Saturday, October 27, 2012

The right of abode

In Director of Immigration v. Chong Fung-yuen in 2001, the Hong Kong Court of Final Appeal
ruled that Chinese citizens born in Hong Kong had the right of abode regardless of the residence status of their parents. Since then tens of thousands of Mainland Chinese women have arrived in Hong Kong to give birth so that their children can attain the permanent resident status with the right of abode in the Hong Kong Special Administrative Region, flooding local maternity wards and further overloading already strained local resources, most notably, the education system.
To curb the influx of Mainland Chinese women seeking to give birth in Hong Kong, the Hong Kong Legislative Council has enacted a law proposed by the Government that provides that such a status would not be conferred on children born to Mainland Chinese women who enter into the territory for the purposes of giving birth.
Meanwhile, a judicial review application has been brought before the Hong Kong courts by a prospective Mainland Chinese mother seeking to have the enactment declared unconstitutional. The Government and the Legislative Council are hopeful that the Hong Kong CFA will reconsider its earlier ruling.
Former Justice Minister Elsie Leung Oi-sie has been reported as saying that the Hong Kong legal profession, including judges, lack an understanding of the relationship between Beijing and Hong Kong. She recommends that the government refer the issue of mainland mothers giving birth in Hong Kong to the NPC Standing Committee. These events have given rise to the possibility that an NPCSC interpretation of the relevant articles of the Hong Kong Basic Law may be sought by the court or Hong Kong Government officials or alternatively, the CFA may simply rule again on its own without seeking an interpretation.

Question:

In light of these events, critically evaluate the alternative courses of action in light of their implications in terms of (i) the constitutional framework of Hong Kong; and (ii) the survival of rule of law and separation of powers in Hong Kong, setting out which of these would offer an acceptable resolution of the issue. Support your answer with reference to relevant  jurisprudence and academic opinion where appropriate.

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