ANTHONY SPAETHWhen China took control of Hong Kong from Britain two years ago, there was one issue on which all parties agreed: Hong Kong's border should remain sealed against the 1 billion-plus Chinese on the mainland. The tiny territory was already jammed with more than 6 million residents. What would happen if opportunity-seekers to the north found a breach?
A loophole of the legal variety was soon found. Hong Kong's Basic Law, the territory's mini-constitution, states that a child born in China of a Hong Kong resident has the right to live permanently in Hong Kong. That right was included in an accord between Britain and China signed in 1985. Yet in recent weeks it has ignited a wave of public outrage and touched off a potentially profound constitutional crisis. Hong Kong's Court of Final Appeal upheld the provision in January. Under China's one country, two systems framework for Hong Kong--the territory is part of China but retains its own laws and institutions--the judiciary is supposed to remain independent. But the court's ruling angered Hong Kong's Beijing-picked leaders. Last month, they released a report predicting an influx of nearly 1.7 million mainland children. Critics blasted the figure as implausible and alarmist. But opinion polls and radio talk shows soon found Hong Kong residents fearful of being swamped by a tide of mainlanders.
Amid the commotion, Chief Executive Tung Chee-hwa last week said he had decided to ask China's National People's Congress to interpret the Basic Law provision. Legal experts complained that the move took the right of final adjudication away from the Hong Kong judiciary and gave it to officials in Beijing. The Hong Kong government is too ready to concede whenever there is a gray area arising out of the one country, two systems policy, says Alan Leong, spokesman for the Hong Kong Bar Association. Before long there will only be one country. The two systems will have vanished.
In fact, the issue has arisen because of the border's porousness. In the early 1980s, China began allowing Hong Kongers to do business on the mainland. Entrepreneurs poured across the border to take advantage of lower wage rates. They set up factories to make shoes, shirts and toys--and in some cases they took on Chinese mistresses or wives. No one knows how many of these liaisons produced children, but the government is assuming that at least 692,000 of them will head for more affluent Hong Kong at the first opportunity--and that 983,000 children of these children will eventually follow. Lawyers for young would-be migrants sued Hong Kong almost immediately after the handover in July 1997, and the Court of Final Appeal eventually ruled in their favor. When both Beijing and the Hong Kong government howled, the court took the unusual step of clarifying its decision, issuing a statement that Beijing generally has final authority over Hong Kong. But that did nothing to change the ruling itself, and the government insisted that an interpretation by Beijing was needed.
Tung had another option: asking the National People's Congress (NPC) to amend the Basic Law. Constitutional experts and local democrats favored that option as more legally correct and protective of Hong Kong's autonomy. Yet an amendment couldn't be made until next year, while an interpretation could be handled by the NPC's Standing Committee in a matter of weeks. Specifically, the committee will be asked to alter the right-of-abode provision, possibly to exclude children born before their Chinese parent was given permanent residence in Hong Kong. (The government says that would limit the influx to 200,000.)
Some Hong Kongers remain suspicious. This is very dirty, says social activist Ho Hei-wah. The key issue is that after the Hong Kong ruling, Beijing wanted to target the court. The central government is afraid of losing control. Tung said his call for Beijing to interpret the territory's constitution is a very special situation. But in recent months the government has taken some controversial actions--intervening in the stock market, sparing a well-connected publisher from fraud charges, letting China try a Hong Kong resident for crimes committed in the territory, awarding a tycoon's son a potentially lucrative real estate deal without bidding--and explained them all as special cases. Some residents fear their government now favors expediency over the rule of law. This is quite a fatal blow to justice in Hong Kong, says Law Yuk-kai, director of Hong Kong Human Rights Monitor. The Chinese government clearly has the final authority. For tens of thousands of mainland children with parents in Hong Kong, family reunions will be something they can only dream of.
Reported by Maria Cheng, Wendy Kan and Isabella Ng/Hong Kong