accordance with sub-section (1) and, accordingly, where his status as such a permanent resident is not so established, he shall, for the purposes of this Ordinance, be regarded as not enjoying the right of abode in Hong Kong.
Section 2AB provided that the certificate of entitlement required under s 2AA(1)(a) may be issued by the Director of Immigration upon application to be made ‘in such manner as the Director may specify by notice’. These provisions were inserted by the No 3 Ordinance on 10 July 1997 in response to reports of large numbers of PRC residents entering Hong Kong illicitly following the Handover in order to assert their right of abode. The provisions purported to operate retrospectively from 1 July 1997.[12]
Under a notice dated 11 July 1997 and gazetted on 16 July (‘the Notice’), the Director of Immigration set out the requirements for applications under s 2AA. Paragraph C of the Notice provided that ‘illegal’ entrants from the Mainland remaining in Hong Kong should be regarded as residing in the Mainland for the purposes of the application procedure. Paragraph A specified that applicants resident in the Mainland must apply for a certificate of entitlement in conjunction with an application for an exit permit to Hong Kong through the Exit–Entry Administration of the PRC Public Security Bureau (‘PSB’).[13]
The combined effect of s 2AA and the Notice, in so far as they might be held to govern the applicants’ claims, would be to require each of them to return to the Mainland in order to reapply for an exit permit and certificate of entitlement through their local PSB. The claims were dismissed by the Director for failure to meet these requirements. The applicants’ judicial review proceedings in the Court of First Instance[14] and their appeal to the Court of Appeal[15] were dismissed on the same basis.
In relation to the applicant Cheung Lai Wah, the Director argued in addition that she fell outside the scope of the third category of permanent resident listed in article 24(2) of the Basic Law on the ground that she was born out of wedlock. The legal basis for this argument was the Immigration (Amendment) (No 2) Ordinance 1997 (HK) (‘No 2 Ordinance’), which was enacted by the Provisional Legislative Council (‘PLC’) on 1 July 1997 essentially to bring the categories of permanent residence under Hong Kong’s pre-Handover immigration regime into line with article 24(2) of the Basic Law. Section 2 of the No 2 Ordinance broadly reflected the categories enumerated in article 24(2) of the Basic Law. The crucial qualification was, however, provided by the definition of the parent–child relationship spelt out in paragraph 1(2) of schedule 1 to the No 2 Ordinance:
The relationship of parent and child is taken to exist as follows —
Cheung’s mother died the day after her birth. Her paternal link to her Hong Kong resident father was therefore never ‘legitimated’ through marriage. Accordingly, the Director held that she fell outside the categories of permanent residence as propounded in the No 2 Ordinance.
Altogether, the applicants raised four substantive arguments challenging the validity of all or part of the bases upon which their claims for right of abode were denied. These were:
While the immigration implications of the Court’s invalidation of the procedure set out in the No 3 Ordinance were seen to be significant enough to warrant governmental action to minimise the effect of the decision, the issues that lay at the heart of the conflict between the CFA judgment and the subsequent Standing Committee interpretation related primarily to the scope of the judicial autonomy enjoyed by Hong Kong courts under the Basic Law. More specifically, these issues as they arose in the Ng Ka Ling appeal were, firstly, the question of whether the Court was required to refer the case to the NPC Standing Committee for interpretation of the relevant provisions of the Basic Law and, secondly, whether the CFA is capable of invalidating acts of the NPC for inconsistency with the Basic Law. In order to deal most effectively with these central constitutional issues, it is convenient to dispose of the substantive elements of the Court’s decision before examining these latter areas of contention.
Before proceeding, it is worth making a few observations about the terminology and jurisprudential approach adopted by the Court. In light of Jordan’s analysis of the differing ‘common law’ and ‘Xianfa’ views of the Basic Law, it is significant that the Court chose to frame its judgment in heavily ‘constitutional’ language — as evidenced, for example, by its preliminary statement that the Basic Law ‘became the Constitution of the Hong Kong Special Administrative Region upon its establishment on 1 July 1997’[16] and its statement of the issues to be decided (as enumerated above) in terms of the ‘constitutionality’ or otherwise of the impugned provisions. This ‘constitutional’ orientation is underscored by the Court’s preliminary statement regarding its approach to interpretation of the Basic Law:
We must begin by recognising and appreciating the character of the document. The Basic Law is an entrenched constitutional instrument to implement the unique principle of ‘one country, two systems’. As is usual for constitutional instruments, it uses ample and general language. It is a living instrument intended to meet changing needs and circumstances.
It is generally accepted that in the interpretation of a constitution such as the Basic Law a purposive approach is to be applied.[17]
The Court’s strongly ‘constitutional’ approach to interpretation of the Basic Law can be seen to lie at the root of its landmark decision in Ng Ka Ling and, indeed, to have inspired the hostile reaction to the judgment by Mainland scholars and officials.
The Court’s robust constitutionalism was evident in its disposal of the applicants’ ambit constitutional claim that the No 2 and No 3 Ordinances were invalid for want of legislative competence of the PLC which enacted the Ordinances. This argument arose out of the refusal of the NPC Standing Committee to permit the pre-Handover Legislative Council to remain in place for two years after the transfer of sovereignty as provided by articles 68 and 69 of the Basic Law.[18] Instead, the NPC decided, via the Preparatory Committee for the Hong Kong Special Administrative Region, to establish the PLC to exercise the SAR’s legislative power from 1 July 1997 until the first post-Handover LegCo could be elected and established in accordance with the provisions of Annex II.[19]
The constitutional validity of the PLC was first challenged in the weeks immediately following the Handover in HKSAR v Ma Wai-Kwan David.[20] The Court of Appeal upheld the validity of the PLC on the basis of its derivation from the sovereign authority of the NPC.[21] The Ma Wai-Kwan decision was viewed as crucial to the smooth transfer of sovereignty and the maintenance of confidence in the Hong Kong legal and political systems by averting the possibility of a legislative vacuum in the immediate post-Handover period.
In Ng Ka Ling, the Court of Appeal held itself bound by its earlier decision.[22] The CFA, which had not previously ruled on the validity of the PLC, confirmed the Court of Appeal’s decision, but, significantly, chose to base its own decision on the consistency of the PLC’s institution with the purpose of the section of the Basic Law governing the exercise of legislative power.[23] The emphasis of the CFA’s reasoning on consistency with the Basic Law rather than the sovereign authority of the NPC provides a telling indication of the Court’s adherence to Jordan’s common law ‘constitutional’ view of the Basic Law in preference to the ‘Xianfa’ approach.
The argument advanced on behalf of the applicant Cheung Lai Wah against the ‘wedlock’ restriction on obtaining permanent resident status by descent in the No 2 Ordinance turned on whether the restriction contravened the provisions of the International Covenant on Civil and Political Rights[24] as they apply to the Hong Kong SAR. The provisions of the ICCPR were first incorporated into Hong Kong municipal law by the Hong Kong Bill of Rights Ordinance passed in 1991.[25] Article 39 of the Basic Law seeks to entrench the ICCPR guarantees by precluding the possibility of legislative overriding.[26] Hong Kong courts are therefore capable of striking down any law which contravenes the provisions of the ICCPR for inconsistency with the Basic Law.[27]
The wedlock restriction was held, both at trial and by the Court of Appeal, to contravene the guarantees of freedom against discrimination on the ground of sex in articles 3 and 26 of the ICCPR as well as article 23(1), which recognises the fundamental nature of the family unit and its right to ‘protection by society and the State’.[28] The CFA upheld the decisions of the lower courts, rejecting an argument by the Director that reservations made by the United Kingdom Government upon accession to the ICCPR in relation to Hong Kong immigration legislation remained in force as a result of negotiations between the UK and PRC governments prior to the Handover. The wedlock restriction was consequently excised from the No 2 Ordinance.[29]
Having held that aspects of the scheme for the establishment of permanent resident status and right of abode contained in the inserted ss 2AA and 2AB of the Immigration Ordinance 1971 (HK) (cap 115) were invalid for contravention of article 24(2) and (3) of the Basic Law,[30] the CFA went on to consider whether the retrospective operation of the scheme (in the skeletal form in which it remained following severance of the invalidated provisions) from 1 July 1997 was itself unconstitutional.
The Court upheld the applicants’ submission that the scheme’s retrospective operation was invalid on two grounds. Firstly, the retrospective operation was invalid in so far as it required that permanent resident status be established by presentation of a certificate of entitlement before the enactment and consequent notification, on 10 and 11 July respectively, of the procedure for obtaining such a certificate. The scheme’s retrospective operation, if valid, effectively precluded any person asserting their right of abode between 1 July and 10 July from being able to meet the certificate requirement, thereby depriving them of the enjoyment of their ‘constitutional’ right of abode. Secondly, it was held that the retrospective operation of the certificate requirement had the effect of retrospectively rendering the applicants (and other PRC citizens in Hong Kong to whom the scheme applied) criminally liable for landing or remaining in Hong Kong without permission.[31] The retrospective operation of the scheme was held to be in breach of the guarantee against retrospective criminal liability contained in article 15(1) of the ICCPR, and consequently in breach of article 39 of the Basic Law.
As noted above, the applicants’ principal attack upon the Director’s refusal to grant them right of abode was directed at the validity of the scheme introduced by the No 3 Ordinance. The constitutional question at the root of this argument was whether the procedural requirements imposed by the No 3 Ordinance infringed the right of abode provided by article 24(3) of the Basic Law. The Director was argued to have breached the applicants’ right of abode by his failure to recognise their unconditional right to reside in Hong Kong, and by having arrested each of the applicants on the basis of their failure to comply with the No 3 Ordinance.
In reply, the Director argued that the No 3 Ordinance was supported by article 22(4) of the Basic Law. Article 22(4) provides:
For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People’s Government after consulting the government of the Region.
Article 22(4) was therefore argued to qualify the right of abode provided by article 24 in respect of claimants of right of abode by descent who were resident in the PRC on or after 1 July 1997. In particular, the requirement of the No 3 Ordinance that applications for a certificate of entitlement be made in conjunction with applications for exit permits on the Mainland was clearly based on the assumption that the applicants fell within the class of ‘people from other parts of China’ to which article 22(4) refers. Significantly, both the High Court and Court of Appeal had held that the application procedure established by the No 3 Ordinance was validly supported by article 22(4).
In considering whether the right of abode conferred by article 24 was qualified by article 22(4), the Court was required to address the question of whether it was required to seek an interpretation of the relevant provisions of the Basic Law from the Standing Committee of the NPC pursuant to article 158 of the Basic Law. Because of its distinct constitutional significance, I will deal with the ‘reference issue’ separately below.[32]
Having decided that it was not required to seek interpretation from the Standing Committee, the Court of Final Appeal reversed the decision of the lower courts, holding that the article 24 right of abode was not qualified by article 22(4), and that the reference to ‘people from other parts of China’ in the latter article did not extend to PRC citizens upon whom permanent resident status is conferred by article 24(2). As was the case in relation to the ‘wedlock’ and ‘retrospectivity’ issues, the reasoning upon which the Court based its decision on this point is instructive in so far as it reaffirms the Court’s generous, rights-conscious approach to ‘constitutional’ interpretation of the Basic Law.
The Court’s interpretation of the scope of the article 24 right of abode drew heavily upon the structure of the Basic Law and the position of article 24 within that structure. Article 24 is the first article of Chapter III of the Basic Law, which outlines the ‘fundamental rights and duties’ of Hong Kong residents. The article provides that ‘residents’ of the Hong Kong SAR include permanent and non-permanent residents. It goes on to specify the requirements for permanent and non-permanent resident status, and confers the right of abode upon permanent residents. Articles 25 and 27–39 guarantee a broad range of fundamental rights to ‘residents’ of Hong Kong as defined in article 24. Article 26 confers the right to vote and stand for election upon permanent residents only. Though the enjoyment of these rights is not expressly predicated upon the right of abode, the Court nevertheless identified the right of abode as a ‘core right’, noting further that ‘without it and the right to enter which is an essential element, the rights and freedoms guaranteed can hardly be enjoyed’.[33] The consequence of holding the applicants’ right of abode to be subject to the control of Mainland authorities under article 22(4) would therefore effectively be to deny the applicants the enjoyment of any of the rights outlined in articles 25–40.[34]
Article 22, by contrast, is contained in the chapter of the Basic Law that governs the ‘relationship between the Central Authorities and the Hong Kong Special Administrative Region’.[35] As a result, the Court decided that it does not operate to limit the enjoyment of the Chapter III rights, including the right of abode, in the manner contended for by the Director. It was on this basis that the Court preferred the narrower construction of article 22(4) to exclude Hong Kong permanent residents living in the PRC.
In the result, the Court struck down the scheme implemented by the No 3 Ordinance and the Notice to the extent that it requires applicants to have obtained an exit permit from the PSB on the Mainland as a prerequisite to obtaining a certificate of entitlement to establish permanent resident status and right of abode. The scheme’s requirement that claimants must remain in the PRC while applying for a certificate of entitlement (as in operation from 10 July 1997) was approved by the Court on the basis that it is reasonable for the legislature to require claimants be subjected to verification of their claims prior to exercising their right of abode.
The immediate effect of the Court’s decision, coupled with that in Chan Kam Nga v Director of Immigration,[36] delivered on the same day, was to grant right of abode to 13,000 Mainland applicants who held certificates of entitlement but not PSB exit permits at the time of the ruling, and to raise concerns over the social and economic impact of the projected influx of the remaining Mainland-resident children of Hong Kong permanent residents.[37]
The issue of whether the Court was required to seek an interpretation of the relevant provisions from the Standing Committee of the NPC fell to be decided in accordance with article 158 of the Basic Law. Ng Ka Ling marked the first occasion on which the Court had to confront the possibility of referring a constitutional matter to the Standing Committee. The case was therefore crucial to delineating the scope of the Hong Kong SAR’s judicial autonomy from the PRC Government.
Article 158 provides:
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 adjudicating 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 the context of the Ng Ka Ling decision, the Court was therefore required to determine whether it ‘need[ed] to interpret’ a provision concerning the relationship between the Central Authorities and the Region. As noted above, article 22(4) is found in Chapter II of the Basic Law, headed ‘Relationship between the Central Authorities and the Hong Kong Special Administrative Region’. Both the content and the location of the provision therefore bring it within the second of the two categories of provision which the Court of Final Appeal may be required to refer to the NPC Standing Committee for interpretation. Counsel for the Director submitted to the Court that the case required the Court to interpret article 22(4), thereby necessitating a reference to the Standing Committee.
Counsel for the applicants argued strenuously that the appeal did not require reference to the Standing Committee. The unspoken (and subsequently vindicated) assumption was that the Standing Committee would take an approach more conscious of the Chapter II governmental interests than the rights provided for in Chapter III. This conclusion is strengthened by the argument that the Standing Committee would be restricted upon reference from the CFA to providing an interpretation of article 22(4) divorced from, or with minimal regard to, its relationship with the article 24 right of abode guarantee upon which the appeal largely hinged.[38]
In its first encounter with the division of interpretive responsibility under article 158, the Court was concerned to stake out its constitutional jurisdiction as broadly as possible. The contest between the submissions of the applicants and the Director turned essentially upon whether the Court was required to ‘interpret’ article 22(4) in the course of determining the applicants’ right of abode claims. The Court based its expansive rendition of its own interpretive jurisdiction on a ‘purposive interpretation’ of article 158, emphasising the Standing Committee’s authorisation of the courts of the Hong Kong SAR to ‘interpret on their own’ the provisions of the Basic Law that are ‘within the autonomy of the Region,’ and, in turn, the crucial role of this judicial autonomy to the ‘high degree of autonomy’ which the Hong Kong SAR has been repeatedly stated to enjoy.[39]
In the result, the test adopted by the Court was: ‘As a matter of substance, what predominantly is the provision that has to be interpreted in the adjudication of the case?’[40] This substantial qualification of the notion of ‘interpretation’ employed in article 158 was formulated to avoid the complications arising from the inevitable need to interpret provisions of the Basic Law in the context of the document as a whole, and the ‘substantial derogation from the Region’s autonomy’ that would be involved if a reference to the Standing Committee were to be required in every instance where a provision within the interpretive jurisdiction of the Hong Kong courts falls to be interpreted in the context of provisions that lie within the Standing Committee’s interpretive jurisdiction.
The Court’s decision in relation to the article 158 reference issue was clearly informed by its ‘constitutional’ view of the Basic Law. As was subsequently borne out by the Interpretation, the avoidance of Standing Committee reference in the course of the appeal was crucial to securing the applicants’ enjoyment of their right of abode. It may be objected that the qualifications inserted by the Court in the article 158 ‘interpretation’ test (‘As a matter of substance, what predominantly is the provision that has to be interpreted?’[41]) lend a measure of artificiality to the process of constitutional interpretation in light of its professed adherence to a ‘purposive’ approach. The test adopted by the Court was, however, clearly intended to minimise the possibility of messy interpretive ‘demarcation disputes’ between the CFA and the Standing Committee and, as demonstrated by the outcome of the appeal, would most likely work in favour of claimants seeking to enforce Chapter III rights guarantees. Significantly, in its first pronouncement on article 158, the Court asserted firmly that ‘it is for the Court of Final Appeal and for it alone to decide’ whether a matter requires a reference to be made to the Standing Committee.[42] This straightforward proposition was clearly intended to ‘firewall’ as far as possible the Court’s oversight of the Basic Law, a gesture for which the Court was roundly rebuked in the Interpretation made by the Standing Committee in June 1999.
Curiously, the spark that ignited the controversy that immediately followed the CFA’s decision in Ng Ka Ling lay not in its reasons for judgment as such, nor in the implications that the decision had for Hong Kong immigration policy, but rather in the Court’s obiter remarks preliminary to its determination of the applicants’ appeals, in which it broadly addressed the question of the constitutional jurisdiction of Hong Kong courts.
In keeping with its approach to the reference question outlined above, the Court was clearly determined to use the opportunity presented by the Ng Ka Ling appeal to assert its jurisdiction and the independence of its judicial power as forcefully and expansively as possible. The Court commenced its discussion by referring to the independent judicial power vested in the courts of the SAR by articles 19(1) and 80 of the Basic Law, and the apparently uncontroversial proposition that that judicial power includes the right to invalidate legislative and executive acts of the SAR Government for inconsistency with the Basic Law.[43] The direct cause of the furore was the Court’s subsequent assertion that it also possesses the power to invalidate legislative acts of the NPC and its Standing Committee where these are inconsistent with the Basic Law. Notwithstanding the fact that no enactment of either the NPC or the Standing Committee lay in issue in the Ng Ka Ling appeal, the Court made a point of declaring that ‘the courts of the Region do have this jurisdiction and indeed the duty to declare invalidity if inconsistency is found. It is right that we should take this opportunity of stating so unequivocally.’[44]
In reaching this conclusion, the Court overturned the views expressed by the Court of Appeal in Ma Wai-Kwan[45] that Hong Kong courts had no power to examine the acts of the NPC. The Court of Appeal based its reasoning on article 19(2) of the Basic Law:
The courts of the Hong Kong Special Administrative Region 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 Court of Appeal had reasoned that as legislation of the United Kingdom Parliament was not, prior to 30 June 1997, susceptible to judicial review by the Hong Kong courts, article 19(2) imposed a similar restriction in respect of NPC legislation following the establishment of the SAR. The CFA, notwithstanding the article 19(2) reference to ‘restrictions ... imposed by the legal system and principles previously in force’ rejected the Court of Appeal’s analogy with the pre-Handover position. Instead, the CFA construed the ‘restrictions’ referred to in article 19(2) more narrowly, citing the ‘act of state’ exclusion stipulated in article 19(3) as an example.[46]
As noted already, the Court was clearly concerned to establish its constitutional jurisdiction to the broadest extent possible. With regard to the independence of the Hong Kong legal system and the ongoing concern for rights guaranteed under the Basic Law and ICCPR, this conclusion is politically reassuring. As a matter of construction of article 19 in light of Hong Kong’s colonial constitutional history and the doctrine of parliamentary sovereignty as it applied in Hong Kong to acts of the United Kingdom Parliament, however, the Court’s position is not so convincing. But to Mainland observers, accustomed to the notion that the courts are constitutionally subordinate to the legislative and executive branches, the CFA’s pronouncement on this point was received as virtual anathema.
How could it be right for the son to tell the father how to act?[47]
Tsang Hin-Chi, NPC Standing Committee Delegate
Initial reaction to the decision in both Hong Kong and the PRC focussed heavily upon the ramifications for the SAR’s immigration policy. It was not until 6 February 1999, more than a week after the decision was handed down by the Court, that Mainland officials responded publicly to the Court’s statements regarding the scope of its constitutional jurisdiction. The first reported reaction came from a group of authoritative Mainland constitutional scholars who had participated in the drafting of the Basic Law. One of the group, Professor Xiao Weiyun, based his criticism upon a recitation of the PRC position regarding the constitutional position of the judiciary: ‘The National People’s Congress is the supreme state power organ according to the Chinese Constitution, and no organisation or department can challenge or deny NPC legislation and decisions.’[48] Another of the Mainland experts, Xu Chongde, echoed this view, accusing the CFA of putting itself above the NPC and its Standing Committee.[49] While this group of scholars did not expressly call for the Court’s position to be reversed or overturned, their criticisms were subsequently seized upon by Zhao Qizheng, head of the PRC State Council’s information office, who called for the Court’s opinion to be ‘rectified’: ‘The court decision is a mistake and against the Basic Law. This is a very serious matter. We must support the Basic Law; the Basic Law cannot be changed. The court decision should be changed.’[50]
On 12 February, the SAR Secretary for Justice, Elsie Leung Oi-Sie, travelled to Beijing and met with PRC Government officials as well as the scholars who voiced the initial criticism of the Court’s judgment in an effort to defuse the growing perception of constitutional ‘crisis’.
On 24 February, the Director of Immigration, as the respondent to the appeal, took the unprecedented step on behalf of the SAR Government of requesting the CFA to issue a ‘clarification’ of the Court’s comments regarding its constitutional jurisdiction. This application inspired further criticism of the SAR administration on the basis that it would create a precedent adverse to the finality of the Court’s future decisions. In addition, the subsequent revelation that the Secretary for Justice had informed Chief Justice Li several days in advance of the government’s intentions to seek a clarification aroused further allegations of inappropriate executive interference and was later cited in an unsuccessful motion of no confidence in Ms Leung tabled in the LegCo on 10 March.[51]
The Court issued a clarification in response to the Director of Immigration’s application on 26 February. The Court justified the exercise of its inherent jurisdiction to issue such a clarification as an ‘exceptional course’ necessitated by the ‘great constitutional, public and general importance’ of the question of its own jurisdiction, and the ‘[v]arious different interpretations’ that had been placed upon the relevant part of the Court’s judgment.[52] The clarification was stated as follows:
The courts’ judicial power is derived from the Basic Law. Article 158(1) vests the power of interpretation of the Basic Law in the Standing Committee. The courts’ jurisdiction to interpret the Basic Law in adjudicating cases is derived by authorisation from the Standing Committee under arts 158(2) and 158(3). In our judgment on 29 January 1999, we said that the Court’s jurisdiction to enforce and interpret the Basic Law is derived from and is subject to the provisions of the Basic Law which provisions include the foregoing.
The Court’s judgment on 29 January 1999 did not question the authority of the Standing Committee to make an interpretation under art 158 which would have to be followed by the courts of the Region. The Court accepts that it cannot question that authority. Nor did the Court’s judgment question, and the Court accepts that it cannot question, the authority of the National People’s Congress or the Standing Committee to do any act which is in accordance with the provisions of the Basic Law and the procedure therein.[53]
In substance, the Court merely reiterated its statements from the original judgment, but reformulated its expression from its earlier assertion of its right to review NPC and Standing Committee legislation for consistency with the Basic Law to a more conciliatory recognition of their authority to act consistently with the Basic Law. The clarification was aptly described in a local editorial as a ‘face-saving formula’ designed to minimise ‘the extent of the damage’ caused by the successive outcries over the decision and the SAR Government’s response without backing down from its assertion of ‘constitutional’ guardianship over the operation of the Basic Law.[54]
The post-1997 Hong Kong courts will have ample space to develop Hong Kong law, enabling them to establish a system of jurisprudence founded upon the Basic Law, ‘One Country, Two Systems’, and the ‘high degree of autonomy’ of Hong Kong people. The challenge faced by Hong Kong courts is how to steer a ‘middle way’. On the one hand, they must staunchly maintain their independent judicial power and realise the fullest extent of their stipulated jurisdiction in the name of principles such as the protection of the rule of law and guaranteeing rights and freedoms. On the other hand, they must refrain from adopting an imperious attitude so that the courts’ role does not become overly politicised, as this could provoke an intemperate response from either the SAR or Central Governments, who might seize the opportunity to demolish the ingenious yet brittle balance of power that underpins the rule of law. What Hong Kong courts require, therefore, is not merely an abundance of specialist legal knowledge and an ability to make accurate factual determinations, but also a high degree of political nous.[55]
Albert Chen Hung-Yee
Despite the controversy that has arisen from the Ng Ka Ling decision and subsequent developments, the Court of Final Appeal revealed itself in the judgment as a staunch champion of the legal autonomy of the Hong Kong SAR and the rights of its residents. As noted by Yash Ghai, the Court’s resolve was underscored by its unanimity and its sparse citation of precedent, as if to create the impression that its decision was arrived at by simple application of constitutional first principles to the facts at hand.[56] The ‘constitutional’ terminology in which the judgment was pronounced was also significant. The CFA’s pronouncements on the basis of the validity of the PLC, the precedence taken by article 24 over article 22(4), the article 158 ‘interpretation’ test and its power to review acts of the NPC and Standing Committee stand in marked contrast to the more supine ‘Xianfa’-orientated pronouncements of the Court of Appeal in Ma Wai-Kwan and Ng Ka Ling. The CFA’s direct application of ICCPR rights guarantees to invalidate government action was entirely uncontroversial. The Court clearly sought to dispel the fears of Ann Jordan that Hong Kong judges would ‘voluntarily curtail their own judicial powers’ in order to avoid confrontation with the central PRC authorities.[57] In short, it adopted what Jordan refers to as a ‘common law’ constitutional view of the Basic Law in preference to the ‘Xianfa’ conception that has clearly held sway in the PRC.
At the same time, the Court’s accession to the SAR Government’s request for clarification demonstrates its sensitivity to the novel constitutional context in which it and the SAR operate under the Basic Law. Its adroit reformulation of its original statements clearly evinced the ‘high degree of political nous’ that Albert Chen prescribed prior to the Handover. Prior to the developments that eventually led to the Standing Committee’s effective overruling of the decision, the Ng Ka Ling judgment could credibly be cited as demonstrating the resilience of the ‘rule of law’ and the continued independence of the judiciary under the ‘One Country, Two Systems’ framework in spite of the apparently mixed track record of the SAR’s executive administration on legal affairs.[58]
The critical question left unanswered by the Court of Final Appeal in the Ng Ka Ling judgment, however, was the scope of the Standing Committee’s power of interpretation under article 158. The Court’s decision in Ng Ka Ling clearly sought to place the interpretation and enforcement of the Basic Law primarily under its own control by limiting as far as possible the article 158 requirement to seek an authoritative interpretation from the Standing Committee, and asserting Hong Kong courts’ jurisdiction to scrutinise acts of the NPC as they affect Hong Kong. It did not, however, refer to the Standing Committee’s power to make binding ad hoc interpretations of any article of the Basic Law under the terms of article 158 in either the original judgment or the clarification. As subsequent events were to demonstrate, the Standing Committee’s power to issue unilateral interpretations of the Basic Law proved to be the crucial breach in the ‘firewall’ sought to be erected around Hong Kong’s judicial autonomy by the CFA.
This argument, however, leaves the Chinese at the border. China’s views on the Basic Law cannot be dismissed as wrong simply because they are inconsistent with the common law position. ... [W]hile it is proper to argue that the Basic Law is a mini-constitution, prudence dictates a more realistic approach that recognizes the fragile status of the post-1997 common law in the Basic Law. The Basic Law’s mixture of socialist civil law language with common law language requires common law practitioners to become well-acquainted with the Chinese perspective and the Chinese legal system. They also must recognize that compromise will be a necessary component in the re-creation of the legal system.[59]
While the constitutional controversy sparked by the Ng Ka Ling decision appeared to have reached an uneasy resolution after the CFA’s issuing of its clarification, the release in late April of a government survey which radically upgraded initial projections of the decision’s immigration implications and raised fears of a rapid influx of right of abode claimants unless action was taken to reverse the effect of the CFA’s decision. Estimates of the likely increase in eligibility for Hong Kong permanent residence published immediately following the January decision ranged from between 300,000 to 700,000 Mainland children of Hong Kong permanent residents. The revised figures placed the figure in the vicinity of a maximum 1.7 million eligible right of abode applicants likely to arrive in Hong Kong before 2012. Set against Hong Kong’s current population of 6.7 million, the demographic and economic implications of the projected influx provoked immediate and widespread public concern.[60]
The two feasible options for averting the immigration ‘fallout’ of the CFA’s decisions in Ng Ka Ling and Chan Kam Nga involved either amending the Basic Law in accordance with procedure laid out in article 159, or the issuing of a Standing Committee interpretation pursuant to article 158. Proponents of the CFA’s staunchly ‘constitutional’ stance towards the Basic Law — most notably the Democratic Party, the Bar Council and individual members of the judiciary — argued strongly in favour of an amendment to the Basic Law so as to avoid compromising the autonomy and authority of the CFA in exercising its power to interpret the Basic Law.[61] Conversely, the argument in favour of a Standing Committee interpretation was clearly informed by a Xianfa-orientated view of the Basic Law, supported by article 67(4) of the PRC Constitution, which authorises the Standing Committee of the NPC to issue binding interpretations of PRC legislation, in addition to the express vesting of power to interpret the Basic Law in the Standing Committee in article 158 itself.[62]
The SAR Government’s choice to seek an interpretation from the Standing Committee in relation to a number of the points decided by the CFA was motivated in large part by pragmatic considerations. Foremost among these was that the power to make formal amendments to the Basic Law is vested in the plenary session of the NPC,[63] which meets annually in March. Insistence upon a formal amendment would therefore have involved an additional 10-month period of uncertainty and would have provided an ample window of opportunity for newly-vested right of abode holders to assert their claims. By contrast, the NPC Standing Committee, which meets regularly throughout the year, was able to render its interpretation within a month of the Hong Kong Government’s request. The process by which the SAR Government reached its decision was, however, the subject of substantial criticism, particularly in relation to the reliability of the government’s immigration projections and its use of these figures to cultivate public support for its preferred option of interpretation,[64] and its stifling of LegCo debate on the proposal.[65]
When the Standing Committee finally issued its Interpretation on 26 June 1999, it came as little surprise to find that it had substantially overturned the CFA’s interpretation of article 24 and the Court’s finding that the article 24 right of abode took precedence over the article 22(4) requirement to comply with PRC exit requirements. The Interpretation, which consisted of a four-paragraph declaratory statement of the ‘legislative intent’ behind the relevant provisions, overturned the substance of the CFA’s decisions in the following respects:
Perhaps the most troubling element of the Standing Committee’s Interpretation was contained in its preambular paragraph, where it pointedly cited the CFA’s failure to refer any of the Basic Law provisions for interpretation before determining the appeal as a contravention of article 158. This criticism amounts to a statement that the ‘reference test’ — which was carefully crafted by the CFA so as to secure the broadest possible measure of judicial autonomy for Hong Kong courts[68] — itself infringes article 158.[69] Disconcertingly, the Standing Committee’s statement on this point was made despite the fact that no request for an interpretation of the correctness of the Court’s approach to the ‘reference issue’ had been made by the Hong Kong Government, which had sought only to limit the immigration implications of the CFA’s decisions and had professed its own support for judicial independence amid the rancour aroused by its decision to seek an interpretation. Secondly, the Interpretation itself gave no additional guidance as to any ‘correct’ approach to the reference issue. The Hong Kong courts’ response to the Standing Committee’s rebuke of the CFA may provide a telling indication of the overall effect of the Interpretation on the SAR’s judiciary.
On the positive side of the ledger, neither the SAR Government nor the Standing Committee took issue with the CFA’s extension of right of abode to ‘illegitimate’ children of Hong Kong permanent residents. This may be seen as a small victory for the maintenance of ICCPR human rights standards in the context of the greater jurisprudential clash between the ‘common law’ and ‘Xianfa’ renditions of the Basic Law. Curiously, however, in light of the CFA’s treatment of the retrospectivity issue as it arose in relation to the No 3 Ordinance, the Interpretation stated in accordance with article 158 of the Basic Law that all applicants other than those whose claims were determined by the CFA in the Ng Ka Ling and Chan Kam Nga appeals are to be governed by the law as stated in the Interpretation.[70] The apparent effect of this pronouncement, despite its superficial compliance with article 158, is to reintroduce the element of retrospective operation (at least to the period between the delivery of the judgments and the Interpretation) that the CFA had impugned in Ng Ka Ling.[71]
In sum, the Hong Kong Government’s decision to seek interpretation of the Basic Law and the Interpretation itself have significantly undermined the judicial autonomy and rights protection priority which the CFA sought zealously to maintain in Ng Ka Ling. At the same time, proclamations of the death of the ‘rule of law’ in Hong Kong are premature and will most likely be shown to have been substantially exaggerated. Jordan’s prescient analysis of the interplay of common law and Xianfa notions of constitutionality embedded within the Basic Law and of the inevitable need for staunch adherents to the common law view to admit to the need for some compromise between the competing traditions appears to have been amply borne out by the successive right of abode controversies. As noted by the Secretary for Justice in her statement to the LegCo prior to the Government’s request for Standing Committee interpretation, the Standing Committee had previously exercised its power of legislative interpretation on only eight occasions since the 1950s.[72] If the Standing Committee’s intervention to limit the impact of the Ng Ka Ling and Chan Kam Nga decisions remains as ‘wholly exceptional’ as the Hong Kong administration has proclaimed it to be, the substantive impact of the Interpretation may remain confined to the constructions of articles 22 and 24 of the Basic Law. If, on the other hand, the executive’s shabby handling of the issues raised by the Court’s right of abode decisions, including its requests for clarification by the Court and interpretation by the Standing Committee, is repeated in respect of future CFA decisions, the strong legal foundations afforded by Hong Kong’s common law heritage will be steadily undermined. The consequences for Hong Kong commercial and legal interests may be significant. Ultimately, though, as the CFA sought to emphasise in the Ng Ka Ling judgment, the true victims of a substantial derogation of judicial autonomy in the Hong Kong SAR would be its residents themselves. The challenge remains for proponents of ‘common law’ constitutional values to persuade both the Hong Kong and PRC executive authorities of the importance of judicial autonomy while working within the uniquely hybrid framework of the Basic Law.
TOM CLARKE[*]
[*] [1999] HKCFA 73; [1999] 1 HKLRD 315 (Hong Kong Court of Final Appeal, Li CJ, Litton, Ching and Bokhary PJJ and Sir Anthony Mason, 29 January 1999) (‘Ng Ka Ling’).
[1] Ann Jordan, ‘Lost in the Translation: Two Legal Cultures, the Common Law Judiciary and the Basic Law of the Hong Kong Special Administrative Region’ (1997) 30 Cornell International Law Journal 335, 350–1. See further text accompanying below n 59.
[2] For ease of expression, except when referring to the sovereignty of the People’s Republic of China over the Hong Kong Special Administrative Region, I will use the terms ‘PRC’, ‘Mainland’, and ‘China’ interchangeably to refer to the People’s Republic of China excluding Hong Kong.
[3] NPC Standing Committee, Interpretation by the Standing Committee of the National People’s Congress of Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, adopted by the Standing Committee of the Ninth National People’s Congress at its Tenth Session on 26 June 1999 (‘Interpretation’). An English translation of the Interpretation can be found at <http://www.info.gov.hk/basic_law/
english/f02.htm> (at 25 November 1999).
[4] The controversy surrounding the decision was most notably seized upon by Sir Laurence Street to cast doubt on Hong Kong’s credentials as the pre-eminent commercial law jurisdiction in the Asian region and thereby to promote Australia’s claim to the same pre-eminence: Chris Merritt, ‘Chinese Court Conflict “Boosts Australia’s Role”’, Australian Financial Review (Sydney), 1 March 1999, 24; cf the comments of former Hong Kong Solicitor-General, Daniel Fung, reported in Andrew Burrell, ‘Hong Kong’s Law Strengthened by China Dispute, Says Expert’, Australian Financial Review (Sydney), 23 April 1999, 27.
[6] See especially ibid 337–8, 348–50. Jordan refers to the PRC Constitution by its Chinese title, ‘Xianfa’, in order to avoid the ‘equivalence trap’ posed by context-insensitive translation of terminology:
In brief, the Xianfa is not law, in the common law sense. It stands in stark contrast to Hong Kong’s common law (albeit colonial) constitution; therefore, it is fundamentally inappropriate and misleading to apply the English term constitution to China’s Xianfa. The differences between Hong Kong’s colonial constitution and China’s Xianfa are so vast that even the term Chinese-style constitution is misleading. For this reason, I use the Chinese term Xianfa to avoid the natural tendency of English speakers familiar with common law constitutions to associate the Chinese Xianfa with a common law constitution.
Jordan, above n 1, 350. In relation to the linguistic pitfalls of the comparative legal enterprise generally, see further Janet Ainsworth, ‘Categories and Culture: On the “Rectification of Names” in Comparative Law’ (1996) 82 Cornell Law Review 19.
[7] Basic Law art 24(2); Immigration Ordinance 1971 (HK) (cap 115) sch 1, para 2(b). As at the time of writing, the Basic Law may be viewed at <http://www.info.gov.hk/basic_law/english/
index.htm>.
[8] The lack of paragraph numbers in the Basic Law creates some difficulty in relation to specific referencing of its provisions. In this case note, I will follow the approach adopted by the CFA of using paragraph numbers to refer to successive paragraphs within each article of the Basic Law.
[9] Basic Law art 24(2).
[10] Inserted as s 2AA of the Immigration Ordinance 1971 (HK) (cap 115). The category of ‘permanent resident status by descent’ referred to in s 2AA(1) is set out in para 2(c) of sch 1 to the Immigration Ordinance 1971 (HK) (cap 115). For the purposes of the present analysis, the category of ‘permanent resident status by descent’ governed by s 2AA is essentially the right to permanent resident status provided in sub-para (3) of art 24(2) of the Basic Law.
[11] Cap 115.
[12] No 3 Ordinance s 1(2).
[13] Director of Immigration (Hong Kong), Gazette Notice (Extraordinary) No 21 of 1997, 11 July 1997.
[14] Cheung Lai Wah v Director of Immigration [1997] 3 HKLRD 1081, aff’d Ng Ka Ling [1999] HKCFA 73; [1999] 1 HKLRD 315.
[15] The Court of Appeal gave judgment in two parts. In Cheung Lai Wah v Director of Immigration [1998] 1 HKC 617, aff’d Ng Ka Ling [1999] HKCFA 73; [1999] 1 HKLRD 315 the Court of Appeal disposed of three of the issues and, after further submissions, Cheung Lai Wah v Director of Immigration [1998] 1 HKLRD 772, aff’d Ng Ka Ling [1999] HKCFA 73; [1999] 1 HKLRD 315 it dealt with the submission that the Provisional Legislative Council was not a competent legislative body.
[16] Ng Ka Ling [1999] HKCFA 73; [1999] 1 HKLRD 315, 324.
[17] Ibid 325.
[18] Art 68 provides:
The Legislative Council of the Hong Kong Special Administrative Region shall be constituted by election.
The method for forming the Legislative Council shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the election of all the members of the Legislative Council by universal suffrage.
The specific method for forming the Legislative Council and its procedures for voting on bills and motions are prescribed in Annex II: ‘Method for the Formation of the Legislative Council of the Hong Kong Special Administrative Region and Its Voting Procedures’.
Art 69 provides:
The term of office of the Legislative Council of the Hong Kong Special Administrative Region shall be four years, except the first term which shall be two years.
Annex II provides that the election of the first Legislative Council shall be formed in accordance with the Decision of the National People’s Congress on the Method for the Formation of the First Government and the First Legislative Council of the Hong Kong Special Administrative Region, which was adopted at the Third Session of the Seventh National People’s Congress, 4 April 1990.
[19] Elections for the first post-Handover LegCo were conducted in May 1998. The Legislative Council took office in July 1998.
[20] [1997] HKCA 652; [1997] HKLRD 761 (‘Ma Wai-Kwan’).
[21] Richard Evans, ‘Back to the Future: Hong Kong under Chinese Sovereignty’ (1999) 10 Public Law Review 17, 18.
[22] Cheung Lai Wah v Director of Immigration [1998] 1 HKLRD 772, aff’d Ng Ka Ling [1999] HKCFA 73; [1999] 1 HKLRD 315.
[23] Ng Ka Ling [1999] HKCFA 73; [1999] 1 HKLRD 315, 355–7.
[24] Opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976) (‘ICCPR’).
[25] Bill of Rights Ordinance 1991 (HK) (cap 383) s 8.
[26] Art 39 states:
The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.
The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.
[27] See further below n 43 and accompanying text.
[28] ICCPR art 23(1).
[29] Ng Ka Ling [1999] HKCFA 73; [1999] 1 HKLRD 315, 354.
[30] See below Part II(C), ‘Validity of the Immigration (Amendment) (No 3) Ordinance 1997 (HK)’.
[31] Immigration Ordinance 1971 (HK) (cap 115) s 38; Ng Ka Ling [1999] HKCFA 73; [1999] 1 HKLRD 315, 352.
[32] See below Part II(D), ‘Standing Committee Reference’.
[33] Ng Ka Ling [1999] HKCFA 73; [1999] 1 HKLRD 315, 346.
[34] See also the Court’s discussion of Chapter III in the context of its approach to interpretation of the Basic Law generally:
Chapter III of the Basic Law begins by defining the class constituting Hong Kong residents including permanent and non-permanent residents and then provides for the rights and duties of the residents, including the right of abode in the case of permanent residents. What is set out in Chapter III, after the definition of the class, are the constitutional guarantees for the freedoms that lie at the heart of Hong Kong’s separate system. The courts should give a generous interpretation to the provisions in Chapter III that contain these constitutional guarantees in order to give to Hong Kong residents the full measure of fundamental rights and freedoms so constitutionally guaranteed.
Ng Ka Ling [1999] HKCFA 73; [1999] 1 HKLRD 315, 340.
[35] Basic Law ch II.
[36] [1999] HKCFA 16; [1999] 1 HKC 347 (‘Chan Kam Nga’). In Chan Kam Nga, the Court extended the right of abode under sub-para (3) of art 24(2) to children of parents who were not Hong Kong permanent residents at the time of birth, but who subsequently acquired permanent resident status under sub-para (1) or (2). In doing so, it invalidated the requirement introduced by the No 2 Ordinance that required an applicant’s parent to have had right of abode at the time of the applicant’s birth.
[37] Cindy Sui, ‘Answers Sought on Abode Ruling’, South China Morning Post (Hong Kong, China), 31 January 1999, 4; Billy Wong Yai-Yuk and Jimmy Cheung, ‘Taskforce on Migrants’, South China Morning Post (Hong Kong, China), 3 February 1999, 1. See further below n 60 and accompanying text.
[38] Ng Ka Ling [1999] HKCFA 73; [1999] 1 HKLRD 315, 345.
[39] See, eg, Basic Law art 2.
[40] Ng Ka Ling [1999] HKCFA 73; [1999] 1 HKLRD 315, 344.
[41] Ibid (emphasis added).
[42] Ibid 342.
[43] The uncontroversial nature of this proposition is perhaps a little surprising in light of the fact that judicial review of legislative and executive acts is not expressly provided for in the provisions of the Basic Law. This is contrasted with the explicit references to the Standing Committee’s power to declare invalid for inconsistency with the Basic Law laws passed by the SAR legislature that fall within the ‘interpretive jurisdiction’ of the Standing Committee and laws in force prior to the transfer of sovereignty pursuant to arts 17(3) and 160 respectively. The SAR courts’ powers of judicial review are taken to be inherent to the art 19(1) independent judicial power, construed in the context of the guarantees provided in arts 11(2) and 16 that legislative and executive acts of the SAR government must conform to the provisions of the Basic Law. The decision has in this respect been aptly described as ‘a Hong Kong version of Marbury v Madison’: Bing Ling, ‘Can Hong Kong Courts Review and Nullify Acts of the National People’s Congress?’ (1999) 29 Hong Kong Law Journal 8, 8.
[44] Ng Ka Ling [1999] HKCFA 73; [1999] 1 HKLRD 315, 337.
[45] [1997] HKCA 652; [1997] HKLRD 761.
[46] Art 19(3) provides:
The courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs.
[47] Quoted in Angela Li and No Kwai-Yan, ‘NPC Deputy Urges Court to Resolve Row’, South China Morning Post (Hong Kong, China), 24 February 1999, 2.
[48] Quoted in Matt Pottinger, ‘Chinese Experts Say HK Migration Ruling Illegal’, Reuters (newsfeed), 7 February 1999 (copy on file with author).
[49] Quoted in Mark O’Neill, ‘Beijing Says Abode Ruling Was Wrong and Should Be Changed’, South China Morning Post (Hong Kong, China), 9 February 1999, 1. See also Chris Yeung, ‘Crisis over If Court Corrects Mistakes, Says Mainland Expert’, South China Morning Post (Hong Kong, China), 26 February 1999, 1. Note also Margaret Ng’s observation that the Mainland reaction to the judgment was fuelled in part by mistranslation of several key terms in the judgment, underscoring the cognitive gulf between the opposing sides of the debate:
Reading the original Xinhua release in Chinese giving a full account of the attack by four mainland legal experts and related commentaries, one has the strongest suspicion that the differences between the two systems were sharpened by the provocative language adopted by a translation of the judgment supplied to them.
The passage in the judgment which drew the most fire was where it said that SAR courts have the jurisdiction ‘to examine’ the acts of the NPC for consistency with the Basic Law, and declare them ‘invalid’ where they are found to be inconsistent. To people living under the rule of law and the common-law system, this is simply the court performing its judicial function. To suggest that in doing so it ‘sets itself above the NPC and NPCSC’, or ‘challenges the authority of the highest organs of the sovereign’, would be fanciful. It is otherwise to someone from a system where authority is not open to challenge or even questioned.
This is made to sound even worse by the Chinese expressions used in the translation, which are far closer to ‘veto’ or ‘censor’ than ‘examine’ and ‘overturn’ or ‘rejected’ than ‘invalid’. However, it must be admitted that to an authoritarian system, the idea that a court can ‘examine’ an act of the NPC or the Standing Committee and declare it ‘invalid’ for inconsistency with the Basic Law is insufferable enough.
Margaret Ng, ‘The Legal Perils of “Rectification”’, South China Morning Post (Hong Kong, China), 26 February 1999, 19. Interestingly, these observations underscore the emphasis placed by Jordan and Ainsworth on the centrality of translation to the negotiation of legal and cultural differences: see above n 6.
[50] Quoted in O’Neill, above n 49, 1.
[51] See, eg, Angela Li and Chris Yeung, ‘Legislators Seek Answers on Pre-Hearing Contacts’, South China Morning Post (Hong Kong, China), 27 February 1999, 2; Rhonda Lam Wan, ‘Justice Chief’s Conduct Questioned’, South China Morning Post (Hong Kong, China), 1 March 1999, 1; Paul Lee, ‘Hong Kong Minister Survives Rule of Law Confidence Vote’, Lawmoney, 12 March 1999 <http://www.lawmoney.com/public/news/hotnews/news9903/news990312.4.html> .
[52] Ng Ka Ling v Director of Immigration (No 2) [1999] HKCFA 20; [1999] 1 HKLRD 577, 578.
[53] Ibid.
[54] Editorial, ‘Best Way Out’, South China Morning Post (Hong Kong, China), 27 February 1999, 14.
[55] Albert Chen Hung-Yee, ‘Jiuqi Huigui de Faxue Fansi’ (1997) 41 Ershiyi Shiji 138, 149–50 [trans: ‘Legal Reflections on the 1997 Handover’ in 21st Century].
[56] Yash Ghai, ‘Abode Verdict a Resounding Victory for the Rule of Law’, South China Morning Post (Hong Kong, China), 3 February 1999, 15.
[60] See, eg, Chris Yeung, ‘The Cost of Dealing with This Dilemma’, South China Morning Post (Hong Kong, China), 8 May 1999, 15.
[61] See, eg, Margaret Ng, ‘True Test of SAR’s Mettle’, South China Morning Post (Hong Kong, China), 7 May 1999, 19; Ronny Tong Kah-Wah, ‘The Basic Flaw’, South China Morning Post (Hong Kong, China), 18 May 1999, 15.
[62] Edited extract from the paper, ‘Right of Abode, the Solution’, tabled to the LegCo House, 18 May 1999, published as ‘A Question of Interpretation’, South China Morning Post (Hong Kong, China), 19 May 1999, 17.
[63] Basic Law art 159.
[64] See, eg, Ng, ‘True Test of SAR’s Mettle’, above n 61.
[65] Angela Li, ‘Fury over “More Time for Talks” Plea’, South China Morning Post (Hong Kong, China), 18 May 1999, 6; Angela Li, ‘Uproar Sweeps Democracy Camp’, South China Morning Post (Hong Kong, China), 19 May 1999, 3.
[67] NPC Standing Committee, Interpretation, above n 3; Chris Yeung, ‘NPC Will Be Asked to Revoke Abode Rights for 1.5m Migrants’, South China Morning Post (Hong Kong, China), 19 May 1999, 1.
[68] See above Part II(D), ‘Standing Committee Reference’.
[69] Danny Gittings, ‘What’s Left for the Chief Justice?’, South China Morning Post (Hong Kong, China), 27 June 1999, 10.
[70] Art 158 provides in part:
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.
[71] See above Part II(B), ‘Retrospective Operation of the Immigration (Amendment) (No 3) Ordinance’.
[72] Elsie Leung, ‘Statement by the Secretary for Justice at a Meeting of the LegCo House Committee’, 18 May 1999, 11 (copy on file with author).
[*] BA (Hons), LLB (Hons) (Melb); Trainee Solicitor, Freshfields, Hong Kong. I would like to thank Antony Dapiran for his help in locating sources and the Review’s anonymous referees for their comments on my original draft.
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