Hong Kong's Constitutional Debate

Hong Kong's Constitutional Debate: Conflict Over Interpretation

Johannes M M Chan
H L Fu
Yash Ghai
Copyright Date: 2000
Pages: 548
https://www.jstor.org/stable/j.ctt2jc280
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  • Book Info
    Hong Kong's Constitutional Debate
    Book Description:

    This book explores legal and constitutional issues in Hong Kong's relationship with mainland China through an analysis of the litigation on the right of abode of the children of Hong Kong residents who are born and live in the mainland. The litigation in the Hong Kong courts and the subsequent interpretation by the Standing Committee of the National People's Congress were followed with keen interest both locally and internationally, and had provoked great controversy. The differing approaches to and styles of interpretation of the Court and the Standing Committee provide a vivid demonstration of the clash of legal systems within which Hong Kong's constitutional system has to operate. These issues are discussed in this book by Hong Kong's leading legal scholars and practitioners. This book offers perspectives to solve these controversies and to develop an acceptable approach to the interpretation of the Basic Law. It captures the sustained public debate on constitutional issues and provides a historical record of this constitutional debate. It also contains the full texts of the decision of the Court and the Interpretation by the Standing Committee.

    eISBN: 978-988-220-176-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Preface
    (pp. ix-xii)
    Yash Ghai
  4. Acknowledgements
    (pp. xiii-xiv)
    Editors
  5. Contributors
    (pp. xv-xvi)
  6. Part I: Academic Analysis
    • Litigating the Basic Law: Jurisdiction, Interpretation and Procedure
      (pp. 3-52)
      Yash Ghai

      The courts of the Hong Kong Special Administrative Region have already, in the short period since the change of sovereignty, played a crucial role in the enforcement and interpretation of the Basic Law. They have had to decide weighty matters such as the legality of the Provisional Legislative Council, the relationship of the Basic Law to the PRC Constitution, the scope of the application of mainland legislation in Hong Kong, the validity of rules governing disciplinary and other aspects of public service, the right of abode in Hong Kong of certain mainland residents, and the regime for the protection of...

    • Why the Court of Final Appeal Was Wrong: Comments of the Mainland Scholars on the Judgment of the Court of Final Appeal
      (pp. 53-60)
      Xiao Weiyun

      The legal profession in the mainland is very concerned about the decision of the Court of Final Appeal (‘CFA’) on 29 January 1999 in relation to the right of abode of the children born to Hong Kong Permanent Residents in the mainland. As a result, a number of legal experts of the mainland and some members of the legal profession who were attending the meetings of the political and legal subcommittees of the Preparatory Committee of the Macau Special Administrative Region at Zhuhai, held a seminar to discuss the case.

      All of these legal experts have taken part in the...

    • Judicial Independence: A Reply to the Comments of the Mainland Legal Experts on the Constitutional Jurisdiction of the Court of Final Appeal
      (pp. 61-72)
      Johannes M M Chan

      On 29 January 1999, the Court of Final Appeal (‘CFA’) of the Hong Kong Special Administrative Region (‘HKSAR’) delivered one of its most important decisions in Ng Ka Ling v Director of Immigration.¹ It was initially warmly applauded and regarded as an affirmation of a strong independent judiciary, but after four mainland legal experts launched their severe attack on the judgment, the climate changed dramatically.² The judgment was strongly criticized. Various methods were proposed to reverse the effect of the judgment, including inviting the Standing Committee of the National People’s Congress (‘NPCSC’) to intervene. This eventually led to an unprecedented...

    • The Court of Final Appeal’s Ruling in the ‘Illegal Migrant’ Children Case: Congressional Supremacy and Judicial Review
      (pp. 73-96)
      Albert H Y Chen

      The decision on 29 January 1999 of the Court of Final Appeal (CFA) of the Hong Kong Special Administrative Region (SAR) in the ‘illegal migrant’ children case (Ng Ka Ling and Others v Director of Immigration [1999] 1 HKLRD 315) has provoked the first serious controversy concerning the relationship between the SAR and the central government in Beijing since the establishment of the SAR on 1 July 1997. At the centre of the controversy was the CFA’s statement in its judgment (hereinafter called ‘the Statement’) (which may or may not form part of the ratio decidendi of its decision on...

    • Supremacy of a Different Kind: The Constitution, the NPC, and the Hong Kong SAR
      (pp. 97-112)
      H L Fu

      This chapter discusses the two constitutional issues raising from the Court of Final Appeal (CFA) decisions on the rights of abode case: applicability of the Constitution of the People’s Republic of China (PRC) in the Hong Kong Special Administrative Region (SAR), and the meaning of congressional supremacy within the context of the Hong Kong SAR. It will argue that the Constitution, while applicable in the Chinese mainland, does not have direct force in Hong Kong, and that the supremacy of the National People’s Congress (NPC) takes a different form in Hong Kong.

      This chapter has five sections. Section one discusses...

    • The Court of Final Appeal’s Ruling in the ‘Illegal Migrant’ Children Case: A Critical Commentary on the Application of Article 158 of the Basic Law
      (pp. 113-142)
      Albert H Y Chen

      The landmark decision (Ng Ka Ling and Others v Director of Immigration [1999] 1 HKLRD 315) of the Court of Final Appeal (CFA) of the Hong Kong Special Administrative Region (SAR) on 29 January, 1999 has been rightly hailed as a victory for Hong Kong’s autonomy, judicial independence, rule of law and individuals’ rights. The CFA’s moral courage is admirable in upholding the cherished values of the Common Law in the domain of constitutional jurisprudence against possible encroachment by legislative and executive actions at both the regional and national levels. So far (as of March 1999), there has been nothing...

    • The Reference to the Standing Committee of the National People’s Congress under Article 158 of the Basic Law: The Question of Methodology
      (pp. 143-150)
      Denis Chang

      Professor Albert Chen has criticized the Court of Final Appeal (‘CFA’) for refusing to refer the interpretation of article 22(4) to the Standing Committee of the National People’s Congress in Ng Ka Ling & Others v Director of Immigration [1999] HKLRD 277 (see Chapter 6 of the present volume). I do not mean to provide an exhaustive commentary on Professor Albert Chen’s critique. I do have, however, a number of points regarding methodology to make in response because I believe, with great respect, that he has not done full justice to the CFA’s approach and the ‘substance’ test adopted by the...

    • The Proper Law for the Conflict between the Basic Law and Other Legislative Acts of the National People’s Congress
      (pp. 151-170)
      Bing Ling

      The Hong Kong Court of Final Appeal, in its controversial judgment in Ng Ka Ling & Others v Director of Immigration,¹ asserted the constitutional jurisdiction of Hong Kong courts to review the consistency of legislative acts of the National People’s Congress (NPC) and its Standing Committee (NPCSC) with the Basic Law and to declare them invalid should inconsistency be found to exist. That assertion became the subject of vehement criticism by leading mainland constitutional scholars,² and the controversies became so critical that the Court, upon the government’s application, felt it necessary to ‘take the exceptional course’ under its inherent jurisdiction to...

    • What the Court of Final Appeal Has Not Clarified in Its Clarification: Jurisdiction and Amicus Intervention
      (pp. 171-182)
      Johannes M M Chan

      On 29 January 1999, the Court of Final Appeal delivered its celebrated judgment in Ng Ka Ling v Director of Immigration.¹ It held that the certification scheme introduced by the Immigration (Amendment) (No 3) Ordinance, which required the possession of a one-way permit issued by the mainland authorities before one could successfully claim a right of abode in Hong Kong, was inconsistent with article 24 of the Basic Law. It further held that since the predominant provision to be interpreted by the Court was article 24, which was a matter within the domestic autonomy of the Hong Kong courts, it...

    • Interpretation of Law by the Standing Committee of the National People’s Congress
      (pp. 183-198)
      Hongshi Wen

      The purpose of this chapter is not to prove a proposition. It is to describe and analyse the system of interpretation of law by the Standing Committee of the National People’s Congress (NPCSC), and to point out the relationship between the NPCSC’s interpretation of the Basic Law and its interpretation of other laws. This chapter also aims to provide a background on the mainland laws for a better understanding of the NPCSC’s interpretation of the Basic Law. The ultimate purpose is to urge the legal professions of the mainland and Hong Kong to direct attention to the Chinese system of...

    • The NPC Interpretation and Its Consequences
      (pp. 199-216)
      Yash Ghai

      At the request of the Chief Executive of the HKSAR, the Standing Committee of the National People’s Congress reviewed the judgments of the Court of Final Appeal on the right of abode. The decision of the Chief Executive to seek an interpretation of articles 22(4) and 24(2)(3) of the Basic Law, which amounted for all practical purposes to an overturning of the CFA, was highly controversial. It was attacked by the Bar, academics, politicians, and the churches and defended by the government, with equal vigour. The critics saw it as undermining the rule of law, the survival of the common law,...

  7. Part II: Public Debate
  8. Part III: Cases and Documents
    • Ng Ka Ling and Others v Director of Immigration [1999] 1 HKLRD 315
      (pp. 415-460)
    • Ng Ka Ling and Others v Director of Immigration (No 2) [1999] 1 HKLRD 577
      (pp. 461-462)
    • Chan Kam Nga and Others v Director of Immigration [1999] 1 HKLRD 304
      (pp. 463-473)
    • The Chief Executive’s Report to the State Council Concerning the Right of Abode
      (pp. 474-477)
    • The Interpretation by the Standing Committee of the National People’s Congress of Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China
      (pp. 478-480)
    • The Speech by Mr Qiao Xiaoyang in the NPC Standing Committee
      (pp. 481-486)
    • Lau Kong Yung and Others v Director of Immigration, Final Appeal Nos. 10 and 11 of 1999 (Civil) (On Appeal From CACV Nos. 108 and 109 of 1999)
      (pp. 487-532)