Right of abode issue, Hong Kong

Background

Article 24(2)(3) of the Basic Law of Hong Kong stipulates that "Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2)" (i.e. Chinese citizens born in Hong Kong or ordinarily resided in Hong Kong for over 7 years) are permanent residents and have the right of abode in Hong Kong.

In other words, it states that children of permanent residents of Hong Kong are also permanent residents, and are eligible to reside in Hong Kong. The provision does not state explicitly whether the parents need to be permanent residents of Hong Kong at the time of birth of the child.

This provision leads to the first major dispute between the legal sector, right of abode seekers and the Government, when the Government decided to seek an interpretation of the Basic Law. Some have questioned the continued independence of the judiciary of Hong Kong as a result, while the Government maintained that this remains intact.

Court of Final Appeal judgement in 1999

In January 1999, the Court of Final Appeal, the highest judicial authority in Hong Kong, ruled that Article 24(2)(3) of the Basic Law gives the right of abode (ROA) to children born of a Hong Kong permanent resident, regardless of whether that parent became a permanent resident before or after the child's birth. Furthermore, despite Article 22(4) of the Basic Law which stated that people "from other parts of China" must apply for approval for entry into Hong Kong, the Court ruled that persons who have ROA under Article 24(2) of the Basic Law is not subjected to the provision.

Based on the ruling, the Government estimated that the additional eligible persons in Mainland China who can obtain the Right of Abode (and therefore can immigrate to Hong Kong) within ten years would reach 1.6 million, and would result in very severe social and economic problems. While some questioned the methodology of the survey, opinion polls conducted revealed widespread concerns among the public on the consequences.

The debate on way forward

A number of persons in the legal sector believed that the best way forward was to seek the National People's Congress (NPC) of the People's Republic of China to amend the part of the Basic Law in order to redress the problem. They argued that judgment has correctly reflected the true legislative intent of Articles 22(4) and 24(2)(3) of the Basic Law, and there are precedents in common law jurisdictions to repudiate a court judgment by means of legislative amendment. However, the Government pointed out (in May 1999) the disadvantages of such option, that since the NPC would meet only once a year in March, a large number of ROA claimants would have flooded Hong Kong by then, and also that the Basic Law, as a constitutional document, should not be amended lightly before other options are fully explored.

Based on the above, the Hong Kong Government sought interpretation of, rather than amendment to, the Basic Law from the Standing Committee of the National People's Congress (NPCSC). The power of interpretation of the Basic Law by the NPCSC is explicitly provided under Article 158(1) of the Basic Law. However, no mechanisms are explicitly provided under that Article for the Government to take the initiative to seek an interpretation. (The Article only provides that the Court should seek an interpretation if it comes across Basic Law provisions concerning affairs under the responsibility of the Central Government or its relationship with the HKSAR, before the final judgement. Article 22 in question is arguably one of such provisions).

Judicial independence undermined?

Some have argued that the judicial independence of Hong Kong is undermined by the act of Government seeking an interpretation of the Basic Law after a judgement by the judiciary has been made. (Some critics dubbed this an re-intepretation of the Basic Law). In addition, the fact that NPC is the law-making body of Mainland China has prompted critics to argue that the principle of One country, two systems is endangered.

The Government argued otherwise. In its paper Right of Abode, The Solution, the problems facing the HKSAR, the options, and the considerations leading to the decision was elaborated. The Secretary for Justice, Miss Elsie Leung, further defended Government's decision in her speech to the Legislative Council after announcing the decision.

On 26 June 1999, in line with the request of the HKSAR Government, the NPCSC issued its interpretation which make it clear that children born outside Hong Kong will only be eligible for the right of abode if at least one of their parents has already acquired permanent residence status at the time of their birth. Also, those eligible for ROA need to comply with Article 22 of the Basic Law, i.e. they need to apply for the necessary approval from the relevant Mainland authorities before entry into Hong Kong.

The Chief Executive, Mr. Tung Chee Hwa, announced measures to be taken by the Government. Later rulings of the Court of Final Appeal confirmed that the Government had acted entirely constitutionally and legally.

While it is widely recognized that Hong Kong's courts remain independent and the rule of law is respected, some critics (mostly the legal sector) believed that judicial independence is undermined in the incident.

Reference

• HKSAR Government press releases on the Right of Abode issue
  • Government paper: "Interpretation: A legal and constitutional option"
  • Speech by Secretary for Security, Mrs. Regina Ip, to LegCo on the issue
  • Government survey reveals more worries over ROA
  • Speech by Secretary for Security to move amendments of immigration legislation

• Views of the Hong Kong Bar Association on the issue

See Also Politics of Hong Kong, Hong Kong, Regina Ip