Press Release

 

 

LC: CS' speech at motion debate on right of abode

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Following is the speech by the Chief Secretary for Administration, Mrs Anson Chan, in the Legislative Council's motion debate on right of abode today (Wednesday):

Madame President,

With your permission, I should like to take this opportunity to pull together the most important strands of the government's case. I want to make it clear that in doing so I am mindful of the views we have heard both for and against the course of action we propose to take in this matter. This issue has clearly aroused strong feelings on both sides of the argument.

I do not find this in the least surprising. But what I do find regrettable is that in expressing those views, some Members have found it necessary to impugn the integrity of individual officers, or to question the honesty of this Administration. I suggest that this is totally undeserved.

We all of us here know from our own experience, and Honourable Members know from their sacred duty to both make and uphold the law, that there is no issue of more importance to Hong Kong than the preservation of the rule of law. We are all committed to that.

I have said many times - and I repeat it here today - that the rule of law and the independence of the judiciary are the very cornerstones of our success and prosperity. This Administration has no higher obligation than to keep those cornerstones in place.

I know that on the basis of our decision to seek an interpretation by the National People's Congress on the legislative intent of Articles 22(4) and Article 24(2)(3) of the Basic Law, the commitments I have just so unambiguously made will be challenged, and even derided by some. I do not challenge their right to do so but I do ask them to stake their claims on a sober analysis of the facts. And the facts of this matter are that in considering the options before us, the Administration took into account the very issue at the heart of concern of Honourable Members of this Council and of the community at large. We needed to satisfy ourselves that in weighing the choices available to us to address the serious socio-economic consequences of the Court of Final Appeal decision on January 29 we did not in the process damage the legal and judicial underpinnings of this law-based society.

We had to ensure that whichever course we took was constitutionally rock solid and cast iron in law. It had to be based on these twin principles, not on expediency. There was simply no question that we could now - or ever - act in an arbitrary manner. We had to satisfy ourselves that in charting our course we would not act against the interests or independence of the courts; or threaten the structure of our legal system; and that above all, we upheld, as all of us are sworn to do, our constitution, the Basic Law. Finally, we had to act in what we saw as the best interests of the people of Hong Kong. It is their well-being, and their future well-being, which is at stake here.

As I have said, I understand the passion that has been stirred up by this issue, and I respect the deeply-held feelings and views put forward on all sides of the argument. The Right of Abode debate has reverberated across the community for weeks and months now. The pros and cons of the obvious options available to us have been thrashed out in a very public way. It is difficult to accept that after this great debate, so much of it having been initiated and hosted by this Council and its House Committee, that there has been insufficient time to consider the way forward. After careful deliberation, the Chief Executive has decided to request the State Council to approach the National People's Congress Standing Committee for an interpretation. The terms of his request will be made public.

I have listened carefully to the concerns and misgivings expressed by some members on the impact - or at least the perceived impact, on the rule of law. These same concerns were just as closely argued and as hard fought in our own deliberations as they have been in the wider public debate. I acknowledge that no issue binds all sectors of the community together more closely than the need to protect and preserve the rule of law. I further acknowledge the role of the legal profession in pursuing that goal, even when I do not agree with all that they say. There is, clearly, a divergence of views within the profession itself.

These concerns were understood as we wrestled with the horns of this dilemma. But in the end, as a responsible government, we needed to make a balanced decision that would most fairly and effectively produce a solution to an enormous problem. We knew that whatever we decided would be controversial and would not be without cost.

Madame President, it is not my intention to address the detail of the legal and constitutional or practical issues involved. My distinguished colleagues, the Secretary for Justice and the Secretary for Security have already done that. But I would like to put the issues in a constitutional, social and, yes, political framework for, while we must abide by the law, we must also live in the real world.

And the reality of this world for us is the new constitutional order which came into effect with the birth of the Special Administrative Region on July 1, 1997. To be precise, the Hong Kong Special Administrative Region of the People's Republic of China. One Country Two Systems was an ingenious concept, devised to solve the seemingly insoluble, and many men and women from Hong Kong and the Mainland and, indeed from the United Kingdom, devoted endless hours, days, months and years towards turning this concept - for that's what it was - into a reality. That dedication; that work; and a good deal of argument and debate was ultimately absorbed in the Basic Law.

This constitutional document guarantees the high degree of autonomy Hong Kong was promised in the Sino-British Joint Declaration to enable our community to function pretty much as we always have done, as a free society based on the rule of law. The most fundamental change it brought with it however was that for the first time in our history we had a written constitution.

More significantly, the Basic Law is the place where One Country meets Two Systems, for at the end of the day we enjoy not independence, but a high degree of autonomy. Our own constitution is itself an instrument of the law of the sovereign. This is why the Basic Law is sometimes described in useful shorthand as Hong Kong's mini-constitution. It is because it is part of a greater constitutional whole.

And this remarkable meeting point, the Basic Law, is the interface between Hong Kong's hallowed common law and the Mainland's own, different legal system. Herein lies the nub of our present quandary. For while the Basic Law provides the Court of Final Appeal with the power of final adjudication, it preserves for the Standing Committee of the National People's Congress the power of final interpretation of the Basic Law. The Court of Final Appeal itself has expressly acknowledged these powers.

It also provides mechanisms for either amendment or interpretation of the Basic Law, the first through the National People's Congress, the second via its Standing Committee. We have already spelt out in great detail to the House Committee yesterday and again to this Council today, our consideration of the options, and our reasons for choosing interpretation. I don't intend to go over those grounds again, but it may be useful for me to address some of the criticisms and concerns aroused by our decision.

First and foremost, there is no intention - nor was there ever any intention - to ask the Court of Final Appeal to change its judgements of January 29. The Court of Final Appeal's judgements in that matter are just that - final. These judgements will stand, no matter what the Standing Committee decides. The rights of the people who brought those cases have been, and will continue to be protected.

It is not out of disrespect for the Court of Final Appeal or its judgement that we have made our decision. On the contrary, it is precisely because we respect the Court of Final Appeal decisions that we need to find a constitutional and legal avenue to address their enormous socio-economic consequences, as would any other law-based jurisdiction or country facing such a profound dilemma.

We have already stressed on a number of occasions, and I do so again today, that our over-riding consideration in seeking the National People's Congress Standing Committee's interpretation is to give effect to what we believe to be the true legislative intent of the Basic Law. Put another way, we are seeking an interpretation of the Basic Law, not an appeal against the Court of Final Appeal's judgement - two completely different things. Here I should stress that we are seeking an interpretation, not a re-interpretation - again two different things.

Any interpretation could not diminish the status of the Court of Final Appeal. It would simply reflect the respective roles given to the Court of Final Appeal and the Standing Committee as clearly spelt out in the Basic Law. Similarly, it cannot be argued that an interpretation would deprive Hong Kong of any legal powers. Hong Kong does not have the power of final interpretation or amendment, so those powers are not there to be taken away.

Further, we are seeking an interpretation of legislative intent not because we have plucked the rationale for it out of thin air, but because conclusions reached by the Sino-British Joint Liaison Group and the Preparatory Committee earlier this decade lead us to believe that there is a reasonable case to do so.

Some have said an interpretation of the Basic Law would undermine judicial independence. Why? How? In any common law jurisdiction, judges have the freedom to decide cases in accordance with the law. If the law changes, or if there is an authoritative statement on the law, judges are also duty-bound to decide cases on this basis. They are as bound by the law as the rest of us. And they are sworn, in our case, to uphold the Basic Law.

Finally, I want to address the question of precedent. Given the nature of our new constitutional order, and the inevitability of conflicts arising as we learn how to manage One Country Two Systems in real life, we were bound to arrive at the questions we now face sooner or later. That moment has perhaps come sooner than we hoped. In hindsight, it may well turn out to be a good thing. Problems are not best resolved by leaving tough questions unanswered. We need to focus more deeply on the full range of implications of our own unique constitutional order. I would also say this : there is no reason to suppose that this Administration will wish to go running to the National People's Congress every time a court decision on the Basic Law goes against us.

An interpretation of the Basic Law by the National People's Congress Standing Committee is a rare event. It has happened only 8 times over the last half century and the people of Hong Kong and Macao can be grateful for the last two interpretations which cleared the way for our generous nationality provisions. We have taken an exceptional decision to deal with an unarguably exceptional case. In doing so, we have scrupulously observed the requirements of the constitution and acted wholly within the framework of the law. We have done so in a way which is transparent, clear for all the world to see.

I repeat the Chief Executive's pledge that we would seek such an interpretation only in exceptional circumstances. We have noted the concern expressed by some that the Hong Kong Special Administrative Region Government should establish some criteria for seeking the National People's Congress Standing Committee's interpretation in future. I wish to assure this Council and the community that these concerns will be addressed separately.

Madame President, Hong Kong does not have unlimited resources. Within a confine of 1000 sq. km, we already have a population of 6.7 million people.

For all that some people say, I don't think we are a selfish society. Many of us come from immigrant or refugee stock. We know what it takes to pull ourselves up by our bootstraps. We are not heartlessly pulling up the drawbridge behind us. It is plain that this tiny place simply could not withstand the pressure of another 1.67 million people over the next decade, with the relentless, never ending pressure of succeeding generations. The inevitable consequence is a severe deterioration of services and the quality of life and a much diminished Hong Kong socially and economically. That would not be fair to the existing population, or indeed to those who had suddenly became eligible to live here. It is not a question of turning our backs, but facing reality.

We should not lose sight of the fact that with our acceptance of children born out of wedlock, another 200,000 people would acquire eligibility. That's almost 4 times our current annual quota of 55,000 Mainland immigrants who will continue to come every day, 365 days of the year to be reunited with their families here. Furthermore, even those affected by our decision will continue to be able to apply for residency here but in an orderly manner under the one way permit system.

Nor do I see it as a weakness of our community - or indeed of the Administration - that this issue has generated such controversy. I would expect no less of a free society committed to the rule of law and the accountability of its executive. We have dealt with this matter openly and frankly. We have carried out an honest assessment of the likely additions to our population. Stating the facts plainly when they carry such profound and far-reaching consequences is not to my mind scaremongering. We would have been pilloried had we tried to conceal or fudge them. And in planning for the future, any responsible government has to take into account all of the possible consequences.

We have made a decision that we would all much rather not had to face. But major crises which impact on a community for generations to come require tough decisions, so long as those decisions are faithful to the law and have the backing of the people in whose interests they are taken. We have made our choice in good faith, set against the clear wishes of the community and the need to preserve its fundamental constitutional guarantees.

I urge Members of this Council to support the motion.

END/Wednesday, May 19, 1999

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