tim's experiment

Both our declared candidates for Chief Executive had a bad day on Tuesday, on the same topic. They have discovered, or been advised, that people are highly concerned about the number of mainland mums coming to Hong Kong to give birth. Henry fielded a question on the topic on a radio phone-in programme. Asked if the government could solve the problem by denying the right of abode to the resulting off-spring he said this could be done only by changing the Basic Law or having it “interpreted” by the NPC standing committee in Beijing.  In fairness to Mr Tang he was reported to have said afterwards that seeking an interpretation would be “a blow to the rule of law in Hong Kong”, which is true, but beside the point.

CY Leung, meanwhile, was pushing the idea that pregnant mainlanders should be stopped at the border. Actually I understand that they are already stopped at the border if they do not have a reservation at a Hong Kong hospital. Mr Leung also considered seeking an interpretation, but said it would “only address issues concerning the children’s identities”.

What both our would-be future leaders seem to have missed is that interpretation is not supposed to be an alternative to legislation. It is not properly used to let the Hong Kong Government circumvent some administrative inconvenience by changing the meaning of the Basic Law. The objection to interpretation as a solution to the pregnant mainlander problem is not that it would take time, though it would, nor that it would be a blow to the rule of law, though that is also true. The fundamental objection is that interpretation should only be considered if there is difficulty in understanding what the Basic Law means. The right to interpret is the right to resolve issues where the Basic Law is not clear. It is not carte blanche for instant amendments along the line of “where the Basic Law says ‘black’ it means ‘white'” variety.

If the government does not wish people born in Hong Kong to have the right to live here then it must change the Basic Law. Where the law is clear, “interpretation” is not on the menu.