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The SAR government yesterday voiced fears that the upcoming by-election of the next chief executive (CE) could be "aborted" because of the threat of legal challenges against the government stance on this issue.
The government is trying to amend the Chief Executive Election Ordinance to clarify that the term of the CE to be elected in a by-poll is the remaining term of his predecessor. Last week, the government gazetted the amendment, and the bill is due to be introduced to the Legislative Council on April 6.
"We have noticed that some people claimed they would mount a judicial review to challenge against our decision. It has incited my deep worry whether the CE by-election scheduled on July 10 would have to be aborted," said acting CE Donald Tsang yesterday.
He made the remark ahead of a meeting with lawmakers of the Democratic Party and Democratic Alliance for Betterment of Hong Kong (DAB).
Tsang, along with Secretary for Justice Elsie Leung and Secretary for Constitutional Affairs Stephen Lam, staged a round of meetings with local politicians and legal practitioners to explore what he called "practical and viable options" to guarantee the upcoming by-election can take place smoothly.
Tsang said he will listen to any proposals that could avoid an interpretation of the Basic Law by the country's top legislature. "For this matter, I highly value the opinions of lawmakers. I hope that we can work out some practical and viable options," he said.
"If there are any possibilities which can avoid an interpretation of the Basic Law, I would like very much to listen to them."
Tsang said he has heard the mounting calls from the public to ask the National People's Congress Standing Committee (NPCSC) to render an interpretation of the Basic Law regarding the tenure of the next CE.
"These are the common aspirations of citizens that a new CE can be returned smoothly. It would help dispel all possible (negative) impacts on government operation as a result of the absence of the CE, and eliminate all uncertainties surrounding social activities," he said.
Tsang said the government and 60-strong lawmakers are obliged to fulfil the duties given under the legal and constitutional framework to stage the by-election, and no one can shirk the responsibility.
But after meeting with Tsang, DAB's Chairman Ma Lik said he believed an interpretation of the Basic Law would become "unavoidable".
Ma said it has left the government to decide whether it should request the NPCSC to render an interpretation or let the NPCSC take the initiative.
He warned, "Hong Kong may become a laughing stock in the international community if the CE election cannot go ahead as planned. If the election were thwarted by a legal challenge, it would be detrimental to Hong Kong's stability."
DAB core member Tsang Yok-sing said that if there were no other alternative, the party would support the government if it decided to ask the NPCSC to render an interpretation.
In related developments, the National People's Congress Vice-Chairman Cheng Siwei yesterday said that the national top legislature would exercise extreme caution once it had to interpret the Basic Law.
"The interpretation of the Basic Law is vested in the NPCSC, and such interpretation is an ultimate one. The NPCSC works cautiously in rendering the interpretation and its members exercise the power collectively," said Cheng after receiving an honorary professor title presented by the Chinese University in Hong Kong.
Cheng stressed there are a set of statutory procedures that are required to accord with to render an interpretation.
Also yesterday, Democratic Party Vice-Chairman Albert Ho urged the government to disclose relevant draft documents of the Basic Law to the public.
The government will meet with independent lawmakers and members of the Liberal Party, Article 45 Concern Group and Bar Association today.
Liberal Party Chairman James Tien said his party will conduct an internal poll to measure the popularity rating of Donald Tsang.
The DAB and Liberal Party had earlier considered a joint ticket to field candidates to challenge Tsang in the July 10 election.
Tien did not rule out the possibility that his party members in the Election Committee will vote for Tsang if the party's poll suggested that Tsang won the majority of public support.
Cheung Kong (Holdings) Chairman Li Ka-shing yesterday refused to comment on whether he backed Tsang or Tien to stand for the CE election.
But Li said it is unsuitable for people who have close ties with the business sector to stand for the election.
Better to avoid amending Basic Law in tenure row
Whether to solve the issue of the chief executive's (CE) tenure through Basic Law interpretation or amendment has triggered a rather broad debate. The results of an opinion poll by Hong Kong Public Opinion Research Centre released on March 22 showed that 53 per cent of residents polled agreed the next CE should serve two years only, while 58 per cent considered the dispute over the length of the new CE's tenure not important. In fact, what local residents care most about these days is electing an excellent candidate whom they trust to the CE post, according to due process and schedule. As for the "tenure issue", it undoubtedly can be solved through amending the CE Election Ordinance according to the legislative intent of the Basic Law or interpretation of the Basic Law by the National People's Congress Standing Committee (NPCSC), rather than through amending the Basic Law, as some senior counsel and "pro-democracy" characters have advocated.
Drawn up after four years and eight months of consultation and drafting with the wisdom of people from all walks of life, the Basic Law has proven exactly what Deng Xiaoping once described: a ground-breaking masterpiece that could serve as a shining example for the rest of the world in solving similar issues. Fifteen years after its creation, the success of the system has proven the correctness of Deng's judgment. The Basic Law ensured Hong Kong's smooth return to the motherland and serves as the foundation for the SAR's long-term and sustained prosperity and stability. It has won praise and approval from local residents as well as the international community as a powerful legal protection with authority and credibility.
The authoritative quality of the Basic Law relies very much on its relative stability. More than seven years of implementation of the Basic Law have left no significant rifts in principle, except a few times when disputes were solved with the NPCSC's interpretation according to the legislative intent. And all this has been done without a single change to the text of the Basic Law. Senior Counsel Ronny Tong wrote the other day that any law has to maintain a certain degree of stability and consistency, and must not be altered every now and then. The Basic Law is Hong Kong's mini-constitution. Its stability ensures public harmony. Any amendment must be made with utmost caution.
For the sake of authority and stability, the Basic Law contains very strict rules for amendments. It explicitly forbids any amendment that runs counter to the basic principle and policies of the central government towards Hong Kong. It gives the NPC the exclusive power to amend the Basic Law, while the NPCSC, the State Council and the SAR government are only given the right to propose amendments. It sets down specific preconditions for the SAR government to propose amendments. An amendment of the Basic Law is a very complicated undertaking that requires the utmost caution. The aim is to maintain its stability.
Theoretically, no law is forever free from amendment, and the Basic Law is no exception. However, the present noise made by some people about amending the Basic Law lacks legal credence and public support. The Basic Law is a piece of national legislation. It reflects the will and interest of Hong Kong residents, and of the whole nation as well. Keeping the Basic Law relatively stable is conducive to Hong Kong's long-term prosperity and stability.
Some "pro-democracy" figures and senior counsel oppose the NPCSC interpreting the Basic Law and have demanded an amendment to the articles of the Basic Law concerning the CE tenure. In fact, their opposition is more of an expression of their unwillingness to see the central government exercise its interpretation power than their belief that there is a legal necessity to do so or that an interpretation cannot resolve the "tenure dispute".
If we look at the issue from a wider angle, we can see that once the precedent of amendment is set, there will be more trouble for Hong Kong, and that is not what Hong Kong people would like to see happen.
If someone, using the enhancement of the leadership of the administrative branch as an excuse, suggests that the CE should be appointed by the central government rather than through election, would the local community and especially those senior counsel, agree? And would our government employees concur if someone wants to amend Article 100 of the Basic Law, which safeguards their welfare and service conditions? All said, any attempt to amend the Basic Law without social consensus would surely stir up more controversy and harm Hong Kong's long-term stability and prosperity.
Both the "One Country, Two Systems" formula and the Basic Law are unprecedented undertakings that cannot be expected to be trouble-free when they are put into practice. But so far we have managed to solve all the problems without amending the Basic Law. While we cannot rule out the need to amend the Basic Law in the future, there is one thing we are sure of: treating the Basic Law amendment with extreme caution is in the best interests of Hong Kong residents and the SAR as well as the whole nation.
(China Daily HK Edition April 1, 2005)
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