Chief executive-elect Leung Chun-ying has said he 'cannot guarantee' that children born in Hong Kong to mainland mothers will have the right of abode. This issue reflects the conflict between Hong Kong and the mainland in interpreting the Basic Law. The problem has endured for over a decade and needs to be resolved soon.
Actually, on right of abode, the mainland's view has long been clear. The Preparatory Committee, established by the National People's Congress to prepare Hong Kong for the handover, issued an opinion in 1996 that said only children born after at least one parent was a Hong Kong permanent resident had the right of abode.
But, in 1999, the Court of Final Appeal decided, on common-law principles, that the Basic Law conferred right of abode on all mainland-born children of Hong Kong permanent residents. Months later, the NPC Standing Committee, which has the ultimate power to interpret the Basic Law, ruled that only children born to a parent who was already a permanent resident had the right of abode, citing the 1996 opinion.
On Hong Kong-born children of mainland women, the Preparatory Committee had taken the position that right of abode was only granted to those born after at least one parent was a lawful resident of Hong Kong, and that those born to illegal immigrants or temporary residents were excluded.
Despite this, the Court of Final Appeal, when dealing in 2001 with the rights of children born in Hong Kong to mainland mothers, decided not to apply the committee's position on the grounds that the Standing Committee had not made a binding interpretation on this issue.
The government agreed there was no binding interpretation, but argued that 'the common law is sufficiently flexible to enable the court' to take into account the Standing Committee's statement on the Preparatory Committee opinion. But the Court of Final Appeal countered that, under common-law principles, 'extrinsic materials, whatever their nature', cannot affect interpretation where the language is clear. Since the language was clear, there was no need to heed the Preparatory Committee.
This has led to the current situation, where the top court's position appears contrary to that of the Standing Committee.
Another Standing Committee interpretation would resolve the issue, but this is opposed by many who fear mainland interference and the undermining of judicial independence.
Every attempt should be made to avoid collisions between the two legal approaches. When the Standing Committee's position is already known, it seems foolhardy not to take this into consideration.
'One country, two systems' is an innovative concept. It is important for the courts to take an innovative approach and create a methodology to reconcile the differences between the two legal approaches.
The courts can contribute to the solution by adopting a less technical approach. The common law should be able to grow and adapt to new situations.
Frank Ching is a Hong Kong-based writer and commentator. firstname.lastname@example.org. Follow him on Twitter: @FrankChing1