SCMP Saturday, July 21, 2001
Tale of two rulings
For three-year-old Chong Fung-yuen, who was born here, jubilation. For Tam Nga-yin, Chan Wai-wah and Xie Xiaoyi, who were adopted on the mainland, heartbreak. Fung-yuen can stay in Hong Kong, the others must go.
Although yesterday's judgments in the Court of Final Appeal mark another definitive step in the autonomy of Hong Kong, the rulings will not be universally welcomed. People who believe the "floodgates" argument will see it as an invitation for every expectant mainland mother to rush across the border in late pregnancy to have her baby delivered in a first class hospital and earn it Hong Kong permanent residency to boot.
For some parents, there will undoubtedly be an extra incentive to try that. But not even the SAR Government argues that this will become a major problem. It said so during the hearing of the case in March, based on figures suggesting the numbers would be about 555 children a year.
Officials also stated that the Government would abide by the decision of the court. But by stopping short of giving a definitive "no" to whether it would seek a reinterpretation of the relevant provisions by Beijing, it left the impression that it wanted to keep the option open. The Government should know that if it goes back on that assurance, it will destroy its credibility and remove all doubt about the true extent of SAR autonomy.
The way the court asserted its authority to rule on matters that affect SAR citizens, in the absence of a binding interpretation by the Standing Committee of the National People's Congress, is reassuring and in keeping with the pledge of Hong Kong people ruling Hong Kong. It is a much needed signal to the world that "one country, two systems" is in working order, despite the setback caused by a right-of-abode reinterpretation in June 1999. We cannot afford to become embroiled in another divisive row of that nature. If that were to happen, it would be destabilising to Hong Kong and damaging to Beijing, which is undertaking to improve human rights in readiness for the 2008 Olympics.
Many of the children whose lives are altered by these judgments are too young to be concerned about legal niceties. The boy born while his mother was on a visit to Hong Kong has finally won right of abode. The fate of the three adopted children now hangs in the balance. The Basic Law unambiguously refers to children "born" to Hong Kong parents and four judges - despite an effort by Mr Justice Kemal Bokhary to argue for a way around the wording - felt the phraseology left no room for doubt. Adopted children are not mentioned in the Basic Law. It is an unfortunate omission and one which should be rectified by amendment if the administration seriously hopes to become a world city on a par with London or New York.
Under the terms of the ruling, the children can be returned to the mainland regardless of individual circumstances. It does not matter whether there are people there willing to look after them or how much they need the security of a settled home. When the case was in the Court of Appeal last March, Mr Justice Anthony Rogers said couples wanting to adopt should consider whether they would be able to take the child to the place in which they wished to abide. But as this is a jurisdiction where adopted children have the same legal status as natural children, parents could hardly be blamed for assuming that their rights would be protected.
It is a situation that can confuse legal minds, let alone the layman. There is little doubt the bench would have found in favour of those children if that had been possible. It must have been disconcerting to reach a verdict that said, in effect, that the law - the very agency which should safeguard them - has washed its hands of minors.
It is up to officials to show flexibility by letting them stay on compassionate grounds. It has a moral obligation under the Convention of the Rights of the Child, which states that "the child, for the full and harmonious development of his or her personality, should grow up in a family environment in an atmosphere of happiness, love and understanding".
Yet now, in a civilised community, by a quirk of legal terminology, three hapless children are to be denied those rights. The SAR will stand condemned if it insists on returning them to their place of birth. The Director of Immigration has the legal power to decide what policies he applies to unregulated cases. He can allow them to stay.
When a similar situation applied in Britain, adopted children were allowed in on a non-statutory basis, when parents satisfied the authorities that the adoption was bona fide. Hong Kong can take a similar approach by working closely with the mainland Public Security Bureau to prevent an abuse of the law by pregnant women. To do anything less would be to leave them to providence.