SCMP Thursday, June 21, 2001
Abode plea 'spells threat to Basic Law'
Hong Kong's highest court was yesterday urged by a government lawyer to set aside politics and emotion and refuse citizenship to more than 5,000 mainlanders seeking the right of abode.
Opening the Government's case in the landmark hearing in the Court of Final Appeal, barrister Geoffrey Ma, SC, said allowing the migrants to stay would undermine Beijing's 1999 reinterpretation of the Basic Law.
The 5,114 mainlanders could acquire residency only by obtaining a one-way permit and a certificate of entitlement, both of which must come from mainland authorities, Mr Ma said.
Beijing's reinterpretation had restored the need for applicants to have both documents.
Mr Ma referred to remarks previously made by the migrants' lawyers, Geoffrey Robertson, QC, and Gladys Li, SC, that there was a "burning sense of grievance" among the 5,114 migrants, who believed they had been treated differently to other claimants allowed to stay in the SAR.
"We are here dealing with a matter of law, not a matter of politics or a matter of emotion," he said.
Mr Robertson and Ms Li had previously argued that government officials, including Chief Executive Tung Chee-hwa, misled the abode claimants into believing their cases would be assessed on the basis of two landmark judgments handed down by the top court on January 29, 1999.
The lawyers have said the appellants had a legitimate expectation the Government would verify their status in accordance with the favourable court decisions.
It has also been argued the claimants could not be affected by the reinterpretation of two Basic Law articles because the relevant part of the mini-constitution stated "judgments previously rendered shall not be affected".
The reinterpretation by the National People's Congress Standing Committee on June 26, 1999, reversed the two earlier judgments in Hong Kong's top court that gave the mainlanders, who have at least one Hong Kong parent, right of abode.
The migrants' lawyers have also said the claimants were covered by the government pledge because they arrived between July 1, 1997, and January 29, 1999, and had claimed the right of abode.
The court had earlier heard that top officials, including Mr Tung, had promised since the handover that claimants' cases would be covered by the 1999 landmark judgments.
However, the Government announced in May 1999 that the rulings covered only the named parties and those identified by the Immigration Department.
Mr Ma - presenting his case along with barrister Joseph Fok, SC, yesterday - urged the court to take into account the legislative intent of the Basic Law, such as discouraging illegal immigration.
Non-permanent judge Sir Anthony Mason questioned whether it would be right for the Director of Immigration to exercise his power to grant "something less than right of abode to the applicants", such as the right to be in the SAR. Mr Ma rejected such a scenario as a "back-door way" of getting around determining right of abode.
Mr Justice Robert Ribeiro asked Mr Ma to consider whether there was still room for the director to address applicants' legitimate expectations under the existing "corrected law". Mr Ma said that would undermine the reinterpretation.
The case continues before Chief Justice Andrew Li Kwok-nang, Mr Justice Ribeiro, Sir Anthony, Mr Justice Kemal Bokhary and Mr Justice Patrick Chan Siu-oi. Outside court, more than 20 migrants and their relatives yesterday entered the third day of a hunger strike.