The Right of Abode Cases: Hong Kong's Constitutional Crisis Note 26 Hastings International and Comparative Law Review 2002-2003

26 Hastings Int'l & Comp. L. Rev. 265 (2002-2003)
The Right of Abode Cases: Hong Kong's Constitutional Crisis

handle is hein.journals/hasint26 and id is 279 raw text is: The Right of Abode Cases: Hong
Kong's Constitutional Crisis
BY ANNE R. FOKSTUEN*
Introduction
This note will examine the relationship between the Hong Kong
Special Administrative Region (HKSAR) and the People's
Republic of China (PRC) after the handover, and will focus on
recent Court of Final Appeals (CFA) decisions involving the
interpretation of Hong Kong's Constitution, the Basic Law, in the
right of abode context. The note will analyze the CFA's attempt to
balance autonomy and integration within the confines of the Basic
Law. Part I of this note examines the controversial Ng Ka Ling right
of abode decision. This decision led to the constitutional crisis of
1999, the Hong Kong government's request that the Standing
Committee of the National People's Congress (NPCSC) in Bejing
reinterpret the Basic Law in light of this decision, and the CFA's
subsequent reaffirmation of the Standing Committee's right to
interpret the Basic Law.
Part II critiques three CFA decisions involving the right of
abode that were handed down in 2001. These decisions consider the
right of abode of adopted children, the right of abode of Hong
Kong born children of Chinese migrants, and the impact of a prison
term on the length of residence required to obtain the right of
abode. In these decisions, the CFA opted for a narrow definition of
the right of abode, only granting that right to Hong Kong born
children of Chinese migrants. The CFA noted that such a small influx
of migrants would not disrupt the social and economic fabric of Hong
Kong compared to the large inflow feared after the Ng Ka Ling
* J.D. Candidate, University of California, Hastings College of the Law, 2003. I would like
to thank the inspiring lawyers of Pam Baker & Co., who first fought for the rights of the
Vietnamese refugees and then for the right of abode children in Hong Kong, and
especially Rob Brook for his invaluable advice and encouragement.

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