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.