Children born in Hong Kong to parents who are not permanent residents do not have the right of abode.
So says Rita Fan Hsu Lai-tai, a member of the Standing Committee of the National People's Congress.
Fan said this is made clear in pre-handover drafting documents of the Basic Law and a 1999 interpretation.
A former Legislative Council president, she opposes amending the Basic Law as she sees no flaw in the mini-constitution regarding the issue.
She said the government is to blame for not taking further action after the Court of Final Appeal ruled in favor of Chong Fung- yuen, a boy born in Hong Kong to non-permanent residents.
According to Article 24 of the Basic Law, permanent residents include Chinese citizens born in the territory before or after the establishment of the Hong Kong Special Administrative Region.
On June 26, 1999, in reference to the original intent of those who drafted the Basic Law, Article 24 was interpreted to mean that either parent has to meet one of two conditions - to be born in Hong Kong or have resided in Hong Kong for at least seven years - by the time of birth in order for their child to have right of abode.
However, in 2001, the Court of Final Appeal ruled against the government and gave Chong right of abode.
Fan said the NPC sought to clarify the 1999 interpretation and stress that the Court of Final Appeal ruling contradicted the interpretation.
"But the government did not take further action at the time," she said.
Based on the interpretation, babies of illegal migrants, overstayers and temporary residents, like many mainland mothers, do not have the right of abode even if they are born in Hong Kong.
Fan emphasized yesterday that she was only expressing her personal views and did not talk to any central government officials beforehand.
Some legal experts in Hong Kong, however, disagree with Fan.
University of Hong Kong law professor Albert Chen Hung-yee said one should still follow the principle of common law in understanding the original intent of those who drafted the Basic Law.
Former secretary for security Regina Ip Lau Suk-yee believes current administrative measures cannot effectively stop mainlanders from giving birth in Hong Kong.
Ip said an interpretation by Beijing is the most effective way of solving the situation completely.
Secretary for Constitutional and Mainland Affairs Raymond Tam Chi-yuen said the community must first reach a consensus on the issue.
Tam said anything related to the amendment or interpretation of the Basic Law must be treated with great caution.