An NPC interpretation is not the answer to Hong Kong's immigration problems

Eleven years after the unanimous Court of Final Appeal decision in the Chong Fung-yuen case granting Hong Kong residency to children born in Hong Kong of mainland parents, and more than 196,000 such births later, the government has made its most comprehensive move yet to address our overcrowded maternity wards and the follow-on surge in school enrolment.

Last week, in the right of abode case brought by domestic helper Evangeline Banao Vallejos, the government suggested to the top court that it could refer Article 24 of the Basic Law, relating to Hong Kong permanent residency, to the National People's Congress Standing Committee for interpretation. The government invoked Basic Law Article 158, which provides for such referral for Basic Law interpretations on matters of central responsibility or local-central relations.

In seeking the referral, Secretary for Justice Rimsky Yuen Kwok-keung appears to be aiming to solve two problems in one go - mainland births and the domestic helper residency issue. But it may be that Hong Kong's autonomy and rule of law suffer as a result, as the government is putting the top court in a no-win situation.

First, it is important to note that the case of mainland mothers giving birth in Hong Kong is not now before the Court of Final Appeal. Rather, the domestic helper case is. Since the top court has long held that immigration - under Article 24 - falls under Hong Kong's autonomous control, one would assume that the residency of foreign domestic helpers is a local issue.

When the Chong Fung-yuen case was before the top court in 2001, such referral of Article 24 (1) was refused by the court. It concluded that the residency issue did not fall under the Article 158 excluded provisions concerning matters of central responsibility or local-central relations.

In asking the top court to overrule itself and seek a "clarification" of the entire Article 24, well beyond the limited sub- section before the court, the government appears to be seeking an amendment of Article 24 in the guise of interpretation.

In deciding the Chong Fung-yuen case on its merits, the court followed the clear language of Basic Law Article 24 (1), which lists Hong Kong permanent residence to include: "Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region."