Elsie Leung urges govt to seek NPCSC interpretation

Updated: 2011-10-04 07:36

By Joseph Li (HK Edition)

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Basic Law Committee deputy director: Clarification won't hurt judicial autonomy

The Court of First Instance (CFI) considered only the literal meaning of the term "ordinary residence", without referring to the legislative intent of the Basic Law, said Elsie Leung, deputy director of the Hong Kong Basic Law Committee under the National People's Congress Standing Committee (NPCSC).

Since the verdict effectively means that some 120,000 foreign domestic helpers who have lived in the SAR for more than seven years may apply to become permanent residents, the SAR government must deal with the situation, she said.

Leung suggested the government seek an interpretation of Article 24 (2) from the NPCSC if it lacks confidence that it can successfully appeal the ruling to the higher court.

"The ruling of the CFI was no surprise," Leung told China Daily exclusively, "given it only looked at the plain meaning of the Basic Law provisions and did not refer to the legislative intent found in pre-1997 constitutional documents."

Leung, also a former secretary for justice of the SAR government, is not optimistic about winning the appeals if the higher courts continue to read the Basic Law according to its literal meaning.

Knowing the Court of Final Appeal (CFA) had, in the Chong Fung-yuen case in 2001, laid down the principle of reading the Basic Law only by referring to the literal meaning when it is plain enough, she doesn't see the Court of Appeal quashing the CFI verdict. Equally, it is unlikely for the present CFA to overturn the ruling it made 10 years ago.

"The SAR government should consider seeking an interpretation from the NPCSC, if it thinks it will not win the appeals," Leung said. "So doing, it must act quickly, to save society from further polarization."

She added that since the power to interpret the Basic Law has a legal foundation, the lawful exercise of that power will not affect the rule of law or judicial autonomy in Hong Kong.

Section 2 of the Immigration Ordinance specifically excludes several categories of people, including foreign domestic helpers, from the right of abode. The section declares the residency of those groups in Hong Kong does not fall within the meaning of the term "ordinary residence", she noted.

"The entry of foreign domestic helpers into Hong Kong is subject to employment contracts and they must leave after the contracts expire," Leung explained. "Permanent residency applications from other people such as investors and special talents are different because each application is vetted separately, but there are over 200,000 foreign domestic helpers employed in Hong Kong."

Leung referred to the Chong Fung-yuen case, in which the CFA ruled that Chong, an infant born in Hong Kong in September 1997, was entitled to right of abode by referring to the plain meaning of Article 24, despite the fact that his parents were not permanent residents.

The government at that time used administrative means to tackle the matter because the number of such cases was small, she remembered. A decade after, the impact came to the surface, when a very large number of mainland women rushed in, to give birth to babies in Hong Kong and to obtain permanent residency for their children.

joseph@chinadailyhk.com

China Daily

(HK Edition 10/04/2011 page1)