Why hurdle to maids' abode fell

PUBLISHED : Sunday, 09 October, 2011, 12:00am
UPDATED : Sunday, 09 October, 2011, 12:00am


On September 30, the Court of First Instance handed down a judgment that the section of the Immigration Ordinance that excludes foreign domestic helpers from being treated as 'ordinarily resident' in Hong Kong is unconstitutional. The ruling has the effect of dismantling the last major hurdle to the acquisition of the right of abode by foreign domestic helpers and clears the way for their applications to be approved.

Not surprisingly, the city reacted in a paroxysm of dismay and anger, as political parties and sundry groups jumped on the bandwagon to dramatise the ills of a potentially massive influx of foreign domestic helpers and their dependents.

What has received much less scrutiny is the legal reasoning which led Mr Justice Johnson Lam Man-hon to make the ruling that is so unpalatable in the eyes of many laymen.

The judgment epitomises a core problem of the courts in implementing 'one country, two systems'. That is, in interpreting provisions of the Basic Law should the courts adopt the mainland system of interpretation by the National People's Congress Standing Committee or the common law approach applied by the courts in Hong Kong?

This was the first issue that Judge Lam dealt with in his judgment, after disposing of concerns about the possible influence of public discussions on the adjudication process.

It is significant that he made it clear from the outset that the courts acknowledged the power of the Standing Committee to interpret the Basic Law and the binding effect of such an interpretation. The Court of Final Appeal confirmed this in the abode case of Lau Kong-yung, on which it ruled after the Standing Committee gave its interpretation of the Basic Law in June 1999. That interpretation concerned the right to permanent residency of mainland-born children of Hongkongers.

However, Judge Lam also ruled that the courts were entitled to adopt the common law approach of construction - to interpret how legislation should apply in a particular case - in the absence of a clear and specific interpretation of the legislative intent of the relevant provisions by the Standing Committee.

In elaborating on the legal principles the courts relied on in interpreting the Basic Law, Judge Lam followed the ruling made by the Court of Final Appeal in a 2001 abode case, Director of Immigration versus Chong Fung-yuen. In that case, the judges stated that, where the meaning of the language of the law was clear, it was not necessary to look at other materials to determine legislative intent. Hence, the 1996 opinions of the defunct Preparatory Committee, which supported the government's case, were not relevant.

Thus, Judge Lam followed the guidance provided by then chief justice Andrew Li Kwok-nang in the famous abode case of Ng Ka-ling in 1999. Li said that in the interpretation of a constitution such as the Basic Law, the rationale is that it is a document which states general principles and expresses purposes without going into detail. Thus, Li said, 'the courts must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context'.

Li stressed in this and the Chong Fung-yuen case that the courts' role under the common law in interpreting the Basic Law was to 'construe the language used in the text ... in order to ascertain the legislative intent as expressed in the language'. He said that once the courts concluded that the meaning of the language was clear, they were bound to give effect to that clear meaning.

Commenting on the latest abode case, a legal scholar, Professor Albert Chen Hung-yee, said the Court of First Instance ruling could be overturned on appeal to the highest court if the court were prepared to take into account 'pre-enactment' extrinsic materials shedding light on the legislative intent of the Basic Law. But, as is clear from its rulings so far, the highest court continues to take the view that the meaning of the language in the text is sufficiently clear.

But while there will still be doubts and arguments regarding the legislative intent of Article 24 of the Basic Law, which defines who may become a Hong Kong permanent resident and have the right of abode, Judge Lam has helped to clarify an important area of the law. That refers to whether the provisions in the Immigration Ordinance - the so-called four 'hurdles' to the acquisition of the right of abode by a foreigner - could be used in an appeal to prevent a maid gaining abode.

The four hurdles are: habitual residence in Hong Kong; having one's dependents in Hong Kong; having paid tax; and having the means to support oneself and one's dependents.

Citing Mr Justice Roberto Ribeiro's ruling in the case of Prem Singh v Director of Immigration in 2003, Judge Lam confirmed that provision of the 'relevant information' which may be cited to support a foreigner's application is subject to the Court of Final Appeal's interpretation of the permanent residence requirement under section 2 of Article 24. Thus, it does not follow that an applicant's application 'must fail if his family is not in Hong Kong or if he does not have adequate means to support himself'.

So, while the outcome of an appeal over a foreign helper's right to stay remains uncertain, repeated court rulings do not lend much credence to the effectiveness of the 'four hurdles' in blocking maids' applications.

Regina Ip Lau Suk-yee is a legislator and chair of the New People's Party