Legal landmark

PUBLISHED : Thursday, 29 January, 2009, 12:00am
UPDATED : Thursday, 29 January, 2009, 12:00am

A hushed silence fell over the crowded courtroom as Chief Justice Andrew Li Kwok-nang prepared to deliver judgment. There was a palpable sense that history was about to be made.

This was the moment, 10 years ago today, when a long-running legal battle over claims by mainland-born children to the right of abode was to reach its climax in the Court of Final Appeal.

It was also the first time since the handover that the top court had been asked to rule on issues of great constitutional significance. As senior counsel Denis Chang Khen-lee put it at the time: 'We are entering virgin constitutional territory.'

The chief justice, when he began delivering the judgment, highlighted the significance of the ruling.

'Questions involving the proper interpretation of the Basic Law are before us for the first time. These are questions of momentous importance for both the future of the people involved as well as the development of constitutional jurisprudence in the new order,' he said.

But no one could have predicted the dramatic and far-reaching repercussions which would flow from the decision.

Two related judgments greatly expanded the number of mainland-born children, with a parent who is a Hong Kong permanent resident, who could claim the right of abode under the Basic Law. This prevented families from being split and came as a huge relief to claimants who had spent months fighting for the right to stay here. But the rulings also sparked fears that a huge influx of migrants would swamp Hong Kong.

Significantly, the court also sought to assert the power of the judiciary under the constitutional arrangements put in place for Hong Kong's return to China.

The judges declared that the courts had the power to interpret the Basic Law and to strike down legislation which they found to be incompatible with it. In this sense, their ruling was seen as our equivalent of the seminal United States case Marbury vs Madison which, in 1803, established the authority of the US Supreme Court to rule on the validity of legislation.

The Court of Final Appeal dealt head-on with the sensitive question of whether Hong Kong courts had the power to declare acts of the National People's Congress (NPC) and its Standing Committee invalid if they find them to be inconsistent with the Basic Law.

'In our view the courts of [Hong Kong] do have this jurisdiction and indeed the duty to declare invalidity if inconsistency is found. It is right that we should take this opportunity of stating so unequivocally,' the chief justice said.

That passage was to prove hugely controversial. Suddenly, Hong Kong found itself plunged into a constitutional crisis.

The court immediately came under fire from mainland legal experts. It took the unprecedented step of clarifying its judgment to make clear that it was not seeking to usurp the power of the NPC.

Then, in June 1999, the National People's Congress Standing Committee (NPCSC) delivered - at the request of the Hong Kong government - an interpretation of the Basic Law which effectively overturned key parts of the judgment. It was upheld by the same judges who delivered the original rulings. The hopes of many abode claimants relying on the judgments were dashed.

The impact of these events is still being felt today. Although memories have faded and passions cooled, those involved still harbour strong - often conflicting - opinions.

Ronny Tong Ka-wah, SC, was chairman of the Bar Association at the time of the ruling. The events of 1999 propelled him into politics and he is now a Civic Party lawmaker.

'I think the judgment not only changed my life, it changed the entire perception of the concept of one country, two systems under the Basic Law. I thought at the time it was a very bold and 100 per cent accurate decision underlying judicial independence and the self-governance of Hong Kong,' he said.

Legal sector lawmaker Margaret Ng Ngoi-yee, who represented abode seekers, said: 'I was elated when I heard the judgment. I thought it really laid down the foundations for the rule of law. It was something we had wished for, for so long. But you were always afraid it could be taken from you.

'We were very confident it was right. But we had no experience. We had no basis for predicting what was going to happen. The whole independence of the judicial system was being put to the test. As lawyers, we felt very personally about it.'

She said she was stunned when the court accepted a government request to make a clarification of its judgment, paving the way for an interpretation by the NPCSC. 'I was deeply shocked. I thought it was a defining moment because the court was clearly bowing to power.'

Beijing's reinterpretation of the relevant Basic Law provisions raised many concerns at the time about the impact it would have on the rule of law here. Many observers worried that litigants would, in future, seek a ruling from the NPCSC rather than go through the courts. Fears were expressed that other court rulings would be overturned in this way.

There have been two further interpretations by the Standing Committee, concerning the political reform process in 2004 and the length of Chief Executive Donald Tsang Yam-kuen's term the following year. Neither involved court rulings. Opinions, however, are still split on the impact of those events 10 years ago.

Mr Tong repeatedly warned at the time that the reinterpretation by Beijing left a sword hanging over the courts. 'The sword is still there,' he says now. 'The fact that it does not fall is neither here nor there, because the very point about this sword of Damocles is that there is always a threat. There is always a reminder of how precarious the position is. We do not know what effect this has had on the court. You never know what goes on inside the brain of a judge.'

But Professor Albert Chen Hung-yee, a member of the Basic Law Committee which advises the NPCSC on interpretations of the mini-constitution, said the NPCSC had adopted a cautious and restrained approach to the use of its power to interpret the Basic Law.

'I think the fear that Beijing would interfere in judicial decision-making in Hong Kong has not materialised. The fear that individuals' rights in Hong Kong would be threatened, like the right of abode, has not actually occurred.'

Professor Chen said that in theory it was still possible for the Standing Committee to issue an interpretation after a court had ruled, 'but in practice I think Beijing understands the political cost of doing that'.

Solicitor General Ian Wingfield said: 'With hindsight, whatever the fears may have been, they have not proved to any great extent to be reflected in subsequent events.'

He did not agree that judicial independence had been compromised. 'The courts have made it crystal clear that once the NPC has given its interpretation, they will follow it. This is not a sword of Damocles it is just saying where the ultimate power of interpretation rests.'

Yash Ghai, who at the time was the Sir YK Pao Chair in Public Law at the University of Hong Kong, said the professional and business class in Hong Kong had urged Beijing to step in. 'It was interesting to see Hong Kong's administration and the wealthy class it represented, pleading with Beijing to curb Hong Kong's autonomy. This curious and opportunistic 'class' alliance was essential to both sides in the politics of transition,' he said.

Professor Ghai added: 'The Court of Final Appeal, placed in an unenviable position, had the courage to uphold the rule of law, and to delineate constitutional parameters in the Hong Kong-Beijing relationship to protect the autonomy. The Court of Final Appeal was humiliated, forced into Chinese communist style self-criticism, and lost the battle.

'But it did fight back, in the narrowed parameters set by the NPCSC, and remains the most effective institution for the protection of the rights of Hong Kong people.'

Amid the controversy over Beijing's interpretation, the significance of parts of the judgments which were left undisturbed is often overlooked.

The court set out an approach to interpretation of the Basic Law to be adopted by Hong Kong judges, which placed much importance on protecting human rights.

'That has been followed by Hong Kong courts since then. They adopted a liberal approach to the interpretation of human rights provisions under the Basic Law,' said Professor Chen.

He also sees the court's assertion of its power to strike down Hong Kong legislation as important. 'This has never been questioned,' he said.

Ms Ng said the court's approach to human rights had been useful. 'Judges who want to find in favour of rights can use that very effectively. To that extent, let's be grateful. But not all of them do so,' she added.

Ten years after the ruling, both Hong Kong and the mainland have changed. It is now much easier for people to come to Hong Kong. As the mainland has become more prosperous, a move to Hong Kong has become less attractive. The quota for one-way permits, allowing mainlanders to settle here, is no longer being filled.

But for the right of abode claimants who saw their hopes realised - and then dashed - by the rollercoaster events of 1999, the sense of injustice persists. Some are still urging the government to grant them permission to stay here.

Ms Ng, however, believes the victory on that day 10 years ago - although fleeting - had deep meaning for those involved.

'I sometimes think the overall picture may be discouraging,' she said. 'But because people have realised that justice has once triumphed, it gives them a sense of value, a sense of dignity. It is not that they have no rights, it is just that the right has been taken away from them. I think that is important.'

Post Deputy Editor Cliff Buddle covered the Court of Final Appeal's ruling on right of abode and its aftermath as a reporter for the paper