Right of abode debate: Experts have their say
Decision to ask top court to request views of Beijing on residency issues has sparked fiery controversy about possible risk to city's judicial values
It's been a turbulent end to the year for Hong Kong's judicial independence and rule of law.
Last week, Secretary for Justice Rimsky Yuen Kwok-keung revealed his department 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.
He said the move was intended to resolve two right of abode issues. One involves foreign domestic helpers, who are fighting for the right to receive permanent residency after seven years in the city, and the other concerns the question of whether babies born to mainland women in the city should automatically become permanent residents.
The government's move is seen by many scholars and legal professionals as a test of, or even a danger to, Hong Kong's rule of law and judicial independence.
It is perceived that the government is asking the court to overturn its previous ruling granting permanent residency to the children of mainland parents.
The Post spoke to scholars, lawmakers and legal professionals to explore options for solving the right of abode issues and to gauge the potential damage to our cherished and internationally recognised judicial values.
One option would be to impose administrative measures to control the entry of pregnant mainland women. Another is to amend the Basic Law - a move that requires Beijing to change the legal text.
The Beijing loyalist camp argues that asking the Court of Final Appeal to seek clarification on the 1999 interpretation is the best solution. It would not put in question the rule of law as ultimately it would be down to a local court to refer the issue to Beijing.
At issue is the 1999 interpretation in which Beijing said that the legislative intent on the requirements for Hong Kong permanent residency was "reflected" in the opinions of the Preparatory Committee of the Hong Kong SAR, the body created to deal with the formation of the first post-handover government.
The standing 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 residents.
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 whether the parents were lawful residents - should enjoy right of abode.
University of Hong Kong law professor Eric Cheung Tat-ming vehemently opposes the government's request that the top court ask Beijing for a clarification.
He argues that administrative measures have been effective in keeping down the number of mainland mothers giving birth in Hong Kong. He was referring to the "zero quota" policy, announced by Chief Executive Leung Chun-ying before he took office, that bans non-resident mainland women not married to Hongkongers from booking maternity beds from next year.
Cheung said the number of babies born in Hong Kong to mainland parents dropped from 35,736 in the whole of last year to about 40 per month between May and August this year and to only 25 in October. That's lower than the monthly average in 2003 - two years after the Court of Final Appeal judgment that gave right of abode to such children.
He said the government's request was "unnecessary" and "very damaging" to Hong Kong's precious autonomy, rule of law and separation of powers.
Law professor Michael Davis says the government appears to have taken a "shortcut" by asking the court to seek a clarification.
While he agrees administrative measures have been effective, he says the government could also propose domestic legislation to restrict the entry of mainland mothers-to-be.
The government could also put forward laws to impose conditions on those children, preventing them from hanging on to permanent residency while living outside Hong Kong.
"It doesn't seem like a situation that requires such a drastic move," he said. "What we need is an appropriate population and public health policy to guide the conditions imposed on the mothers and children."
Domestic laws would be open to judicial challenge. But Davis said such laws were "reasonably defensible". He said: "It is common that governments all over the world do not override the court's decisions, but they would explore alternatives to get around the law."
Amendment of the Basic Law
Legal scholar Benny Tai Yiu-ting believes amending the Basic Law is the best option to resolve the right of abode issue. Under Article 159, the power to amend the Basic Law is vested in the National People's Congress.
The associate professor at HKU says an amendment would not affect previous interpretations of the Basic Law by the Court of Final Appeal and it would not create a conflict with the common law presumption against the interpretation of laws by a body that is not judicial - such as the NPC, a legislature.
"This time, the interpretation to be sought is actually not directly on any provision of the Basic Law, but rather a reinterpretation of a previous interpretation by the standing committee.
"If sought, it may change not only the final interpretation of a provision of the Basic Law but the interpretation approach on the Basic Law developed by the court on the basis of common law spirit," he said.
Tai also warns seeking interpretation could undermine the approach developed and long used by city courts.
"The Court of Final Appeal has adopted a common law approach to interpretation of the Basic Law, relying mainly on the language of the provision, while the standing committee prefers to use the legislative intent of the law's maker as the basis of interpretation.
"In addition, the court has laid down strict conditions on making a referral to the standing committee. Such thresholds may be lowered by the standing committee," he said. Tai believes judicial independence may not be affected by the government's move - rather, it is judicial autonomy that is under threat.
But the interpretation has its supporters. Lawmaker and Executive Council member Regina Ip Lau Suk-yee said: "The current proposal is a smart one that avoids getting the government to go to Beijing [itself] to seek an interpretation. Amending the Basic Law is not an option.
"The National People's Congress is not in favour of that."
The effectiveness of the administrative policies would be short-lived, she said, as mainland mothers-to-be would realise that the government had no legal basis to say their babies would not be granted right of abode.
She said Beijing's 1999 interpretation made it clear that the preparatory committee was of the opinion that for a child to become a permanent resident, at least one of its parents must be a permanent resident themselves.
That was "ignored" by the court in 2001, she said. "It gives a chance for the Court of Final Appeal to consider [the case] properly again," she said.
"In common law, a previous court's decisions can be overruled. We should not be too alarmed."
Fellow Executive Council member and barrister Andrew Liao Cheung-sing said asking for a clarification was "appropriate" and would not affect judicial independence.
Liao said it was unclear how the scope of the 1999 interpretation would apply in the appeal by domestic helpers Evangeline Banao Vallejos and Daniel Domingo for right of abode.
But Alan Hoo, chairman of the Basic Law Institute NGO, said the central government had no further role in the right of abode issue and there was no legal basis for the request to seek clarification as Beijing had made a clear interpretation of the issue in 1999.
The concern about referring a clarification to Beijing is that right of abode is an internal matter on which Hong Kong courts are guaranteed the power to rule.
Referring it to Beijing might narrow the scope of laws within Hong Kong's autonomy, Eric Cheung warned.
Under the Basic Law, the Court of Final Appeal must seek an interpretation if the provision of the Basic Law the court needs to interpret concerns affairs which are the responsibility of the Central People's Government or the relationship between the mainland and Hong Kong.
Cheung warned that allowing the government's request would lead to a dangerous situation where the government could in future claim that all other fundamental rights, such as freedom of expression, could be referred to Beijing for an interpretation.
"What I am concerned about is that this carefully designed manoeuvre will eventually narrow the scope of Hong Kong's autonomy, stripping Hong Kong courts of their jurisdiction and seriously damaging the rule of law," Cheung said.
"Since the majority of Hong Kong people do not accept giving right of abode to babies born to mainland parents and to foreign domestic helpers, the government is making use of public sentiment to ask the NPC for an interpretation to replace judicial independence."
Liao warned against further public debate over the case "to avoid putting unnecessary pressure on the court with the consequence of undermining the independence of the judiciary".
Rimsky Yuen said referring the matter for interpretation is "a decision to be made by the Court of Final Appeal in accordance with our common law.
"Therefore, it can hardly do any damage to the rule of law or jeopardise our judicial independence".
He added: "This government absolutely respects the rule of law and judicial independence."