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Director of Immigration v. Chong Fung Yuen1 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 (OCTS) and high autonomy is ensured by the PRC, there are still restrictions, e.g. the removal of chief executive can only be performed if he is not able to discharge his duties or refusal of passing the budget for consecutive times after dissolution of Legislative Council (Legco), by Article 52. While the Chinese government has the powers to remove a chief executive, by Article 73(9), removal of chief executive must be “reported” to the Chinese Government.

According to Dicey, the rule of law contains three elements: absence of arbitrary power, equality before the law, and supremacy of ordinary law.2 For Unger, autonomy is essential for the rule of law system, with no interference of externally factors.3 For Lord Bingham, it includes eight elements. One of the most important one is that different parties exercise the power conferred reasonably; not exceeding the limits.4

Separation of powers, by Lord Bingham, refers to the existence of three distinct functions: legislative, executive and judiciary, preventing the centralization of power. 5According to Peter Wesley Smith, Hong Kong has an executive-led system while resembling the separation of power, as basic law divided into executive as government (Article 59), legislative, the LegCo (Article 66) and judicial as courts (article 85). 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)) 6

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 case7, 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 Immigration8, 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.9 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. 10If 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.11 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 of power.

Though Chen argue “It is not only by the formal legal provisions, but also by constitutional conventions that evolve gradually” 12that it seems that the NPCSC will not interpret the Basic Law on its own initiative, In 2004 the NPCSC interpret the basic law about the universal suffrage on its own initiative.

In maintaining the rule of law in Hong Kong, arbitrary power should be absent. However, for NPCSC’s interpretation, it is always overriding and binding for Hong Kong courts, as the CFA clarify in 26 February 1999.13 Moreover, autonomy and judicial independence are essential. In the case of interpretation of NPCSC, Hong Kong court must comply, causing interference with autonomy and judicial independence, hampering the rule of law.

The second resolution is the CFA may rule the case again on its own autonomy. This can preserve the rule of law in the largest extend. The Government and the Legislative Council are wishing that the Hong Kong CFA would reconsider its earlier ruling.

The government should only request for the interpretation of the NPCSC when the problem fall into the Article 158(3), only concern affairs which are the responsibility of the central people’s government or concerning the relationship between central authorizes and the region. It is hard to say the case fall into the both categories that requests the interpretation of the NPCSC.

Elsie Leung, Former Justice Minister, criticized the court for its original approach to interpreting the Basic Law in 200714. Qiao Xiaoyang, Chairman of Basic Law Committee, recommended courts in Hong Kong to rule the case again in order to protect the autonomy and rule of law in Hong Kong. The method mentioned by James Tien15, is that the government can continue to issue birth certificate for the babies but there will not be indication of right of abode, if the parents of the babies have problems with taking legal proceedings, the court can rule the case again by the new cases.

It will help Hong Kong to hold its constitutional framework, OCTS. The NPCSC from a civil law system does not affect the judgment of Hong Kong. This solution is practical and it protects the rule of law, especially its judicial independence which the court itself rule the case again but not an exertion of arbitrary power or interpretation from the NPCSC and hence protecting the autonomy of Hong Kong under OCTS. This would definitely not cause issues worried by Albert Chen. While for the separation of power, there is no executive power exercising in this case (government officials request for the interpretation of NPCSC) interfering the courts judgment, keeping the separation of power in Hong Kong, all power of judiciary keeps in the court, in contrast with the interpretation.

However, it is indirect and involved more processes in between, the new cases and old cases. According to Johannes Chan in an interview of Newspaper Wenweipo16, this resolution does not guarantee that the case will be overruled while cases of Lau and Ng shows that it is mostly guaranteed for interpretation.

The third resolution is to amend the basic law; this can avoid the need of asking the NPCSC to interpret the law which might affect the legitimacy of the Court of Final Appeal and the high autonomy of HKSAR under One Country Two System, keeping the rule of law and the separation of power in Hong Kong.

However, there is a need of reaching consensus of different parties in order to change the basic law. According to Article 159, the power of amendment of basic law shall be vested in the NPC. Local legislative proposal for the amendment require two third of the vote in the LegCo, the consent of two-third of local NPC deputies and the approval of the Chief Executive of the region. It is nearly impossible to amendment of the basic law due to complicated procedures.

All in all, the second resolution: the CFA rule again on its own without seeking an interpretation is the best one out of the three considering practicability and effects on the survival of rule of law, separation of power and constitutional framework.