SCMP Thursday, June 21, 2001
Ruling by NPC 'similar to court judgment'
Reinterpretation of the Basic Law by Beijing has a binding effect on the SAR's top court similar to that of a judgment handed down by a superior court, a lawyer argued yesterday.
Barrister Joseph Fok SC, for the Director of Immigration, said the Court of Final Appeal was also bound to take into account the reasoning leading to a reinterpretation concerning the right of abode made by the Standing Committee of the National People's Congress (NPC) in June 1999.
The Government argues that the top court should uphold a ruling by the Court of Appeal last March denying right of abode to three mainland children adopted by Hong Kong permanent residents.
The Court of Appeal has ruled only children whose natural parents are permanent residents at the time of their birth are entitled to stay according to Article 24(2)(3) of the Basic Law.
Mr Fok said the 1999 reinterpretation should be seen as having the same effect as a court precedent.
In response to a question from non-permanent judge Sir Anthony Mason, Mr Fok said: "The power to interpret the Basic Law given to the Standing Committee is a power which binds the court of Hong Kong. Therefore it is akin to a superior court in that sense."
Two girls, Tam Nga-yin, 14, and Xie Xiao-yi, five, and a boy Chan Wai-wah, four, are fighting for permanent residency in the SAR.
Their legal representatives, Gladys Li SC and Patrick Szeto Park, said the permanent residency status of the adoptive parents should be taken into account instead of that of the natural parents.
Ms Li, for Nga-yin and Wai-wah, yesterday urged the top court to approach the reinterpretation of Article 24 by reference to common law principles. The NPC ruling should not be treated as if it were a judgment, she said.
Chief Justice Andrew Li Kwok-nang noted that it was difficult to apply a common law approach when considering the reinterpretation because it was issued by an alien system.
Ms Li dismissed fears that a favourable ruling would open the floodgates to bogus adoption cases.
Mr Justice Li, Sir Anthony Mason, Mr Justice Roberto Ribeiro, Mr Justice Kemal Bokhary and Mr Justice Patrick Chan Siu-oi reserved their judgment.