The government is studying various legal options to resolve the longstanding problem of ineligible mainland women giving birth to babies in Hong Kong, Secretary for Justice Rimsky Yuen disclosed on Monday.

Over the past decade, the number of children born in Hong Kong to parents without legal right of abode in the city exceeded 177,000. These children, however, enjoy right of abode in Hong Kong, by virtue of a Court of Final Appeal ruling in 2001.

As soon as the study is completed in two or three months, Yuen may seek further opinions from independent counsel or constitutional experts as to next steps.

Yuen, however, maintained the problem should be settled within the local judicial system as the government avoids seeking an interpretation of the relevant Basic Law provision Article 24(1) from the National People’s Congress as far as possible, while amendment to the Basic Law will be the last resort. He added if administrative measures can resolve 99 percent of the problems and society wants no more legal actions, the government may drop further legal actions.

Yuen talked to the local media on Monday after assuming office on July 1.

Referring to possible means to resolve the problem, Yuen said he is aware of the suggestion to amend the current Immigration Ordinance to grant abode right only to locally-born babies with at least one permanent Hong Kong resident between his parents.

There is also a suggestion not to issue birth certificates to the babies with two mainland parents, to trigger litigation against the government.

On the private bill proposed by lawmaker Jeffrey Lam to amend the Immigration Ordinance, Yuen said it is up to Chief Executive Leung Chun-ying to decide whether to allow Lam to table the bill in the Legislative Council.

Yuen seemed to reject the suggestion to withhold issuance of birth certificates. “We don’t want to break the law and be sued,” he commented. “In the interest of rule of law, there is no strong justification for the government not to observe its own laws or the verdict of the Chong Fung-yuen case.”

He added, if the court issues a declaration to remove the permanent residency of babies born to mainland parents, the declaration may be proactive since it will not affect children who already have obtained birth certificates. Another form of declaration may be retroactive but it would be highly controversial.

Yuen says he is also aware that legal academic and Basic Law Committee member Professor Albert Chen had made the argument that while ruling on the Chong case in 2001, the Court of Final Appeal did not refer to the 1996 documents of the Preparatory Committee as to the eligibility of permanent Hong Kong residents.

He responded that the Department of Justice has weighed various opinions and will prepare a checklist of legal arguments the government can rely on when the case is revisited by the courts.

Yuen, who was chairman of Hong Kong Bar Association, said Chief Executive Leung Chun-ying has never given him the political task of making law for the anti-subversion Article 23 of the Basic Law. “If he asks me to, I will tell him no, because Hong Kong has many other problems to solve,” he said. “Full consultation is needed for Article 23 legislation but I don’t think this can be done within a short time.”

On the question of judicial reviews, he described the mechanism as an effective means of resolving differences between the government and civilians. If Hong Kong people cherish rule of law as one of their core values, they should respect judicial reviews and accept whatever results rather than their preferred results.

joseph@chinadailyhk.com