Posted : 2012-03-14 16:53
Updated : 2012-03-14 16:53

Nationality Law in Hong Kong

By Frank Ching

At the opening last week of the annual session of the National People’s Congress (NPC), China’s parliament, a retired English professor, Wu Qing, told a Hong Kong television interviewer that the congress is described in the Chinese Constitution as “the highest organ of state power.”

She repeated this forcefully ― “the highest organ of state power” ― and then acknowledged that, in reality, the Communist Party is more powerful.

Professor Wu put her finger on a glaring problem in China ― words and reality do not match and the constitution and laws do not necessarily mean what they say.

One instrument that the Communist Party uses to ensure that laws mean what the party says they mean rather than the plain meaning of the wording of the legislation is the standing committee of the NPC. This body has the right to interpret laws and the constitution itself.

One example is China’s nationality law, adopted in 1980. Article 9 of the law states: “Any Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will shall automatically lose Chinese nationality.”

The meaning is plain enough. However, before China took Hong Kong back from Britain in 1997, it decided that too many people in the British colony had foreign nationality, and it decided to make a change.

The upshot? The standing committee came out in 1996 with an “explanation” of the nationality law ― but only as applied to Hong Kong.

It reads: “Where a Hong Kong resident is of Chinese descent and was born in the Chinese territories (including Hong Kong), or where a person satisfies the criteria laid down in the Nationality Law of the People’s Republic of China for having Chinese nationality, he is a Chinese national.”

That is to say, acquisition of foreign nationality no longer meant an automatic loss of Chinese nationality.

This, presumably, was to prevent millions born in the colony from claiming British nationality and the hundreds of thousands of people who fled the territory in the aftermath of the Tiananmen Square massacre to countries such as Canada and Australia from returning, claiming foreign nationality.

And now, China is seeking to change the meaning of a law through neither an “interpretation” nor an “explanation” but by getting the Hong Kong courts to say that the law does not mean what it says.

At issue is Article 24 of the Hong Kong Basic Law, which the NPC adopted in 1990 to be the territory’s constitutional instrument.

Article 24 of that law states: “The permanent residents of the Hong Kong Special Administrative Region shall be: (1) Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region ...”

Because of this provision, thousands of pregnant women in mainland China have flooded into Hong Kong to give birth, so that their children will automatically become permanent residents.

Hong Kong’s Court of Final Appeal has ruled that any Chinese citizen born in Hong Kong has the right of abode, regardless of whether the parents enjoy this right.

But now, Chinese officials say that the court was wrong. What the Basic Law really means, Chinese officials say, is that a Chinese citizen born in Hong Kong will only become a permanent resident if one of the parents is already a permanent resident.

Of course, this is not stated in the Basic Law. But Chinese officials such as Qiao Xiaoyang, deputy secretary general of the standing committee, say that the best way to solve the problem is for the court to “rectify” its ruling.

One way to do this, Chinese officials say, is for the Hong Kong government to break the law and refuse to issue birth certificates to such babies. Then, when the parents sue the government, the court can issue a new ruling contradicting its earlier ruling.

Fortunately, it is highly unlikely that Hong Kong will take this course. The problem lies in Beijing and it should be resolved in Beijing.

Under China’s policy of “one country, two systems,” Hong Kong, unlike the mainland, continues to be part of the common law system and has an independent judiciary.

Of course, Beijing does have the right to change the Basic Law. But if it does, it should do so clearly, by amending the law, rather than by making as “interpretation,” as though that was what it meant all along.

The law should mean what it says, not what the government or party says it means.

Frank Ching is a journalist and commentator based in Hong Kong. E-mail the writer at Follow him on Twitter: @FrankChing1.
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