Top court should rectify birth issue: Basic Law expert – Immigration

But a Hong Kong professor warns that Beijing official’s suggestion would undermine rule of law

A former director of the Basic Law Committee in Beijing says the best solution to deter the influx of mainlanders giving birth in Hong Kong is to “let the top court rectify itself”, but a Hong Kong legal expert believes this would undermine the rule of law.

Currently babies born in Hong Kong to mainland mothers have right of abode regardless of their parents’ immigration status, as settled by a 2001 Court of Final Appeal ruling.

“There is no such thing as correcting a final ruling in Hong Kong because the government does not like the outcome,” said Eric Cheung Tat-ming, an assistant professor of law at the University of Hong Kong.

“The thought is very dangerous, as it threatens the decision-making power of the court.”

Cheung was responding to comments by influential mainland legal expert Qiao Xiaoyang , who said yesterday in Beijing an amendment of the Basic Law itself is “not the way”. Cheung said such assertions reflected serious differences between the mainland and Hong Kong on the constitution.

He also dismissed a suggestion that the government should stop issuing permanent residency to babies whose parents are mainlanders in order to trigger a legal challenge that the Court of Appeal could again rule on.

“How can the government take the lead to break the law and challenge the ruling?” Cheung said.

Asked whether the government would consider such a move, a spokesman from the Security Bureau replied that it would act in accordance with the law.

Barrister and legislator Alan Leong Kah-kit believes that what Qiao meant was that it should be left to the Court of Final Appeal to reconsider the 2001 ruling.

Since that ruling was made, the door has been open to mainlanders who travel to Hong Kong specifically to give birth and obtain a Hong Kong passport for their child.

Leong’s interpretation of Qiao’s statements was that a legal challenge may be triggered if a case was to be brought to the city’s top court again, and that a new verdict might be reached if the government was able to convince the chief justice, Geoffrey Ma Tao-li, to take into consideration a 1993 Sino-British Joint Liaison agreement.

That agreement stated that a child born in Hong Kong would only be entitled to right of abode if at least one parent was a resident at the time of birth. The same view was shared by Beijing in a 1999 interpretation.

Chairman of the Basic Law Institute, Alan Hoo QC, said earlier that he believes that if a legal challenge was triggered, the top court would reach a judgment in line with the 1999 interpretation.

Meanwhile, a case challenging the Hospital Authority’s policy of charging mainland wives of resident Hongkongers more than local women for giving birth in public hospitals was heard yesterday.

Fok Siu- wing, 72, launched the case in 2007 on behalf of his son, Fok Chun-wa, and daughter-in-law, Zeng Lixia, who was charged the higher fee of HK$48,000 by a public hospital in December that year. The family refused to pay the bill, which grew to HK$150,000 as interest accumulated. After being rejected by the lower courts, he took the case to the Court of Final Appeal last year. The hearing continues today.