Hotline Asia Urgent Appeals -- UA990604(8)

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Summary

Earlier this year in January, Hong Kong's Court of Final Appeal struck down a law passed on 9 July 1997 that sought to limit the rights of those enjoying the right of abode in Hong Kong. In a unanimous decision, the court argued that such laws could not be made retrospective thus removing rights already enjoyed by citizens of the Hong Kong Special Administrative Region (SAR). The 9 July 1997 laws sought to limit the rights of children born on the Mainland whose parent(s) were Hong Kong permanent residents by requiring them to obtain a Certificate of Entitlement before settling in the SAR. In handing down its decision, the court also awarded the right of abode to children born or parents who subsequently became permanent residents as well as to illegitimate children born of Hong Kong permanent residents.

According to Article 24 (3) of the Basic Law of the Hong Kong SAR, children of permanent residents of the SAR have the right of abode in the SAR itself. Further, Article 158 provides the National People's Congress (NPC) of the People's Republic of China authority to interpret the Basic Law but grants SAR courts the right to interpret the Basic Law when adjudicating cases within Hong Kong's authority.

To deal with the influx of people (estimated by the Government at 1.67 million), the Government announced on 18 May that it would seek the re-interpretation of the two right of abode clauses in the Basic Law by referring them to the Standing Committee of the National Peoples Congress (NPC). The clauses include article 22, which deals with the entry of mainlanders, and article 24 on abode rights. To do so, the Government argued, would reduce to 200,000 the number of mainland Chinese eligible for residency. The reinterpretation, expected in late June, will invalidate the Court of Final Appeal's January ruling as well as overturn the ruling that migrants need not have one-way permits to leave the mainland. Many community leaders believe that the right of abode belongs within the competence of Hong Kong's autonomy and the SAR Government's decision to seek the NPC's re-interpretation sets a dangerous precedent while dealing a severe blow to the rule of law, judicial independence and the operation of the 'one country, two systems' concept enshrined in the Basic Law. (A copy of the June 1999 pastoral letter from Cardinal John Baptist Wu of the Hong Kong Catholic Diocese, is attached for your references.)

Write to express your concern that the SAR Government not take away a person's right of abode that previously existed; about the SAR Government's attempt to seek the Standing Committee of the NPC's re-interpretation of abode rights and the damage it may cause to the rule of law, judicial independence and autonomy of Hong Kong.

Sample Letter

Background

The Court of Final Appeal's (CFA) 29 January 1999 ruling has led the SAR Government to introduce a scheme that will allow people with the right of abode to settle within a reasonable time. Various options have been proposed including: asking the Court of Final Appeal to review its January 29 ruling; accepting the influx; and amending the Basic Law (the SAR's mini-constitution).

The central government has publicly declared that it will not involve itself in the search for a solution to the problems said will arise from the SAR's Court of Final Appeal ruling over right of abode. In fact Mainland officials are reluctant to change the Basic Law for which they largely drafted. To have the NPC amend the Basic Law would mean that the earliest a decision could be taken would not be until March 2000. The SAR Government argues that circumstances do not allow it to wait and that having the Standing Committee of the NPC reinterpret the Basic Law offers "offers the most resolute, prompt and conclusive solution to the present problems".

The SAR Government's figure of 1.67 million Mainland residents eligible for permanent residency in the SAR has been followed by a series of dire predictions warning of severe social problems. It has argued that the influx will place considerable strain on the city's social welfare infrastructure and will cost taxpayers an additional HK$700 billion in capital costs over a 10-year period. Many in the community have challenged the accuracy of the government's figures with some placing the figure at 692,000, assuming all those who are eligible wish to come to the SAR (the Government's own study estimates that 20% of those eligible will not take up residency).

Against a backdrop of rising unemployment, critics have argued that the SAR government exaggerated both the numbers and the economic impact in an attempt to polarize public opinion and drum up support for actions in seeking a reinterpretation.

Under Article 158 of the Basic Law, the Standing Committee of the NPC entrusts the CFA to interpret the Basic Law when adjudicating casesunder Article the CFA decision would be to overturn an interpretation which is legal and properly reached under the Basic Law and is authorized by the NPC itselfthe Basic LawHong Kong SAR shall have a high degree of autonomyadjudicationinterpretationhave the power to interpret the Basic Law in the present case andcommunity would argueNPCSC to do so. This power to interpret was granted to the SAR 2. For the Standing Committee to exercise its power to re-interpret so as to overturn . To do so runs contrary to the basic principles of , and that constitutional package granted to the SAR, which clearly stipulates that the , judicial independence and the power of . It also contradicts the spirit and intent of Article 158, which guarantees that any , should not affect a previous decision of the CFA. As such, even if the NPC does , as many within the legal , is not constitutionally or legally acceptable for the SAR government to ask.

- Cardinal Wu's Pastoral Letter

Sources: Sunday Examiner - Catholic News of the Week
Vol. LIII No.23, June, 1999

Dear Brothers and Sisters in Christ,

"You were called to freedom, only do not use your freedom as an opportunity for the flesh, but through love be servants of one another. For the whole law is fulfilled in one word, You shall love your neighbour as yourself." (Gal 5: 13-14)

1999, the third and final year of preparation of the Great Jubilee will be aimed at broadening the horizons of believers, so that they will see things in the perspective of Christ: in the perspective of the "Father who is in heaven", from whom the Lord was sent and to whom he has returned. The whole of the Christian life is like a great pilgrimage to the house of the Father, whose unconditional love for every human creature we discover anew each day. This pilgrimage takes place in the heart of each person, extends to the believing community and then reaches to the whole of humanity. It will therefore be necessary, especially during this year, to emphasize the theological virtue of charity, recalling the significant and lapidary words of the First Letter of John: "God is love". Charity, in its twofold reality as love of God and love of neighbour, is the summing up of the moral life of the believer. (cf. Tertio Millennio Adveniente, nos. 49-50)

These perspectives ought to provide us with a new way of looking at the question of the right of abode of children born in the Mainland to Hong Kong parents, a new way of discussing the question and its consequences. In the long term, these children cannot without permission be reunited with their families in Hong Kong and we should pay special attention to this.

In fact, a large number of adult Hong Kong residents came from the Mainland to settle here in the 1950s and 1960s. Hong Kong at that time was not blessed with a strong economy or firm social structure. Nevertheless, when faced with a continuous flood of refugees, there was no hesitation and doors were opened to welcome them. At the present time, the economic outlook is not so bright. Yet, compared with the rest of the world, Hong Kong is seen to be particularly blessed and is still the envy of many. Based on the belief that "blood is thicker than water", that "all within the four seas are one family", the Chinese people have always shown kindness to others and taken delight in sharing. Faced then today with the question of children born to Hong Kong parents in the Motherland, how can we harden our hearts, look on with indifference and a lack of humanity, and use "interpretation" to deny them hope?

The Government of the S.A.R., in its concern for Hong Kong and its sense of responsibility, is to be respected. But when it seeks the long term prosperity of Hong Kong by requesting the Standing Committee of the N.P.C. for re-interpretation of the Basic Law in order to limit the right of abode of children born in the Mainland to Hong Kong parents, then it engenders a certain resistance on the part of Hong Kong residents to Mainland people, with lamentable consequences. Diligent and resourceful, benevolent and caring, the people of Hong Kong are well known both within and beyond China for their generosity and open-handedness in helping wherever disaster strikes and causes human suffering whether within Hong Kong itself, in China, or in other countries. Given sufficient time, and provided with adequate information and proper arrangements, Hong Kong's zealous people, philanthropists, voluntary bodies and church communities could deal with the present question of right of abode, and, united in hand and in heart, could respond to the limits of their ability to face the challenge and to meet the difficulties, could grasp the opportunity to develop a spirit of love and create a new miracle. Let is be seen that the people of Hong Kong are loving and its society is a caring one.

In accordance with the principles of "one country, two systems" and "a high degree of autonomy", the Central Government's solemn commitment to the Hong Kong S.A.R., and with reference to the provisions of the scope of self governance of the Hong Kong S.A.A., the N.P.C. gave Hong Kong courts the right to interpret its own laws. This right is the established basis of Hong Kong's system of law and of government Hong Kong is home to more than six million people, an international city belonging to the community of nations, an important window for our Motherland. It is extremely important that the basis of law and government be maintained in all its integrity. The present question of the right of abode belongs within the competence of Hong Kong's autonomy. The S.A.R. should itself give its own interpretation, but it has not done this. Asking for a reinterpretation form the Standing Committee of the N.P.C. cannot help but damage the foundation of the autonomy of the S.A.R., shake the foundations of Hong Kong family, raise doubts in people's minds about the Central Government's promise of "one country, two systems with a high degree of autonomy", undermine the confidence of the international community towards Hong Kong. Who can be sure how far reaching the effects will be?

Dear brothers and sisters, facing this present situation do we feel helpless? That is understandable! Can nothing be done? Remember our faith. Pray more, open ourselves, believe firmly. God helps those who help themselves, because His "power working in us can do more than we can ask for or imagine. Glory be to Him from generation to generation in the church and in Christ Jesus for ever and ever, Amen." (Eph 3:20-21)

Visitation of Our Lady 1999
+ John B. Card. Wu

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