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Web-only Exclusives
November 30, 2000

From Our Correspondent: Hirohito and the War
A conversation with biographer Herbert Bix

From Our Correspondent: A Rough Road Ahead
Bad news for the Philippines - and some others

From Our Correspondent: Making Enemies
Indonesia needs friends. So why is it picking fights?

Asiaweek Time Asia Now Asiaweek story

BATTLE OVER THE LAW

As the territory nervously awaits an influx of migrants, China blasts a local court ruling

By Todd Crowell


Editorial Cool heads wanted

Controversy A justice secretary in hot water

Making History The Court on the Basic Law

IT WAS LIKE A DELAYED-action bomb. On the last working day of January, Hong Kong's Court of Final Appeal (CFA) ruled that persons born of local residents now living in China had the right of abode in the territory. Declared invalid as violating the Basic Law, Hong Kong's constitution, was an ordinance hastily passed after the July 1997 handover to restrict their arrival and keep immigration at manageable levels. The court's decision was quickly hailed as an example of Hong Kong's judicial autonomy under "one country, two systems."

Even so, Hong Kongers agonized over the implications of a wave of migrants at a time of severe economic recession. No one knows for sure how many people in China now qualify to live in Hong Kong, but both the government and independent academics have put the number at about 600,000, many of them children. That would be equivalent to 9% of the local population and more than all the children enrolled in the territory's primary schools. Hong Kong faces the heaviest wave of migrants since the end of the Chine se Civil War 50 years ago.

Then, like distant thunder from gathering storm clouds came rumblings from China that gave a stark new twist to the saga. After a week, mainland authorities had had a chance to translate and digest the text of the CFA's 68-page ruling. And they did not li ke what they read. To them, it seemed that Hong Kong's top court had taken upon itself authority over not only the Basic Law, but also statutes passed by China's National People's Congress (NPC), constitutionally the nation's supreme organ of power. The k ey point of contention was an assertion by the CFA that it had the right to examine and "declare invalid" NPC legislation it deems to have breached Hong Kong's charter.

The Basic Law promises Hong Kong "independent judicial power," a guarantee cited by the court in making its ruling. But several mainland legal experts, who helped draft the document, said the CFA was asserting a role never intended. Some critics said the NPC should overturn the court's decision, others that the Basic Law must be amended. Some even called on Chief Justice Andrew Li to resign. Suddenly, a major human and social challenge had turned into a constitutional clash, the biggest fracas between Chi na and Hong Kong since the handover. The controversy, says Democratic Party leader Martin Lee, "is an atomic bomb."

In the 19 months since the British departure, Hong Kong's relations with the mainland had been almost lullingly smooth. A few flaps have arisen, notably from off-hand remarks by "old China friends" in the territory. But the Chinese leadership, up to and i ncluding President Jiang Zemin, had been quick to defend Hong Kong's autonomy. What disturbed some people about the latest flare-up was an impression that it might have been orchestrated from the top. "This is the beginning of a well-organized attack on t he CFA," says Lee.

The mainland legal specialists, quoted at length by China's official Xinhua News Agency, were especially vehement in their denunciations of the court's ruling. Then Zhao Qizheng, a Chinese government spokesman, said the judgment was a mistake and should b e changed. As the storm intensified in Hong Kong, foreign parties took notice. A U.S. State Department official expressed "concern" to a local radio station, while Britain warned that China should not undermine the independence of the territory's courts. Beijing sought to cool things down. "The central government has unswervingly implemented the 'one country, two systems' policy in Hong Kong," said a Foreign Ministry spokeswoman. "On this issue there is no change at all."

Next Page>>


MAKING HISTORY

Excerpts from the Hong Kong Court of Final Appeal's judgment on child migrants:

ON ITS RIGHT TO EXAMINE HONG KONG LAWS

In exercising their judicial power conferred by the Basic Law, the courts of [Hong Kong] . . . undoubtedly have the jurisdiction to examine whether legislation enacted by the [local] legislature or acts of the executive authorities are consistent with the Basic Law and, if found to be inconsistent, to hold them invalid.

ON ITS RIGHT TO REVIEW LAWS PASSED BY CHINA'S NATIONAL PEOPLE'S CONGRESS

In our view, the courts of [Hong Kong] do have this jurisdiction and, indeed, the duty to declare invalidity if inconsistency is found . . . It is therefore for the courts of [Hong Kong] to determine whether an act of the National People's Congress or its standing committee is inconsistent with the Basic Law.

ON THE LAW REQUIRING MAINLAND RESIDENTS TO HAVE CHINESE EXIT PERMITS TO PROVE RIGHT OF ABODE IN HONG KONG

The mainland laws requiring exit approval for mainland residents coming to Hong Kong, of course, are and remain fully enforceable on the mainland. But they cannot provide a constitutional basis for limiting rights conferred by the Basic Law. It follows th at No. 3 Ordinance [passed by Hong Kong's former Provisional Legislature] is unconstitutional.

ON ILLEGITIMATE CHILDREN

A person is born of [a permanent] resident whether he was born in or out of wedlock. A child born out of wedlock is no more or less a person born of such a resident than a child born in wedlock.


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