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https://scmp.com/comment/insight-opinion/hong-kong/article/2183944/were-living-hong-kong-shaped-landmark-1999-ruling
Opinion/ Hong Kong

We’re living in a Hong Kong shaped by a landmark 1999 ruling

  • Cliff Buddle says the Court of Final Appeal has been accused of first going too far in asserting its independence and then surrendering too much ground. The 1999 incident also opened the door to Beijing’s interpretations of the Basic Law
Illustration: Craig Stephens

Twenty years ago today, Hong Kong’s top court delivered its first judgment on new constitutional arrangements put in place when the city returned to China. The ruling, which gave hope to thousands of children born in mainland China claiming the right to live in Hong Kong, marked a defining moment in the city’s history. It has been described as Hong Kong’s Marbury vs Madison moment, a reference to the seminal decision of 1803 when the United States’ Supreme Court established its role as the final interpreter of the constitution.

But the Hong Kong court’s brave – some would say foolhardy – attempt to do something similar was short-lived. It was a catalyst for dramatic and unexpected consequences which are still being felt in the city today.

The court ruled in favour of the abode seekers, sparking fears of a mass influx of migrants from mainland China. But it went further, stating “unequivocally” it had the power to strike out acts of the National People’s Congress, China’s highest organ of state power, if they conflicted with Hong Kong’s new de facto constitution, the Basic Law.

This was too much for the central government, which saw the court’s finding as a challenge to its authority. A constitutional crisis was only averted when the court delivered an unprecedented clarification of its judgment at the request of the Hong Kong government.

Abode seekers Cheung Lai-wah, Ng Ka-ling and Ng Tan-tan arrived at the Court of Final Appeal in January 1999. The court would make a short-lived ruling in their favour. Photo: Martin Chan
Abode seekers Cheung Lai-wah, Ng Ka-ling and Ng Tan-tan arrived at the Court of Final Appeal in January 1999. The court would make a short-lived ruling in their favour. Photo: Martin Chan

But it was not enough to save the ruling. Hong Kong officials, citing fears that the city would be swamped with immigrants, asked Beijing to effectively overturn the judgment. The National People's Congress Standing Committee did so, in June that year, by issuing its first interpretation of the Basic Law. This was unexpected, as many had thought at the time such interpretations could only be delivered at the request of the court. Few had imagined the first constitutional ruling by Hong Kong’s top court would be overturned by a political body in Beijing.

Not surprisingly, the move raised concerns that the city’s judiciary had been undermined and, at the height of the controversy, 600 lawyers staged a silent protest march.

Over the past 20 years, the court has faced much criticism over its actions in 1999. It has been accused of first going too far in seeking to assert its own powers and then, in the face of a strong backlash, surrendering more ground than necessary.

That may be true. But history should look favourably on the five judges who delivered that landmark ruling. Their vision for Hong Kong, as a part of China with a very high degree of autonomy, was one many hoped for at the time.

It is not easy, in 2019, to recall the sense of uncertainty back then about the way the unique “one country, two systems” arrangements would play out. As one of the lawyers in the case, Denis Chang, said at the time: “We are in virgin constitutional territory.”

There were so many questions to be answered. How was the Basic Law to be interpreted? Did the court have the power to strike out laws it found to be inconsistent with it? How were human rights provisions in the law to be treated? What was Beijing’s role in all this? Would the court need to seek an opinion from the Standing Committee before delivering its judgment?

At a ceremony marking the second anniversary of the handover in 1999, China’s vice-president Hu Jintao (left) smiled and Hong Kong’s chief executive Tung Chee-hwa (second from left) waved at chief justice Andrew Li. Tung’s wife, Betty Tung, was second from left. Photo: Agence France-Presse
At a ceremony marking the second anniversary of the handover in 1999, China’s vice-president Hu Jintao (left) smiled and Hong Kong’s chief executive Tung Chee-hwa (second from left) waved at chief justice Andrew Li. Tung’s wife, Betty Tung, was second from left. Photo: Agence France-Presse

The ruling was delivered by then chief justice Andrew Li Kwok-nang, in two hours, to a small, packed courtroom in the old French Mission Building. He was joined on the bench by Mr Justice Kemal Bokhary, Mr Justice Charles Ching, Mr Justice Henry Litton and, from Australia, Mr Justice Anthony Mason.

While the case tackled constitutional issues of great importance, it was ultimately about human rights. The court would decide the fate of four young people, Ng Ka-ling, then 11, her nine-year-old sister Ng Tan-tan, Cheung Lai-wah, also nine, and Tsui Kuen-nang, 20. All were born in mainland China but had a parent from Hong Kong. They relied on the wording of the Basic Law, which appeared to give them the right of abode. And there were many more in the same position who were anxiously awaiting the outcome of the case.

The court’s judgment not only swept away the government’s restrictions on the ability of the abode seekers to live in Hong Kong, it also removed many of the doubts about the operation of the “one country, two systems” arrangements.

The judges attached great importance to protecting the city’s freedoms and high degree of autonomy, and sought to ensure key constitutional decisions concerning Hong Kong would be reserved for the city’s independent judiciary.

With the benefit of 20 years of hindsight, it might be said the court was naive to think its broad view of the judiciary’s powers would be acceptable to Beijing. But at the time, many saw it as a sensible and credible view of the way the new system should work.

In the final month of that turbulent year, the court controversially conceded that the Standing Committee has the power to interpret any part of the Basic Law at any time. And when it does so, the courts of Hong Kong must follow that interpretation. The judges could be viewed as having been bullied into submission. Certainly, they were reluctant to spark another conflict with Beijing.

Since then, there have been four more interpretations. Interpretation has become a legal weapon wielded sparingly by Beijing but at significant moments. It was used, for example, in 2004 to curtail Hong Kong’s ability to pursue future democratic reforms, and in 2016 to ensure pro-democracy legislators were disqualified for political posturing while taking their oaths.

It is interesting to reflect on where those involved in the dramatic events of 1999 are now. Geoffrey Ma Tao-li, who led the government’s legal team in the right of abode case, is now chief justice. Ronny Tong Ka-wah was an outspoken chairman of the Bar Association at the time, warning memorably of a “Damocles’ sword” hanging over the court as a result of the government’s refusal to rule out future requests for interpretations from Beijing. Now, he sits on the Executive Council as legal adviser to Chief Executive Carrie Lam Cheng Yuet-ngor. Mr Justice Litton, who ruled that day that the court could strike out acts of the NPC, has since retirement become a critic of what he sees as a lack of judicial rigour in the courts. Sadly, lawyer Pam Baker, who worked tirelessly for the abode seekers, passed away in 2002. I still recall her characteristic reaction to the court’s ruling in favour of her clients. “I am absolutely thrilled to bits,” she said.

The court’s bold attempt at a Marbury vs Madison ruling might have backfired. But much of that epic judgment has remained intact. The generous interpretation of parts of the Basic Law protecting human rights continues to be applied. Crucially, the ability of the courts to strike out local laws which conflict with the Basic Law remains in place. This important power was used by the courts before the handover, but there were doubts about whether it would continue once Hong Kong returned to China.

In the right of abode case, the court declared several laws which restricted the ability of the claimants to live in Hong Kong to be invalid. This was done on the basis that the restrictions were inconsistent with the Basic Law, which defined the categories of Hong Kong permanent residents in broad terms.

The judgment has had a lasting impact. It will be remembered both as a flawed attempt to make sense of Hong Kong’s new constitutional arrangements, but also as a high point for the city’s judicial independence and level of autonomy.

Cliff Buddle is the Post’s editor of special projects