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The National People's Congress Standing Committee (NPCSC) is fully authorized to interpret the Basic Law to determine the tenure of Hong Kong's chief executive succeeding Tung Chee-hwa.
This was the opinion of many lawmakers at a Legislative Council debate yesterday. They said a statement by NPCSC clarifying the law is a viable option to pre-empt possible legal challenges to the government's decision. The SAR government has already announced that the term of the next chief executive would be two years, and not five as demanded by some disgruntled legislators.
Other legislators expressed worries, though, that such a move may compromise Hong Kong's rule of law.
Tam Yiu-chung, vice-chairman of Democratic Alliance for Betterment of Hong Kong (DAB) said: "The top national legislature is empowered to interpret the Basic Law. It is absolutely legitimate for the NPCSC to render such an interpretation, and it will in no way damage the principles of 'One Country, Two Systems' and a high degree of autonomy."
By doing so, Tam said it would not only pre-empt the possible legal challenge, but also improve the administration and consolidate social stability.
Some politicians are trying to stir up trouble and push Hong Kong into a constitutional crisis, he said, and such attempts must be thwarted.
James Tien, chairman of the Liberal Party, said an interpretation by the NPCSC is the "most viable option" to clear the hurdles that could obstruct the July 10 chief executive's by-election.
"I am aware of the reluctance that Hong Kong people have against the interpretation of the Basic Law. In fact, I believe the central government is equally reluctant [to do so]," he said.
But Tien said a clarification is definitely needed to ensure the by-election is not threatened by a judicial review.
"Do we want to face a situation where we cannot conduct the bypoll and thus force the central government to appoint a new chief executive after six months?" he said.
"Since the new chief executive will be elected by the existing Election Committee and the method for the 2007 chief executive's election is subject to a consultation exercise, it is in the interest of Hong Kong to go for the agenda, already set down for constitutional development," he said.
Lui Ming-wah of the Alliance said the government should seek an interpretation from the NPCSC. "People don't care about how long the term of the next chief executive is likely to be. They want Hong Kong to keep the momentum of a recovering economy and maintain stability," Lui said.
At yesterday's meeting, Secretary for Constitutional Affairs Stephen Lam said the difference in the understanding of the Basic Law between Hong Kong and the mainland is unavoidable as "One Country, Two Systems" is a road never travelled before. He denied the conspiracy allegation regarding the next chief executive's term. Some politicians insisted the term should be five years and had threatened to seek a judicial review, saying the government's change of position after consulting mainland legal experts is the result of a conspiracy.
Lam said the Basic Law is a unique constitutional document based on the mainland's continental legal system, but practised in Hong Kong where the common law system is practised. In the process of practising the Basic Law, it is not surprising for the mainland and Hong Kong to have different understandings of the Basic Law provisions. "It involves the operation of different legal systems among the two places and the design of the principle of 'One Country, Two Systems'."
Over the past seven years, Lam said, the government has already grasped some principles in the practice of the Basic Law. One of the fundamental principles is that there's no conflict in the judiciary powers possessed by the NPCSC and the Court of Final Appeal in the SAR.
"The NPCSC is empowered to render an interpretation of the Basic Law based on the national constitution and the Basic Law. But the Court of Final Appeal's power is absolutely safeguarded. It can prevail at the same time without conflicts," he said.
Lam said Hong Kong had been successfully implementing the "One Country, Two Systems", and most Hong Kong people support a two-year term for the next chief executive.
Lam also appealed to citizens to promote constitutional development on the electoral arrangements in the selection of the chief executive in 2007 and the formation of LegCo in 2008.
Two-year term for new CE practical, lawful
Ever since the news of Tung Chee-hwa's resignation as chief executive broke, people in Hong Kong have been debating the tenure of his successor. Three broad opinions have emerged from these debates.
The first is that the chief executive's post falling vacant is a special situation, and that the new CE elected in the July-10 bypoll should serve out only the remaining term of his predecessor, that is, two years.
Then there's the view that an elected CE's term should, without exception, always be a full five years as spelt out in Article 46 of the Basic Law.
And finally, there are people who say the Basic Law is not clear on the term of a CE elected through a bypoll, and hence the National People's Congress Standing Committee (NPCSC) should be requested to interpret the provisions in the Basic Law, or amend them for clarification.
The controversy should have ended with Secretary for Justice Elsie Leung's announcement on March 12 that, after discussions with mainland legal experts, the SAR government believes the Basic Law says the CE to be elected on July 10 should serve the remaining term only, that is, till June 30, 2007.
Yet certain legislators still insist the term should be "five years", with some of them even threatening to seek a judicial review to settle the issue. That has cast a shadow over the by-election. And the public is worried that something similar to the Link Real Estate Investment Trust (REIT) listing debacle would happen.
Frankly speaking, the Basic Law is not explicit on the term of a CE elected through a bypoll. I believe that the "five years" provision applies to CEs elected in a normal poll, not a bypoll necessitated by the resignation of an incumbent in office. Under such a special situation, serving for the rest of the term -- two years in the present case -- is more in line with the legislative intent of the Basic Law and the actual situation in Hong Kong.
According to the explanations of the SAR government and mainland legal experts, during drafting of Article 53, the wording "the CE of the new term" was purposely changed to "the new CE". Its legislative intent, therefore, is that a person elected to fill a vacant CE's post is not the CE of a new term, and thus would serve out only the rest of the term. The expression on record is glaringly different from that in Annex I of the Basic Law, which reads "the method for selecting the CE for the terms subsequent to the year 2007".
The Basic Law says the CE's tenure shall coincide with that of the Election Committee (EC) which elects him. If the new CE returned in a by-election holds office for five years, the second-term EC has to elect the third-term CE. This is ridiculous.
If the tenure of the new CE to be elected on July 10 this year were five years, he would already be in office even before the third-term EC is elected to actually "select him" after the second-term EC dissolves on July 13. This situation in which the CE is not elected by the EC of his corresponding term will inevitably deal a heavy blow to the authority and mandate both of the CE and the EC. If more CEs resign during their term in future, the situation could get even more confusing, and the entire election system would be thrown into disarray.
In its April 26, 2004, decision on the methods to select Hong Kong's CE in 2007 and legislators in 2008, the NPCSC said universal suffrage would not be implemented in the 2007 third-term CE election. That is a testimony to the fact that the CE to be elected in 2007 will be for the third term. The CE elected before that, therefore, is supposed to only fill in the vacancy.
Also, if the CE elected on July 10 serves five years in office, it would mean that the NPCSC's stipulation on the possibility of the third-term CE's election method undergoing "appropriate amendments" will become void.
Acting CE Donald Tsang declared July 10 as the bypoll date, which is less than four months away, and there is a huge amount of work for the government to do before that. A handful of legislators, under the banner of "safeguarding the rule of law", have persisted with the wrangle over the length of the term. Their action may upset the normal proceedings of the by-election and leave Hong Kong without a leader for a long time. And such uncertainties would damage the SAR's reputation and business environment.
To prevent the recurrence of a Link REIT-like debacle, many members of the public have suggested that the authorities request the NPCSC to give its official interpretation of the Basic Law provisions. Or, the State's top legislature could step in to solve the problem once and for all. This proposal of a pre-emptive move is worthy of consideration.
(China Daily HK Edition March 17, 2005)
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