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.