Reversal of right
of abode for maids implies diminishing space for ethnic minorities
The erosion of the independence of Hong Kong’s judiciary is speeding
up. Two decisions on March 28 gave worrying signs that judges are less and less
willing to contradict the government by interpreting the law as it stands
rather than what the government would like it to be.
They also both implied that there is diminishing space for ethnic
minorities among officials concerned with emphasizing Han Chinese ethnic
identity.
First, the Court of Appeal overturned a lower court decision which
accorded to domestic helpers who had been in Hong Kong for more than seven
years the right to apply for permanent residence. This right to apply was no
guarantee of achieving that status as the Basic Law (Hong Kong’s mini
constitution) provides that applicants must show that they have made Hong Kong
their “place of permanent residence,” a phrase subject to varying
interpretations. But the government opposed even allowing helpers, who work
under fixed term but renewable contracts, the right to apply.
The Court of Appeal’s acceptance of the government’s argument was not
so much based on an interpretation of the Basic Law as it in effect gave carte
blanche to the government to ignore that law. The judgment written by Justice
Andrew Cheung Kui-nung included the following: “It is a fundamental principle
in international law that a sovereign state has the power to admit, exclude and
expel aliens.”
Forget for a moment that Hong Kong is not a sovereign territory. These
words simply enable the Hong Kong government to do what it likes for aliens –
i.e. all non-Chinese nationals – regardless of what is in the Basic Law to
which the government is supposed to be subservient.
Indeed the judgment goes even wider by saying that the legislature has
the power to interpret the Basic Law by making laws itself, in this case to
deem domestic helpers not to be “ordinarily resident.” In that case the Basic
Law is worthless.
The racist implication of the judgment is also underlined by the fact
that the government has only brought the case specifically to exclude domestic
helpers. These persons are all from Southeast and South Asia, the brown-skinned
people looked down upon by many Chinese.
It is noteworthy that Chinese are not permitted to join this underclass
by becoming helpers, though doubtless many mainland women would volunteer if
allowed.
The decision treats domestic helpers’ presence in Hong Kong as similar
to those of refugees and inmates and it also suggests that aliens of all kinds
in Hong Kong are not protected by the Basic Law regardless of what it says
about rights of permanent residence. If there is a “sovereign right” to expel
aliens as the government sees fit, the Basic Law is irrelevant, and thus the role
of the courts to interpret it. The tens of thousands of other aliens who make
Hong Kong an international city would do well to note that this judgment has
implications for them, not just the underclass of maids. The decision has other
implications as well. The fact that costs have been awarded to the government
is sure to discourage other would-be claimants from bringing such cases.
The second decision was to force the retirement at age 65 of Kemal
Bokhary as a permanent judge of the Court of Final Appeal. Bokhary has a
reputation for his liberal views and sometimes dissenting judgments. He is also
not an ethnic Chinese. Both these facts probably counted against him more than
age, since he is being replaced by an even older judge, Robert Tang Ching. Bokhary
will be able to act as a non-permanent judge but is unlikely to get cases
involving politically sensitive issues.
Philip Bowring
Asia Sentinel
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