The judgment by the Hong Kong Court of Final Appeal in the case of Lau Kong Yung confirms a dramatic reduction in the degree of Hong Kong's autonomy.
The key issue in the case was whether Article 158 of the Basic Law gave the NPC Standing Committee an unlimited power to interpret the Basic Law or whether that power was qualified by the remainder of the Article, which provides for the Court of Final Appeal to refer questions for interpretation in certain circumstances. The original draft had included a wide ranging power which had been deleted from the final version. The applicants (right of abode claimants) argued that this meant that there was no such power in the final version. The court stated that as it did not know why the deletion had been made, it would adopt what if considered the plainest meaning of the words which remained, which was to give the wide general power of interpretation. As a result all parts of the NPCSC interpretation were valid and applied from 1 July 1997 when the Basic Law came into force. The Applicants therefore had no right to be in Hong Kong unless they first obtained permission from the Mainland authorities, and those whose parents had only become Hong Kong residents after their birth had no right of abode at all.
It is now clear as a result of this judgment that any part of the Basic Law can be "interpreted" at any time by the Beijing Government to mean whatever it wants it to mean, and that the Hong Kong courts will be powerless to resist. Traditionally Communist systems of law rely on interpretation to make the law mean whatever the Communist Party wants, so making guarantees of freedom worthless. This system is now being applied to the constitutional guarantees in Hong Kong's Basic Law. As a result thousands of Mainland-born children of Hong Kong residents will grow up separated from their families unless their parents can afford the necessary bribe to get them a permit from the Mainland authorities to come here.
The Hong Kong Government has repeatedly refused to give any assurance that it will not make further requests for "interpretation". Unless there were pressure to restrain the government, we predict a series of re-interpretations which will steadily remove the guarantees which were promised to Hong Kong in the Sino-British Joint Declaration.
LAU KONG YUNG (an infant suing by his father and next friend LAU YI TO) and 16 others
THE DIRECTOR OF IMMIGRATION (3-12-1999)
1999 (c) Hong Kong Human Rights Monitor
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