| According to the existing law,"double non" children whose parents are Chinese mainland residents can obtain the rights of abode of the HKS AR and become permanent residents, then enjoy many social welfare. This has caused many problems to Hong Kong society which are called "double non" problem. This problem originated from many aspects, including the social and legal reasons. Among of them, the legal took the lead, that is to say, the decision of CHONG FUNG-YUEN case (2001). In this case, the court of appeal in Hong Kong interpreted the articles of the Basic law related to this case in a common law way, and refused to apply to the "1999interpretation" of the NPC Standing Committee, because of this, it forced the legislative council to repeal the2(a) article of the first annexed table of the Transitional provisions in respect of Immigration (Amendment) Ordinance1997, which has hided some dangers to the problem of the right of abode of the "double non" children.To respect the fact that the Hong Kong people administrate Hong Kong and protect the rule of law and the independence of Hong Kong, the Basic law provides that the Hong Kong court has the power to explain the Basic law, and it conserves the common law tradition that the court interprets the law; meanwhile, according to the relating regulations of this law, this kind of interpretation should abide by the strict restrictions; moreover, as the supreme organ for interpreting legislation, the standing committee of NPC has the final interpretation authority on the Basic law, each legislative interpretation issued·by it has the same effect as the original law and can restrict Hong Kong courts, which the courts in Hong Kong must obey in order to ensure that the Chinese legal system is integrated. The "Preparatory Committee’s opinions on the implementation of the National People’s Congress interpretation on the Article24(2) of<The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China>"(hereinafter referred to as "the Preparatory Committee Opinions") as the document which reflects the real intent " of the Basic Law" the document has been included in the " interpretation of the NPC Standing Committee in1999", and it has become an integral part of the interpretation."The1999interpretation," has endowed "the Preparatory Committee Opinions" that has reflected the legislative intent with legal force, which the CFA is required to follow.In the " interpretation of the Standing Committee in1999", the legal meaning of the subparagraph1of paragraph2in Article24of the " Basic Law " has been clearly defined, the NPC Standing Committee’s further explaining is not needed; Meanwhile, the " Basic Law " as Hong Kong’s constitutional law, is of great significance to maintaining regional stability and prosperity of Hong Kong, so it should avoid excessively modifying. To properly solve the "double non " issue, the Legislative Council of the SAR can follow the " Standing Committee explanation in1999"and start local legislative process, so that" the Immigration (Amendment)(No.2) Bill "2of Schedule1(a) of the content could be restored, through which the administrative organ’s decision on refusing to the apply for residency of the" double non" could be lawful. Only doing this can we solve the "double non" problem fundamentally, safeguard the legal unification of the country and promote the stability and development of Hong Kong society. |
