The Monitor's considered view on the right of abode issue are as follows:-

1. Taking away the right of abode from people who already have it is unacceptable. It is equivalent to depriving people of their nationality and is fundamentally morally wrong.

2. The position is different with people who merely have the expectation of a future right. We have no objection in principle to a change in the law which would prevent some people from acquiring the right of abode in Hong Kong in future.

3. We believe the Government has failed to take into account this important distinction.

4. The Government has quoted a figure of 1.67 million additional people who would have the right of abode as a result of the Court of Final Appeal decision in Ng Ka Ling's case. The Government's figures are open to question. However even on those figures the number of people who already have the right of abode, as opposed to the possibility of acquiring it in future, is only 692,000. This number is manageable without impossible social stress, particularly as it seems that at least 20% of those who responded to the Government's survey do not wish to come to Hong Kong. Once this is taken into account the figure falls to 553,600.

5. It is essential that if there is to be any change in the right of abode provisions in Article 24 of the Basic Law this should be by amendment of the Basic Law rather than by the so-called "interpretation" route suggested by the Government.

6. "Interpretation" would mean that Hong Kong would no longer have a Court of Final Appeal. Any litigant who lost in the Court of Final Appeal on a case involving the Basic Law would be able to go to the Standing Committee of the National People's Congress and ask them to recommend that the Committee issue an "interpretation" of the Basic Law which would have the effect of reversing the Court of Final Appeal's judgment. This would particularly favour very rich and well-connected litigants.

7. This would be a breach of the Joint Declaration, which states ( Article 3) that the Hong Kong Special Administrative Region will be vested with independent judicial power including power of final adjudication.

8. In addition this type of interpretation would create many problems for the courts in other cases, as it would generate uncertainty as to how to reconcile it with traditional common law principles of interpretation which the courts use every day.

9. The Government is believed to favour interpretation because it believes it is quicker. This is almost certainly wrong, because any interpretation is itself likely to be subject to further challenges in the Hong Kong courts.

10. In particular, Article 158 of the Basic Law provides that when any interpretation of the provisions of the Basic Law is made by the Standing Committee of the National People's Congress "judgments previously rendered shall not be affected." The meaning of this phrase is unclear, and any interpretation which even arguably affects the judgment of the Court of Final Appeal is likely to be challenged in the courts, leading to a further year or more of uncertainty and delay while the matter is argued in court, and possibly to a further constitutional crisis after the Court of Final Appeal rules on the point.

11. "Interpretation" will not therefore solve the issue faster than an amendment to the Basic Law which took effect next March, 10 months from now.

12. Rather than wasting time and money arguing in court about what the various constitutional documents mean, the correct course is to debate in the Legislative Council what the right policy is, and then propose appropriate amendments to the Basic Law to give effect to that policy. Use of the amendment procedure should not be controversial, as every country which has a constitution amends that constitution from time to time.

13. The debates associated with amendments should ensure that all aspects of this complex situation are properly considered and taken into account. This will not be achieved by a hasty revision drafted by a small group of officials and then pushed to the NPC Standing Committee for a rubber stamp ratification. Changing a constitution is a serious matter, and should not be attempted in a panic.

10 May 1999

1999 (c) Hong Kong Human Rights Monitor