Problem needs to be sorted at home

PUBLISHED : Tuesday, 13 March, 2012, 12:00am
UPDATED : Tuesday, 13 March, 2012, 12:00am


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.'

The seeds of the crisis were sown in 1999 when a CFA ruling ran counter to pre-handover Sino-British documents and a Beijing interpretation made it clear that, under the Basic Law, children born in Hong Kong to mainland parents were not entitled to right of abode.

However, the court ruled in 1999 that nine-year-old Ng Ka-ling, who was seeking to be reunited with her Hong Kong-resident father after the handover, had the right of abode. Fearing an influx of mainland immigrants, the Hong Kong government sought the first interpretation of the Basic Law from the NPC's Standing Committee.

The committee ruled in the Hong Kong government's favour, saying that only mainland children who had entered Hong Kong legally could obtain right of abode. But in the 2001 case of three-year-old Chong Fung-yuan, the court ruled Chong and all children born in Hong Kong, regardless of the origin of their parents, enjoyed right of abode.

The Standing Committee immediately pointed out the discrepancy between this ruling and its 1999 interpretation, but the city government amended its immigration rules in compliance with the court's ruling.

Hong Kong Secretary for Justice Wong Yan-lung said over the weekend that seeking reinterpretation of the Basic Law should be undertaken cautiously, to safeguard the city's judicial authority, and that the government should try other, more administrative measures.

But Wong's predecessor, Elsie Leung Oi-sie, said the root of the problem lay with the CFA ruling in the Chong Fung-yuan case, and that the only way out was for the chief executive to seek a reinterpretation from the NPC, triggering the appeal by the Hong Kong delegates.

Wang Zhenmin, a former member of the Basic Law Committee, said yesterday that the Standing Committee should consider and respond to the petition by Hong Kong's delegates, but it was most likely it would say there was no need to reinterpret the Basic Law.

He said this did not mean the judgment of CFA had been wrong in the Chong Fung-yuan case, and that making a new ruling on the right of abode of children born to mainland parents would not affect the authority of the CFA.

Administrative measures in both Hong Kong and Guangdong had already failed to resolve problems and it was now up to the Hong Kong government to get a new ruling, he said.