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It is crucial for the SAR government to actively request an interpretation of the Basic Law regarding the term of the next chief executive (CE), Secretary for Justice Elsie Leung told the Legislative Council (LegCo) during an adjournment debate last night.
The debate was held after the government announced its decision to ask the State Council to request the National People's Congress Standing Committee (NPCSC) to give an interpretation over the term of the next CE.
"Requesting an authoritative and abiding interpretation of the Basic Law is the sole way to ensure that the next CE can be returned smoothly in the by-election," Leung said.
She also denied claims that there is a "political conspiracy" to ask for the national top legislature to interpret the Basic Law.
Leung said there is no difference whether an interpretation by the NPCSC is requested by the government or the Court of Final Appeal. Pursuant to Article 43 and 48 of the Basic Law, it is legitimate for the SAR government to take the initiative to ask for an interpretation of the Basic Law, she said.
Also, Secretary for Constitutional Affairs Stephen Lam said that seeking an interpretation will boost the confidence of SAR citizens and the international community in the government's ability to implement the Basic Law. If the next CE could not be returned as scheduled, it could undermine the government policy-making process and trigger a constitutional crisis, Lam said.
The government is seeking to amend the Chief Executive Election Ordinance to specifically spell out the length of the next CE's term. It submitted the amendment bill to LegCo for a first and second reading yesterday.
At the adjournment debate, Ma Lik, chairman of the Democratic Alliance for Betterment & Progress of Hong Kong (DAB), said the government has fulfilled its responsibility to request an interpretation over the new CE's tenure.
"Such an interpretation is absolutely constitutional and it can pre-empt a constitutional crisis. The move will dispel any uncertainties surrounding the upcoming July 10 bypoll and help maintain stability," Ma said.
He noted that the NPCSC is empowered to render an interpretation of the Basic Law, according to the national constitutional regime.
"People should not hold an irrational attitude to say that seeking an interpretation damages the rule of law," he said.
James Tien, chairman of the Liberal Party, said citizens are hopeful that a new CE can be returned on time as scheduled. "If we left the courts to handle the judicial reviews, it can take a long time to comply with stipulated procedures to ask for an interpretation, and in turn delay a by-election," he said.
Executive Councillor Selina Chow, of the Liberal Party, said, "Though we understand that some citizens are worried about an interpretation, there is no other alternative to resolve the matter."
Chow said an NPCSC interpretation should focus only on the CE term.
But Lee Wing-tat, chairman of the Democratic Party, said requesting an interpretation damages Hong Kong's rule of law. He asked central government officials to visit Hong Kong to consult citizens before rendering such an interpretation.
Ronny Tong of Article 45 Concern Group said Hong Kong people felt "hopeless and helpless" to see an interpretation.
At the debate, LegCo President Rita Fan ruled that independent lawmaker Leung Kwok-hung misbehaved when he tore off some chapters of the Basic Law while speaking in the chamber.
Fan ruled that anyone who tore up national legal documents again in the chamber should be condemned.
Interpretation the only option
Acting Chief Executive Donald Tsang formally announced yesterday the SAR government's decision to submit a report to the State Council, requesting for an interpretation of the Basic Law by the National People's Congress Standing Committee (NPCSC) over the tenure of a CE to be returned in a by-election.
This was a decisive move, the only feasible option to resolve the current dispute over the new CE's tenure and defuse a possible constitutional crisis that might arise from the wrangle.
The ultimate answer to the question of whether a CE elected under such circumstances should serve a full five-year term or just the remainder of his predecessor's term lies only in the Basic Law, whose right of interpretation resides in the NPCSC. When no consensus could be reached over the current argument, asking the NPCSC to exercise this power was the best option.
Nevertheless, the SAR government has been acting with the greatest prudence and has done everything necessary to ensure the success of the exercise. In the past week, Tsang and Secretary for Justice Elsie Leung met with legislators from different political backgrounds as well as representatives of social groups, listening to their views and seeking a less sensitive alternative to interpretation by the NPCSC.
It can be said that this final decision of the government is a countermeasure that it has been forced to make, but it is also a proactive move made after careful assessment of the situation.
Why is it a forced countermeasure? The current CE Election Committee dissolves on July 13. If a new CE could not emerge as scheduled on July 10, a power vacuum would appear and trigger a constitutional crisis. Analysts have pointed out that if that really happens, not only would the SAR government's operation be affected, Hong Kong's international credit ratings and business environment would be dealt a serious blow as well. That is something we cannot afford.
As a matter of fact, certain members of the so-called "pro-democracy" camp have applied to the court for judicial review and are planning for a large-scale protest against the NPCSC's Basic Law interpretation. They are trying to obstruct the interpretation exercise in court and in the streets, with a view to bogging down the CE election process with litigations and confrontations. The administration had its back against the wall and the request for an NPCSC interpretation of the Basic Law was nothing but inevitable.
What is meant by a "proactive move"? The controversy surrounding the new CE's tenure has dragged on for more than a month, during which opposition to a proposed NPCSC interpretation of the Basic Law has never stopped. Just two days ago, 25 legislators reiterated their opposition in a joint statement, claiming that the rule of law in Hong Kong would be undermined.
On the other hand, opinion polls have time and again showed that the public does not want the election of a new CE to be delayed by the tenure wrangle. It is even more reluctant to see the rebounding economy seriously compromised by a constitutional crisis. They support the idea of having the NPCSC interpret the Basic Law in order to clarify matters and put a stop to the dispute as soon as possible. Yesterday, more than 160 community organizations and business associations released a statement to denounce some politicians for obstructing the CE bypoll and urge the NPCSC to lose no time in giving its interpretation to the Basic Law.
After broad consultation and deliberation and for the sake of Hong Kong's stability, the SAR authorities resolutely initiated the Basic Law interpretation process, displaying their courage and willingness to make the commitment. At the critical juncture of a possible constitutional crisis, any bit of hesitation could lead to grave and irreversible consequences. In making the decisive move, the SAR government has shown its ability to regain the initiative and sort things out in a messy situation. It is a new style of governance that we have seen in this episode - the courage to move forward in spite of formidable difficulties.
Poll: 52% support government decision
More than half of the respondents in a recent survey did not think an interpretation by the National People's Congress Standing Committee (NPCSC) over the next Chief Executive's (CE) tenure would hurt the rule of law in Hong Kong.
The survey was done by Wen Wei Po in the form of a random street poll over the past two days.
Of the 635 residents polled, 52.44 per cent found it acceptable for the SAR government to ask the NPCSC to interpret the Basic Law now that certain individuals and organizations are seeking judicial review over the government's decision to limit the new CE's tenure to the remaining term.
Those unable to accept the government's move accounted for 29.45 per cent of the total, while 18.11 per cent were not committed either way.
As for the question of whether the interpretation by the NPCSC of the Basic Law would damage the rule of law in Hong Kong, 50.07 per cent of those polled gave the answer "no" and 34.02 per cent "yes", while 5.35 said "absolutely not".
The poll results agreed with the analysis by some experts of the public sentiment these days toward the "interpretation issue" - that it is acceptable because it would clarify the tenure confusion and prevent a constitutional crisis from happening.
Asked if they thought the judicial review cases mentioned above would create a constitutional crisis, 54.02 per cent of the respondents agreed such legal action would make it impossible to elect a new CE on time, while 30.39 per cent of them did not think so.
The latest poll also found 60.15 per cent of the respondents believed failure to elect a new CE on time would seriously affect Hong Kong. Only 16.69 per cent thought otherwise.
After examining the poll findings against similar surveys by other organizations, a researcher said the results showed local residents were increasingly tired of political wrangling orchestrated by ill-advised politicians, and gradually shifting to a more rational and pragmatic stance.
As a result, more of them have come around to supporting the interpretation of the Basic Law by the NPCSC.
(China Daily HK Edition April 7, 2005)
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