Mainland and Hong Kong legal experts have said that the best way to deal with the influx of pregnant mainlanders heading to the city to give birth would be by amending local laws as it would be impractical to ask the National People's Congress to again clarify the Basic Law, the city's post-colonial mini-constitution.
Their comments follow a week of renewed controversy over the issue. After Hong Kong delegates to the NPC supported a call for Beijing to review the Basic Law at the weekend, a legislator submitted a private member's bill to Legco seeking to overturn a Court of Final Appeal ruling that upheld the right of abode for children born in Hong Kong to mainland mothers.
Alan Hoo of the Basic Law Institute, an NGO, said yesterday he believed mainland officials would find it impossible for the NPC to interpret the same matter twice, after its first review more than 10 years ago. Instead, the solution lay within all three branches of Hong Kong authority: the executive, the legislature, and the courts.
He said it was urgent that the Immigration Ordinance be immediately amended in line with the 1996 opinion, either through a government initiative or by legislators through a private member's bill.
This would allow the government to stop giving right of abode to children born in Hong Kong to mainland mothers, and if a legal challenge was brought to the courts, the Court of Final Appeal could make a correct ruling in light of changed circumstances and more evidence of the intention behind the Sino-British Declaration that led to the Basic Law.
'The government does not only have a legal responsibility to follow a ruling of the CFA or the Legislative Council, but also to safeguard the constitution ... and follow the Basic Law,' Hoo said. 'But if it doesn't want to self-correct, a private member's bill could help put the discussion before the legislature.
'Seeking interpretation is no longer a question of whether it would impact on our judicial authority, but a matter of constitutional crisis.'