Hong Kong lawyers warn against Chinese role in courts

By James Pomfret and Christopher Ip
Dec 13, 2012

HONG KONG (Reuters) - Lawyers and opposition politicians in Hong Kong warned on Thursday against what they termed Chinese interference in a legal case that they say could undermine the independence of the judiciary in the financial hub.

The controversy over the court case is the latest in a string of issues that has raised tension between China and the free-wheeling former British territory that was promised autonomy when it returned to Chinese rule 15 years ago.

The latest furore concerns the Hong Kong government's proposal to ask its highest court to seek Beijing's interpretation of a case to determine whether about 300,000 foreign domestic helpers are entitled to the right of abode.

Lawyers, pro-democracy members of Hong Kong's assembly and legal scholars are outraged by the government's proposal, not so much because they fear for the rights of domestic workers, but because they object to a committee of China's parliament making decisions for the city.

Simon Young, a barrister and professor of law at the University of Hong Kong, said the Beijing-backed Hong Kong government's decision to refer the legal case to Beijing was "shocking".

"There are increasing concerns about the judiciary and its ability to maintain the quality of justice as it has in the past," Young told Reuters.

Hong Kong's mini-constitution, known as he Basic Law, allows China to make decisions on external affairs and defence.

But the city of about 7 million people is meant to make its own decisions on most internal affairs under a "one-country, two-systems" formula agreed when it reverted to Chinese rule.

But Beijing's critics see China's invisible hand extending increasingly into domestic affairs. It has even triggered public resentment and anti-government protests in Hong Kong this year.

Mark Daly, a lawyer for Evangeline Vallejos, a domestic helper whose right of abode case goes to the Court of Final Appeal in February, rejected any interpretation of Hong Kong's law by Beijing.

"Instead of relying on the judiciary to interpret in an open and transparent way what our Basic Law means, by going to a body where there is no transparency of process, that's contrary to the very essence of the rule of law," said Daly.

Hong Kong's justice secretary, Rimsky Yuen, dismissed fears for the independence of the city's judiciary.

"There can hardly be any damage to the rule of law or jeopardising of our judicial independence," Yuen told reporters.

But he said Beijing could help "facilitate a proper interpretation of the right of abode for all categories of persons."

'Ask Beijing' call dismays lawyers

The Standard, Eddie Luk and Mary Ann Benitez
December 14, 2012

Legal experts reacted with dismay yesterday after the secretary for justice admitted he suggested the Court of Final Appeal consider asking for a Beijing clarification on right of abode cases.

Rimsky Yuen Kwok-keung said the Justice Department filed the documents on Wednesday as part of its case in the right of abode appeal by two foreign domestic helpers.

Yuen said he hopes an interpretation will help to resolve the right of abode cloud hanging over different groups, including foreign domestic helpers and babies born to mainlanders in Hong Kong.

The top court may consider seeking a clarification from the National People's Congress Standing Committee on its interpretation of the Basic Law on the right of abode in 1999, he said, insisting the final decision will rest with the court.

A court hearing on two Filipino helpers fighting for permanent residency in Hong Kong - Evangeline Banao Vallejos and Daniel Domingo - begins on February 26.

"We have no intention of putting pressure on local courts or judges, and what matters is that the Court of Final Appeal will make the ultimate decision whether to seek an interpretation of the law from the NPC Standing Committee," Yuen said.

"I disagree with the view that this will bring a storm to Hong Kong's legal sector, and it will not affect the rule of law and judicial independence in Hong Kong."

Legal academics and barristers strongly criticized Yuen's move.

"Interpretations are contrary to the rule of law as universally understood and are very

damaging to our justice system," said rights lawyer Mark Daly. "I find it remarkable that Mr Rimsky Yuen wrote in an article [in a newspaper yesterday] about doing everything to maintain the rule of law, and then on the other hand talks about the benefits of seeking an interpretation."

Yuen's move came weeks after retired Court of Final Appeal judge Kemal Bokhary warned that Hong Kong's rule of law is "clouded by a storm of unprecedented ferocity."

University of Hong Kong assistant professor in law Eric Cheung Tat-ming said the move will set a bad precedent as it means the NPC Standing Committee can also interpret other laws, such as on human rights and personal freedom.

Civic Party lawmaker Alan Leong Kah-kit said Yuen aims to pressure the top court into seeking an interpretation from Beijing, but he believes the top court's judges will handle the matter wisely.

And barrister Albert Luk Wai-hung said if the court agrees with Yuen's suggestion and if the NPC Standing Committee can confirm the 1999 view is an interpretation of the Basic Law, it will have a binding effect on Hong Kong courts.

Should that be the case, children born to mainlanders will no longer have residency, Luk said.

But former justice secretary Elsie Leung Oi-sie said she supports asking the court to seek an interpretation to resolve the right of abode question.

And Law Society president Dieter Yih Lai-tak said he does not think Yuen's move will put pressure on the Court of Final Appeal.

In its 1999 interpretation, the NPC Standing Committee stated Article 24 means that a child has the right of abode when at least one parent is a Hong Kong resident.

Department of Justice's proposal on right of abode is worrisome

SCMP Editorial
14 December, 2012

Hong Kong's rule of law is facing yet another serious challenge. After months of speculation, the government revealed how it intends to resolve the right of abode disputes involving foreign domestic helpers and mainlanders giving birth here. In a disturbing move, it is asking the Court of Final Appeal, before ruling on the maid case, to seek a clarification from the National People's Congress Standing Committee on its interpretation of the abode provisions in the Basic Law in 1999. The request, if accepted by the city's top court and, subsequently, the standing committee in Beijing, will not just put an end to the helpers' fight for permanent residency. It may also effectively overturn the court ruling 11 years ago confirming the right of abode for babies born to mainlanders in Hong Kong.

The move is highly controversial in that the issues concerned do not seem to fall outside the city's autonomy and warrant Beijing's intervention. That the government is seeking to settle the eligibility of two different groups of people in one court case is also open to question. More worryingly, the clarification being sought may be seen as asking judges to admit they were wrong not to take the 1999 interpretation regarding a Preparatory Committee's report on the legislative intent of the abode provisions as binding. Worse, if a report by a political body after the Basic Law has been promulgated becomes legally binding, it may set a dangerous precedent.

Secretary for Justice Rimsky Yuen Kwok-keung argues that the request will not undermine judicial independence and the rule of law, saying it is handled within our judicial system. Arguably, in a legal battle, the government is entitled to put forward its argument like other appellants. After all, it is up to the court to decide, after considering all the arguments put forward by the parties concerned. But it would not be surprising if the government is seen as putting undue pressure on judges in such case.

For many local residents, a request for Beijing's interpretation may be a convenient solution to stop maids and mainlanders from sharing the same rights and benefits. But the rule of law is not made for the convenience of the majority. The judiciary has the duty to protect legitimate rights of individuals and ensure the government is acting on the right side of the law. It is imperative for the top court to consider carefully whether the clarification is a right step to take within the law.

Right of abode appeal to Beijing a 'bad precedent'

SCMP, Austin Chiu and Joshua But
14 December, 2012

Government request that city's top court asks NPC Standing Committee to rule on residency laws is condemned by legal and political experts.

Legal and political experts expressed their fears for judicial independence yesterday after the government suggested that the city's top court ask Beijing to clarify a previous interpretation of residency laws.

The request was made in a bid to resolve right of abode cases involving foreign domestic helpers and children born to mainland parents in one go. But law professor Eric Cheung Tat-ming said the move created a "bad precedent".

The government revealed yesterday that it had requested the Court of Final Appeal to ask the National People's Congress Standing Committee to clarify the meaning of its 1999 interpretation of Article 24 of the Basic Law, which deals with permanent residency. Secretary for Justice Rimsky Yuen Kwok-keung said: "This measure [to ask for clarification] will properly assist to resolve the right of abode issues of different categories of persons including the foreign domestic helpers and babies born to mainland pregnant women."

In the 1999 interpretation, Beijing said that the legislative intent on who satisfied the requirements of Hong Kong permanent residency was "reflected" in the opinions of the Preparatory Committee of the Hong Kong SAR in 1996.

The committee stated that Chinese citizens "who are born [when] either one or both of their parents were lawfully residing in Hong Kong" are recognised as permanent city residents. The committee was set up in 1996 to deal with the formation of the first government and legislative council after the handover.

But the top court ruled in a 2001 case that the committee's opinions were not binding on it, and decided that children born in Hong Kong to mainland parents - regardless of the status of the parents - should enjoy right of abode in the city.

Law professor Cheung said if Beijing ruled that the committee's opinions were binding, the court would be under pressure to overturn its 2001 decision that gave permanent residence to children born to mainland parents.

Human rights lawyer Mark Daly, who has been helping foreign domestic helpers in their fight for right of abode, said: "Seeking interpretation is contrary to the rule of law as it is commonly understood. It is very damaging to our judicial system."

Legal academic Benny Tai Yiu-ting said it was "unnecessary and reckless" for the government to seek an interpretation on laws that did not relate to the relationship between the central government and Hong Kong.

But Elsie Leung Oi-sie, vice-chairwoman of the Basic Law Committee, said: "I support whatever decisions the government made in accordance with legal procedures to resolve the right of abode issue."

Law Society president Dieter Yih Lai-tak did not think that the government's request would put pressure on the judiciary.

Census statistics show that until September this year there were 20,860 babies born in Hong Kong to mainland parents. The total number of such births since 2001 is 196,459.

Evangeline Banao Vallejos, a foreign domestic helper, is fighting for the right to apply for permanent residency in a case that will have far-reaching implications for the 285,000 foreign domestic helpers in the city.

She was given permission to go to the Court of Final Appeal and the hearing is in February.