ARTICLE
19 AND ARTICLE
158
38. The Monitor questions the competence, the
independence and the impartiality of the judiciary when dealing
with constitutional issues with political implications.
39. One concern centres around the Court of
Final Appeal, which replaced the Privy Council as Hong Kong's
highest court on 30 June 1997.
40. On 9 June 1995, the British and Chinese
Governments reached an agreement on the establishment of the Court
of Final Appeal. This agreement proved controversial as it ignored
promises made in the Joint Declaration and the Basic Law. Specifically,
Article 82 of the Basic Law allows for the Court of Final Appeal
to invite judges from other common law jurisdictions to sit on
its bench when necessary. The 9 June agreement, on the other hand,
limited the number of foreign judges on the bench to one out of
five, instead of allowing the Court of Final Appeal the flexibility
to decide. This provision was enacted along with other controversial
sections in the Court of Final Appeal Ordinance of July 1995.
41. Restrictions have been placed on the jurisdiction
of the Court of Final Appeal by sections of the Court of Final
Appeal Ordinance and articles of the Basic Law. The first concern
is section 4(2) which gives effect to Article 19 of the Basic
Law. This denies the Courts of the HKSAR jurisdiction over "acts
of state".
42. The English translation of the Basic Law
illustrates "acts of state" as matters "such
as defence and foreign affairs". The Chinese version
defines it as "such as defence and foreign affairs, etcetera."
(emphasis added)
43. The courts of the HKSAR have to obtain a
certificate from the Chief Executive on questions of fact concerning
"acts of state". Before issuing the certificate, the
Chief Executive must obtain a certifying document from the Central
People's Government. The certificate is binding on the courts.
44. The Monitor fears that the common law interpretation
of what constitutes an "act of state" will not be followed.
Under the common law, "acts of state" refer only to
matters like the declaration of war, the appointment of ministers
or the signing of a treaty. It cannot be interpreted as to allow
a State to act against its own citizens.
45. The Court of Final Appeal Ordinance as it
stands, and Article 19 of the Basic Law, ensure that any challenge
to an issue which the Chinese Government deems an "act of
state" will be beyond the jurisdiction of the Hong Kong courts
including the highest court of the territory. HKSAR courts are
not able to interpret what is meant by "acts of state"
because it concerns defence and foreign affairs which is not within
the autonomy of the HKSAR. Such an arbitrary provision clearly
does damage to the rule of law. It denies a citizen of the HKSAR
the right to a fair hearing guaranteed by Article 14 of the ICCPR.
46. Article 158 of the Basic Law removes from
the Hong Kong courts the right to interpret the Basic Law where
the interpretation concerns either affairs which are the responsibility
of the Central People's Government or the relationship between
the Central Authorities and the HKSAR. Only the Standing Committee
of the National People's Congress may interpret such matters and
their decision will be binding on the trial court. Their decision
is unappealable.
47. Article 158 violates the right to a fair
hearing guaranteed under Article 14 of the ICCPR. Parties to those
cases involving matters excluded by Article 158 from the jurisdiction
of the HKSAR courts are denied the right to make submissions to
any tribunal and there is no right of appeal against the decision
returned by the Standing Committee.
48. Further, the ambit of what can be excluded
from the jurisdiction of the courts is very wide and open to arbitrary
application. Almost anything can fall within the scope of matters
concerning the relationship between the Central Authorities and
the HKSAR, particularly issues which are politically sensitive.
49. There have already been signs of the Hong
Kong judiciary faltering in its role as the guardian of liberty
and the rule of law. In the recent case of HKSAR v Ma
Wai-kwan, David (29 July 1997), which inter alia, challenged
the establishment of the provisional legislature as unconstitutional
and illegal, the Court of Appeal found that it could not question
decisions made by the National People's Congress (NPC) or any
bodies established by the NPC. The reason for this decision was
that under the colonial system Hong Kong courts could not question
decisions of the British parliament or the government, and the
Basic Law imposes similar restrictions on the HKSAR courts under
Article 19 vis a vis the new sovereign. The Monitor considered
this to be a serious misreading of the Basic Law. Hong Kong is
not a colony of the People's Republic of China (PRC); it is a
part of China. Its relationship with the Central Authorities and
other parts of China is set out in great detail in the Basic Law.
Article 158 gives a right and imposes an obligation on the HKSAR
government to interpret the Basic Law. If the need to interpret
the Basic Law arises in the context of an NPC decision or of any
other mainland body, a liberal interpretation of the Basic Law
may give the HKSAR courts the right to review that decision.
50. We urge the Committee to find that:
— limiting the number of foreign judges
who can sit on the bench of the Court of Final Appeal violates
Article 82 of the Basic Law and poses a challenge to the independence
of the highest court of the HKSAR.
— Section 4(2) of the Court of Final
Appeal Ordinance and Article 19 of the Basic Law effectively deny
the HKSAR courts jurisdiction over cases deemed to involve "acts
of state". The term "acts of state" is ill-defined
in the Basic Law and is open to abuse by arbitrary application.
This could lead to violations of the right to a fair hearing guaranteed
by Article 14 of the ICCPR;
— Article 158 of the Basic Law, by
removing from the HKSAR courts the right to interpret the Basic
Law on issues concerning the affairs which are the responsibility
of the Central Peoples' Government or the relationship between
the Central Authorities and the HKSAR, denies HKSAR citizens the
right to a fair hearing. This is because decisions on the interpretation
of the Basic Law on these matters can only be made by the Standing
Committee of the National Peoples' Congress, whose decisions are
binding on the courts of the HKSAR and are unappealable.
— A serious review of the Ma wai-kwan
decision should be made on the grounds that the findings in that
case severely threaten the autonomy promised to Hong Kong by the
Joint Declaration and the Basic Law.
ARTICLE
24
51. Article 24 of the Basic Law lists all those
people who are, or have the right to be permanent residents of
the HKSAR. One group of persons who are being unjustifiable denied
permanent residency and the right of abode, are current Hong Kong
permanent residents who have obtained foreign passports.
52. Under present immigration laws, Hong Kong
residents who have obtained foreign passports abroad but who have
returned to live in Hong Kong since ("overseas returnees")
can keep their permanent residency status and right of abode in
Hong Kong despite their foreign nationality.
53. However on 10 August 1996, the Preparatory
Committee passed a resolution on the interpretation of Article
24. It decided that all Hong Kong permanent residents returning
to the HKSAR after 1 July 1997 who hold foreign passports (apart
from British National (Overseas) and British Overseas Citizenship
documents) shall lose their permanent residency status on declaration
of their foreign nationality. Their status is then reduced to
that of an ordinary resident, and to regain permanent residency,
they have to fulfil another seven years of continuous residency
in Hong Kong. Should they leave the HKSAR for a specified period
of time after acquiring permanent residency, they may lose their
permanent residency status altogether.
54. Loss of permanent residency status entails:
— Losing the right not to be deported,
removed and the right not to have conditions of stay imposed upon
you;
— Losing the right to vote and to stand
for elections in the HKSAR; and
— Being barred from entering the civil
service on local terms.
55. It is unjustified to deny persons who are
born and who have lived most of their lives in Hong Kong the right
to permanent residency and the right of abode in the HKSAR.
56. In its interpretation of the term "ordinary
resident" the preparatory Committee excluded certain groups
of people who have been ordinarily resident in Hong Kong for seven
years from being eligible to apply for permanent residency status.
Those people who are excluded are predominantly Mainland Chinese
dissidents and Mainland Chinese mothers who have children born
in Hong Kong to Hong Kong-based fathers. Under current immigration
laws, these persons are allowed to remain in Hong Kong by the
Director of Immigration in exercising his power of discretion
on compassionate grounds. After seven years of ordinary residence
they are entitled to apply for permanent residency.
57. Under Article 24, all children of Hong Kong
permanent residents have the right of abode in Hong Kong. In a
recent amendment to the Immigration Ordinance however, this right
was curbed by the requirement that such children must obtain a
one-way permit in order to enter Hong Kong. This permit scheme
is notorious for corrupt practices and it often results in children
waiting years in a queue before consideration.
58. This policy is also discriminatory in that
children are the only category of persons entitled to the right
of abode in Hong Kong that have to face this administrative barrier.
There is no legitimate justification for this policy—Hong
Kong's immigration services are capable of handling the influx.
Some argue that this influx of children will unduly burden the
school system as well as social services. The Monitor feels that
such excuses cannot be used to deny children one of their most
basic rights i.e., to the protection and enjoyment of family life.
59. In a recent decision however, the High Court
accepted the HKSAR government's argument that Article 22 of the
Basic Law empowers the authorities of the Central People's Government
to determine which people from China could enter the HKSAR for
settlement and that this included those children accorded the
right of abode under Article 24. Having accepted this, the court
refused to hear any other arguments concerning the discrimination
against these children and the violation of their rights as it
should have done given that such rights are guaranteed in the
Basic Law. This decision also highlights the inconsistencies between
various provisions in the Basic Law and the vulnerability of Hong
Kong people that judicial institutions may not necessarily interpret
such inconsistencies in ways protective of their human rights.
