Press Release



Interpretation : A "legal and constitutional" option


The Government's decision to seek an interpretation from the National People's Congress Standing Committee (NPCSC) on the Basic Law (BL) provisions relevant to right of abode (ROA) is legal and constitutional, a Government spokesman said today (Tuesday).

"The interpretation route provides a much needed solution to pressing problems arising from the admission of 1.67 million Mainlanders. Unless the problem is resolved, the HKSAR will face a population growth of 25 per cent over the next decade," he said.

According to ruling by the Court of Final Appeal on January 29 this year on who enjoys ROA under the BL, 1.67 million people could become eligible for ROA in the Hong Kong Special Administrative Region (HKSAR). The Government is obliged to let them come and settle in Hong Kong within a reasonable period of time.

The Government has earlier estimated that by present planning standards, meeting the basic needs of the additional population would incur within the next decade or so a capital expenditure of $710 billion. The recurrent expenditure of various services will amount to $33 billion annually. A total of 6 000 hectares of land, i.e., almost five times the size of Chek Lap Kok Airport, will be required. This will be a burden beyond the HKSAR's ability to bear.

Opinion poll findings consistently show that the public is very concerned. The community wants a speedy solution.

"The question whether this large number of people has ROA in Hong Kong depends on the true legislative intent of the BL. We should therefore seek an interpretation of the BL by the NPCSC.

"When the Immigration Ordinance was amended in 1997 to introduce the 'time of birth' and 'Certificate of Entitlement' provisions, both the the HKSAR Government and the legislature believed that they reflected the true legislative intent of the BL," the spokesman explained.

"To resolve the problem, the Chief Executive, Mr Tung Chee Hwa, has decided to report to the State Council the problems which have arisen in implementing BL provisions relating to the ROA. He will also request the State Council to approach the NPCSC to seek an interpretation of the relevant BL provisions, namely Articles 22(4) and 24(2)(3).

"These procedures are entirely lawful and are in accordance with the Chief Executive's duties under BL Articles 43 and 48," the spokesman said.

If the NPCSC were to interpret Article 24(2)(3) of the Basic Law to mean that only children born after their parents had become permanent residents of Hong Kong, this would reduce the number of newly eligible persons dramatically to approximately 200,000.

Furthermore, if the NPCSC were to interpret Article 22(4) of the Basic Law to cover Mainland residents eligible for right of abode in Hong Kong, the system of exit control in the mainland would then continue to apply to these people. Through the One Way Permit scheme, the arrangement for orderly arrivals in Hong Kong will continue.

He further explained that both Article 67(4) of the Chinese Constitution and BL Article 158(1) gave the NPCSC the power to interpret the BL, and there was no limitation of that power.

"The NPCSC's power to interpret the BL is part of our new constitutional order. The CFA has ruled that it cannot question the authority of the NPCSC to make such an interpretation, which would have to be followed by the SAR courts.

"Therefore, if the NPCSC exercises its power of interpretation, it would not be depriving Hong Kong of any legal powers granted to it, or diminishing Hong Kong's autonomy. Neither would it undermine the HKSAR's judicial independence or interfere with local judges' freedom to decide future cases in accordance with the law," the spokesman said.

Noting that Hong Kong is part of the People's Republic of China, which has a civil law system, he noted that the BL served as an interface between a common law jurisdiction and a civil law jurisdiction.

"Because of this, some aspects of the civil law system, including the power of interpretation by a non-judicial body, have been incorporated. We must all accept the unique concept of 'one country, two systems' involves some adjustments to the common law system that we are accustomed to," he continued.

Dismissing fears that the Government's move to seek an NPCSC interpretation would open the floodgates for others to follow suit, the spokesman stressed that the decision of the CFA not be overturned and the rights of litigants in the adjudicated cases would not be affected by an interpretation by the NPCSC.

He added that one should not assume that the NPCSC's power of interpretation would in future be lightly exercised. In fact, since the 1950's, the NPCSC had exercised its power of interpretation on only eight occasions, he noted.

Besides, legislative interpretation by the NPCSC must be consistent with the original legislative intent. There is no question of it ignoring legislative intent out of expediency.

Furthermore, the current problem is wholly exceptional in nature, and relates to one of the most fundamental issues for any community, namely who has the right to join the community as a permanent resident.

"If the NPCSC's power of interpretation is exercised in respect of such a fundamental issue, there is no basis for assuming that it would be exercised simply to benefit, for example the private interests of a litigant in commercial proceedings," the spokesman said.

He noted that since reunification, the Central People's Government has faithfully adhered to "one country, two systems".

"They have not intervened in Hong Kong's affairs. They have made it clear that on this occasion they would much prefer Hong Kong to resolve the problem on its own. Unfortunately, that is not possible," the spokesman said.

"If the Central Government acts according to the Chief Executive's request, it is only to help Hong Kong solve a major problem.

"We are confident that on this occasion the Central People's Government will also act in Hong Kong's best interest," he said.

Turning to other options, he explained that amending the Basic Law was not an appropriate solution because the issue at stake was the true legislative intent of the relevant BL provisions.

"If the provisions reflect the true legislative intent, as we believe they do, it would be wrong in principle to amend the BL to change the existing legal position," he said.

He cited other reasons why amending the BL was not viable as follows :

- The NPC will not meet until March 2000. Between now and then many Mainlanders may try to overstay in Hong Kong or to enter illegally to claim ROA. It will not be possible to maintain intensive manpower deployment for border control over a long period of time.

- For the next 10 months, the Government will be challenged for failing to implement the CFA decision and not upholding the rule of law.

- We cannot presume that the NPC will agree to amendment.

- Any retrospective amendment to take away the rights of persons concerned will be highly controversial.

- We understand that a number of Hong Kong deputies to the NPC have declared that they consider the option of amending the Basic Law to be unsuitable. Thus, we will not be able to obtain the two-thirds majority required under Article 159 of the Basic Law.

The option of inviting the CFA to reconsider its decision is also not feasible because even if an appropriate case emerges in the foreseeable future, the CFA is unlikely to reach a different conclusion, when its previous judgment was delivered just a few months ago.

End/Tuesday, May 18, 1999