You may not like it, but don't fault court ruling on maids

PUBLISHED : Wednesday, 05 October, 2011, 12:00am
UPDATED : Wednesday, 05 October, 2011, 12:00am


Following the judicial review ruling in the government's favour on the environmental assessment of the proposed bridge to Zhuhai and Macau, the High Court handed down its judgment last week on the case of a foreign domestic helper seeking permanent residency in Hong Kong. It ruled that a law banning foreign domestic workers from permanent residency after having ordinarily resided in Hong Kong for seven years was unconstitutional.

The courts made their decisions based on the principles of the common law in both cases, but the responses were dramatically different. In the bridge case, the outcome met the expectations of most people. The permanent residency ruling, however, drew a negative public response. Most regrettably, the majority of the public refuses to accept the ruling and some have been swayed by political parties to take the case to the streets. It is expected to further polarise society. Despite Hong Kong's relatively rosy economic picture, we already face the challenges of worsening income and wealth inequality, and providing an adequate safety net for the working poor.

The problem is that democratic politicians, such as those from the Civic Party, who are supposed to defend social justice and human rights do not have the political courage to openly defend the foreign helpers' case. Their silence gives the impression that the case is indefensible, deepening Hongkongers' prejudice against the helpers.

It's appalling to see politicians from the Liberal Party, the Democratic Alliance for the Betterment and Progress of Hong Kong, and even some from the Democratic Party, using the case to attack their opponents to gain political points.

According to Article 24 of the Basic Law, anyone who has entered Hong Kong with a valid travel document, and has ordinarily resided here continually for at least seven years, will be eligible to become a permanent resident. The restriction imposed on the helpers clearly contradicts the Basic Law. The court ruling reflects the spirit of the law, regardless of the possible social consequences. If it were otherwise, we would end up with a political ruling. And if there are adverse social or political consequences, it's not the fault of the court because the problem originated from the law.

To solve the problem, and allow us to move with the times, we should consider amending the relevant legislation. Otherwise, we risk damaging the bedrock of our society, the rule of law and liberty; eroding our sound social and economic foundation; and going against the principle of 'one country, two systems'. Without these, Hong Kong is nothing but a second-rate Chinese city.

Some critics have pointed out that the Basic Law is not like the common law; it is Hong Kong's constitutional law, and thus local judges should make reference to the original meaning of the law when interpreting it. Hong Kong's legal system is different from that of the mainland as it is based on the common law system, which has served the city well.

Hong Kong enjoys independent judicial power, including that of final adjudication and our courts are allowed to interpret on their own, in adjudicating cases, the provisions of the Basic Law, which are within the limits of the city's autonomy. If those provisions concern affairs that are the responsibility of the central government or concern the relationship between the central and Hong Kong governments, the courts shall seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress.

The residency issue is obviously an internal Hong Kong matter, which means that our courts have full power to make a decision. There is no need to call for a Standing Committee interpretation as the government will appeal through the normal legal channels. Those who have cried foul at the court's decision pose a serious threat to our rule of law.

Albert Cheng King-hon is a political commentator.