XN000022-1997-04-24 — Page 4

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Is it the case that the position we've taken up results in people in Hong Kong by and large not knowing what their rights are or where they stand? No it's not. We've set out for example in this pamphlet very clearly what there's a consensus on so far, the 95% of issues on which there is a consensus and our Immigration Department have a hotline answering peoples' questions on all the issues covered in here every day. So the fact that we've declined to do what we've been pressed to do doesn't mean that people aren't aware of what's been agreed so far.

Secondly, is it the case that legislation is essential before July 1? No it's not the case. It would have been desirable if we could have got legislation by now. I would've liked us to have been able to legislate on this issue as we did on the Court of Final Appeal through this constitutional body but even though that would have been desirable it's not essential. It's not essential because Article 24 of the Basic Law provides the Director of Immigration with the legal framework within which he can take decisions after July 1, and in our judgement it won't be necessary to have legislation on right of abode on the statute book for some weeks after July 1.

Let me just remind the Legislative Council what the Attorney General has said on this issue: On July 1, 1997, the Basic Law of the Hong Kong Special Administrative Region will enter into force. The right of abode of permanent residents of the region will be provided for under Article 24 of the Basic Law, and he goes on, before domestic legislation is enacted the Director of Immigration can make her decisions in right of abode matters on the basis of the provisions of Article 24 of the Basic Law.

Next, what are the consequences of the provisional legislature trying to legislate on these matters? The consequences have been spelt out very clearly. They were spelt out for example once again by the Attorney General. If legislation to amend the immigration ordinance is enacted in a manner which raises a doubt as to the validity of the amending legislation, then it's inevitable that point will be taken in any proceedings before a tribunal or court in which a person's status as a permanent resident is an issue. Whatever the outcome of such proceedings, until the proceedings and any appeal is finally disposed of, the state of the law in the vital area of immigration will be uncertain. From past experience we know that a significant proportion of judicial review cases each year relate to immigration matters. In the last two years there have been 200 or just over 200 legal challenges to the Director of Immigration and the Secretary of Security. In the same period, I think I'm right in saying, over 450 statutory petitions to the Governor-in-Council. This is a litigious area and if there's any doubt about the basis of legislation, that will lead to more action in the courts. If there are some honourable members, or others, who doubt the legal advice of the Attorney General, they might listen to what the Chairman of the Bar Association has said on exactly the same subject. Quote: "the difficulty about the provisional legislature passing a law relating to right of abode is that this is a sort of issue that you often attract litigation and to have it passed by the provisional legislature will add to the controversy and to the uncertainty." end of quote.