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Hong Kong's Basic Law is a product of compromise between China and Britain aimed to provide a constitutional framework to govern Hong Kong after the handover. In fact, the successful drafting and promulgation of the law in 1990 would not have been possible without the continued and concerted efforts by major stakeholders to reconcile seemingly irreconcilable views and to seek middle ground among clashing ideologies. It is perhaps no exaggeration to say that almost every clause of the Basic Law was the result of dedicated and professional elites going at it hammer and tongs, and then making their very best attempt to find common ground so as to move forward.

As a result, some degree of ambiguity was deliberately built into the wording of the law. Once coming into effect, the Basic Law is like a newborn infant quickly acquiring a life of its own. As is the case with the human body, while the innate nature of the Basic Law was determined during embryo stage, implementation determines its shape, quality and character. Thus it is important to understand the mindset of both the mainland and Hong Kong before we can facilitate a smooth process through which the historically unprecedented idea of the "One Country, Two Systems" can bear fruit.

Over the years, incidents such as the rulings made by the Court of Final Appeal over the right of abode of children born in the territory to parents who are not Hong Kong permanent residents and most recently, over the right of abode of foreign domestic helpers, have sparked considerable controversy surrounding the implementation and efficacy of the Basic Law.

The question over the right of abode in fact epitomizes the nature and character of the Basic Law, and when looking into the controversies arising from this issue, one must consider an important factor - the scope of the autonomy to which Hong Kong is entitled under the "One Country, Two Systems" principle vis-a-vis the national sovereignty of the central government over its own territory.

Let's not forget the Basic Law was drafted under a mechanism of consensus-building among different stakeholders that had proven effective and efficacious. However, as there is no such thing as a perfect law, the Basic Law is no exception, but while it might not have fully answered the expectations of everyone, those who took part in its drafting had definitely put their best efforts to addressing the key concerns in accommodating varying or sometimes conflicting views among all major sectors in Hong Kong.

The Basic Law itself was the brainchild of an extraordinary team of legal and social elites who, despite the odds, managed to find common ground and resolve differences with painstaking effort and eventually came up with this constitutional framework. Having said that, one should not have underestimated the hurdles and difficulties lying in front of the experts who took part in the law-drafting back in the 1980s, particularly in terms of the unfamiliarity of both sides with each other's comprehension of the general system of law, given that drafters of the law came from strikingly different backgrounds and had gone through their legal training under the different systems of Common Law and Chinese law. The Basic Law was a hybrid of perspectives representing different, and sometimes contrasting, legal schools of thought. These differences in legal perspectives not only stood out back in the 1980s, but remain to this day, even though the Basic Law has already been in effect for more than 15 years. The recent controversies over the right of abode issue and the debates over whether to seek the National People's Congress Standing Committee's (NPCSC) interpretation on this matter is just another typical example showing how the gap is yet to be bridged.

Amalgam of two law systems

For those who advocate that amending the Basic Law is the best way out in the right of abode dispute, it is important for them to first understand a basic fact: amending the Basic Law is neither a simple process nor an easily acceptable idea to society.

According to Article 159 of the Basic Law, the power to initiate amendments rests with the NPCSC, under which any amendment moved by the Hong Kong SAR must obtain the consent of two-thirds of the deputies of the region to the National People's Congress, two-thirds of all the members of the Legislative Council of the region, and the Chief Executive. At the final stage, it requires the ratification of the NPC, our highest national legislature completely beyond and above the jurisdiction of Hong Kong, in order for the amendments to officially come into effect.

Since the NPCSC indicated that the legislative intent of Article 24 of the Basic Law regarding the right of abode was already clearly stipulated in its 1999 interpretation, they saw no need to amend it. Instead, some experts on the mainland have suggested that Hong Kong seeking NPCSC's interpretation of the Basic Law's relevant clauses could be a more feasible and preferable option, a move that is, however, often considered a highly sensitive topic or even political taboo in Hong Kong. The fact that neither the suggestion of amending the Basic Law nor seeking NPC's interpretation can gain unanimous support on both sides once again illustrates the fundamental differences in the mindset between the mainland and Hong Kong over the implementation of the Basic Law. Suffice to say, neither seeking interpretation nor amending the Basic Law is an easy task because what is involved is not just a matter of legal process and procedure, but a combination of delicate issues such as our different legal traditions, public sentiment and ideological clashes, all of which must be closely examined in their social and historical context.

While debates and disputes over the implementation of the Basic Law are likely to linger, they are nothing new, for one should not forget the law itself was simply born and bred amid contrasting views, ideological differences and sometimes even political confrontations. Framers of the Basic Law back in the 1980s had a lot more hurdles and barriers to cross than we do today. Therefore, if they were able to overcome back then, there is no reason why we cannot do the same thing today.

The author is a legislative councilor.

(HK Edition 05/09/2013 page1)