HOW TO RECONCILE the SAR's legal system with the mainland's has been one of the key issues Hong Kong has had to grapple with since the handover. Uncertainty over how the two systems should interact caused the damaging constitutional crisis of 1999, when a landmark Court of Final Appeal ruling was overturned by Beijing at the request of the SAR Government.
Fears of a similar clash between the systems arose again in July when the court confirmed that all Chinese nationals born in Hong Kong are permanent residents, contradicting views previously stated by China's legislature. But this time, despite 'deep concern' over the judgment being expressed in Beijing, a crisis was avoided. Unlike in 1999, no attempt was made to reverse the ruling by seeking an interpretation of the Basic Law from the National People's Congress Standing Committee (NPCSC). Instead, the judgment was allowed to stand.
Now that the dust has settled, the case is being considered in terms of its implications for the relationship between the two systems. Why, this time, did it not lead to a crisis? Has Hong Kong learned from the troubles of 1999?
New light is shed on the issue by Albert Chen Hung-yee, dean of the law faculty at the University of Hong Kong, in an article written for the Hong Kong Law Journal to be published at the end of this month.
Professor Chen, a member of the Basic Law Committee, which advises the NPCSC on interpretations of the Basic Law, argues that the July case represented a 'win-win' scenario for both the Hong Kong and mainland systems. 'The common-law tradition and judicial autonomy have been defended; the authority of the NPCSC has been asserted; the spirit of mutual self-restraint, tolerance and accommodation has triumphed,' he writes.
The case in question involved a claim to the right of abode by Chong Fung-yuen, now four, who was born in Hong Kong while his parents were visiting from the mainland on two-way permits. According to the SAR Government, the children of visitors, as well as those of illegal immigrants and overstayers, did not qualify for the right of abode in Hong Kong. The boy's lawyers argued that the Basic Law imposed no such restriction, stating only that Chinese nationals born in Hong Kong were permanent residents.