C H A P T E R y I I
Autonomy and H u m a n Rights Concerns in Post-Handover
H o n g Kong
Roda Mushkat
1W h e t h e r dictated by self-interest or as a result of a local strategy of building trust a n d cultivating g o o d relations with the Central Government, it is commonly accepted that "Beijing has kept a decidedly low profile in H o n g Kong."2 A r e c e n t study by a new U.S. H o u s e of Representatives Task Force concluded, " [ t ] h e Chinese G o v e r n m e n t appears to be taking seriously [China]
President J i a n g Zemin's p l e d g e at the h a n d o v e r that n o m a i n l a n d g o v e r n m e n t officials 'may or will be allowed to interfere in the affairs which H o n g Kong should administer on its own;"' a n d
"[f]ar from b e i n g heavy-handed or insensitive, Beijing appears to have absented itself from active involvement in H o n g Kong affairs."3
Yet, it has b e e n suggested that "perhaps the most significant threat to the territory's a u t o n o m y comes from within."4 Thus, for example, while "opinion is divided over the extent to which self-
^Copyright Roda Mushkat 1998. This chapter draws on the author's article, The Future of Hong Kong's International Legal Personality: Does International Law Matter? A Post-Handover Snapshot, 22 S. ILL U. LJ. 275 (1998).
2John Ridding, Governing with a Light Touch, FIN. TIMES, December 8, 1997, China Supplement, at iv.
^Quoted in Simon Beck, "So Far, So Good" Transition Verdict, SUNDAY MORNING
POST, Nov. 11, 1997, at 2.
4Riddine, supra note 2.
163
censorship5 in the media has increased since the handover,"6
"elsewhere there have been signs of second-guessing the new sov- ereign."7 Less ambiguity and more concern exists about the self- restrictive approach adopted by Hong Kong Special Administrative Region judges regarding the jurisdictional compe- tence of the Region's courts in a recent decision on the legality of the Provisional Legislature.
5Self-censorship is widely perceived to exist, but it remains difficult to find specific instances in which self-censorship killed a story or suppressed an edito- rial. The pressure appears to remain more subtle, coming not as a direct order to refrain from writing, but as a subjective exercise of special care toward topics of particular sensitivity such as China's leadership dynamics, Taiwan, Tibet, or military activity. . . . Analysts have also noted that many Chinese-language papers that originally criticized the Provisional Legislature changed their position after the body became a reality and now support it. This might represent a form of self-censorship, or it might reflect a pragmatic approach toward unfolding events. U.S. Department of State, United States-Hong Kong Policy Act Report, March 31, 1997, at 24.
"Ridding, supra note 2. See also Philip Bowring, What's Changing in Hong Kong, INT'L HERALD TRIB., Aug. 27, 1997, at 10 (stating that " [ a l t h o u g h there was an evident increase in media self-censorship in the months leading up to the handover, the situation has not become worse. Indeed, there are signs of greater determination now to exercise old freedoms and test the new limits.").
'Ridding, supra note 2 (citing as an example the failure of two recent Hollywood productions about Tibet to find distributors in Hong Kong).
Reference could also be made to a case of "over-guessing" the new sovereign, involving the attack on Radio Television Hong Kong (RTHK) by a Hong Kong Adviser to China and a long-standing member of the Chinese People Political Consultative Conference (CPPCC), Xu Ximin, who accused the broadcaster of being "a remnant of British rule" in criticizing the SAR government and the Chief Executive under the guise of editorial independence. See Margaret Ng, Slow Road to Censorship, S. CHINA MORNING POST, Mar. 6, 1998, at 23 (the author views even more gravely comments by the Chief Executive, Tung Chee-hwa, implying that some concession has to be made on freedom of speech to accom- modate the positive presentation of government policies). Ironically, in an apparent reprimand to Xu, Li Ruihuan, the mainland chairman of the CPPCC, emphasized that RTHK was not a matter of concern for the Central Government and that the CPPCC meeting was not a place for discussing the internal affairs of Hong Kong. See Xu's Attack on RTHK Dismissed, SUNDAY MORNING POST, March 8, 1998, at 4. See also President Jiang Zemin's call on local deputies to the National People's Congress not to interfere with the affairs of the SAR govern- ment, as reported in Linda Choy, HK Deputies Warned Not to Meddle, S. CHINA MORNING POST, Mar. 10, 1998, at 1.
Autonomy and Human Rights Concerns in Post-Handover Hong Kong 165
As stated (in an o b i t e r dicta) by Chief J u d g e Patrick C h a n :
". . . regional courts have n o jurisdiction to query the validity of any legislation or acts passed by the Sovereign [although] courts d o have the jurisdiction to e x a m i n e the existence (as o p p o s e d to validity) of the acts of the Sovereign or its delegate."8 These dicta might have b e e n g e n e r a t e d by the special political circumstances s u r r o u n d i n g the Provisional Legislature a n d h e n c e be an isolated case. Nonetheless, concerns have b e e n raised r e g a r d i n g the precedential implications of an authoritative ruling for the Special Administrative Region's high d e g r e e of autonomy.9
8HKSARv. Ma Wai-Kwan, [1997] H.K.L.R.D. 7 6 1 , 780, 781 (Ct. App.) (hold- i n g i n t e r alia t h a t t h e setting-up of t h e Provisional Legislative Council by the P r e p a r a t o r y C o m m i t t e e for t h e HKSAR was ratified by t h e National People's Congress a n d that such ratification was a sovereign act that t h e HKSAR could n o t c h a l l e n g e ) . T h e court's r u l i n g r e g a r d i n g t h e legality of t h e Provisional Legislature has b e e n c h a l l e n g e d in a n o t h e r case (as part of a n a p p e a l by child migrants to b e allowed to r e m a i n in the HKSAR, after d i s p u t e d laws forcing t h e m to r e t u r n to t h e m a i n l a n d to comply with i m m i g r a t i o n p r o c e d u r e s were passed by t h e Provisional Legislature within days of t h e h a n d o v e r ; see infra notes 45, 47, 4 8 ) . In its j u d g m e n t of May 20, 1998, t h e C o u r t of Appeal held itself b o u n d by its decision in Ma Wai-Kwan. T h e Chief J u d g e n o n e t h e l e s s c o n c e d e d that an "analogy with colonial courts [inability to review acts of t h e British P a r l i a m e n t ] . . . m i g h t n o t have b e e n entirely a p p r o p r i a t e " ; a n d that "it may be that in a p p r o p r i a t e cases . . . t h e HKSAR courts d o have j u r i s d i c t i o n to e x a m i n e laws a n d acts of t h e N P C which affect t h e HKSAR for t h e p u r p o s e of, say, deter- m i n i n g w h e t h e r such laws or acts a r e contrary to or inconsistent with t h e Basic Law." C h a n , Chief J u d g e of t h e H i g h Court, further stated that "[his] views on t h e court's j u r i s d i c t i o n in t h e David Ma case were expressed in t h e context of t h e case a n d c a n n o t be u n d e r s t o o d to m e a n t h a t N P C laws a n d acts would prevail over the Basic Law." U n d o u b t e d l y , as the Chief J u d g e a d d e d , "HKSAR courts have the j u r i s d i c t i o n to judicially review t h e laws passed a n d t h e acts d o n e by t h e Provisional Legislative Council to see w h e t h e r it acted within t h e powers given to it by t h e P r e p a r a t o r y C o m m i t t e e . " C h e u n g Lai W a h v. D i r e c t o r of I m m i g r a t i o n , [1998] 1 H.K.L.R.D. 772, 780 (Ct. A p p . ) .
^See L i n d a Choy, Self-Imposed Limits Could Sacrifice Autonomy, Law Academic Warns, S. CHINA MORNING POST, July 30, 1997, at 7; Editorial, Provisional Verdict, S. CHINA MORNING POST, July 30, 1997, at 16; Yash Ghai, Dark Days for Our Rights, S. CHINA MORNING POST, July 30, 1997, at 16; Angela Li, Bar Chief Hits at a
"Backward-Looking" Example in Provisional Legislature Case, S. CHINA MORNING POST, July 30, 1997, at 6. For a sustained critical analysis of t h e j u d g m e n t , see J o h a n n e s C h a n , The Jurisdiction and Legality of the Provisional Legislative Council, 27
H.K. L.J. 374 (1997).
In general, although the Region's judges are constrained from exercising jurisdiction "over defence and foreign affairs"—
as well as required to obtain an executive certificate on "questions of fact concerning acts of state whenever such questions arise in the adjudication of cases"10—they must preserve the judicial inde- pendence bestowed on them in both the Sino-British Joint Declaration}1 and the Region's Basic Law.V2 Consequently, as elab- orated by the former Attorney General of Hong Kong, J. F.
Mathews,13 Special Administrative Region courts are empowered to "determine whether an act is or is not an act of state." Further, in accordance with the common law,14 they should construe "act of state" as pertaining to certain acts of the Executive, to be dis- tinguished from an act by a legislative assembly (the National People's Congress). "The courts would not therefore be prohibit- ed from adjudicating on the lawfulness of such a legislative act."
Indeed, as Mathews concludes, "[i]f guarantees in the Basic Law could be overridden by decisions of the National People's Congress, and the courts of the Hong Kong Special Administrative Region were powerless to question the legality of
^See H o n g K o n g C o u r t of Final A p p e a l O r d i n a n c e , LAWS O F H O N G KONG Ch. 484, § 4.
11Joint Declaration, People's Republic of C h i n a - U n i t e d K i n g d o m , signed Dec. 19, 1984, Art. 3 ( 3 ) , A n n e x I, § III.
2 The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Basic Law), a d o p t e d o n April 4, 1990, by t h e Seventh National People's Congress of t h e People's Republic of C h i n a at its T h i r d Session, reprint-
e d in 2 3 I N T ' L LEGAL M A T ' L S 1511 ( 1 9 9 0 ) .
1 3J. F. Mathews, No Sound Legal Basis for Grim Scenario, S. CHINA MORNING POST, April 18, 1997, at 18.
1 4T h e c o m m o n law is g u a r a n t e e d to c o n t i n u e to apply in t h e F1KSAR u n d e r both t h e Sino-British Joint Declaration, A n n e x I, § II, a n d t h e Basic Law, Art. 8. See
also YASH G H A I , H O N G K O N G ' S N E W CONSTITUTIONAL O R D E R : T H E RESUMPTION O F CHINESE SOVEREIGNTY AND THE BASIC LAW 296 (1997) (". . . t h e g e n e r a l r e f e r e n c e s to t h e 'previous jurisdiction of c o u r t s ' [Basic Law, Art. 19] as well as t h e contin- u a n c e of t h e c o m m o n law as t h e f u n d a m e n t a l basis of t h e legal system of t h e HKSAR s h o u l d b e e n o u g h to e n s u r e that t h e restrictions o n t h e j u r i s d i c t i o n of t h e courts u n d e r t h e d o c t r i n e of t h e act of state a r e n o m o r e extensive t h a n cus- tomarily in t h e c o m m o n law. N o r is t h e r e any reason for t h e courts to h o l d that all acts of t h e C e n t r a l Authorities t h a t a r e c a r r i e d o u t in H o n g K o n g a r e i m m u n e from j u d i c i a l scrutiny.").
Autonomy and Human Rights Concerns in Posi-Handover Hong Kong 167
those decisions, this would be a devastating blow to the rule of law and to confidence in Hong Kong's future."15
Other ("from within") challenges to the territory's autonomy are thought to have been posed by the Region's prosecutorial authorities and its (provisional) legislators. Concerns have been raised in particular over what has been described as "incidents of selective 'non-prosecution',"16 namely, the decision by the Justice Department not to prosecute Sally Aw, a well-connected publish- ing tycoon and member of the Chinese People's Political Consultative Conference, despite being named in charges by the Independent Commission Against Corruption (ICAC) as involved (together with senior executives in her company, the Hong Kong Standard, a newspaper) in a conspiracy to defraud purchasers of advertising space.17 The Justice Department's decision followed another contentious decision not to initiate legal proceedings against the Xinhua News Agency, one of China's most important institutions in the territory, for a breach of the Personal Data
(Privacy) Ordinance.18
^ I t is fair to n o t e that in t h e Ma Wai-Kwan case, t h e court h e l d that t h e e s t a b l i s h m e n t of t h e Provisional Legislative Council was n o t in b r e a c h of t h e Basic Law, since " [ t h e PLC] is, strictly speaking, n o t a legislative council u n d e r art. 68 of t h e Basic Law. It was n o t a creation of t h e Basic Law . . . only an inter- im body f o r m e d by t h e P r e p a r a t i o n [sic] C o m m i t t e e u n d e r t h e authority a n d t h e powers of the N P C p u r s u a n t to t h e 1990 a n d 1994 NPC Decisions." [ 1 9 9 7 | H.K.L.R.D. a t 776 (Ct. App.) ( p e r C h a n , C. J . ) . See also C h e u n g Lai Wah v.
Director of I m m i g r a t i o n , [1998] 1 H.K.L.R.D. 772, 780 (Ct. A p p . ) !
16.S><? NATIONAL DEMOCRATIC: INSTITUTE FOR INTERNATIONAL AFFAIRS, T H E PROMISE O F DEMOCRATIZATION IN H O N G K O N G : AUTONOMY AND THE RULE O F LAW, ( N D I H O N G K O N G REPORT # 3 , May 1, 1998) ("NDI R E P O R T " ) . T h e R e p o r t cites
these incidents a n d t h e lack of a d e q u a t e public a c c o u n t by t h e Administration as e x a m p l e s of a " t r o u b l i n g lack of c o m m i t m e n t to t h e rule of law." NDI REPORT, supra at 15-16, 18.
" J o h n Riddley, Hong Kong Drops Fraud Case Against Top Publisher, FIN. TIMES, Mar. 19, 1998, at 4.
^ T h e Agency h a d failed to r e s p o n d within t h e r e q u i r e d time ( t h e legal d e a d l i n e is 4 0 days; t h e Agency took 10 m o n t h s to reply) to a r e q u e s t by Emilv Lau, a f o r m e r legislator a n d l e a d e r of t h e F r o n t i e r Party, for access to any per- sonal files h e l d o n h e r by t h e Agency. A n ill-judged r e m a r k by Chief Executive T u n g Chee-hwa that t h e violation by X i n h u a was "a technical b r e a c h , n o t a sub- stantial b r e a c h " has f u r t h e r fueled c o n c e r n s over a p i e c e m e a l erosion of the rule
of law in t h e SAR. See E d i t o r i a l , Letter of the Law, S. C H I N A MORNING POST, Mar.
12, 1998, at 20. See also Yash Ghai, Praise is Not Enough, SUNDAY MORNING POST,
An even greater controversy has s u r r o u n d e d the e n a c t m e n t by the Provisional Legislature on the last day of its existence of the Adaptation of Laws (Interpretative Provisions) O r d i n a n c e .1 9 This o r d i n a n c e resulted in the transfer of e x e m p t i o n privileges from the "Crown" to the "State."2 0 "State" was defined to include the g o v e r n m e n t of the Special Administrative Region a n d China's Central Authorities that exercise executive functions a n d func- tions for which the Central G o v e r n m e n t has responsibility u n d e r the Basic Law. T h e term also includes s u b o r d i n a t e organs of the Central Authorities that exercise executive functions on behalf of the Central G o v e r n m e n t a n d d o n o t exercise commercial func- tions. T h e g o v e r n m e n t c o n t e n d s that the new law is a m e r e tech- nical adaptation of colonial law language, designed to reflect H o n g Kong's status as part of China. Critics, however, have a r g u e d t h a t — c o m p o u n d e d by the loose definition of "State"2 1— a d o o r has b e e n o p e n e d to legal immunity for m a i n l a n d bodies from the application of local law, contrary to the Basic Law.22 Further, fears that a two-tier legal system would be created have
Mar. 22, 1998 (pointing out that "the rule of law cannot survive without its prac- tice, as it is demonstrated daily in the processes of government, litigation in the courts, and the observance of the law.").
1 9Ordinance No. 26 of 1998, ORDINANCES OF THE HKSAR.
2°The new ordinance repealed Section 66 of the Interpretation and General Clauses Ordinance (Cap 1) which provided that "No Ordinance shall in any manner whatsoever affect the right of or be binding on the Crown unless it is therein expressly provided or unless it appears by necessary implication that the Crown is bound thereby." (The "Crown" covered both the Hong Kong and the UK governments). The Section has now been replaced with the provision that "(1) No Ordinance (whether enacted before, on or after 1 July 1997) shall in any manner whatsoever affect the right of or be binding on the State unless it is therein expressly provided or unless it appears by necessary implication that the State is bound thereby."
21As noted by one observer, "in sharp contrast to British rule—during which time bodies that could claim Crown immunity were few and well defined—the number of Chinese organizations that might now invoke State immunity are many and ill defined." Review Editorial, The Worm Turns. In Hong Kong a New Colonialism, FAR EASTERN ECON. REV., Apr. 23, 1998, at 86.
22Article 22 of the Basic Law stipulates that "All offices set up in the Hong Kong Special Administrative Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region."
Autonomy and Human Rights Concerns in Post-Handover Hong Kong 169
n o t b e e n assuaged by the H o n g Kong administration's statement that " H o n g Kong's high d e g r e e of a u t o n o m y is n o t u n d e r m i n e d "
because "it is H o n g Kong's legislature that must d e t e r m i n e the e x t e n t to which it is a p p r o p r i a t e for particular ordinances to bind
[State o r g a n s ] . "2 3
I n d e e d , as forcefully a r g u e d by constitutional law expert Yash Ghai, the new legislation, which is justified as a m e r e transfer to the new sovereign of privileges enjoyed by the Crown before July 1, 1997, is based on the "mistaken assumption that H o n g Kong is a colony of China."2 4 Ghai explains that while continuity might be o n e of the o p e r a t i n g yardsticks in devising adaptation laws for the Special Administrative Region (for example, regarding the prin- ciples a n d safeguards of the legal system, the market economy, a n d fiscal and tax policies), r e g a r d i n g the Special Administrative R e g i o n / C e n t r a l G o v e r n m e n t relationship, "analogies with H o n g Kong's relationship with its colonial master are n o t only i n a p p r o - priate b u t strike at the root of [the] H o n g Kong constitutional sys- tem."2 5 More specifically,
[njothing in the Basic Law requires the exemption of the Special Administrative Region or national government from the application of laws. On the contrary, the Basic Law is con- cerned to minimise the role of institutions of the central or provincial governments in the Special Administrative Region.
They are not to interfere in the internal affairs of the Special Administrative Region; they need the Special Administrative Region's permission before they can be established here; and they have to abide by the laws of the Special Administrative Region (Article 22 ).2 6
2 Ian Wingfield, High Degree of Autonomy is Not Vndennined, S. CHINA MORNING POST, Apr. 15, 1998. Wingfield, the Acting Secretary of Justice, was responding to strong criticisms by the Chairman of the Hong Kong Bar Association, Audrey Eu, S.C., Government Failing to Faee Real Issues, S. CHINA
MORNING POST, Apr. 10, 1998.
24Yash Ghai, False Analogies, SUNDAY MORNING POST, Apr. 5, 1998. Ghai also questions the justification of the rule of Crown privilege itself (the origin of which, he says, lies in feudalism, when the monarch was the government) and suggests that "[i]t has no place in a modern state which is committed to the rule of law. Instead, the rule should be all laws bind the government (which needs to be defined narrowly) unless it is expressly and necessarily exempted from it." Id.
&Id.
Internal Self-Determination
One Hong Kong administration post-handover act that has aroused intense controversy was the change in the electoral arrangements for the May 1998 election of the first Hong Kong Special Administrative Region Legislative Council. Under the new law,27 modifications include the following:
• Substitution regarding twenty directly elected geographical seats28 of the previous "first-past-the-post"29 system with a form of proportional representation,30 whereby seats are awarded according to the percentages of votes cast for the various political parties
• Restructuring of the functional constituencies, thereby resulting in an effective reduction in the number of those eligible for the thirty seats elected by functional con- stituencies from 1.15 million to 200,000 voters31
• Election of the ten remaining seats by an election commit- tee composed of 800 members32 operating a "block vote system"
The voting arrangements triggered considerable criticism, which portrayed the new system as a "backward step on democra-
2 7T h e Legislative Council Ordinance 1997, LAWS O F HONG KONG Ch. 542.
2 8The 60 members of the first HKSAR LEGCO were elected as follows: 20 returned by geographical constituencies through direct elections; 30 returned by functional constituencies; and 10 returned by an election committee.
2 9The winning candidate in each district secures the seat.
3"A "list voting system" operating under the "largest remainder" formula.
3\jim Erickson & Law Siu-Lan, Mapping the Way Ahead, ASIAWEEK, Oct. 17, 1997, at 22, 24. Note that under the previous arrangements the constituencies were very broadly constituted and voting was based on an individual as distinct from a corporate basis.
3-The committee is composed of members from four sectors: industrial, commercial, and financial; the professions; labor, social services, and religious;
and members of the Provisional Legislative Council, Hong Kong deputies to the NPC, representatives of Hong Kong members of the NPC Political Consultative Conference, and representatives of district-based organizations. The election committee was formed by subsector elections, except for the ex officio members (members of the Provisional Legislative Council and the HK deputies to the NPC) and the religious subgroup, which nominated its election committee members.
Autonomy and Human Rights Concerns in Post-Handover Hong Kong 171
cy." Specifically, critics c o n t e n d e d that t h e democratic base of the electorate h a d b e e n sharply r e d u c e d , thereby giving "overwhelm- ing influence to a b o u t 186,000 elite voters, mainly senior business executives." They further claimed that p r o p o r t i o n a l representa- tion will dilute t h e overall strength of most p o p u l a r pro-democ- ratic parties in H o n g Kong standing for election as fragmented political entities.3 3
T h e H o n g Kong administration, t h r o u g h Chief Secretary Anson C h a n , has c o u n t e r e d that "democracy has n o t b e e n throt- tled." Rather, t h e new rules "will set H o n g Kong firmly o n t h e road to universal suffrage envisaged in t h e Basic Laiv."'^4 Secretary of Justice Elsie L e u n g p o i n t e d o u t that " [ t ] h e reduction of t h e size of t h e electorate is a result of restoring functional con- stituencies to their original p u r p o s e a n d n a t u r e . They were never i n t e n d e d to b e a form of general franchise, b u t to ensure that cer- tain i m p o r t a n t sectors within t h e community that have m a d e sig- nificant contributions a r e duly represented."3 5 And Secretary for Constitutional Affairs Michael Suen explained that "the propor- tional representation system which is based o n large [geographi- cal] constituencies would b e m o r e conducive to continuity of the constituencies a n d provide m o r e convenience for voters a n d can- didates alike."3 6 H e reiterated that "the election will be o p e n , fair, honest, a n d acceptable to t h e public."
Yet, regardless of w h e t h e r these new a r r a n g e m e n t s a r e "only transitional" a n d "the ultimate aim is t h e election of all t h e mem- bers of t h e LEGCO [Legislative Council] by universal suffrage,"37
there appears n o justification for a reversal of previous moves (themselves rather "small a n d belated"3 8) to e x p a n d t h e voting
3 3R o b e r t Stone & E s t h e r Lam, Stifling Democracy in Hong Kong, INT'I, HERALD TRIB., Sept. 9, 1997, at 10. See also Editorial, Mixed Hong Kong Nexus, INT'I. HKRAI.D TRIB., Sept. 9, 1997, at 10; Editorial, Hong Kong's Retreat, INT'I. HERALD TRIB., Oct.
4 - 5 , 1997, at 10.
™ Quoted in Chris Yeung & R o d g e r Lee, Anson Enters Poll Plan Row, S. CHINA
M O R N I N G P O S T , Sept. 16, 1997, at 1.
3 5Elsie L e u n g , Freedom of Speech Alive and Well, S. CHINA MORNING POST, Ang.
29, 1997, at 2 1 .
3 .S'CA Speaks on Electoral Arrangements, HKSAR G o v e r n m e n t Information
Services, DAILY INFORMATION BULLETIN, Aug. 12, 1997.
3' L e u n g , supra n o t e 35.
3 8C h r i s t i n e L o h , Not Far Enough, FAR EASTERN E C O N . REV., Apr. 8, 1993, ai 24.
franchise in the territory and broaden democratic initiatives. Nor are contentions that the earlier reforms were "illegal" grounded in any firm basis, given their full conformity with both the Sino- British Joint Declaration and the Basic Law.39 Some suggest that democracy in Hong Kong must develop in a gradual manner so as to maintain its social stability and economic vitality. Others say that the pace taken seems "prudent" when compared to democ- ratic experiences of countries such as the United States.40
Regardless, it is imperative that strong democratic institutions be allowed to mature in order to create a framework that is consis- tent with the expectations of the international community41
regarding the Hong Kong component of the "one country, two systems" approach.
Human Rights Concerns
The importance of protecting of civil liberties and basic freedoms for the preservation of the territory's international status needs little elaboration. Hence, it was reasonable to expect that moves to "roll back civil rights" in Hong Kong would provoke strong reaction both domestically and abroad. An example is the imple- mentation of the decision of the Standing Committee of the National People's Congress of February 23, 1997, to repeal or
39See discussion in Mushkat, supra note 1, at 148-52. Left aside is the issue of compatibility of functional constituencies and differences among voters' elec- toral rights (under the Basic Law) with international human rights law. See in this connection GHAI, supra note 14, at 226-29
40See Michael DeGolyer, Historical Pointers, SUNDAY MORNING POST, Sept. 14, 1997, at 10 (contending inter alia that "in some ways, Hong Kong is already democratically ahead of the U.S. For example, according to the U.S.
Constitution, no president of the United States may be born outside the U.S."
while "[a]nyone with sufficient residency can be chief executive in Hong Kong").
4 1It is interesting to note the caution issued by China's Vice-Premier Qian Qichen to the Preparatory Committee that its decision on the voting system must take into account the "concerns of the international community." Quoted in Danny Gittings, SUNDAY MORNING POST, Sept. 14, 1997, at 10 (the writer observed that heretofore matters of this type would have been considered as China's internal affairs and any foreign "concern" denounced as "interfer- ence").
Autonomy and Hunan Rights Concerns in Post-Handover Hong Kong 173
a m e n d certain H o n g Kong ordinances, including the Bill of Rights O r d i n a n c e , the Societies O r d i n a n c e , a n d the Public O r d e r O r d i n a n c e .4 2 Post-handover c o n c e r n s regarding the protection of civil liberties in the Region have followed the modification of the right of a b o d e in H o n g Kong of [mainland] Chinese children b o r n to H o n g Kong p e r m a n e n t residents.4 3 T h e position taken by the Region's government, however, has been that the "legislation did not, in fact, deprive any eligible person of the right of abode in H o n g Kong [but merely] provides a m e c h a n i s m to ensure those who claim to have the relevant right of a b o d e can have their claim properly verified before they seek entry into H o n g Kong;
[and that] p e n d i n g d e t e r m i n a t i o n of such putative status, the applicant remains outside the jurisdiction."4 4 Such a construction of the law has b e e n given judicial approval by the C o u r t of First Instance, which found n o incompatibility between the curbs imposed on entry into H o n g Kong of persons claiming the right of a b o d e by descent a n d the Basic Law or the Bill of Rights O r d i n a n c e .4 5 N o r was the retrospective n a t u r e of the legislation r e g a r d e d as unconstitutional, since, according to the court's interpretation, the relevant r i g h t — g u a r a n t e e d u n d e r Basic Law
^^See R o d a Mushkat, Scrapping Hong Kong Legislation: An Internationa! Law Perspective, 27 H.K. L J . 12 (1997). See alsoYdsh Ghai, The Continuity of Laws and Legal Rights and Obligations in the SAR, 27 H.K. L J . 136 (1997) (focusing on the misuse, for policy p u r p o s e s , by t h e NPCSC of Art. 160 of t h e Basic Law to repeal laws that could n o t b e r e g a r d e d as contrary to t h e Basic Law).
• " U n d e r t h e I m m i g r a t i o n ( A m e n d m e n t ) (No. 3) O r d i n a n c e 1997—enact- ed on July 10, 1997, a n d given retrospective effect to July 1, 1997—a p e r s o n ' s sta- tus as a p e r m a n e n t resident of t h e HKSAR in a c c o r d a n c e with t h e S c h e d u l e to t h e I m m i g r a t i o n ( A m e n d m e n t ) (No. 2) O r d i n a n c e 1997 ( i n c l u d i n g a person of Chinese nationality b o r n outside H o n g Kong to a p a r e n t who is a p e r m a n e n t res- i d e n t of t h e HKSAR) can only b e established by that p e r s o n h o l d i n g a "valid travel d o c u m e n t " (i.e., a valid one-way exit p e r m i t issued by the C h i n e s e a u t h o r - ities) affixed to which is a valid "Certificate of E n t i t l e m e n t to the Right of Abode in the HKSAR" issued by the Director of I m m i g r a t i o n . T h u s , m a i n l a n d Chinese claimants w h o are already in H o n g K o n g would n o t be allowed to apply for a n d obtain a p e r m a n e n t identity card o r a n HKSAR passport.
4 4L e u n g , supra n o t e 35.
4 SC h e u n g Lai Wah v. Director of I m m i g r a t i o n , [1997] 3 H.K.C. 64 (dis- missing application for judicial review in four test cases). T h e d e t e r m i n a t i o n that O r d i n a n c e N o . 3 is "constitutional" was reaffirmed by t h e Court of A p p e a l on April 2, 1998, in Civil Appeal Nos. 203, 216, 217, 218 of 1997, C h e u n g Lai Wah v. Director of I m m i g r a t i o n , [1998] 1 H . K L . R . D 772 (Ct. A p p . ) .
Article 24—had already b e e n "qualified" by a n o t h e r provision t h e r e i n [Article 2 2 ( 3 ) ] .4 6
It may n o n e t h e l e s s b e a r g u e d that t h e c o u r t e r r e d in adopt- i n g a n overly restrictive a p p r o a c h to justify the c u r t a i l m e n t of a f u n d a m e n t a l right t h a t is e n s h r i n e d in t h e Region's constitution, while at t h e same time generously i n t e r p r e t i n g legislation a i m e d at regulating t h e influx of immigrants. Specifically, t h e c o u r t a p p e a r s to have misapplied a n article d e s i g n e d to m a i n t a i n t h e Region's a u t o n o m y (by disallowing u n r e s t r i c t e d entry into t h e ter- ritory) to "sanction a d e r o g a t i o n " from t h e rights of t h e Region's residents.4 7 Some f u r t h e r c o n t e n d that t h e ruling reflected defer- e n c e to t h e g o v e r n m e n t ' s j u d g m e n t a b o u t public interest over a right g u a r a n t e e d in t h e Basic Law a n d raised c o n c e r n s r e g a r d i n g t h e "ability or willingness of H o n g Kong courts to e n s u r e respect for t h e rights established by t h e Basic L a m "4 8 Yet a n o t h e r com-
46[1997] 3 H.K.C. at 88. Article 22(4) provides that "[f]or entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People's Government after consulting the government of the Region." On appeal, two members of the Court of Appeal (Nazareth, V-P,
& Mortimer, V-P) agreed with the trial judge's conclusion that the retrospective provision in Ordinance No. 3 was valid, while one member (Hon Chan, C.J.) held the retrospective provision invalid since it sought to have the "effect of cur- tailing or even taking away the right of abode conferred under Article 24(3) of the Basic Law." According to Chief Judge Chan, the provision was also invalid as being contrary to Article 12 of the Covenant on Civil and Political Rights (which prohibits legislation that exposes persons to the possibility of prosecution for conduct that was not criminal at the time of the conduct).
47See Eric Cheung, Undermining Our Rights and Autonomy, 27 H.K. L.J. 297 (1997).
48See NDI REPORT, supra note 16, at 13. In a related context, SAR judges have been urged to show more "compassion" [see Editorial, Legal Compassion, S.
CHINA MORNING POST, May 21, 1998, at 18], after a decision by the Court of Appeal, holding that Article 24(3) of the Basic Law (which sets out the categories of persons entitled to the status of "permanent residents of the HKSAR") "is intended to benefit persons who were born to parents who have already acquired permanent resident status in Hong Kong rather than those who were born to parents who may subsequently acquire permanent resident status at some later stage." Hence, the words "if the parent had the right of abode in Hong Kong at the time of the birth of the person" (in f 2(c) of Schedule I of the Immigration Ordinance) are not inconsistent with Article 24(3) of the Basic Law nor contrary to Article 23(1 )of the ICCPR (given that the decision of the
Autonomy and Human Rights Concerns in Post-Handover Hong Kong 1 75
m e n t a t o r suggested that what is p e r h a p s m o r e worrisome in this context is the government's offer of an out-of-court settlement in the previous cases. "The Government's lifting of the children's removal orders in e x c h a n g e for their withdrawal of the judicial review applications for their right to stay is seen as a kind of administrative e x p e d i e n c e to avoid a potentially disastrous legal challenge, thus casting doubts on the Government's will to u p h o l d the rule of law."49
C o n c l u d i n g R e m a r k s
Post-1997 H o n g Kong thus appears to be evolving in a m a n n e r somewhat inconsistent with expectations that prevailed prior to the handover. China has so far displayed a truly remarkable d e g r e e of self-restraint, refraining from any statement or action that might be construed as an infringement on H o n g Kong autonomy. By contrast, local decision makers can be said to have d e p a r t e d in several d o m a i n s from the letter a n d spirit of interna- tional a n d constitutional legal d o c u m e n t s p e r t a i n i n g to the post-1997 configuration. Although the d e p a r t u r e s have not b e e n radical in n a t u r e , t h e r e is a discernible t r e n d away from a strict interpretation of the rule of law. These are early days a n d one is inclined to give the new key figures in various b r a n c h e s of the gov- e r n m e n t , when confronting new challenges, some benefit of the doubt. However, the t r e n d should be closely m o n i t o r e d with a view to establishing w h e t h e r it is a p r o d u c t of deliberate policy a n d is b e c o m i n g firmly e n t r e n c h e d .
permanent resident to split from his children and family is "by his own choice").
Chan Kam Nga v. Director of Immigration, [1998] 1 H.K.L.R.D. 752 (Ct. App.).
49Fanny Wong, Let's Prove Wei Wrong on the SAR, S. CHINA MORNING POST, Nov. 26, 1997, at 29 (observing "signs of some disturbing changes reflecting Hong Kong's adoption of mainland practices and attitudes").
