Zhimin WEN

Perspectives, Vol. 2, No. 3

(Editor's note: This is the first part of a two-part series. The second part will be published in the next issue of "Perspectives".)

"One country, two systems" is an imaginative and unprecedented concept introduced by Deng Xiaoping, the Chinese late paramount leader, for the purpose of resuming China's sovereignty over Hong Kong. How can Hong Kong function as a capitalist society within the socialist China? The answer lies in the Basic Law, a Chinese national law that serves as the constitution for the Hong Kong Special Administrative Region (HKSAR). The Basic Law is an attempt to achieve an appropriate balance in implementing the "one country, two systems" formula, and as such, is still new and virtually untested, complex in its institutional arrangements and not entirely uniform in its legal approach.

The new constitutional order under the Basic Law seemed to be developing smoothly until the constitutional crisis triggered by a controversy over whether, under Articles 22 and 24 of the Basic Law, mainland children born of Hong Kong parents have the right of abode in Hong Kong. On January 29, 1999, HKSAR's Court of Final Appeal (CFA) rendered an important decision on the issue of right of abode, affirming some fundamental constitutional principles. The decision provided strong protection for those with a reasonable claim to the right of abode. It also opened up the possibility of extensive judicial challenges under the Basic Law to legislative and administrative acts of the HKSAR government. On December 3, 1999, the Court of Final Appeal, having been reprimanded by the Standing Committee of the National People's Congress (NPCSC) in Beijing on June 26, 1999, retracted most of the general rulings of its January decision, particularly as they related to the division of power between the central government, the HKSAR government and the status of the Basic Law. The possibilities of judicial challenges and judicial review under the Basic Law were thus diminished. Not surprisingly, this crisis divided the community, caused much anguish to numerous families and individuals, and exposed certain selfish and callous attitudes on the part of many Hong Kong residents. The dispute also threatened judicial independence, as Hong Kong judges are now torn between their fidelity to law and the superior political clout of mainland authorities. The right of abode saga has not been a happy experience for Hong Kong, nor has it been good for the preservation of fundamental values in law, family and the community.

Development of the Right of Abode Cases

Under Article 24 of the Basic Law, Chinese nationals may acquire the right of abode in HKSAR by one of three ways: A. if they were born in Hong Kong before or after the transfer of sovereignty (Article 24(2)(1)); B. if they have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the transfer of sovereignty (Article 24(2)(2)); or C. if they were born outside Hong Kong to persons covered by the above two categories (Article 24(2)(3)).

The scope of the seemingly straightforward provision of Article 24(2)(3) in relation to Article 22 has become the center of the debate and litigation that constituted the first "constitutional crisis" in Hong Kong. Over the years many Hong Kong permanent residents set up families in the mainland. Under the immigration law prior to July 1, 1997, their children born in the mainland had no right of abode in Hong Kong. During the same period, a quota of one hundred and fifty persons per day to settle in Hong Kong under a one?way permit scheme was agreed upon by the mainland and the Hong Kong authorities. A substantial portion of the quota was allocated to children reuniting with their parents in Hong Kong. The one-way permit scheme was administered entirely by the mainland authorities. There were numerous criticisms that the scheme was not operated fairly or transparently. On July 1, 1997, when the Basic Law took effect, under Article 24(2)(3) the children born to a Hong Kong permanent resident outside Hong Kong could have the right of abode in the HKSAR. It was then realized with great anxiety by HKSAR government that 24(2)(3) would let in thousands of children in the mainland who previously had no entitlement to entering Hong Kong for settlement and would significantly burden Hong Kong's limited public resources for housing, education and other social services. It did not take long before such fears began to materialize. Many children came to Hong Kong prior to July 1, 1997, either through unlawful means or by overstaying their visas under a two-way permit system. They surrendered to the immigration authorities in Hong Kong after July 1, 1997, claiming that they were entitled to staying in Hong Kong under Article 24 of the Basic Law. In response, legislation was proposed to restrict the rights of such persons by an additional requirement that one of their parents must have been a permanent resident at the time of their birth. On July 10, 1997, the Provisional Legislative Council of Hong Kong passed the Immigration Amendment No. 3 Ordinance that introduced a certification system. Under this system any person who claims to have the right of abode in Hong Kong can prove this status only by showing a certificate of right of abode issued by the Director of Immigration of the HKSAR. This certificate can only be applied for in the mainland, and will not be issued until the applicant has obtained a one-way permit in accordance with China's legislation through the Public Security Bureau, which is responsible for immigration matters in China. The amendment legislation was made retroactive to July 1, 1997. The retroactivity of the amendment meant that even those children who came to Hong Kong with documents deemed legally sufficient by the Director of Immigration to claim the right of adobe under Article 24 of the Basic Law would be stripped of the right for lack of a certificate that did not yet exist when they entered Hong Kong. This retroactive deprivation of the right of abode by administrative means triggered a number of test cases in court, which eventually came before the CFA in the case of Ng Ka Ling v. Director of Immigration.

In the case of Ng Ka Ling v. Director of Immigration, the CFA was urged to determine two major issues in this challenge against the constitutionality of the Immigration Ordinance. One issue was whether, in order to be deemed permanent residents under Article 24(2)(3), "persons of Chinese nationality born outside Hong Kong of those residents listed" who were permanent residents under Article 24(2)(1) and 24(2)(2) must have been born at a time when either parent had already become a permanent resident, or whether it was sufficient that either parent subsequently acquired permanent residence. Another issue was whether persons of Chinese nationality living in the mainland who qualified for permanent residence in Hong Kong under Article 24 would have to acquire an exit permit from the Chinese government to leave the mainland before they could exercise the right of abode in Hong Kong. This requirement was alleged to be justified on the basis of Article 22 of the Basic Law, which provides that "people from other parts of China must apply for approval" from the Chinese government before entering the HKSAR, and that the central government determines the number of persons who may enter Hong Kong for settlement, after consultation with the HKSAR government. The issue thus became one of whether Article 22 constitutes a restriction to free exercise of the Article 24 right of abode.

On January 29, 1999, the Court of Final Appeal issued a far-reaching decision in Ng Ka Ling v. Director of Immigration, thereby affirming some fundamental constitutional principles. The CFA held that the Basic Law was a living instrument that, like any other constitution, should receive a generous and purposive approach to interpretation. In considering the purposes of any particular provision, the court should take into account the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong. The CFA affirmed that the right of abode was a core right under the ICCPR. Based on the ICCPR and other international treaties, the Court held that taking away a core right by retroactive legislation was unconstitutional, and in this regard no distinction should be drawn between legitimate and illegitimate children. The Court rejected the argument that Article 22(4) qualified the right of abode in Article 24(2)(3). Insofar as the certification scheme was concerned, the court accepted that a scheme to verify the claim of a right of abode was itself constitutional. However, the linking of the certification system to the one-way permit system, which essentially concerned the right of exit from the mainland and had nothing to do with the right of abode in the HKSAR, was unconstitutional. In another decision delivered on the same day, the Court further held that, as a matter of construction of Article 24, it was unnecessary that the parent was a Hong Kong permanent resident at the time of the birth of the claimant in order for the claimant to enjoy a right of abode in the HKSAR. The Court's decisions confirmed the right of abode in the HKSAR for an estimated 1.67 million persons born in the mainland, a figure that would continue to rise.

As far-reaching as the above decisions were, however, the part of the decision that eventually led to a constitutional crisis concerned the CFA's constitutional jurisdiction. The center of the contest turned to Article 158 of the Basic Law. By and large the Basic Law separates the laws of the mainland from those of the HKSAR under the "one country, two systems" formula. A major point of interplay between the two distinct legal systems occurs in the interpretation of the Basic Law, on which the principal provision is Article 158. It is a complex provision which itself raises some acute problems and is in need of interpretation. Article 158 divides jurisdiction to interpret the Basic Law between the HKSAR courts and the NPCSC. The NPCSC is endowed with the general power of interpretation, which consists of two kinds of powers: one is plenary and may be exercised in the absence of litigation; the other is initiated by requests from the HKSAR courts in the course of litigation. Hong Kong courts have a more limited power of interpretation. Article 158 stipulates that the NPCSC shall authorize the courts of the HKSAR "to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region." This provision represents a compromise among the framers of the Basic Law. It also represents a challenge to the "one country, two systems" schedule. On the one hand, Article 158 complies with the constitutional requirement, as contained in the Chinese Constitution, that only the NPCSC has the power to interpret the laws of China. On the other hand, the provision requires the NPCSC to delegate, in so far as the Basic Law is concerned, the power of interpretation to the courts of Hong Kong. As such, many of the existing interpretive powers of the Hong Kong courts are preserved.

Since the Basic Law bestowed independent judicial power on the HKSAR courts, within the high degree of autonomy conferred on the HKSAR, the CFA heed, it was up to the courts of the HKSAR to determine the inconsistencies between any law and the Basic Law, and to declare invalid such law to the extent it contradicts the Basic Law. This jurisdiction was also extended to determining whether an act or decision of the NPC or NPCSC was consistent with the Basic Law, provided that the act or decision fell within the degree of autonomy of the HKSAR.

Immediately after the Ng Ka Ling v. Director of Immigration decision was issued, leading mainland officials and legal scholars, as well as their local pro-China supporters attacked the part of the opinion where the court articulated its right to "examine" acts of the NPC, effectively putting the CFA above the NPC, the highest organ of Chinese sovereignty. Some Chinese scholars argued that the only power of review of compatibility of Hong Kong legislation with the Basic Law is vested in the NPCSC under Articles 17 and 160 of the Basic Law and the judgment of the CFA had to be "rectified."

The CFA's bold and assertive judgment in the interest of maximizing Hong Kong's autonomy would have stood had not the Hong Kong government's preparatory work for the anticipated immigration influx soon led it to believe that too many people might have to be absorbed during the next decade by an already overcrowded Hong Kong. In late April 1999 the government eventually estimated the likely migration figure to be 1.67 million. In a masterful display of scare tactics, the Government then scored a quick success in shaping public opinion over how to tackle the possible influx of 1.67 million new mainland arrivals. After the "initial figures" were announced, those who had made unequivocal statements that Hong Kong people should accept the consequences of the CFA's ruling became silent. Some observers noted that, by the unusual move to release key raw data on those eligible to enter before making a full assessment of what those figures might really mean, the Hong Kong government was trying to frighten the community with a simple message: sticking to the court ruling would be disastrous. The option of allowing the 1.67 million new arrivals to enter Hong Kong was effectively eliminated - rightly or wrongly. Public opinion in Hong Kong was therefore led in the direction of how to stop all, or at least some, of immigrants from arriving. The remaining question was then how stopping immigration could be done with the least damage to Hong Kong and the widest support from the community and Beijing.

Soon strong indications emerged that the government preferred seeking an interpretation from the NPCSC on the relevant provisions in the Basic Law. This would in effect be a reversal of the CFA's ruling by the NPCSC through exercise of its power of final interpretation provided for under the Chinese Constitution and the Basic Law. As a result, the finality of the CFA's decisions was called into question and the rule of law seemed to be seriously undermined. Despite the fact that such a move would be heavily criticized as interference by Beijing, it would be deemed a price Hong Kong could afford, in light of the "unbearable" burden of a mass influx. Any solution would effectively mean that the CFA's ruling on the right of abode would not be fully honored. However the HKSAR government might deal with the situation, it seemed inevitable that it would be attacked. No solution was likely to please everyone as conflicting demands and principles were at stake. Facing this enormously difficult task-and the problems that a large and sudden increase in population in times of economic recession would cause-the Chief Executive and his top aides found it least painful to answer criticism of damaging the judicial independence and the rule of law.

On May 29, 1999 the Chief Executive of the HKSAR submitted a report to the State Council seeking the assistance of the central government in resolving the problems encountered in the implementation of the relevant provisions of the Basic Law.

On June 26, 1999 the NPCSC issued its long-anticipated interpretation, a landmark document not only because of its effect on immigration but also because of its constitutional significance. Without offering any substantive argument, the interpretation asserted that the issues raised in the case of Ng Ka Ling v. Director of Immigration are related to the interpretation of the relevant provisions of the Basic Law by the CFA, and that those provisions concern affairs for which the central government is responsible and also concern the relationship between the central government and the HKSAR. Before making its judgment, the CFA had not sought an interpretation from the NPCSC in compliance with the requirements of Article 158(3) of the Basic Law, therefore the NPCSC decided to offer an interpretation of the provisions of Articles 22(4), 24(2)(2) and 24(2)(3) of the Basic Law, under the authorities conferred by Article 67(4) of the Chinese Constitution and Article 158(1) of the Basic Law. Furthermore the NPCSC plainly stated that "the CFA's interpretation is not consistent with the legislative intent."

Again without making supporting arguments, the NPCSC went on to hold that the provision in Article 22(4) of the Basic Law that "for entry into the HKSAR, people from other parts of China must apply for approval" covers those persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents and wishing to enter the Hong Kong for whatever reasons. Such people would have to apply to the relevant authorities in their residential districts for approval in accordance with the relevant national laws and administrative regulations, and would have to hold valid documents issued by the relevant authorities before they could enter Hong Kong. The interpretation stated that "it is unlawful for people from all provinces, autonomous regions, or municipalities directly under the jurisdiction of the central government, including persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, to enter the HKSAR without complying with the appropriate approval procedure prescribed by the relevant national laws and administrative regulations."

The above interpretation pointed out that the provisions of category (3) in Article 24(2) of the Basic Law regarding the "persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2)" mean both parents of such persons, whether born before or after the establishment of the HKSAR, or either of such parents must have met the requirement prescribed by category (1) or (2) of Article 24(2) at the time of their birth. Moreover the Legislative intent as evidenced by this interpretation, together with the legislative intents of all other categories of Article 24(2) of the Basic Law, have been reflected in the Opinions on the Implementation of Article 24(2) of the Basic Law of the HKSAR of the PRC adopted at the Fourth Plenary Meeting of the Preparatory Committee for the HKSAR of the NPC on August 10, 1996. Therefore at this point the NPCSC went beyond the formal request for interpretation, which sought guidance with respect to only category (3) of Article 24 (2). Despite the opposition of two members of the Basic Law Committee, this broader interpretation was adopted under hard lobbying by the HKSAR government, which preferred an interpretation broad enough to cover other potential cases and preclude the need for any further request for interpretation.

Though not surprising, the NPCSC interpretation was met with relief on the part of the Hong Kong people who had imagined a nightmare of mass immigration. The judiciary reportedly felt depressed and humiliated. Columnists suggested that the Chief Justice resign as a result of such an alleged embarrassment to his authority. Religious leaders spoke up against the stripping of abode rights from 1.4 million mainlanders. Over two hundred academics in major universities issued a harshly worded open letter condemning the central government's action, and more than two hundred barristers and lawyers staged a silent march to express their anger towards the reinterpretation and support for an independent judiciary.

But everyone agreed that a major challenge faced the CFA. Without providing the substantive reasons why the CFA's judgment was wrong, the ruling of the NPCSC did not end the constitutional crisis in Hong Kong; it instead spawned new litigations to challenge its legality. Judges would have to decide whether a case should be referred to the NPCSC for interpretation of certain parts of the Basic Law. Eventually, the CFA would have to decide whether or not to accept the reversal of its own judgment and to agree that it was wrong not to seek prior interpretation of provision of the Basic Law.

In December 1999, the CFA addressed such a challenge in the second right of abode case, Lau Kong Yung v. Director of Immigration. In Lau Kong Yung, the HKSAR government challenged a CFA decision granting right of abode to seventeen mainlanders who claimed that the CFA's earlier ruling in Ng Ka Ling entitled them to live in Hong Kong. The HKSAR government wanted the CFA to recognize the NPCSC's interpretation of Articles 22 and 24 of the Basic Law, but the immigrants contended that the earlier and more liberal interpretation of the Basic Law by the CFA in Ng Ka Ling should stand and that the HKSAR government should allow into the HKSAR the seventeen people named in the action, plus more than five thousand others who had filed similar cases as well as many more similar people in China.

In a complete reversal of its previous ruling, the CFA unambiguously confirmed the NPCSC's power by holding that the NPCSC has an unqualified general power to interpret any provision of the Basic Law and its interpretation is binding on the courts of the HKSAR. The immigrants maintained that the NPCSC had no power to make the interpretation because Article 158 of the Basic Law, if properly interpreted, stipulates that the NPCSC cannot interpret the Basic Law except upon a judicial referral by the CFA which would relate only to certain provisions outside the autonomy of the HKSAR. They took the position that Article 158 imposed a constitutional restraint on NPCSC's power and that this accorded with the high degree of autonomy accorded to the HKSAR by the Basic Law that included the power of final adjudication. The CFA rejects this argument because "it is clear that NPCSC has the power to make the interpretation" and that this power originates from Article 67(4) of the Chinese Constitution and is contained in Article 158(1) of the Basic Law itself. Although the CFA could have confirmed the legitimacy of the NPCSC interpretation by determining that the NPCSC has the power to make a final interpretation of the provision concerning the relationship between the central authorities and the HKSAR, it nevertheless goes much further by deciding that the NPCSC has the power of final interpretation even regarding those Basic Law provisions dealing with matters exclusively within Hong Kong's autonomy. Based on its construction of the entire scheme of Article 158, the CFA opines that "[t]he power of interpretation of the Basic Law conferred by Article 158(1) is in general and unqualified terms[,]" because that power and its exercise are not restricted or qualified in any way by Articles 158(2) and 158(3). In other words, the CFA now recognizes that the NPCSC's power of interpretation under Article 158 may cover any provision of the Basic Law. The scope of the NPCSC's power of interpretation thus goes well beyond the power to interpret "the excluded provisions" (as used in Ng Ka Ling), namely, the provisions concerning affairs for which the central government is responsible or concerning the relationship between the central government and the HKSAR. Though Article 158(2), courts in the HKSAR are authorized to interpret on their own in adjudicating cases the provisions within the limits of the region's autonomy. The words "on their own" underline the absence of a duty to refer the provisions in question to the NPCSC for interpretation in contrast to the mandatory requirement relating to the excluded provisions provided for in Article 158(3). Article 158(3) enables the courts to interpret provisions other than those within the limits of the HKSAR's autonomy but, in cases where the conditions provided for are satisfied, obliges the CFA not to interpret the excluded provisions and to seek an interpretation from the NPCSC. So, in the CFA's opinion, Article 158(3) does not restrict the NPCSC's general power in Article 158(1); instead, it is aimed at limiting the CFA's power by requiring it to refer cases involving the excluded provisions. The CFA humbly acknowledges that the authority given by Article 158(2) to the courts of the HKSAR stems from the general power of interpretation vested in the NPCSC, while Article 158(3) extends that authority, subject to a qualification requiring a judicial referral. A judicial referral results in an interpretation by the NPCSC proceeding from the general power vested in it by Article 158(1). The CFA also tries to draw some support from Professor Yash Ghai's work Hong Kong 's New Constitutional Order for its conclusion regarding the NPCSC's power to interpret the Basic Law under Article 158(1). Professor Ghai expresses the view that the power of the NPCSC to interpret the Basic Law is a general power. It is "plenary in that it covers all the provisions of the Basic Law; this power may be exercised in the absence of litigation." Thus the CFA rejects the immigrants' argument as an attempt to deny the NPCSC the power to interpret provisions of the Basic Law other than the excluded provisions since "[s]uch a limited power of interpretation would be inconsistent with the general power conferred by Article 158(1)."

After confirming the legitimacy of the NPCSC's interpretation and its duty to recognize the interpretation under Article 158, the CFA follows the NPCSC's interpretation of Article 22(4) and Article 24(2)(3) to find that: a. permanent residents by descent within article 24(2)(2) and (3) must apply for and obtain exit approval from the mainland authorities in accordance with the relevant national laws and administrative regulations and must hold a one-way permit before entry into the HKSAR. Therefore the CFA restored the linkage between Article 22(4) and Article 24. b. to qualify as a permanent resident under Article 24(2)(3), it is necessary that both parents or either parent of the person concerned must be a permanent resident under Article 24(2)(1) or Article 24(2)(2) at the time of birth of the person.

Finally, in comparison to the common law declaratory theory of judicial decisions, the CFA states that the applicability of the NPCSC's interpretation dates back to July 1, 1997, when the Basic Law came into effect, because the interpretation "declared what the law has always been."

(Zhimin Wen is an associate in the Hong Kong office of the American law firm Hunton & Williams.)