China's top legislature, the Standing Committee of the 10th
National People's Congress (NPC), adopted the interpretations of
two clauses in the Annexes of the Basic Law of
the Hong Kong Special Administrative Region (SAR) as it concluded
its five-day 8th meeting in Beijing on Tuesday.
The two clauses, respectively Clause 7 of Annex I and Clause 3
of Annex II, involve issues on amending the methods for selecting
the Chief Executive of the Hong Kong SAR and for forming the SAR's
Legislative Council and its procedures for voting on bills and
motions after 2007.
Wu Bangguo, chairman of the Standing Committee of the 10th NPC,
said the interpretations conform to the principle of "one country,
two systems" and the original intention of the Basic Law.
He said the interpretations are "timely and necessary," will be
constructive to putting an end to the disputes about the Basic Law
in Hong Kong and will be helpful in maintaining stability and
prosperity of Hong Kong.
Clause 7 of Annex I of the Basic Law says: "If there is a need
to amend the method for selecting the Chief Executives for the
terms subsequent to the year 2007, such amendments must be made
with endorsement of a two-thirds majority of all the members of the
Legislative Council and the consent of the Chief Executive, and
they shall be reported to the Standing Committee of the National
People's Congress for approval."
Clause 3 of Annex II regards the method for the formation of the
Legislative Council and its voting procedures after 2007. It says:
"With regard to the method of forming the Legislative Council of
the Hong Kong Special Administrative Region and its procedures for
voting on bills and motions after 2007, if there is a need to amend
the provisions of this annex, such amendments must be made with the
endorsement of a two-thirds majority of all the members of the
Council and the consent of the Chief Executive, and they shall be
reported to the Standing Committee of the National People's
Congress for the record."
The following is a Xinhua translation of the Chinese text of the
Interpretations of Clause 7 of Annex I and Clause 3 of Annex II to
the Basic Law of the Hong Kong Special Administrative Region
adopted by the National People's Congress (NPC) Standing Committee
on Tuesday (The official English version of the Interpretations
shall be issued upon approval by the NPC Law Committee):
Interpretations of Clause 7 of Annex I and Clause 3 of
Annex II to the Basic Law of the Hong Kong Special Administrative
Region of the People's Republic of China by the Standing Committee
of the National People's Congress
(Adopted at the 8th meeting of the Standing Committee of the
10th National People's Congress on April 6, 2004)
The 8th meeting of the 10th NPC Standing Committee deliberated
"Interpretations of Clause 7 of Annex I and Clause 3 of Annex II to
the Basic Law of the Hong Kong Special Administrative Region of the
People's Republic of China by the Standing Committee of the
National People's Congress (draft)", which was submitted for
deliberation by a meeting of chairman and vice chairpersons of the
NPC Standing Committee. After consulting the Committee for the
Basic Law of the Hong Kong Special Administrative Region (HKSAR) of
the NPC Standing Committee, the NPC Standing Committee has decided,
in accordance with Subparagraph 4 of Article 67 of the Constitution
of the People's Republic of China and the first paragraph of
Article 158 of the Basic Law of the HKSAR of the People's Republic
of China, to make the following interpretations of Clause 7 of
Annex I, Method for the Selection of the Chief Executive of the
HKSAR, and Clause 3 of Annex II, Method for the Formation of the
Legislative Council of the HKSAR and Its Voting Procedures, to the
HKSAR Basic Law, which respectively stipulate "if there is a need
to amend the method for selecting the Chief Executive for terms
subsequent to the year 2007, such amendments must be made with the
endorsement of a two-thirds majority of all the members of the
Legislative Council and the consent of the Chief Executive, and
they shall be reported to the Standing Committee of the National
People's Congress for approval" and "with regard to the method for
forming the Legislative Council of the Hong Kong Special
Administrative Region and its procedures for voting on bills and
motions after 2007, if there is a need to amend the provisions of
this Annex, such amendments must be made with the endorsement of a
two-thirds majority of all the members of the Council and the
consent of the Chief Executive, and they shall be reported to the
Standing Committee of the National People's Congress for the
record":
?I. The period defined as “subsequent to the year 2007” and
“after 2007” in the two annexes mentioned above shall include the
year 2007.
II. That "if there is a need to amend", after 2007, the method
for selecting the Chief Executive and the method for forming the
Legislative Council and the procedures for the Council's voting on
bills and motions, which are provided for in the two annexes
mentioned above, means that they may be amended or may not be
amended.
III. The provisions, in the two annexes mentioned above, on
requirements relating to the endorsement of a two-thirds majority
of all the members of the Legislative Council, consent of the Chief
Executive and reporting to the NPC Standing Committee for approval
or for the record, refer to prerequisite legal procedures for
amending the methods of selecting the Chief Executive and forming
the Legislative Council, as well as for the procedures for voting
on bills and motions in the Legislative Council. Only upon the
completion of the above-mentioned procedures, including the final
approval or registration for the record by the Standing Committee
of the National People's Congress in accordance with law, shall the
amendments take effect. The Chief Executive of the Hong Kong
Special Administrative Region shall submit a report to the Standing
Committee of the National People's Congress if there is a need to
amend the methods or voting procedures, which shall be decided upon
by the Standing Committee of the National People's Congress in
accordance with the provisions in Articles 45 and 68 of the Basic
Law of the Hong Kong Special Administrative Region of the People's
Republic of China and on the basis of the actual situation in the
Hong Kong Special Administrative Region and the principle of
gradual and orderly progress. Bills and draft amendments regarding
the revision of the methods for selecting the Chief Executive and
forming the Legislative Council, as well as of the procedures for
voting on bills and motions in the Legislative Council, shall be
proposed to the Legislative Council by the Hong Kong Special
Administrative Regional Government.
IV. If there is no amendment to the method for selecting the
Chief Executive and the method of forming the Legislative Council,
as well as the procedures for voting on bills and motions in the
Council, as defined in the above two annexes, the method for
selecting the Chief Executive shall follow the provisions on the
method of selecting the Chief Executive in Annex I; the method of
forming the Legislative Council and the procedures for voting on
bills and motions shall follow the provisions on the method for
forming the Third Legislative Council and on procedures for voting
on bills and motions in Annex II.
The Interpretations are hereby published.
Explanations
on "Interpretations of Clause 7 of Annex I and Clause 3 of Annex II
to the Basic Law of the Hong Kong Special Administrative Region of
the People's Republic of China by the Standing Committee of the
National People's Congress
(draft)"
Delivered at the 8th meeting of the Standing Committee of the
10th National People's Congress (NPC) on April 2, 2004
By Li Fei, vice-chairman of the Legislative Affairs
Commission of the NPC Standing Committee
Chairman, Vice Chairpersons, Secretary-general and members of
the NPC Standing Committee:
Entrusted by the meeting of the chairman and vice chairpersons
of the NPC Standing Committee, I hereby make explanations on
"Interpretations of Clause 7 of Annex I and Clause 3 of Annex II to
the Basic Law of the Hong Kong Special Administrative Region of the
People's Republic of China by the Standing Committee of the
National People's Congress (draft)".
The Basic Law of the Hong Kong Special Administrative Region of
the People's Republic of China (referred to as "Hong Kong Basic
Law" in the following text) stipulates on Hong Kong's
constitutional system in accordance with the principle of "one
country, two systems" and a series of guidelines and policies the
state has adopted for Hong Kong. It has taken into account Hong
Kong's legal status and actual situation, as well as the interests
of all social strata, and is conducive to the development of the
capitalist economy in Hong Kong. While preserving the effective
parts of Hong Kong's old constitutional system, the Basic Law
states explicitly that the development of democracy in Hong Kong
should follow the important principles of "conforming to the actual
situation, seeking a gradual and orderly progress and guaranteeing
a balanced representation". The fundamental aim of this Law is to
safeguard the long-term prosperity and stability of Hong Kong.
Methods for the Selection of the Chief Executive and the
Formation of the Legislative Council of the Hong Kong Special
Administrative Region (HKSAR) are important components of Hong
Kong's constitutional system. The two methods are separately
prescribed in Annex I and Annex II to the Hong Kong Basic Law.
Currently, different understandings exist in the Hong Kong society
regarding provisions in Clause 7 of Annex I and Clause 3 of Annex
II. Clause 7 of Annex I of the Hong Kong Basic Law stipulates: "If
there is a need to amend the method for selecting the Chief
Executives for terms subsequent to the year 2007, such amendments
must be made with the endorsement of a two-thirds majority of all
the members of the Legislative Council and the consent of the Chief
Executive, and they shall be reported to the Standing Committee of
the National People's Congress for approval." Clause 3 of Annex II
stipulates: "With regard to the method for forming the Legislative
Council of the Hong Kong Special Administrative Region and its
procedures for voting on bills and motions after 2007, if there is
a need to amend the provisions of this Annex, such amendments must
be made with the endorsement of a two-thirds majority of all the
members of the Council and the consent of the Chief Executive, and
they shall be reported to the Standing Committee of the National
People's Congress for the record."
At present different understandings of the two clauses mainly
concentrate on four issues: I. Is the year 2007 included in the
period defined as "subsequent to the year 2007" and "after 2007" in
the annexes? II. Does the expression of "if there is a need to
amend" mean that the methods must be amended? III. Who will decide
whether or not the methods need amendments and who shall submit
bills for amendments? IV. If the methods are not to be amended,
shall the existing stipulations continue to be applicable or
not?
The future development of Hong Kong's political structure has a
bearing on the implementation of the principle of "one country, two
systems" and the Hong Kong Basic Law, on relations between the
central authorities and the Hong Kong SAR, on the interests of all
social strata, all walks of life and all parties in Hong Kong, as
well as on the long-term prosperity and stability of Hong Kong. To
ensure a correct understanding and implementation of the Hong Kong
Basic Law (of which the annexes are component parts), the meeting
of the chairman and vice chairpersons of the NPC Standing
Committee, in accordance with Subparagraph 4 of Article 67 of the
Chinese Constitution, which grants the NPC Standing Committee the
power to interpret laws, and the first paragraph of Article 158 of
the Hong Kong Basic Law, which states that "the power of
interpretation of this law shall be vested in the Standing
Committee of the National People's Congress", accepting the
suggestions of some NPC deputies, has put forth "Interpretations of
Clause 7 of Annex I and Clause 3 of Annex II to the Basic Law of
the Hong Kong Special Administrative Region of the People's
Republic of China by the Standing Committee of the National
People's Congress (draft) (referred to as "draft interpretations"
in the following text). In line with the fourth paragraph of
Article 158 of the Hong Kong Basic Law, the NPC Standing Committee
has consulted its Committee for the Basic Law of the Hong Kong SAR,
heard the opinions of all circles in Hong Kong regarding the issue
of constitutional development solicited by the Constitutional
Development Task Force under the HKSAR Government, and also heard
the opinions of NPC deputies and members of the Standing Committee
of the National Committee of the Chinese People's Political
Consultative Conference from the Hong Kong SAR. The following are
explanations on the draft interpretations:
I. On the meaning of "after 2007"
There are two different comprehensions in the Hong Kong society
of the terms "subsequent to the year 2007" and "after 2007" in
Clause 7 of Annex I and Clause 3 of Annex II to the Hong Kong Basic
Law. One comprehension holds that "after 2007" refers to the period
after the end of the year 2007, not including the year 2007.
Therefore, when the Hong Kong SAR selects its Chief Executive for
the third term in 2007, the selection method shall not be subject
to any amendment. The other holds that the period "after 2007"
includes the year 2007 itself and therefore the selection method
shall be amended "if there is a need".
According to stipulations in relevant Chinese laws, any period
defined in the laws as "before" or "after" a specific year shall
include the year itself. Therefore, the period defined as
"subsequent to the year 2007" and "after 2007" in Clause 7 of Annex
I and Clause 3 of Annex II to the Hong Kong Basic Law shall be
understood as including the year 2007. It is based on this
understanding that Article 1 of the draft interpretations reads:
"The period defined as 'subsequent to the year 2007' and 'after
2007' in the two annexes mentioned above shall include the year
2007."
II. On the meaning of "if there is a need to
amend"
Article 45 of the Hong Kong Basic Law reads "The Chief Executive
of the Hong Kong Special Administrative Region shall be selected by
election or through consultations held locally and be appointed by
the Central People's Government." "The method for selecting the
Chief Executive shall be specified in the light of the actual
situation in the Hong Kong Special Administration Region and in
accordance with the principle of gradual and orderly progress. The
ultimate aim is the selection of the Chief Executive by universal
suffrage upon nomination by a broadly representative nominating
committee in accordance with democratic procedures." Article 68 of
the Hong Kong Basic Law provides: "The Legislative Council of the
Hong Kong Special Administrative Region shall be constituted by
election." "The method for forming the Legislative Council shall be
specified in the light of the actual situation in the Hong Kong
Special Administrative Region and in accordance with the principle
of gradual and orderly progress. The ultimate aim is the election
of all the members of the Legislative Council by universal
suffrage." The provisions in Articles 45 and 68 of the Hong Kong
Basic Law and Annexes I and II to this Law on the specific methods
of selecting the Chief Executive and forming the Legislative
Council have all established and reflected the principles that
constitutional development of Hong Kong must proceed from the
actual situation of Hong Kong and that it must follow the principle
of gradual and orderly progress and balanced representation. These
are principles that must be adhered to for a long period of time
for constitutional development in Hong Kong. On this basis, "if
there is a need to amend" in Clause 7 of Annex I and Clause 3 of
Annex II shall be understood to mean that after 2007, the methods
may be amended or they may not be amended, instead of that they
must be amended by 2007. Therefore, Article 2 of the draft
Interpretations reads: " 'If there is a need to amend' in the two
above-mentioned annexes, on the method of selecting the Chief
Executive and the method of forming the Legislative Council, and
the procedures for the Council's voting on bills and motions, after
2007, means that they may be amended or may not be amended."
III. On the issue of who shall decide if "there is a
need to amend" and who shall propose amendment bills.
The Hong Kong SAR is a local administrative region with a high
degree of autonomy under the direct jurisdiction of the Central
People's Government. And its high degree of autonomy originates
from authorization by the central authorities. The constitutional
system of the Hong Kong Special Administrative Region has been
decided by the Hong Kong Basic Law enacted by the NPC. China is a
unitary state instead of a federation, and localities have no power
to decide on or change their constitutional system on their own.
Constitutional development in Hong Kong has a bearing on relations
between the central authorities and the SAR, and should proceed
within the framework of the Hong Kong Basic Law. The methods for
selecting the Chief Executive and forming the Legislative Council,
and the procedures for voting on bills and motions in the
Legislative Council, are major issues in Hong Kong's constitutional
development. The power to make decisions on whether or not there is
a need to amend and how to amend rests with the central
authorities. This is the most important principle established in
the Chinese Constitution and the Hong Kong Basic Law, and is also
an integral part of the "one country, two systems" principle.
Both Clause 7 of Annex I and Clause 3 of Annex II stipulate that
amendments to the methods of selecting the Chief Executive and
forming the Legislative Council, and procedures for voting on bills
and motions in the Legislative Council, must be made with the
endorsement of a two-thirds majority of all the members of the
Council and the consent of the Chief Executive, and that they shall
be reported to the NPC Standing Committee for approval or for the
record. Such provisions firstly refer to prerequisite legal
procedures for amending such methods or procedures, and secondly,
demonstrate the central authorities' power of decision-making since
such amendments must be reported for "approval" or for "the record"
before taking effect. Based on the principle that the Chief
Executive shall be accountable to the central authorities, if
amendment really need be made, the Chief Executive shall report to
the NPC Standing Committee, and the issue shall be decided upon by
the NPC Standing Committee in accordance with Articles 45 and 68 of
the Hong Kong Basic Law and on the basis of the actual conditions
of Hong Kong and the principle of gradual and orderly progress.
This is the responsibility that the central authorities must bear
for constitutional development in Hong Kong, and is essential for
the protection of the interests of people of all social strata, all
circles and from all walks of life in Hong Kong, for the gradual
development of a democratic system suitable for Hong Kong's actual
conditions, as well as for the maintenance of Hong Kong's long-term
prosperity and stability.
Different perceptions and understandings exist in Hong Kong on
who shall put forward the bills to amend the methods of selecting
the Chief Executive and forming the Legislative Council, and
procedures for voting on bills and motions in the Council.
According to the Hong Kong Basic Law, the Hong Kong SAR shall have
an executive-led constitutional system, and the Chief Executive
shall be its head, represent the region and be accountable to the
Central People's Government and the Hong Kong SAR. The Hong Kong
Basic Law also stipulates "members of the Legislative Council of
the Hong Kong Special Administrative Region may introduce bills in
accordance with provisions of this Law and legal procedures. Bills
which do not relate to public expenditure and political structure
or the operation of the government may be introduced individually
or jointly by members of the Council." This means that draft laws
relating to the constitutional system shall not be proposed by
members of the Council individually or jointly. Therefore, bills
and draft amendments regarding the revision of the methods for
selecting the Chief Executive and forming the Legislative Council,
and of the procedures for voting on bills and motions in the
Council, shall be proposed to the Legislative Council by the HKSAR
Government.
Based on the reasons mentioned above, Article 3 of the draft
interpretations reads: "The provisions in the two annexes mentioned
above, on requirements relating to the endorsement of a two-thirds
majority, consent of the Chief Executive and reporting to the NPC
Standing Committee for approval or for the record, refer to
prerequisite legal procedures for amending the methods of selecting
the Chief Executive and forming the Legislative Council, and the
procedures for voting on bills and motions in the Legislative
Council. Only upon the completion of the above-mentioned
procedures, including the final approval or registration for the
record by the Standing Committee of the National People's Congress
in accordance with law, shall the amendments take effect. The Chief
Executive of the Hong Kong Special Administrative Region shall
submit a report to the Standing Committee of the National People's
Congress if there is a need to amend the methods or voting
procedures, which shall be decided upon by the Standing Committee
of the National People's Congress in accordance with provisions of
Articles 45 and 68 of the Basic Law of the Hong Kong Special
Administrative Region of the People's Republic of China, on the
basis of the actual situation in the Hong Kong Special
Administrative Region and the principle of gradual and orderly
progress. Bills and draft amendments regarding the revision of the
methods for selecting the Chief Executive and forming the
Legislative Council, and of the procedures for voting on bills and
motions in the Legislative Council, shall be proposed to the
Legislative Council by the Hong Kong Special Administrative
Regional Government."
IV. On the applicability of the existing stipulations if
there is no amendment
If there is no amendment to the method of selecting the Chief
Executive and the method of forming the Legislative Council, and
the procedures for voting on bills and motions in the Council,
after 2007, then it is necessary to clarify the methods for
selecting the Chief Executive and forming the Legislative Council,
and procedures of the Legislative Council for voting on bills and
motions at that time. In light of the original intention of the
legislative wording of "if there is a need to amend", where no
amendment is made, the provisions on the method of selecting the
Chief Executive in Annex I, the provisions on the method for
forming the Third Legislative Council in Annex II and the
provisions on procedures for voting on bills and motions in Annex
II shall naturally prevail. Article 4 of the draft interpretations
has made stipulations accordingly.
Chairman, Vice Chairpersons, Secretary-general, and members of
the Standing Committee,
The Hong Kong Basic Law has explicit stipulations on the
principle of development of democracy and provides for the ultimate
goal of selecting the Chief Executive and members of the
Legislative Council through universal suffrage. Since Hong Kong's
return to the motherland, positive and steady progress has been
made in its democratic system. The people of Hong Kong have become
masters of their own destiny and are enjoying broad democratic
rights that they had never been entitled to before the return.
Democracy in Hong Kong will be further developed and improved in
practice in accordance with the Hong Kong Basic Law.
Now please deliberate over "Interpretations of Clause 7 of Annex
I and Clause 3 of Annex II to the Basic Law of the Hong Kong
Special Administrative Region of the People's Republic of China by
the Standing Committee of the National People's Congress (draft)"
and my explanations.
(Xinhua News Agency April 6, 2004)