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  • Apr 19, 2014
  • Updated: 5:35pm
NewsHong Kong
RESIDENCY

Right of abode appeal to Beijing a 'bad precedent'

Government request that city's top court asks NPC Standing Committee to rule on residency laws is condemned by legal and political experts

PUBLISHED : Friday, 14 December, 2012, 12:00am
UPDATED : Friday, 14 December, 2012, 9:26pm

Legal and political experts expressed their fears for judicial independence yesterday after the government suggested that the city's top court ask Beijing to clarify a previous interpretation of residency laws.

The request was made in a bid to resolve right of abode cases involving foreign domestic helpers and children born to mainland parents in one go. But law professor Eric Cheung Tat-ming said the move created a "bad precedent".

The government revealed yesterday that it had requested the Court of Final Appeal to ask the National People's Congress Standing Committee to clarify the meaning of its 1999 interpretation of Article 24 of the Basic Law, which deals with permanent residency. Secretary for Justice Rimsky Yuen Kwok-keung said: "This measure [to ask for clarification] will properly assist to resolve the right of abode issues of different categories of persons including the foreign domestic helpers and babies born to mainland pregnant women."

In the 1999 interpretation, Beijing said that the legislative intent on who satisfied the requirements of Hong Kong permanent residency was "reflected" in the opinions of the Preparatory Committee of the Hong Kong SAR in 1996.

The committee stated that Chinese citizens "who are born [when] either one or both of their parents were lawfully residing in Hong Kong" are recognised as permanent city residents. The committee was set up in 1996 to deal with the formation of the first government and legislative council after the handover.

But the top court ruled in a 2001 case that the committee's opinions were not binding on it, and decided that children born in Hong Kong to mainland parents - regardless of the status of the parents - should enjoy right of abode in the city.

Law professor Cheung said if Beijing ruled that the committee's opinions were binding, the court would be under pressure to overturn its 2001 decision that gave permanent residence to children born to mainland parents.

Human rights lawyer Mark Daly, who has been helping foreign domestic helpers in their fight for right of abode, said: "Seeking interpretation is contrary to the rule of law as it is commonly understood. It is very damaging to our judicial system."

Legal academic Benny Tai Yiu-ting said it was "unnecessary and reckless" for the government to seek an interpretation on laws that did not relate to the relationship between the central government and Hong Kong.

But Elsie Leung Oi-sie, vice-chairwoman of the Basic Law Committee, said: "I support whatever decisions the government made in accordance with legal procedures to resolve the right of abode issue."

Law Society president Dieter Yih Lai-tak did not think that the government's request would put pressure on the judiciary.

Census statistics show that until September this year there were 20,860 babies born in Hong Kong to mainland parents. The total number of such births since 2001 is 196,459.

Evangeline Banao Vallejos, a foreign domestic helper, is fighting for the right to apply for permanent residency in a case that will have far-reaching implications for the 285,000 foreign domestic helpers in the city.

She was given permission to go to the Court of Final Appeal and the hearing is in February.

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A Hong Konger
The courts, interpreting the law through the lens of the better angels of our society (provided our society remains free) will likely find in favour of the down trodden and disenfranchised. But the racist coward in us want the 'Bun Mui's' out, while rationalising that is somehow reasonable. Ironically anti-immigrant sentiment is the domain of far right nationalists overseas, luckily our few and growing nationalist have better sense, so given it's vulgarity and populism it's no surprise that Regina Ip or the DAB are against right of abode for domestic helpers. In this the HK gov sees an opportunity to undermine our autonomy and sidestep responsibility by handing this to Beijing like they did in 99'. The result is predictable: Beijing will reject the right of abode seekers, the Basic Law & rule of law is weakened, the HK gov avoids responsibility, the courts are undermined & discredited, pro-Beijingers (having fanned anti-migrant sentiment in the first place) actually get to be part of a popular issue, we can absolve ourselves of guilt and don't have to worry about immigrants, the pan-dems look bad supporting rule of law and the ones who really loose are hard working domestic helpers that raised many of us and are part of our community. Having not fought & sold our souls we too loose in the end. I love HK, but sometimes it shames me. Good luck Evangeline! On the separate issue of HK born kids, it's harder to say owing to integration issues, but the decision must be ours.
Camel
It was the courts advise to seek intepretation from Beijing, remember?. You put too much intepretations in Beijings role and too less into the ones of the judges who started this mess. If you study the basic law regarding to the ROA you would see it like the immigration officers at that time. The judge who over ruled the immigration did saw a little minor flaw in intepretation (OR BETTER TRANSLATION MISTAKES) and out of fun started this whole mess. This very one judge even anounced, told and stated that the HK governemnt should seek the intepretation of Beijing, how they see it. It was his very own words and advise. Now HK is doing it.
shafinhk
obtain interpretation or what government likes from NPC?
wing.chu.313
Professor Cheung's comment is quite partial. It's common, though not always, that English courts (e.g. House of Lord) may overturn its previous decisions from time to time. But Cheung fails to mention it, quite misleading indeed. The focus of this issue is whether the CFA should invite Beijing to clarify the previous interpretation. Hey, this is political. Cheung's comment is his "political" preference, though he's a legal professor.
likingming
I'm sure there is no protest here, the City of Protest, for the betrayal of one of the core values of HK - the Rule of Law. HKers are ready to give up their core values, human rights, rule of law, freedom, and democracy if enough returns are given to them as demonstrated some 11 yrs ago. HK is anyway a place to make money or be made money. Not a place for human.
Camel
I wonder who created this mess of "correct interpretation" in the first place if not the lawyers and judges who ruled it in the first case and started the a "precedent case" of a favourable ROA rule for Mainland Mother's Babies?? In my opinion the first rule and judgement which started this all was an act of arrogance of the very one judge to show who is here the boss and who is able to rule it all and out. Now they are complaining that the government is needing the rule and judgement to be clarified with the constitution (so the people who worked on it) and they afraid of losing their credibilities and face (not independence). Shot them to the moon where those arrogant pricks belong.
lamlm38
this leung stupid F*** just fill one hole creates another.. namely rule of law.. how do HK ppl feel the govn is run from Beijing? u get more protests in the street.. more opposition from the general public.. might as well give him the mao suit.. he is a commie thru n thru!!!!
Camel
You should get used to the fact that HK, despite of its' status as an SAR, is a part of China and China has sovereign rights over HK. FYI, the SAR will long only for another 30 years and then HK is fully administered by Mainland China. How you feel about it? So, overthink your attitude towards the Mainland, try to work with them out a solution which suits both HK and Mainland and hope that Central Government is thinking about to extend the SAR far more than another 30 years (or more adopt most of HK's regulation, laws and freedom for the Mainland). You kind of people, mindless, going on confrontations will only destroy everything HK is standing for. How about you leaving HK for our good sake?
aplucky1
the basic law says "if here LAWFULLY" how is someone on a travel visa to squirt out a kid here considered lawfully and entitled to right of abode ?
I think the mainland has more common sense than nasty evil lawyers.
lamlm38
i will take the the top court decision anytime over ur opinion dumb ****!!!

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