Letter to Hong Kong - Miriam Lau (25 March 2012)

Around two weeks ago, 30 Hong Kong deputies to the National People’s Congress co-signed a proposal urging the Central Government and the SAR Government to collaborate in working out a method to curb the influx of mainland mothers giving birth in Hong Kong, including asking the NPC Standing Committee for interpretation of Article 24 (2) of the Basic Law to re-establish its true legislative intent. I am one of the signatories to this proposal.  

I am very much aware of public sentiments regarding interpretation of the Basic Law  – the less we do it, the better. Interpretation should only be used as a last resort, when everything else fails. Unfortunately, on the issue of mainland pregnant mothers, we have very few options. Our community is demanding urgent solution to this problem, as its pressure on our medical services and education system is escalating fast, and there is grave concern that our welfare, housing and other social resources will be stretched beyond their limits. This is simply not acceptable to our people.

The problem of mainland pregnant mothers stem from the case of Chong Fung Yuen  in 2001, when the Court of Final Appeal ruled that children of Mainland parents born in Hong Kong shall have the right of abode. This decision flies in the face of the Opinion of the Preparatory Committee for the HKSAR of the NPC on August 10, 1996. That Opinion stated in unequivocal terms that “Chinese citizens born in Hong Kong” under Article 24(2) refer to children born to parents, both or at least one of them, are legally resident in Hong Kong and do not include those born to illegal immigrants, overstayers or visitors staying on a temporary basis. It is clear that children born to mainland parents do not qualify. On the day following the Chong Fung Yuen case, the legal committee of the NPC announced that the Court’s decision does not accord with the Opinion. However the Hong Kong Government chose to ignore this anomaly, and decided not to challenge this ruling, thereby opening the door for Mainland babies.

You may recall the Ng Ka Ling case, subsequent to which the NPC Standing Committee issued its first Interpretation of the Basic Law in June 1999 . This Interpretation contains a crucial paragraph which reads: “The legislative intent as stated by this Interpretation, together with the legislative intent of all other categories of Article 24(2) of the Basic Law have been reflected in the ‘Opinions on Implementation of Article 24(2) of the Basic Law” adopted at the 4th Plenary Meeting of the Preparatory Committee for the HKSAR of the NPC on August 10, 1996.”  That Interpretation clearly imported what was expressed in the Opinion as the correct interpretation of all provisions of Article 24(2). This is confirmed by legal experts on the Mainland.  Some people say that since Article 24(2) has already been interpreted, the NPC Standing Committee would not be prepared to reinterpret the law. When talking to the Mainland officials and legal experts, I get the impression that they are sympathetic to the situation of Hong Kong. Although they say that Hong Kong should try to find a solution itself, including seeking a reversal of the CFA decision, they have not closed the door to reinterpretation. However, they made it plain that since the law “as interpreted” is clear, there is no basis for asking the law to be amended.

Since the problem of mainland mothers surged, a few options have been floated as to how to solve it. The Government says that it will tighten the administrative measures to deter them from coming in. But then they already said that as far back as 2001, but see where we are now – a total of over 170,000 babies born of mainland parents so far, an estimate of another 40000 this year, shortage of maternity beds in our hospitals for our own Hong Kong mothers, medical services being compromised, extreme pressure on medical frontliners, great anxiety by local would-be mothers and parents seeking kindergarten places for their young children and more.  Hand on heart, I can no longer have confidence that the problem can be solved by administrative measures. We must find a permanent solution.  We must address the problem at root.

Some have suggested that we should seek to amend the Basic Law. But as I have said earlier, this option is not open to us.

Others have suggested that we should go for interpretation of the Basic Law. I do not oppose this suggestion since it is the most direct method of putting the law right. But at the same time, we should not rule out any other option to solve the problem.

Many people believe that Mainland parents want to have their babies born in Hong Kong because their children will have the right of abode. Therefore, solution to the problem must lie in removal of that right. The Liberal Party has suggested the Administration to cease granting right of abode to these babies. The purpose is two-fold: first it will bring a stop to more mainland babies sharing our resources; second, this move is bound to trigger judicial reviews and bring the issue back into the court process. This will give the court the opportunity to relook at the legislative intent of Article 24(2) and reverse the 2001 decision. During the process, the court can, if need be, seek interpretation under Article 158(2). Even if this process fails, then going down the route of interpretation, or re-interpretation is still open to us.

Some have suggested that we should amend our local law to reflect the true legislative intent of Article 24(2). This again is bound to trigger a legal challenge and bring the matter back to the courts. The Liberal Party is open-minded to this proposal but feels that the amendment should best be initiated by the Administration. In both the Liberal Party’s proposal and this one, there is criticism that it runs contrary to the judicial authority laid down in Chong Fung Yuen. Similar criticism lies against interpretation of the Basic Law. However, if we cannot go beyond Chong Fung Yuen, then there is actually nothing we can do, and there will not be any permanent solution to the problem. This I am quite sure is not acceptable to Hong Kong people. After all, by going beyond Chong Fung Yuen, we are not flaunting the law, but merely insisting on reversion to the true legislative intent of the law.

Some people have said that since the term of this Administration will expire in a couple of months, it will not have the desire or courage to take on such a controversial issue. However, my view is that exactly because this Administration will be out of office shortly, it should seize this opportunity to put right what had gone wrong over the past 10 or more years. If it does so, then our people will at least be grateful to it for resolving a problem that it had allowed to exist and grow for a whole decade.