Justice minister Yuen under pressure to spell out right of abode request

Legal sector says justice minister should give details of its controversial request for a referral to Beijing over who gets permanent residency

PUBLISHED : Monday, 07 January, 2013, 12:00am
UPDATED : Monday, 07 January, 2013, 5:44am

The justice minister is being pressed by the legal sector for details of an application to the top court for a referral to Beijing to clarify the Basic Law on who has right of abode here, before it is heard next month.

And the local government was also warned the request must be handled well - or the city's rule of law could be affected.

The government wants a clarification in light of a surge in the number of mainland women giving birth in Hong Kong, where their children get residency, and challenges by domestic helpers to the law preventing them from seeking permanent residency.

At a City University forum yesterday, barrister and former legal sector lawmaker Margaret Ng Ngoi-yee asked Secretary for Justice Rimsky Yuen Kwok-keung to explain who might be affected by his submission. "Assuming there is a possibility of [children born in Hong Kong to mainland parents] losing their right of abode, when the secretary for justice requested the court to interpret the Basic Law, could these potentially affected people be entitled to raise objections in the Court of Final Appeal?" Ng asked.

Professor Chan Man-mun, law dean of the University of Hong Kong, said the government was "disrespecting" the judicial system because Yuen refused to rule out the possibility of the government approaching the Standing Committee of the National People's Congress directly if the application was rejected by the Court of Final Appeal.

"There are questions of enormous public interest [like] how the government's application might affect the rights of other people," Chan said.

A spokeswoman for the Department of Justice said the submission concerned a case about foreign domestic helpers, and it would be "too early at this stage" to comment on other situations.

Professor Albert Chen Hung-yee, a Hong Kong member of the Basic Law Committee under the NPC standing committee, said: "I agree that, if this issue is not handled well, it will have a negative effect on the legal system, and rule of law, of Hong Kong."

Chen was speaking for the first time in public since Yuen made the court submission on December 13. "I also agree that the common law methods [and principles] of the interpretation of laws which have been consistently [adopted] by courts should not be affected by any arguments, or the currently proposed application to the court," he said.

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.