Hong Kong Basic Law

Lawyers caution government against directly seeking Beijing's help

Administration cautioned against directly asking central government for Basic Law interpretation after court turns down request

PUBLISHED : Tuesday, 26 March, 2013, 12:00am
UPDATED : Tuesday, 26 March, 2013, 4:58am

Now that the top court has turned down its request to seek Beijing's interpretation of the Basic Law in the right-of-abode issue, the administration should not directly approach the central government to do so on its own, legal experts warn.

Doing so in a bid to resolve the residency-rights problem of children born in the city to mainland parents would challenge Hong Kong's rule of law and undermine its core values, they say.

Former Bar Association chairman and lawmaker Ronny Tong Ka-wah said the Basic Law's Article 158 - a provision on interpretation - did not give the Hong Kong government any legal mechanism to directly seek the National People's Congress Standing Committee's interpretation.

It would hence be both legally and politically wrong for the administration to do so, he told the South China Morning Post.

And if it did so, the damage to the rule of law and the city's judicial independence would be even greater than that after the first interpretation was sought under then chief executive Tung Chee-hwa's administration back in 1999, he said. Then, Beijing's interpretation overturned the Court of Final Appeal's judgment involving residency rights for children born in Hong Kong to mainland parents who were not permanent residents.

"In those days, the government claimed there was an urgency to seek an interpretation or Hong Kong would be swamped with mainland children," Tong said.

"But I don't see what excuses it can use nowadays to justify another interpretation in view of our very low birth rate."

A spokesman from the Law Society said last night that an interpretation from Beijing on the issue of mainland mothers giving birth in Hong Kong would undermine the city's core values.

Basic Law Committee member and Senior Counsel Johnny Mok Shiu-luen also warned of the possible impact such a move might have on the city.

It would be better for the administration to consider alternatives, such as an amendment to the Basic Law or to leave it to the court to decide on the issues on a case-by-case basis, he said.

But those who supported an amendment should spell out details for public discussion, rather than merely relying on political rhetoric, he added.

Mok was of the opinion - contrary to Tong's - that while a channel for the Hong Kong government to directly seek Beijing's interpretation was not specified in the Basic Law, it did not mean that the administration was not allowed to do so.

There also remained the possibility that the top court might in future refer to the NPC for its interpretation when similar cases arose, Mok said.

This was because the city's court was obliged to do so under the constitutional arrangement, he explained, citing yesterday's judgment in which the Court of Final Appeal highlighted that referring to Beijing was mandatory when the circumstances of the cases satisfied the conditions spelt out in the Basic Law.

Law professor Michael Davis, of the University of Hong Kong, said his preference was for the Hong Kong government to resolve the right-of-abode issue concerning children born in the city to mainlanders through administrative measures, before proposing for Beijing to make an amendment to the Basic Law.

"Whenever Hong Kong can solve the problem independently, the government should not get Beijing involved," he said.