The Dynamics of Beijing-Hong Kong Relations: A Model for Taiwan?

3. The Politics of Judicial Autonomy

The Politics of Judicial Autonomy 81 The question of judicial autonomy of the HKSAR became heavily politicized from January 1999, when the Court of Final Appeal (CFA) made a controversial decision on the right of abode of the mainland Chinese, to June 1999 as the Standing Committee of the National People’s Congress (SCNPC) of the PRC was requested by the HKSAR government to interpret the Basic Law — the mini-constitution of the HKSAR — concerning the right of abode issue.1 For the CFA, the courts of the HKSAR have not only the final power of adjudication but also the power to review whether the legislative acts of the NPC conform to the Basic Law. This perception of judicial autonomy in the HKSAR, however, clashed with the PRC notion of a more restricted view of judicial autonomy. For the PRC, judicial autonomy in the HKSAR cannot override the SCNPC power of interpreting the Basic Law, nor does the CFA have the power to review its legislative acts. Although Article 19 of the Basic Law stipulates that the HKSAR enjoys judicial autonomy, one political scientist has contended that “there are many mechanisms already put in place through which the NPC and the Central People’s Government, if not the Supreme People’s Court, may interfere in the HKSAR affairs, including those of the judiciary.”2 The objective of this chapter is to use the debate over the right of abode in 1999 as a case study that can illuminate the problem of judicial autonomy in the HKSAR. It will argue that in order to maintain judicial autonomy in the HKSAR, various political actors will have to establish a constitutional convention or a habit of self-restraint. 3 The Politics of Judicial Autonomy 82 The Dynamics of Beijing–Hong Kong Relations The CFA Judgment and the SCNPC Interpretation of the Basic Law The CFA judgment in January 1999 alienated legal experts in the PRC, for it claimed that the Hong Kong court could declare legislation by the NPC “invalid” if such legislation were inconsistent with the Basic Law.3 From the perspective of mainland legal experts, parts of the CFA judgment usurped the NPC power. They launched an attack on the CFA judgment until the HKSAR government decided to ask the court to “clarify” its decision. On February 26, 1999, the CFA accepted an application by the HKSAR government to “clarify” its decision with regard to the right of abode of the mainland Chinese. The CFA clarified that its judgment on January 29 “did not question the authority of the NPC Standing Committee to make an interpretation under Article 158 which would have to be followed by the courts of the Region.”4 However, the CFA clarification was seen by some legal academics as “a political declaration.”5 Other commentators viewed the clarification as “a political show” that gave Beijing “face” or that could settle the controversy.6 After the CFA clarified the ruling, the HKSAR government became concerned about the social impact of the CFA judgment, namely an influx of Chinese migrants into the HKSAR. The government claimed that there would be 1.67 million Chinese eligible to enter Hong Kong under the CFA ruling, and that its expenditure would increase drastically in order to accommodate them. To cope with the “intolerable” social burden resulting from the CFA decision, the HKSAR government requested that the NPC should interpret relevant provisions of the Basic Law. The State Council passed on the HKSAR government’s request to the SCNPC, which in June 1999 interpreted Article 22 and Article 24 of the Basic Law. The interpretation was as follows: [Article 22(4)] stipulates that “for entry into the HKSAR 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.” This provision is based on the immigration management system that has been practised for a long time between the mainland and Hong Kong . . . [A]ll mainland residents have to submit their application to the concerned authorities on the mainland if they want to go to Hong Kong for whatever reason. After their applications are approved the mainland residents must carry valid The Politics of Judicial Autonomy 83 documents issued by the concerned authorities to enter Hong Kong . . . The...