The head of the Basic Law Institute has weighed in on the debate over mainland women giving birth in Hong Kong, saying it has never been the legislative intent of the Basic Law to grant the right of abode to everyone born in the city.
Alan Hoo, who is also a delegate to the Chinese People's Political Consultative Conference, pointed to a consensus reached during talks held by the Sino-British Joint Liaison Group in 1993 that only those born in the city with a parent who is a Hong Kong resident could have right of abode.
Hoo cites a booklet issued by the pre-handover immigration department in 1997 that states its understanding of the agreement of the then joint liaison group on the right of abode issue.
The booklet, referring to Article 24 of the Basic Law, states a Chinese citizen born before or after the handover will be regarded as a Hong Kong permanent resident and have right of abode provided a parent was residing in Hong Kong at the time of birth.
A similar interpretation was adopted in a statement made at a Legislative Council security panel meeting in April 1997 by the then director of immigration. Such an interpretation, of course, would have been made after the Basic Law was adopted in 1990.
Hoo urged Beijing to seek consent from London to release the details of the diplomatic discussions the two sides had over the issue at the time.
'The right way to address the [mainland mothers] issue is not to ban them from coming to Hong Kong, but to not grant their babies right of abode here,' said Hoo.
'The issue was discussed by the then joint liaison group and consensus reached,' said Hoo. 'There is no need to ask Beijing to interpret the Basic Law, nor is there any need to amend the Basic Law.'
City authorities are trying to cope with an influx of pregnant mainland mothers travelling here specifically to give birth, which would enable their children to become permanent residents with Hong Kong passports and entitle them to education and health-care benefits.
Professor Benny Tai Yiu-ting, a constitutional law specialist at the University of Hong Kong, said Hoo's suggestion could give rise to more questions than answers on the issue.
'Under the common law system, the court would usually interpret the law according to what is written in the law book, not why the law drafters had written it in a specific way,' said Tai. 'It can be extremely difficult to ascertain legislative intent. Even if you ask the law drafters, there are chances their interpretation now might be different from what they had [originally] interpreted.'
Ho Hei-wah, a human rights advocate at the Society for Community Organisation, also warned that Hoo's suggestion, if adopted, would set a dangerous precedent.
'Anyone can dig out some old documents from somewhere and say it is the original intent of the law and Hong Kong's legal system will be thrown into confusion,' Ho said.
However, Hoo said Hong Kong could not afford any more delays in addressing the influx, which has been straining the city's resources.
He also warned that government measures to turn away pregnant visitors at checkpoints on grounds they had no proper delivery bookings at local hospitals could easily face legal challenge.
'What if a pregnant businesswoman wants to enter Hong Kong for a business meeting, and she has no plan to give birth in Hong Kong and thus she would not have made any booking at hospital?' Hoo said.
'She may sue the government for compensation if she loses a business deal just because the Hong Kong government refuses her entry because she is pregnant.'
Chief Executive Donald Tsang Yam-kuen raised the issue with Premier Wen Jiabao during his visit to Beijing last month.
The government has capped the number of maternity beds for non-local mothers in public and private hospitals at 34,400 this year, but there have been reports that some mainland agencies are helping pregnant women abuse the system and gain admission to the city's hospitals via emergency wards.
Official figures show that, as of December, 1,656 non-local women had given birth in the emergency wards of public hospitals last year, almost triple the 500 or so such births in 2010. That's despite tightened surveillance at border controls, which saw 3,560 pregnant mainlanders being refused entry last year.