Hong Kong Basic Law

Right of abode settled, for now

PUBLISHED : Tuesday, 26 March, 2013, 12:00am
UPDATED : Tuesday, 26 March, 2013, 3:28am


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The right-of-abode ruling by the city's top court appears to have spared Hong Kong a crisis, at least for the time being. Court of Final Appeal ruled that foreign domestic helpers had no right to claim permanent residency. The decision quashed the hopes of hundreds of thousands who may have wanted to settle here. The court also rejected the government's request to seek Beijing's interpretation of the Basic Law, saying the abode provision was clear enough. Although the ruling has averted the perception of the rule of law being compromised, it leaves open the door for mainlanders to take advantage of our abode regime, which grants residency for their children born here.

Like it or not, the decisions are not going to please everyone. That the domestic helpers feel disappointed is to be expected. But the outcome is likely to be welcomed by the locals, who feared that their rights and benefits would have been shared by outsiders. The abode saga has stirred emotions over the past years. Now that a final ruling has been made, it should be respected.

Unlike the permanent residency given to foreigners who have lived in the city for seven years or more, the court said domestic helpers faced many restrictions and were therefore not qualified as "ordinarily" residing in the city under Article 24 of the Basic Law. The nature of their residence, according to the judges, is highly restrictive in that they are required to live with the employer; and return to their country at the end of the contract.

The top bench said the Article 24 was clear enough and there was no basis for referring to any "extrinsic" materials to help interpretation. This foils the government attempt to kill two birds with one stone by asking Beijing to clarify in one go whether the Basic Law intends to give abode to domestic helpers and mainland children born here. The latter's right was upheld by the top court in 2001. Attention is drawn to whether officials will try to overturn the ruling by appealing to Beijing directly - a step seen by many as detrimental to the rule of law.

With some 200,000 children having benefited from the 2001 ruling, officials are understandably worried about the burden in the long run. But the measures put in place to curb the trend, such as intercepting expectant mothers arriving to give birth and refusing hospital bookings for them, appears to be working. Instead of another interpretation to keep them out, the way forward is to better accommodate the children, who can help rejuvenate our ageing population in future.