Beijing best to end birth row, Elsie Leung says

 http://www.scmp.com/article/994995/beijing-best-end-birth-row-elsie-leung-says

Elsie Leung Oi-sie, senior adviser to Beijing on Hong Kong's Basic Law, says the city's government should seek an interpretation of the mini-constitution to stop an influx of mainlanders giving birth in the city.
Calling a rare media gathering in Beijing, the former secretary for justice said the right-of-abode issue 'is a legal problem that should be solved legally' - with the preferred way being an active attempt by the chief executive to seek an interpretation from the central leadership.
Beijing has so far indicated that it prefers to solve the issue through other channels, but has left the door open for an interpretation.
Leung, a Beijing loyalist, said an interpretation of the Basic Law was not necessarily bad, countering fears that any such interpretation - which would to be the fifth since the 1997 handover - would threaten judicial independence in the city.
'We should not easily make interpretations of the Basic Law,' Leung, vice-chairwoman of the Basic Law Committee, said while attending the National People's Congress (NPC) session in Beijing. 'But whenever it is needed, we should exercise the right to interpret the law despite criticisms.' The panel advises the NPC Standing Committee on the Law.
The 'born-in-Hong-Kong' debate gained prominence in 2001 when the Court of Final Appeal ruled that Chong Fung-yuen be given permanent residency regardless of the status of his mainland parents. The ruling contradicted the NPC's 1999 interpretation of the Basic Law that denied right of abode to children born outside the city before either parent was a permanent resident.
The appeal court's ruling meant claimants born before either of their parents became a permanent resident qualified for the right of abode under Article 24 of the Basic Law. The NPC later said claimants should not enjoy right of abode unless they were born after one of their parents had been granted permanent residency.
Article 48 of the mini-constitution states that the city's chief executive is responsible for implementing the Basic Law.
However, according to the 1999 case, the chief executive could seek an interpretation by submitting a report to the State Council, which would in turn apply to the NPC Standing Committee.
Many observers, especially legal experts, worry such moves would undermine the city's rule of law.
One of them is lawyer and lawmaker Alan Leong Kah-kit, who said seeking an interpretation should not be an option. 'An NPC interpretation has already been made in 1999,' Leong said. 'There is really no point asking for another one.'
Basic Law Committee director Qiao Xiaoyang said on Thursday the best solution would be for the top court to 'rectify' its previous ruling.
Elsie Leung highlighted difficulties in the option. She said that while it was reasonable given the common-law standpoint that a court can depart from precedents under a changed social situation, the problem was 'whether the government has enough courage to deny residency to mainland babies to trigger judicial reviews [that would bring the issue back before the courts]'.
'The Court of Final Appeal would not dare to overturn its previous judgment, either,' Leung said.
As for changing Hong Kong law in order to trigger a legal challenge, she said: 'Given the judgment [in 2001], will the government submit an illegal bill to the legislature?'
She also ruled out amending the Basic Law, since 'the mistake was made by the court, but not the law itself'.
Lawmaker and lawyer Albert Ho Chun-yan disagreed.
'Amending the law is the best way,' Ho said. 'Although no such case has happened in Hong Kong before, the Basic Law grants the administration the right to amend the rules.
'There is nothing wrong with the Court of Final Appeal's previous ruling. What the judge did was to rule within the framework of law. Only if the law has been changed could the judge make a different ruling.'
Meanwhile, the Hong Kong administration underlined the importance of tightening cross-border action on mainland mothers-to-be.
Undersecretary for Security Lai Tung-kwok told the Legislative Council's security panel that administrative measures taken by both Hong Kong and Guangdong had been effective in blocking the entry of women 28 weeks or more pregnant.
The province had launched two big inspections targeting 62 companies and organisations suspected of helping mainland women enter Hong Kong illegally, Lai said.
Most had been shut down. Twelve were caught in the act and 25 people were arrested.
Cutting the influx
1. Administrative measures
a. Issue medical visas
b. Tighten quotas on non-local deliveries in hospitals
c. Stop issuing permanent residency to babies with non-local parents (may trigger case to be brought to the city's top court as in step 2)
d. Crack down on middleman agencies
2. Rectify court rulings
The Court of Final Appeal could consider the intention of the original law, which entitled a child born in Hong Kong to right of abode if only at least one parent was a resident at the time of birth, and reach a new verdict. This would require someone to initiate a court case.
3. Amending the law
According to Article 159 of the Basic Law, the law could be amended, even to overturn a ruling by the Court of Final Appeal, with the approval of the chief executive, two-thirds of lawmakers and two-thirds of Hong Kong deputies in the National People's Congress. This could be proposed by the Legislative Council, the chief executive or the NPC.
4. Interpretation of law
Under Article 158, the power of final interpretation of the Basic Law is vested in the Standing Committee of the National People's Congress. Interpretation can be sought by a court, the chief executive or the NPC.