The two historic decisions which started a judicial rollercoaster

The legal battle over the right of abode began while Hong Kong was still celebrating the handover. In the months which followed, the High Court was swamped with applications from the mainland-born children of permanent residents. It took years for those cases to work their way through the courts. This was a legal drama which worked on many different levels. It was at heart a human rights case. Defeat for the applicants meant being sent back to the mainland. Families faced being split and emotions sometimes ran high. But the issues which the cases raised also forced the judiciary to consider complex questions about the new constitutional arrangements between Hong Kong and the mainland. All this culminated in the two judgments delivered by the Court of Final Appeal on January 29, 1999. While most people will remember the drama of the right-of-abode saga, few are familiar with what the cases involved. Here is a brief guide to those two landmark decisions. Ng Ka-ling and others vs Director of Immigration. At the heart of the case was the question of who had the right of abode under the Basic Law and whether they could stay in Hong Kong. The applicants' argument was simple. Article 24(2) of the Basic Law says Chinese nationals 'born ... of' a permanent resident had right of abode. That, they said, couldn't be restricted. But the government argued that the right was subject to Article 22(4) which provides that people entering from other parts of China must apply for approval and the number who can settle in the city is to be determined by the mainland authorities. Thus, even those with the right of abode were subject to the mainland's quota system. The court had to decide whether laws passed by the provisional legislature restricting people's ability to exercise the right of abode were compatible with the Basic Law. But first, the judges ruled that the courts had the power to review legislation and acts of the Hong Kong authorities, and to hold them invalid if they conflicted with the Basic Law. They went on to declare that it was for the Hong Kong courts to determine whether an act of the National People's Congress (NPC) or its Standing Committee (NPCSC) was inconsistent with the Basic Law. But the court still needed to decide whether it was entitled to interpret the relevant provisions of the Basic Law without referring the matter to Beijing. Article 158 of the Basic Law authorises our courts to interpret - on their own - Basic Law provisions which were within the city's autonomy. But provisions concerning the responsibility of the central government or its relationship with Hong Kong had to be referred to the NPCSC if its interpretation was needed. The judges found that the provision in question - Article 24 - fell within Hong Kong's autonomy. So there was no need, they said, to refer the case to the NPCSC. In the core part of the ruling, the court decided that Article 24(2) gave permanent residents the unqualified right of abode and that they were not covered by Article 22. 'They are permanent residents with the right to enter [Hong Kong] and stay as long as they wish,' said the chief justice. The law requiring applicants to have a one-way permit was, therefore, found to be unconstitutional. Another law, which denied right of abode to children whose parents had not married and who were claiming the right through their permanent resident father was also struck down by the court as discriminatory. Finally, the court ruled that the provisional legislature which had passed the laws in question was formed in compliance with the Basic Law. Chan Kam-nga vs Director of Immigration This case concerned whether children born on the mainland before they had a parent who was a Hong Kong permanent resident qualified for right of abode under Article 24. The claimants argued that the Basic Law required them only to be 'born ... of' a permanent resident - regardless of when they were born. They challenged a law which restricted the right to those who had a parent who was a permanent resident at the time of their birth. The court ruled that Article 24 clearly included all children 'born of' permanent residents, no matter when the birth was. The law imposing the restriction was found to be unconstitutional. Ng Ka-ling and others vs Director of Immigration (No 2) On February 26, 1999, the court clarified its ruling from January 29 at the request of the Hong Kong government, to make clear that it had not intended to challenge the power of the NPCSC. 'The court's judgment on 29 January 1999 did not question the authority of the Standing Committee to make an interpretation under Article 158 which would have to be followed by the courts of [Hong Kong]. The court accepts that it cannot question that authority,' said the chief justice. The interpretation by the NPCSC This was adopted on June 26, 1999. It stated that the Court of Final Appeal was wrong not to refer the right of abode cases to Beijing because they concerned affairs which were the responsibility of the central government and its relationship with Hong Kong. The NPCSC declared, contrary to the court's judgment, that right of abode applicants required permission from mainland authorities before coming here. The one-way permit requirement was restored. It also ruled that children born before either of their parents became a permanent resident did not qualify for the right of abode under Article 24(2). The interpretation did not apply to parties to the proceedings who had been before the court.