Former Secretary for Justice Elsie Leung calls for an ‘interpretation’ of the Basic Law to solve the problem of Mainland women coming to Hong Kong to give birth. Although theoretically a legally informed verdict by a part of the nation’s legislative body, an ‘interpretation’ is in fact an overturning of a Hong Kong court decision via an edict issued by China’s executive authorities. Local loyalists to the Communist Party like interpretation as it degrades judicial independence in Hong Kong. Indeed, the procedure should come under the category of evils we now label ‘Mainlandization’.
Chief Secretary Carrie Lam makes a pointed response…
Responding to Leung’s remarks, Lam said: “Hong Kong is a law-abiding community and judicial independence is its core value.”
She added: “Dealing with the issue of the influx of mainland mothers giving birth in Hong Kong involves complicated legal matters,” pointing out that [current Justice Secretary Rimsky] Yuen had already been investigating the matter in person.
Last month the government invited a Queen’s Counsel from the United Kingdom to advise on how to reverse a law that automatically grants right of abode to all babies born to mainland parents in the city. The Court of Final Appeal ruled in 2001 that mainland babies born in Hong Kong had right of abode regardless of their parents’ nationality.
(Note the implicit slapping Carrie gives technically high-ranking old Elsie in the first sentence. Note also the symbolism of the government turning to Britain rather than to Beijing for a solution.)
Amending the Basic Law is a no-no, for reasons that are not exactly clear but seem to have something to do with the infallibility of the Chinese Communist Party and its offshoots. Essentially, the Party cannot admit that it made an error that must now be rectified. Leung refers to amendment as ‘complicated’ – official CCP-speak for ‘embarrassing’. China’s pre-1970 silence on Japanese sovereignty over the Senkaku/Diaoyu Islands is also described as ‘complicated’.
Interpretation as a possible mechanism to veto decisions made by Hong Kong judges is essential to the maintenance of one-party rule in China. No alternative or rival source of power to the CCP may exist. This is what Elsie Leung meant in lamenting that the ‘legal profession in Hong Kong, including judges, lacked an understanding about the relationship between the central government and the special administrative region’. It is irritating – if not worse – to Beijing’s true-believing followers when these judges willfully challenge the nation’s only permitted source of power. They and the legal system they work for should, in her view, automatically yield on the rare occasions there is such a conflict.
Right of abode for Mainlanders was the subject of the very first ‘interpretation’ in 1999 (as Yash Ghai points out, the Standing Committee in Beijing overturned a 90-page decision by Hong Kong’s Court of Final Appeal in a one-paragraph ruling). Although legal types were outraged, public opinion was more forgiving. Today, Hong Kong is physically inundated with Mainland visitors and residents’ patience with the crowding, upheaval and price rises is being stretched. We have already seen Mainlanders portrayed as insects, and one video on YouTube shows a sizable crowd at Sheung Shui station chanting ‘dai luk gau’ or ‘Mainland dogs’ at groups of understandably intimidated-looking visitors. Something really nasty is waiting to happen (I am amazed no-one has thrown any tourists off the Mid-Levels Escalator yet; it’s only a matter of time, and it might be me).
So ‘interpretation’ in the case of Mainland mothers would be publicly popular. If we were paranoid we might imagine that Beijing is stuffing Hong Kong with Mainland mothers in order to prompt an action that degrades the rule of law here with local people’s approval. Even if that’s probably not the case, the crush of Mainland mothers threatens the courts as well as the hospitals. Finding an administrative solution is important if, like Carrie Lam, you value our 99.9% independent judiciary.
Speaking of Hong Kong residency and Rimsky Yuen… What do Fanny Sit, Moses Chan, and Dodo Cheng have in common? The answer, of course, is that they are all Hong Kong actors. Fanny is the one whose family name should, under some systems of Romanization, be spelt ‘Shit’ but usually isn’t; Moses is the one we can’t recall anything about; Dodo is the one who had a boob job. And what do they all have in common with Rimsky? Nothing much, you might think. But that’s because you have had right of abode in the Big Lychee for so very, very long. Atlantic knows better.