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Overstayers march outside Immigration Tower after Beijing’s reinterpretation of the abode law. Photo: David Wong

June 26, 1999: Beijing approves Hong Kong Basic Law reinterpretation on right of abode

  • A section of Article 24 will now mean that mainlanders born before one of their parents became a permanent resident of Hong Kong do not have right of abode
This article was first published in the South China Morning Post on June 27, 1999. It has been republished online as part of Hong Kong 25, which looks at how the city has changed since the handover, and what its future holds.

By Chris Yeung

Beijing yesterday approved a reinterpretation of Basic Law provisions in a move which overturns a Court of Final Appeal ruling and revokes the right of abode for more than 1.4 million mainland residents.

The Standing Committee of the National People’s Congress (NPC) passed unanimously a government request to reinterpret sections under Article 22 and 24 of the mini-constitution, following a three-hour discussion on Tuesday. One of the 140 members of the Standing Committee did not press the button to vote.

Members accepted the court was wrong in not seeking an interpretation from the NPC before its final ruling. They also found the court’s interpretation did not reflect the “true legislative intent”.

According to the interpretation that will be gazetted by the Government tomorrow, a section of Article 24 will now mean that mainlanders born before one of their parents became a permanent resident of Hong Kong do not have right of abode.

The reinterpretation will drastically reduce the number of mainlanders eligible for the right of abode under the Court of Final Appeal ruling on January 29, which according to the latest official estimate was 1.65 million.

A reinterpretation of the Article 22 section will mean mainlanders, including Hong Kong permanent residents’ children born with Chinese nationality, must seek a valid pass before entering the SAR.

The front page of the South China Morning Post on June 27, 1999.

The Standing Committee said its interpretation would not affect the rights of people involved in the January 29 cases.

Courts will have to follow the latest interpretation when adjudicating relevant provisions in future cases.

The Government said about 3,700 mainland people, including 1,800 who have returned to the mainland, would be eligible for right of abode.

Speaking at a press conference, Chief Executive Tung Chee-hwa said the Government was “very, very pleased” that the interpretation had “made a giant step towards solving a very difficult problem”.

Mr Tung said the Government’s decision was “entirely legal and constitutional” and was taken in the overall interests of Hong Kong.

“Some Hong Kong people who do not fully appreciate the situation may be worried our rule of law may be affected by this issue. I wish to assure these people we will never permit the rule of law to be compromised.

“There are some people in Hong Kong who have completely ignored the legal and constitutional basis on which we have resolved the problem. They have also tried to mislead international opinion,” said Mr Tung.

Wong Shuk-hing holds son Tsang Yau-hoi, three, as protesters waited in Wan Chai for the NPC’s ruling before marching to the Central Government Offices. Photo: David Wong

“Unfortunately, neither have they made any practical contribution to solving this very difficult problem.”

He said: “Who does not want to see family reunion? We have to balance different needs. But one thing we can’t compromise is the rule of law. To those who are unable to come, they can apply through the 150-a-day quota system.”

The Chief Executive, however, declined to commit himself over whether the Government would request reinterpretation on other matters in the future.

Mr Tung said the decision was made as there were no other options and that it would be “naive” to believe that the central authorities would accept any government request made because it had lost in the courts.

He said the Executive Council had decided at a meeting yesterday to introduce a resolution to the Legco tomorrow to amend the Immigration Ordinance in accordance with the Standing Committee’s interpretation.

It will also provide for children born out of wedlock to apply for the right of abode. About 170,000 people will be eligible under this category.

Secretary for Justice Elsie Leung Oi-sie said she was confident courts would follow the interpretation in accordance with the statement issued by the Court of Final Appeal on February 26.

Chief Justice of the Court of Final Appeal Andrew Li Kwok-nang has said acts of the NPC which were in accordance with the Basic Law could not be questioned by the court.

Miss Leung said: “I can’t believe courts with high standing won’t honour their words.”

Secretary for Security Regina Ip Lau Shuk-yee said although they expected more lawsuits, the interpretation would make the provisions clearer and would greatly help implement them in future.

She said the Government was obliged to recognise the rights of those who did make claims to the Immigration Department after the handover and before the January 29 ruling.

“We have asked these people not to take it to court because they will be represented by other similar cases.”

Democratic Party leader Martin Lee Chu-ming called on the people to defend the rule of law.

“It is Tung Chee-hwa and Elsie Leung who . . . damaged the SAR’s common law, abandoned its power of final adjudication and destroyed rule of law. A Government that tells lies does not have credibility.”

Tsang Yok-sing, chairman of the Democratic Alliance for the Betterment of Hong Kong, said he hoped all arguments would now come to an end.

The Hong Kong Humans Right Monitor said Mr Tung would “go down in history for having fatally damaged the legal system which was Hong Kong’s pride”.