Basic Law

Judges left to resolve the Beijing dilemma

Right of abode landmark case for helpers ends with government insisting Court of Appeal seeks answers from mainland

PUBLISHED : Friday, 01 March, 2013, 12:00am
UPDATED : Friday, 01 March, 2013, 5:33am


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The government is free to retract its concession made 10 years ago that a statement included in Beijing's interpretation of a Basic Law provision was not binding on Hong Kong courts.

That was the argument put by the lawyer representing the government at the Court of Final Appeal yesterday where a landmark case affecting the Basic Law and the right of abode for domestic helpers is nearing conclusion.

David Pannick QC said the government wanted the judges to seek an interpretation by Beijing on just how binding its interpretations are, and if an attached statement was also binding.

Pannick was speaking on the last day of an appeal mounted by two foreign domestic helpers, fighting for the right to apply for permanent residency.

The five-judge panel reserved their decision, and a written decision will be handed down later.

The case could also have far-reaching implications on the right of abode of children born in Hong Kong to mainland parents.

Confusion over right of abode led to the National People's Congress Standing Committee's 1999 interpretation of the Basic Law. The result was that Beijing said children born outside Hong Kong could have right of abode if at least of one parent was a Hong Kong permanent resident at the time of their birth.

In an attached statement, it added that the legislative intent of the Basic Law article setting out who is eligible for permanent residency was reflected in the opinions made by the Preparatory Committee of the Special Administrative Region in 1996.

Those opinions stated foreigners allowed to stay in Hong Kong under a specific government policy would not be regarded as "ordinarily residing" - a requirement for acquiring right of abode.

In 2001, the government's concession enabled children born in Hong Kong to mainlanders to qualify for the right of abode, regardless of the immigration status of their parents.

It is a question of law. The government is not bound by any such concession nor is the court bound by the concession

If the statement is now ruled binding then domestic helpers would continue to be denied the right to apply for permanent residency and children born locally to mainlanders would lose their right of abode.

Pannick argued: "It is a question of law. The government is not bound by any such concession nor is the court bound by the concession."

Beijing's power to make an interpretation was "general, unqualified and unconfined".

Pannick went on: "The Standing Committee is not restricted by the question to which it gives the answer. It is the answer it gives that is binding."

He said the attached statement was a "considered view" of the very body which had the power to make an interpretation.

But he added: "I'm not saying everything said by the Standing Committee has value. It depends on the circumstances."

The helpers won their fight to have equal rights to apply for permanent residency in the Court of First Instance in September 2011. However, the Court of Appeal overturned that ruling in March last year, resulting in the helpers' taking the case to the Court of Final Appeal.

Their lawyers criticised the government's request for a new interpretation as an attempt to reopen a case settled by the top court "through the back door".