NPCSC interpretation won't harm HK's rule of law as CFA has final say

In 2001, the CFA defied a NPCSC interpretation in June 1999 and made a landmark ruling, granting permanent residency to babies born in Hong Kong to mainland parents.

The DoJ now believes the permanent residency issue of the Filipino domestic helpers and all other groups as defined in Article 24(2) of the Basic Law, as well as babies born to mainland parents, could have been clarified in the 1999 interpretation.

Yuen said although the interpretation of 1999 was put aside by the CFA in the 2001 case of Chong Fung-yuen, it was absolutely clear that the Hong Kong top court ignored the binding effect of the 1996 Opinions of the Preparatory Committee, which was cited by the NPCSC in the 1999 interpretation.

He said the government considers that if the "Opinions" had been respected as the legal basis of the 1999 NPCSC interpretation, the outcome would facilitate a proper interpretation of the right of abode for all categories of persons under Basic Law Article 24(2), including foreign domestic helpers and babies born to mainland pregnant women in Hong Kong.

The "Opinions" specified that permanent residency stipulated by the Basic Law article only applies to a locally-born Chinese citizen if both or neither of the parents have lawfully resided in Hong Kong, excluding those permitted to stay on a temporary basis or under specific government policies.

"At the end of the day, whether on the questions of making any reference to the NPCSC under Article 158(3) or how that is to be dealt with or approached, the final decision is to be made by the CFA upon hearing submissions by both parties," Yuen explained.

He did not respond if the government has a plan B to work on if the CFA declined to refer the case to the NPCSC.

No CFA judge would comment on the case on Thursday. The right of abode case for foreign domestic helpers will be heard by the CFA in February.

(HK Edition 12/14/2012 page1)