NPCSC reinterpretation the fundamental solution
Updated: 2013-01-05 08:29
By Violetta Yau(HK Edition)
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The Department of Justice's request for the city's highest court to seek a clarification from the National People's Congress Standing Committee (NPCSC) on its interpretation of the right of abode provisions has stirred up a swirl of controversy. The heated debate that followed was not unexpected.
The decision by the Justice Department was intended to settle the dust once and for all on all the right of abode disputes involving foreign domestic helpers and children born to non-local parents in the city. The request follows a case involving a foreign domestic helper seeking right of abode. If the government's request is accepted by the Court of Final Appeal (CFA), it could effectively kill two birds with one stone by putting a full stop to the right of abode debate. The city's people who have been irritated for long enough by the flood of mainland women giving births here may finally have some peace.
If the interpretation excludes foreign domestic helpers and children born to non-resident parents from the right of abode, it would also effectively reverse the CFA ruling 11 years ago in the Chong Fung-yuen case. That was the landmark case which granted all babies born in the city the right of abode they are entitled to regardless of their parents' resident status.
Critics of the government's decision are quick to claim the administration is undermining judicial independence and abusing the judicial process. Some even were pronouncing the demise of the rule of law. Some also claimed that this is what former top judge Kemal Bokhary described as "a storm of unprecedented ferocity" that has clouded the city.
But these allegations and fears are totally unfounded. For the record, the power of final interpretation of the Basic Law is vested in the NPCSC under Article 158. This is the constitutional right of Beijing's top legislature to interpret the Basic Law if so warranted.
The city has gone through several interpretations of the Basic Law, including the clarification of the term of a new Chief Executive after his predecessor had resigned before completing his term. There was the matter of the legal immunity enjoyed by the Congo government in the SAR.
Apart from the right of abode interpretation, all other circumstances warrant the constitutional clarifications from the NPCSC. Even the Congo interpretation was initiated by the CFA itself and nobody has ever offered a hint of disapproval, including the vociferous legal sector. I don't know when clarification of a constitutional right, set out under the Basic Law, equates to undermining the city's judicial independence. This will serve to set the record straight according to the original intent of the provisions, not creating a new law. It should not be deemed as some contagious disease that should be cut off. If one's vision is always clouded by prejudices, he can never appreciate the good side of things.
As a litigant on behalf of the SAR government, the Secretary for Justice has entire responsibility to advance his case to utmost advantage. There is nothing wrong in his resorting to any legal means to resolve both thorny issues. It would be up to the CFA to decide the merits of the argument and whether the request is valid under the Basic Law. After all, the root of the problem lies with the Chong Fung-yuen judgment, in which the CFA adopted a literal interpretation of the abode provisions without regard for the legislative intent reflected in the "Opinions" by the Preparatory Committee in 1996 on the Basic Law implementation. Despite the NPCSC interpretation in 1999 to affirm the legitimacy of the "Opinions", the CFA chose to ignore this judicial reference and simply disregarded it as a non-binding "supplement" to the Basic Law.
In other words, relevant interpretation is already there, but the city's highest court simply ignored it, resulting in continued right of abode disputes that have plagued the city. What the justice chief has done is to request that the CFA seek to clarify misunderstandings of the law. Some people have suggested amending the Basic Law to resolve the problem. But as Qiao Xiaoyang, deputy secretary-general of the NPCSC, questioned, what is the point of amending the Basic Law when the rightful interpretation was already made?
As long as the Chong Fung-yuen judgment is upheld, any administrative attempts to stop pregnant mainland women from coming will be to no avail and easily be subject to legal challenges. Legal problems should be resolved through legal means.
The author is a current affairs commentator.
(HK Edition 01/05/2013 page3)