SCMP Saturday, July 21, 2001

A parting of legal clouds


When the heavens opened and thunder shook Hong Kong within seconds of yesterday's landmark right-of-abode rulings, it seemed as though the gods were expressing their disapproval.
The rain which pummelled the Court of Final Appeal was perhaps appropriate, as the devastated parents of adopted children shed tears over a decision that is likely to see their families separated.
But there were significant rays of light to be found in the three key rulings, as far as the SAR's future is concerned.
This was, literally, judgment day for Hong Kong. The decisions of the top court mark a vital step in the development of the "one country, two systems" concept and clear up some of the uncertainty which followed the constitutional crisis of 1999.
The five judges made it clear they are determined to continue to apply traditional legal principles when interpreting the Basic Law. They rejected requests by the Government to refer two of the cases to Beijing, suggesting that the rights of Hong Kong people should be determined by Hong Kong judges. They also stressed that the Basic Law should, where its language is clear, mean what it says.
"It is the text of the enactment which is the law, and it is regarded as important both that the law should be certain and that it should be ascertainable by the citizen," said Chief Justice Andrew Li Kwok-nang.
But the court also confirmed that the Standing Committee of the National People's Congress has the ultimate power to interpret the Basic Law. When it does so, such an interpretation will be binding on the SAR's courts.
With such important legal principles at stake, it is easy to forget that the decisions will have a dramatic impact on the lives of the people involved in the cases.
For Chong Fung-yuen, a schoolboy who will be four in September, the ruling in his case finally gave him the right to stay in Hong Kong after a battle which began when he was born. The judges ruled that Chinese nationals born in Hong Kong have the right of abode, even if their parents were here as illegal immigrants, overstayers or visitors. Fung-yuen's entry to the world came while his parents were in the SAR on a two-way permit from the mainland.
His joy, and that of his parents, contrasts with the distress felt by three mainland-born children adopted by Hong Kong permanent residents. Despite placing great importance on family unity, the court - with one judge dissenting - ruled they do not have the right of abode. Such children now face removal to the mainland, even if there is no one there to look after them.
The third decision concerned Pakistani Fateh Muhammad, 69, who was battling for permanent-resident status. The court ruled against him, unanimously, deciding that non-Chinese nationals must have clocked up seven continuous years in Hong Kong immediately before applying for permanent-resident status. This period would be broken if the person concerned had served a prison sentence or other significant period of detention. Mr Muhammad had served such a sentence.
The scene at 9.15am in the cramped court in Central was very different from the one witnessed on January 29, 1999, when the first landmark right-of-abode rulings were delivered. This time, the court was not packed with hopeful right-of-abode seekers and interested legal dignitaries. It was a far more low-key affair. But there were signs that the judges were regaining some of the confidence which appeared to have been knocked out of the court in June 1999, when key parts of its judgments were overturned by Beijing at the Government's request.
That edict by the Standing Committee has dominated the constitutional landscape in Hong Kong ever since it was delivered. But yesterday's rulings go some way towards limiting the impact it will have in the future.
One of the crucial issues to be determined was when cases should be decided by the Court of Final Appeal alone and when they should be referred by the court to Beijing for interpretation of relevant parts of the Basic Law. The Government urged the court to adopt a broad approach based on whether the case could affect, for example, immigration control on the mainland.
If this had been accepted, it would have greatly increased the number of cases, including those involving the rights of Hong Kong people, to be effectively decided in Beijing. As Mr Justice Li remarked, it would mean that "most, if not all, the articles in the Basic Law" could potentially fall into the category which must go to the Standing Committee.
The argument was unanimously rejected by the court yesterday. Instead, the judges focused on the "character" of the provision in question. If it falls within Hong Kong's autonomy, then the case does not go to Beijing.
A second important feature of the judgments was that the court struck a blow to the Government's repeated attempts to blur the distinction between Hong Kong's legal system and that on the mainland. This might prove controversial, as the judges ruling in the Fung-yuen case differed from views expressed by the Standing Committee in June 1999.
The court ruled it was not bound by those views, which supported the Government's argument that children born in Hong Kong do not get the right of abode if their parents are illegal immigrants, overstayers or visitors. This is because the remarks were made while the Standing Committee was interpreting other parts of the Basic Law not involved in the Fung-yuen case. Mr Justice Li said it was therefore the court's duty to interpret the relevant provision - which states simply that Chinese nationals born in Hong Kong are permanent residents - in accordance with common-law principles.
By doing this, the judges ruled against the Government, rejecting its arguments that they should follow the thinking of the Standing Committee. Mr Justice Li said: "In interpreting the Basic Law, the Standing Committee functions under a system which is different from the system in Hong Kong. In essence, the Basic Law provides for a separate legal system . . . based on the common law."
The court, therefore, has dug in its heels and declared that it intends to stick to traditional principles in the post-handover constitutional era.
One beneficial effect of sticking to these principles is that it will increase the likelihood that the Basic Law actually means what it says. This was starkly demonstrated in Fung-yuen's case, for which the court found the law to be crystal clear. If you are a Chinese national and you are born in Hong Kong, you have the right of abode.
If this was the case, said the court, it was not necessary to look at other materials. The Government had urged the court to do just that in the Fung-yuen case. In particular, it had pressed opinions expressed by the now-defunct Beijing-appointed Preparatory Committee which supported the Government's case. This would have been a departure from the usual approach, because the opinions were expressed years after the Basic Law had been enacted.
Mr Justice Li said a cautious and prudent approach needed to be adopted to the use of such documents because "the interpretation of laws, once enacted, is a matter for the courts". This will provide the Basic Law with some much-needed certainty and leave it less exposed to attempts to change the original meaning by reference to views which were expressed later.
Fung-yuen, and other children born in Hong Kong, benefited from the importance the court placed on the words of the law itself. Unfortunately for the adopted children, the principle worked against them.
Mr Justice Li, and three of his fellow judges, found the fact that the Basic Law gives the right of abode to people "born outside Hong Kong of" permanent residents makes it clear this must be a natural birth. It cannot, therefore, apply to adoption, he added.
Again, the court refused to refer the case to Beijing. Again, it was not persuaded to use the Standing Committee's reinterpretation to help decide the case and relied on traditional principles.
If the language of the law had not been so clear, said Mr Justice Li, the court would have "leaned in favour" of ruling for the adopted children in order to support family unity which is protected by international agreements to which Hong Kong is a party, and also by the Bill of Rights.
Mr Justice Kemal Bokhary was the only judge to rule in favour of the adopted children. He said it was possible to read the "born . . . of" part of the law in a way which included adopted children. The word "born" could simply relate to the place of birth, outside Hong Kong. The word "of" merely concerns the parent-child relationship, which applies to adopted children as much as to natural children.
"If, as I think, that reading is permissible, then I have no doubt that it is the reading which [the relevant provision] ought to receive. For that is the reading which promotes family unity, which is valued at every level in our society, including the constitutional level," said Mr Justice Bokhary.
For the adopted children, it was very much a case of so near and yet so far. When it came to the non-Chinese national's case brought by Mr Muhammad, again the court reached its decision on the basis of common-law principles. It ruled that the seven-year period of continuous residence needed to qualify for permanent-resident status must be immediately before an application is made.
Mr Justice Bokhary said: "It is scarcely realistic to suppose that it was intended to confer that right on persons whose seven years' ordinary and continuous residence ended long before they took . . . Hong Kong as their home."
This means that people who moved away from Hong Kong and returned later have to start clocking up their seven years again. The court also ruled that a period of imprisonment will break the period of seven years. A person would have to start again on their release. But Mr Justice Bokhary sought to quell fears that a short spell of detention, such as being held for a day and then released without charge, would have the same effect.
"I would not preclude an argument . . . that a term of imprisonment of short duration would not defeat an abode claim. The view might well be taken that such a short period of imprisonment does not interrupt the continuity of residence," said the judge.
The court left open another important question: whether permanent-resident status should be dependent, as it is now, upon the Director of Immigration choosing to lift the restrictions on a person's stay before an application is made - effectively giving the director sole discretion. This could now be challenged in a future case.
If allowed to stand, the court's decisions could go a long way to addressing concerns expressed in the wake of the controversy over the reinterpretation in 1999.
The big question now is how the SAR and Chinese governments will react. Secretary for Justice Elsie Leung Oi-sie promised before the rulings that the Hong Kong Government would "bow" to the court's decision on Fung-yuen - the only case in which it lost. It would place Ms Leung in an extremely embarrassing position if, despite this pledge, the Government asked the Standing Committee to overturn the ruling in that case.
Another possibility is that even without a request from the SAR, the Standing Committee intervenes, giving its own interpretation and effectively overturning the judgment. If this happened, Fung-yuen himself would not be affected, but everyone else in the same position would be.
Such interference would be disastrous for the future of the "one country, two systems" concept and for Hong Kong's international image. But criticism of the court was already being heard yesterday from pro-Beijing figures.
The crisis in 1999 did great damage to confidence in the SAR's legal system. The court yesterday went some way towards putting that right. This time, it is to be hoped the court's decisions will be respected, and that some of the clouds which have been hovering over Hong Kong's legal system will be blown away.
Cliff Buddle ( ) is the Deputy Editor of the Post's editorial pages.