The last time that China was asked to intervene in a Hong Kong immigration matter was in 1999. More than 600 lawyers took to the streets of Hong Kong in protest, outraged that the territory’s government had asked Beijing to decide a dispute over whether mainland Chinese citizens had the right of abode in Hong Kong.
China’s ruling body, the National People’s Congress, decided that mainlanders didn’t have the right of abode, and in the process overturned a judgment from Hong Kong’s highest court, the Court of Final Appeal. The lawyers responded by marching in silence to Hong Kong’s court building, some sporting bandages to symbolize the “wounding” of the city’s judicial independence. The ensuing debate was one of the territory’s most divisive.
That debate is as pitched now as it was then. Tensions threaten to flare up again if a Filipina maid, Evangeline Vallejos, wins her pending case in the Court of Final Appeal for the right to apply to stay in Hong Kong. If she does, some local lawyers say it could lead to another interpretation by Beijing of the Basic Law, Hong Kong’s mini-constitution, which sets out the limits of its independence from China following the territory’s handover from the British 15 years ago.
Under local immigration law, Hong Kong’s 300,000 foreign domestic helpers (mainly from Indonesia and the Philippines) are not entitled to apply for permanent residency rights after seven years, unlike other expatriate workers in the city. Vallejos, a resident in Hong Kong since 1986, claims that the exclusion violates the Basic Law in an action she brought against the Hong Kong government.
A Hong Kong trial court upheld her claim last September, but was reversed this past March by an appellate court, which ruled that the special conditions under which domestic helpers work in Hong Kong mean that they cannot be considered “ordinarily resident”—a key criterion for applying for permanent residency. Just last Friday, Vallejos and her lawyer, Mark Daly of local firm Barnes & Daly, were granted leave to take their case to the Court of Final Appeal, which is expected to rule either late this year or early next year.
The Hong Kong government has already talked about taking the case to Beijing if it does not succeed in blocking Vallejos’s case at the Court of Final Appeal. One local pro-China politician, Regina Ip, even presented the Hong Kong government with a petition last October, urging it to seek a ruling from mainland authorities.
Daly says that should be enough to outrage lawyers. He was one of the 600 who marched in 1999. “Anytime there’s talk of reinterpretations thrown up by some, that’s very bad for the rule of law,” he maintains. Daly adds that getting the Chinese government involved would not just be bad news for maids, but also for international businesses that rely on Hong Kong’s judicial independence. “If people—particularly in the legal profession—become complacent about this, the Basic Law is going to become meaningless,” he says.
He isn’t alone in that view. Kevin Bowers, a litigation partner at the Hong Kong law firm of Howse Williams Bowers, agrees that any referral to Beijing could have an impact on the rule of law, and could be seen to undermine the doctrine of “one country, two systems,” under which Hong Kong remains distinct from mainland China. That separation was cited by Bloomberg as a key reason for the territory’s top ranking in its recent survey of the best places in the world to do business.
Bowers adds that there’s an important difference between the right of abode litigation in 1999 and Vallejos’s case now. While the earlier case was about mainland Chinese citizens, the outcome of the current case has no clear impact on the mainland. That could set a dangerous precedent, Bowers believes. “Going to Beijing for a reinterpretation of the Basic Law for something that is purely a Hong Kong issue is something that hasn’t happened before,” he says. “It could extend the ambit of the referrals that are going there.”
Bowers says a referral to Beijing is all but inevitable if Vallejos wins at the Court of Final Appeal, but lawyers are divided on the strength of her case. Bowers says the Court of Final Appeal has a track record of overturning appellate court rulings, “so the case is far from over.”
John Budge, a litigation partner at Wilkinson & Grist, believes that the appellate court’s ruling against Vallejos was sound. “There was some pretty strong brainpower in that court. If I were acting for the Filipino lady, I would be feeling pretty glum,” says Budge, although he adds that it’s too early to predict which way the Court of Final Appeal will rule. Budge adds that in order to achieve success, Vallejos’s legal team will need to shift the terms of the argument away from whether domestic helpers are “ordinarily resident.” It will be up to the Court of Final Appeal to decide whether to accept a new argument.
Daly is far from glum. “We’re pretty confident that the appellate court got it wrong,” he says. And he and his client will certainly be looking for new ways to mold their arguments, Daly adds. If they win, he hopes the Hong Kong government will let the matter lie, but acknowledges that a referral to Beijing is more likely. (Only the Hong Kong government and the Court of Final Appeal can seek an interpretation from Beijing; Vallejos would be unable to appeal if she loses.)
Not everyone sees a problem with asking Beijing to intervene. Herbert Smith litigation partner Gareth Thomas says it would be the appropriate action if the Court of Final Appeal reverses the appellate court. “It’s been done before in relation to the much wider right of abode issue, and the world didn’t come to an end, despite many people saying it would,” says Thomas. “I think the lesson, post-handover, has been that concerns about this sort of issue have been misplaced.”
There are two other occasions when the National People’s Congress has been called on to intervene in Hong Kong matters. In 2005 the congress was asked by the Hong Kong government to interpret the Basic Law in a dispute over the term of office for the city’s chief executive. And last year the Court of Final Appeal caused furious debate when it referred a commercial dispute to Beijing. FG Hemisphere Associates, a New York–based distressed debt fund, had taken the Democratic Republic of Congo to court in Hong Kong to enforce two arbitral awards worth $125 million. The Congolese government surprised everyone by asserting absolute sovereign immunity—a legal concept that exists in mainland China, but was not thought to apply in Hong Kong. However, the National People’s Congress ruled that sovereign immunity applied in the territory, a decision that some saw as a blow to arbitration’s credibility and to Hong Kong’s independence.
For Daly, such cases are disturbing. “People keep saying, ‘Let’s get Beijing to fix this,’ ” he says. “ That seems to be tripping more easily off people’s tongues. And I think that’s dangerous.”