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Commentary On The Chong Fung Yuen Case Of Right Of Abode In Hong Kong

1528 words - 7 pages

08
Fall
08
Fall
Director of Immigration v. Chong Fung Yuen has caused a series of problems in Hong Kong. In order to resolve the problems, there are three alternatives. First, requesting the Standing Committee of the National People's Congress (NPCSC) to interpret the relevant articles of Hong Kong Basic Law by government officials or courts. Second, the Court of Final Appeal (CFA) rules the case again. Third way is to amend the basic law. These resolutions will be analyzed based on the effects on Hong Kong in the aspect of the constitutional framework, rule of law and separation of power.

The Hong Kong constitutional framework bases on basic law. Though “One Country, Two Systems ...view middle of the document...

Meanwhile, there is occasionally mixing of power, for example, the Chief Executive has a role in legislative as he has to sign bill passed for approval. (Article 48(3))

The first resolution is the request the interpretation of relevant articles of Hong Kong Basic Law by the NPCSC. This assimilates the Ng Ka Ling v. Director of Immigration case, where the CFA ruled for Ng Ka Ling, the birth of Hong Kong permanent residents will be entitled with the right of abode. Later after the ruling, the Government estimated that there would be 1.6 million people eligible in obtaining the right of abode. Then, the government sought interpretation by the NPCSC, only children who at least one of their parents was permanent resident at their time of birth can entitle to the right. This greatly reduced the amount of people eligible for the right of abode.

In this case, the government officials can ask for the interpretation, solving the problem arises by the Chong Fung Yuen case straightforwardly; overturning the judgment of the CFA. In the Chong Fung Yuen Case, all three courts including the CFA rule in favour of Chong, while mentioning that the interpretation of the Basic law in 1999 after Ng Ka Ling’s case did not address Article 24(1) which is the main argument of the Chong Fung Yuen Chase.

In the case of Lau Kong Yung v. Director of Immigration, the CFA follows the interpretation of Ng’s case and successfully overturned the Court of Appeal (CA), showing that interpretation is followed and overriding, hence solving the deep-rooted problem, while the procedures are not complicated, saving administrative cost for the government.

However, according to Michael Davis, this would make that the final judgment in Hong Kong seem not to be the final judgment as the local government can always request the NPCSC to reinterpret the Basic Law and overturn the case. This would definitely harm the high autonomy mentioned in the constitution framework. As according Albert Chen, in article 158 (1), the NPCSC’s power to interpret the Basic Law is a “free standing one” in the sense that it can be exercise without any particular referral by the CFA. If NPCSC exercise its own overriding power to interpret basic law, the autonomy and of the Hong Kong courts will lose their legitimacy and authority.

While the separation of power in Hong Kong is not clear, the separation of power is further ruined if the executive branch of the SAR government asks the NPCSC for interpretation. According to Chen, there is nothing in the basic law suggesting that the executive branch of the SAR government can ask the NPCSC to interpret the Basic Law. As the government officials which is from the executive powers should only be responsible for executive, interfering the judicial branch (the courts) in applying for interpretation disturb the separation of power and judicial independence. It should be the court to request for the interpretation, the judicial, preserving separation...

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