Should the rule of law always override public sentiment? Surely, there is a point when public sentiment takes priority. Or maybe not. For us in Hong Kong, this is a touchy topic. We take comfort in knowing the rule of law will protect our way of life. We use it boastfully to differentiate ourselves from the mainland. Tampering with it distresses us. Yet we now face a situation where the rule of law is pitted against widespread public opinion.
That situation, of course, is the highly emotive matter of mainland women giving birth here to secure Hong Kong residency for their babies. Granting residency rights to about 40,000 babies born here yearly to mainland visitors lies at the heart of the growing hostility by Hongkongers towards mainland visitors. It triggers hostility because it has a direct impact on local couples anxious about maternity beds and school places when planning a family.
Remove the residency right and the worst of the hostility will probably subside. But that's where we hit a raw nerve. Removing it creates a clash between the rule of law and public sentiment. Our law says all babies born here have the right of abode even if the parents have no links to Hong Kong. But the overwhelming public sentiment is that babies born to mainland couples with no Hong Kong links should be denied this right. The law versus the people: which should prevail? Ordinarily, if society outgrows a law, it is either updated or repealed. But the permanent residency law is too weighed down with politically sensitive baggage for that.
To understand this, we must return to the beginning. In 1999, our highest court ruled that mainland-born children of parents here who had not yet qualified for full residency still had the right of abode. Fearing an influx of mainland children, the government in effect asked the National People's Congress to overrule our highest court by interpreting the Basic Law. Beijing obliged by declaring that at least one parent must be a permanent Hong Kong resident before a child qualified for residency.
Despite this slap in the face, Hong Kong's highest court ruled in 2001 that anyone born in Hong Kong qualified for permanent residency, as stated in the Basic Law. That plunged us into a legal cesspool where the Basic Law and common law in Hong Kong both state that babies born here have residency but the NPC interpretation states that one parent must first be a permanent resident.
We could ask the NPC to either amend or further interpret the Basic Law so that babies born here do not automatically have residency. But that would mean Beijing interfering with our rule of law by again overriding our highest court. Some political parties favour this but Chief Executive Donald Tsang Yam-kuen wants it only as a last resort.
Using administrative means - Tsang's preference - to reduce the number of mainland women having babies here is a band-aid solution. Determined mainlanders will find ways to circumvent prevention measures because Hong Kong residency is too powerful a magnet. As long as this magnet remains, hostility towards mainlanders will fester. Eventually, we'll have to make a choice: let it fester or let public opinion override the rule of law.
Michael Chugani is a columnist and TV host. firstname.lastname@example.org