• Tue
  • Jul 29, 2014
  • Updated: 10:07am

Power struggle: five cases that tested Hong Kong's legal boundaries

PUBLISHED : Monday, 04 June, 2007, 12:00am
UPDATED : Monday, 04 June, 2007, 12:00am
 

1 Issue: Did the common law survive the handover?


Court of Appeal, July 29, 1997


Ruling: The laws in force before the handover, including the common law, became the laws of the Hong Kong Special Administrative Region on July 1, 1997. The provisional legislative council was legally established.


Key quote: 'In the context of the present case, I would accept that the HKSAR courts cannot challenge the validity of NPC decisions ... which set up the Preparatory Committee. Such decisions ... are acts of the sovereign and their validity is not open to challenge by the regional courts'


Chief Judge of the High Court Patrick Chan Siu-oi


2 Issue: The right of abode.


Court of Final Appeal,


January 29, 1999


Ruling: Removed restrictions on the right of abode, greatly increasing the number of mainlanders eligible to settle in Hong Kong. Held that Hong Kong's courts could interfere with decisions of the NPC if they breached the Basic Law.


Key quote: 'It is for the courts to determine whether an act of the National People's Congress or its Standing Committee is inconsistent with the Basic Law, subject of


course to the provisions of the


Basic Law itself'


Chief Justice Andrew Li Kwok-nang


3 Issue: How to deal with Beijing's interpretation of the Basic Law, which reversed key findings in the court's previous right of abode judgment.


Court of Final Appeal,


December 3, 1999.


Ruling: The validity of the interpretation was upheld and applied to right of abode cases.


Key quote: 'The Standing


Committee [of the NPC] has the power to make the interpretation ... The interpretation is binding on


the courts of the HKSAR'


Chief Justice Andrew Li Kwok-nang


4 Issue: Flag desecration


Court of Final Appeal, December 15, 1999


Ruling: New laws making it a criminal offence to desecrate the national or regional flag do not breach the freedom of expression as protected by the Basic Law. The convictions of two protestors who defaced flags were upheld.


Key quote: 'The national flag is a unique symbol of the Hong Kong Special Administrative Region as an inalienable part of the People's Republic of China under the principle of 'one country, two systems''


Chief Justice Andrew Li Kwok-nang


5 Issue: Are all Chinese citizens born in Hong Kong permanent residents? Court of Final Appeal, July 20, 2001


Ruling: No need to refer the case to the NPCSC. Chinese citizens born in Hong Kong, including the children of visitors and illegal mainland immigrants, have right of abode under the Basic Law. The meaning of the relevant provision is clear from the wording and is not affected by Beijing's 1999 interpretation.


Key quote: 'In conformity with the common law, the court is unable ... to depart from what it considers to be the clear meaning ... in favour of a meaning the language cannot bear'


Chief Justice Andrew Li Kwok-nang


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