SCMP Thursday, June 21, 2001
Beijing may again be asked for abode ruling
The Government is prepared to ask the top court to refer a Basic Law provision to reinterpretation by Beijing, a court heard yesterday.
Barrister Gladys Li SC, representing adopted children fighting for the right of abode, told the Court of Final Appeal that the Director of Immigration had indicated in a court submission that he would make the request if the court ruled Beijing's 1999 reinterpretation of Article 24(2)(3) had not determined whether adopted children from the mainland were entitled to stay in the SAR.
The legal battle involves two girls, Tam Nga-yin, 14, and Xie Xiao-yi, five, and a boy, Chan Wai-wah, four. The applicants - born on the mainland but adopted by Hong Kong permanent residents - are seeking the right to stay as permanent residents.
They won their cases in the Court of First Instance in June 1999, but the Court of Appeal overturned the ruling in March last year. It held that only children whose natural parents were permanent residents at the time of their birth qualified under the Basic Law.
Ms Li, for Nga-yin and Wai-wah, said it was not necessary to submit the article to Beijing for a second reinterpretation.
She said the reinterpretation of the provision by the Standing Committee of the National People's Congress on June 26, 1999, was "question specific", even though it did not address whether it extended to adopted children.
The Government has argued in the lower courts that the reinterpretation referred specifically to the "time of birth" of the person claiming the right of abode under the article, and to their natural parentage.
Ms Li argued that the court was not bound to seek Beijing's assistance because the interpretation of the relevant provision did not concern affairs that were the responsibility of the central Government or the relationship between Beijing and the SAR.
The Director of Immigration has asked the top court to refer a Basic Law provision under Article 24 to Beijing in another abode case involving a three-year-old boy, Chong Fung-yuen.
Ms Li argued yesterday the adoptive parents and their children should be entitled to the same rights as others. "[The law] cannot exclude rights and freedom of permanent residents who are unable to have children by natural birth," she said.
She urged the court to refer to the International Covenant on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights and the UN Convention on the Rights of the Child when considering the meaning of Article 24(2)(3).
She said the international covenants aimed to protect vulnerable children who need proper protection and care against discrimination and emphasised rights to protect a family unit.
Ms Li argued that it was impossible for adopted children to derive their status from their natural parents as the relationship had been severed by their adoption.
She asked the court to consider the legal meaning rather than adopting a literal or rigid approach when interpreting the provision.
The hearing continues today before Chief Justice Andrew Li Kwok-nang, Mr Justice Kemal Bokhary, Mr Justice Patrick Chan Siu-oi, Mr Justice Roberto Ribeiro and non-permanent judge Anthony Mason.