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Only two years have passed since the reversion of Hong Kong from British to Chinese sovereignty on July 1, 1997, but the autonomy of Hong Kong's legal system is already in jeopardy. In May 1999 the government of the Hong Kong Special Administrative Region (HKSAR), unhappy with a ruling by the Court of Final Appeal, the region's highest court, over who from mainland China was eligible to settle in Hong Kong, asked the Standing Committee of the National People's Congress (NPC) in China to review the ruling. The Standing Committee overturned the court's decision on June 26.
The threat to Hong Kong's judicial autonomy in this case comes less from the action of the NPC than from the political precedent set by the Hong Kong government and its chief executive, Tung Chee-Hwa, in turning to the NPC for an effective reversal of a court ruling it did not like. Members of Congress and the U.S. administration should raise their concerns with Mr. Tung and indicate that the implications of his actions go far beyond the "right of abode" question to the central question of whether Hong Kong's much-praised courts will retain any independence at all.
Background
Under the Joint Declaration, the document hammered out by Britain and China that transferred Hong Kong to China, and the Basic Law, which serves as the constitution of the HKSAR, Hong Kong's autonomy was to be protected primarily through a legal and judicial system separate from that of China. One of the most controversial aspects of the Basic Law was the provision that the National People's Congress would have the final say over the law's interpretation, meaning that legally, the NPC could indeed challenge rulings by the Court of Final Appeal. Hong Kong's legal community and pro-democracy activists clearly recognized the danger this provision posed, but it was not clear how or under what circumstances the NPC would choose to invoke its authority. Few suspected that the danger would come from the Hong Kong government's inviting the NPC to intervene.
Yet this is exactly what happened with the right of abode controversy. The Basic Law stipulates that persons of Chinese nationality born outside Hong Kong to parents who have permanent residency in the HKSAR would themselves be eligible for right of abode. Immediately following the transfer of sovereignty, a number of children and parents petitioned the Hong Kong government for recognition of this right. The Provisional Legislature, appointed by the Chinese government, passed a law, effective retroactively, to restrict this right. On January 29, 1999, the Court of Final Appeal issued a decision that gave the right of abode to a broader group of people than the HKSAR government chose to recognize. These included:
- Children born out of wedlock whose mothers do not have the right of abode in Hong Kong but whose fathers do.
- Children whose parents did not have the right of abode in Hong Kong at the time of their birth but who subsequently acquired that right.
The Hong Kong government expressed concerns about the number of people who could be eligible for entry into Hong Kong over the next ten years if the CFA's broader interpretation of the right of abode was allowed to stand. It also professed concern about the impact this influx would have on Hong Kong's social stability. It argued that Hong Kong did not have the resources to meet the housing, education, medical and health, and social welfare needs of the newcomers, although the numbers it used to make the argument were ludicrously overstated in the view of many legal scholars and social scientists.
After Chinese government officials objected to the CFA ruling, and after the CFA's Chief Justice was forced to issue an unprecedented "clarification" of the ruling, Tung Chee-Hwa decided to seek an interpretation by the NPC's Standing Committee as a way of avoiding implementation of the court's decision. Turning to China to resolve a critically important legal dispute was not the only option open to the Hong Kong government, but it was by far the worst. It could have allowed the CFA decision to stand and then waited to see if the numbers of Chinese seeking right of abode bore any resemblance to its apocalyptic predictions. It could have sought a new ruling from the CFA through new cases. Even working through the SAR Legislative Council to seek an amendment to the Basic Law would have been preferable than inviting Chinese intervention in Hong Kong judicial matters.
By turning to the NPC to bolster its own case, the Hong Kong government has set a dangerous precedent, effectively giving notice that any time the Court of Final Appeal rules in a way that the executive branch of the SAR finds objectionable, it will turn to China for assistance. This makes a mockery both of the notion of checks and balances within the SAR government as well as of Hong Kong autonomy itself.
The NPC Standing Committee responded predictably to the HKSAR government's request for interpretation. In its decision adopted last week, it said the Court of Final Appeal should have itself asked the NPCSC for an interpretation of the controversial part of the Basic Law before it gave its final ruling. It also stated that the CFA's interpretation was in violation of the spirit of the Basic Law. It upheld the Hong Kong government's restrictive interpretation of the right of abode of mainland children, limiting it to those, who at the time of their birth, had at least one parent who was already a permanent Hong Kong resident. Anyone else would have to seek permission from relevant departments in the Chinese government and there was no guarantee that permission would be granted. This interpretation applies to relevant future cases handled by Hong Kong courts but does not affect those who have already obtained the right of abode as a result of the Hong Kong Court of Final Appeal's initial ruling in January 1999.
The key issue from a human rights perspective is not the right of abode per se. It is the independence of the Hong Kong courts. This precedent has the potential of opening a wide swathe of judicial rulings to attack and "reinterpretation," particularly those that displease either the Chief Executive in Hong Kong or the government in Beijing.
Human Rights Watch urges the Administration and Congress to raise concerns, privately and publicly, with Hong Kong and Beijing officials about threats to the rule of law and the independence of the Hong Kong judiciary. For example, this issue should be on the agenda of President Clinton's talks with Chief Executive Tung Chee-Hwa at the APEC summit in New Zealand in September. Members of the business community should also continue to speak out, recognizing the importance of Hong Kong's legal system to its prosperity and economic vitality.
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