Basic Law

Court unlikely to refer to Beijing in right-of-abode case, says source

Government source says administration doubts the Court of Final Appeal will refer right-of-abode case to Beijing for clarification

PUBLISHED : Saturday, 22 December, 2012, 12:00am
UPDATED : Saturday, 22 December, 2012, 3:51am


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There is only a slim chance that the Court of Final Appeal will accept the government's request to refer the issue of who has right of abode in Hong Kong to Beijing for clarification of its previous interpretation, the Department of Justice concluded in an initial assessment, according to a source close to the department.

The source revealed the assessment even as Secretary for Justice Rimsky Yuen Kwok-keung yesterday refused to rule out the possibility of the government approaching the Standing Committee of the National People's Congress directly, if the top court decides in February not to ask Beijing for a clarification.

The case has raised fears of a repeat of the 1999 interpretation, when, after the top court ruled against it on right of abode, the government asked Beijing directly to interpret Article 24 of the Basic Law, which covers right of abode. This outraged many in the legal profession, who said it jeopardised judicial independence.

The standing committee's 1999 interpretation denied permanent residency to children born outside the city before either parent was a permanent resident.

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 parents' status, should enjoy right of abode in the city.

Earlier this month the department requested the Court of Final Appeal ask the standing committee to clarify the meaning of its 1999 interpretation of Article 24. It said the request was an attempt to resolve in one go right-of-abode cases involving foreign domestic helpers and children born to mainland parents.

A source close to the department told the Post there was only "a slim chance" the court would accept the request. "But it is necessary to ask the Court of Final Appeal to take the 1999 interpretation into consideration," the source said. "If the court finds the interpretation unclear, it may consider asking the NPC standing committee for clarification."

In an interview with RTHK's Face to Face, Yuen refused to say what the government would do if the court decided not to seek a clarification from Beijing.

"We must first consider the reasons for the judgment before deciding the next step. The result this time might not be simple, not black and white. There are a number of possibilities," he said.

Yuen said the department was not seeking an interpretation of Article 24, which some people consider an internal issue.

Professor Johannes Chan Man-mun, dean of law at the University of Hong Kong, warned that the court's autonomy and authority would be severely undermined if the government sought Beijing's clarification on its own. Civic Party leader Alan Leong Kah-kit said Yuen had failed to safeguard the rule of law. "He sees himself as an instrument of the government and lets a sword hang over the court."