It has been reported that five Filipino domestic helpers who have worked for more than seven years in Hong Kong are proceeding with a judicial review claiming their permanent resident status in the High Court of Hong Kong. They assert that the present restriction in Immigration Ordinance passed by the Legislative Council, signed by the Chief Executive and submitted to the Standing Committee of the National People's Congress for the record violates Article 24(2)(4) of the Basic Law.

Is the present restriction not in conformity with the Basic Law? I do not think so. It is provided that "Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the HKSAR" shall be declared permanent residents of the city. If Filipino domestic helpers consider they fall within this category, then they should be subject to three conditions:

(a) they have entered Hong Kong with a valid travel document;

(b) they have ordinarily resided in Hong Kong for a continuous period of not less than seven years; and

(c) they have taken Hong Kong as their place of permanent residence.

Those conditions must all be fulfilled, and all conditions are interrelated. Notwithstanding they have physically resided or been present here for more than seven years, they may not satisfy the other two conditions. When they have entered Hong Kong with valid travel documents, they have not taken Hong Kong as their place of permanent residence as they work here to support their families in other places. They are applying for a working permit visa, and such an application can be treated as a proof of their original intention not to take Hong Kong as their place of permanent residence.

As their visas have also been issued with the imposition of a limitation of stay, they would not enjoy the right of permanent resident status even though they have worked here for more than seven years. Even by literal interpretation, those conditions are not satisfied.

The Basic Law is, however, a constitutional document. Its interpretation should not only simply be based on literal interpretation, but also be subject to purposive interpretation. It will be immature to declare the local legislation unconstitutional before both interpretational criteria are met. From the purposive interpretation viewpoint, it is unassailable that the purpose of Art 24(2)(4) of the Basic Law is not to allow thousands and thousands of foreign domestic workers to acquire the claimed status, or otherwise the said provision would have been similar to Art 24(2)(2) in which there are no requirements for valid travel documents and place of permanent residence for Chinese citizens.

I believe further it would be disastrous politically and economically if those massive number of Filipino or foreigners could be conferred the status of permanent resident of the HKSAR by the Court.

Article 26 of the Basic Law states that "Permanent residents of the HKSAR shall have the right to vote and the right to stand for election in accordance with law." Once the massive number of Filipino domestic helpers - about 136,000 in 2010 - have permanent resident status, it implies that they may have voting rights and the right to stand in LegCo elections. Assuming their members are uniformly distributed over our geographical constituencies, we would soon witness among our 70 law-makers in 2012 there would be three Filipinos, including two elected from geographical constituencies and one Filipino elected from super District Council (No 2) constituency. Then the virtual Filipino Party would sooner or later be a strong political power in the HKSAR and have a vital role to play in the city under "One Country, Two Systems". I do not believe it would meet either the legislative intent or the very purpose of the Basic Law.

Economically speaking, if some of the total of about 290,000 foreign domestic workers could become permanent residents, they would be quite willingly to quit their present jobs as domestic helpers and find outside jobs that would be covered by statutory minimum wages. Then it would have twofold implications.

The first is more Chinese workers with low incomes in Hong Kong would lose their jobs. Among the present 3.5 million workers in Hong Kong, the unemployment rate would soon climb to double digits, the highest in Hong Kong history during peace time. The welfare expenditure of the Hong Kong government would likely double or even triple.

Secondly, more Filipino or Indonesian or other foreigners would take the vacancies of domestic helpers previously occupied by their brothers and sisters who would now have become permanent residents of Hong Kong and had a better and brighter future than the newcomers, not to mention those yet to come. A few years later, the newcomers would become permanent residents as well.

If they win the case, Hong Kong would have more seats in LegCo occupied by former foreign domestic helpers, a higher unemployment rate for low income Chinese workers, dwindling government reserves for a rainy day, and perhaps a more unstable society as a result. Can it be the legislative intent and purpose of the Basic Law to ruin rather than to maintain the prosperity and stability of Hong Kong as stipulated in the Preamble of the Basic Law. Alas, the future of Hong Kong rests upon the hand of a few judges! And where have our intellectuals and media gone? They are fighting hard for the virtual and incidental right of by-election, but preferring to forget our real lives in the future.

The author is a current affairs commentator.

(HK Edition 07/14/2011 page3)