May 1999

The Government as predicted has today announced that it will ask the Standing Committee of the National People's Congress to "interpret" away the Court of Final Appeal judgment on the right of abode.

Three months ago it humiliated the Court by asking it to clarify its judgment, something which had never been done before and was of doubtful legality. The court did so, and at the time some people thought that by clarifying the judgment the court had prevented the much worse possibility of interpretation by the Standing Committee, a body of Mainland Communist party officials who know little of Hong Kong and nothing of Hong Kong's legal system.

Unfortunately, today's announcement shows that, not content with humiliating and weakening the Court of Final Appeal on that occasion, the Government is determined to destroy it as an effective institution by refusing to comply with its rulings.

The Government and others have expressed fears about the large numbers of people entitled to come to Hong Kong under the court judgment. If these numbers are really too large for Hong Kong to manage, there is a simple and straightforward answer - to amend the Basic Law.

The Government's arguments against amending the Basic Law are self-contradictory and wholly unconvincing. On the one hand it says that decisions to amend the Basic Law should not be taken lightly. On the other hand it says that Hong Kong is facing the possibility of severe social problems from enormous numbers of migrants, and wants the Standing Committee to use a power of interpretation which has only been used 8 times before. It also says that it would have to wait until next March for an amendment and this is too long. However any "interpretation" would be bound to give rise to more court cases about what the effect of the interpretation is, and would protract the uncertainty far beyond next March.

The true reason for the Government's action is that it wishes to crush the independence of the courts so that it will never have trouble getting its own way in future. The action which it has announced today opens the way to the removal of all the rights guaranteed in the Joint Declaration and the Basic Law.

The Government proudly advances as justification the argument that there has always been a power of interpretation of the Basic Law by the Standing Committee. This is legally very doubtful. Reading the Basic Law as a whole it seems clear that the intention was for this power to be delegated to the courts of the Hong Kong Special Administrative Region save in certain special circumstances which do not arise in this case.

However even if there is such a power as claimed it should not be used when a perfectly good alternative method of limiting numbers who enter Hong Kong exists with the power to amend the Basic Law. A power to interpret black to mean white can be used to remove every vestige of freedom.

The contempt which the Government has for the law is shown by its stated intention of asking the Standing Committee to interpret the law to mean what was decided in a 1993 paper, even though that paper was prepared 2 years after the Basic Law was passed, so that it is of no guidance to establish what was in the minds of those who drafted the Law two years earlier. The word "interpretation" here is Orwellian Newspeak for meaning whatever the Government wants on a particular day.

Human Rights Monitor calls on every person in Hong Kong and outside who cares about Hong Kong's traditional freedoms to oppose this deliberate wrecking of our legal system. This is a critical moment. Once one "re-interpretation" has been made it will be too late to turn the clock back, and other re-interpretations will quickly follow, each one destroying a further part of "One Country, two systems".

1999 (c) Hong Kong Human Rights Monitor