The sword that never fell

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

This was the moment 10 years ago on January 29 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.

Two related judgments greatly expanded the number of mainland-born children with a parent who was a permanent Hong Kong 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 in the city. But the rulings also sparked fears that a huge influx of migrants would swamp Hong Kong.

Significantly, however, 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 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 it was not seeking to usurp the power of the National People's Congress.

Then, in June 1999, the NPC Standing Committee delivered - at the request of the Hong Kong government - an interpretation of the Basic Law which effectively overturned key parts of the judgment. The hopes of many abode claimants relying on the judgments were dashed.

The impact of these events is still being felt today.

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.

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. 'There is always a reminder of how precarious the position is.'

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

'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 ... 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.

'This is not a sword of Damocles, it is just saying where the ultimate power of interpretation rests.'