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HKSAR politicians yesterday said local legal professionals should make greater efforts to understand the Basic Law and respect the statutory power of the national top legislature to interpret the mini constitution.
They made the remarks after hundreds of lawyers mounted a silent protest against the government's decision to seek an interpretation of the Basic Law from the National People's Congress Standing Committee (NPCSC) -- through the State Council -- over the term of the next chief executive (CE).
The NPCSC will on Sunday examine a draft interpretation of the Basic Law's relevant provisions and will spell out that the new Hong Kong leader shall serve out the remainder of his predecessor's term, instead of the full five-year term.
The top legislature announced on Monday in Beijing that it would examine the draft interpretation of the Basic Law's relevant provisions governing the next CE's tenure at the 15th session of the 10th NPCSC, scheduled from April 24 to 27.
Lee Kok-keung, a local member of the Chinese People's Political Consultative Conference (CPPCC), said yesterday that the NPCSC has been given the power to interpret the Basic Law.
"Requesting an interpretation is highly essential to curb a possible constitutional crisis and it is fundamentally beneficial to Hong Kong's stability," he said.
Lee said the local legal sector should have a better understanding of the Basic Law and realize that the top legislature is empowered to render an interpretation concerning affairs within the responsibility of the central government, or concerning the relationship between the central authorities and the SAR.
Also, Chan Kam-lam of the Democratic Alliance for Betterment and Progress of Hong Kong yesterday was hopeful that the NPCSC should hand down an authoritarian ruling on whether the next CE can be re-elected once or twice.
Chan said the NPCSC has good legal reasons and rationales to argue for a two-year term in accordance with the legislative intent of the Basic Law.
While it is normal for different groups to express opinions by staging protests, Chan said people should enhance their understanding and common knowledge of the Basic Law.
Yesterday evening, about 900 solicitors, barristers and legal professors, law students and their supporters marched silently from the High Court in Admiralty to the Court of Final Appeal in Central. Among the line-up were a group of right-of-abode claimants.
Barrister Ronny Tong of Article 45 Concern Group yesterday insisted the NPCSC's interpretation is not part of the SAR's legal system and it will damage the rule of law.
"We hardly accept the government's viewpoint that it would run a high risk of failure to return a new CE as scheduled if it did not request an interpretation of the mini constitution by the NPCSC," Tong said.
Barrister Alan Leong of the group said that seeking an interpretation has ruined the principle of "One Country, Two Systems" and a high degree of autonomy of Hong Kong.
However, Secretary for Justice Elsie Leung defended the government's decision in an article published in local newspapers yesterday.
Leung wrote that the government cannot afford the luxury of letting things run their natural course but is obligated to do everything possible to ensure a smooth election of the next CE.
Pursuant to Article 53 (2) of the Basic Law, the SAR government must elect the new CE within six months from the date the vacancy arose after Tung Chee-hwa's resignation last month.
Deputy Secretary-General of the NPCSC Qiao Xiaoyang will tomorrow meet with CPPCC members, local deputies to the NPC, and lawmakers, including those in the so-called "pro-democracy" camp, to consult with them in Shenzhen.
NPCSC interpretation no threat to rule of law in HK
The State Council has accepted the SAR government's request to ask the National People's Congress Standing Committee (NPCSC) to interpret Article 53(2) of the Basic Law to clarify the tenure of the chief executive (CE) to be returned in a by-election.
The majority of Hong Kong residents support the government's decision because they think that's the only way to clear the confusion and guarantee a smooth bypoll on July 10.
Some "pro-democracy" lawmakers, however, oppose the interpretation, describing it as an assault on the principle of "One Country, Two Systems" and being detrimental to Hong Kong's rule of law. But this writer believes otherwise.
After its reunification with the motherland in 1997, Hong Kong's legal status was established as a local administrative region under the direct jurisdiction of the central government, according to the "One Country, Two Systems" principle. And its constitutional code, the Basic Law, takes precedence over all its other laws.
According to Article 152(1) of the Basic Law, "The power of interpretation of this law shall be vested in NPCSC." The exercising of this power by the supreme national legislature, according to the mini constitution, is thus an integral and indispensable part of Hong Kong's rule of law.
NPCSC can interpret the Basic Law any time and under any circumstances on its own, or at the request of Hong Kong's Court of Final Appeal (CFA) or the SAR government through the State Council; and it is perfectly legal to do so.
In 1999, when the SAR government asked NPCSC (through the State Council) to interpret the Basic Law over the right of abode issue, counsel for the abode-seekers Denis Chang said the Basic Law allows interpretation requests to be made only by CFA before making its final ruling, and on cases dealing with subjects beyond the SAR's autonomy. NPCSC should not violate this rule, he said, by interpreting the Basic Law at the SAR government's request.
But, CFA made it clear that under no circumstances would NPCSC's power to interpret the Basic Law be subject to restrictions, and hence it overruled Chang's assertion.
On the term of a CE elected mid-term and to ensure a smooth bypoll, the SAR government has again requested NPCSC (through the State Council) to interpret the Basic Law. Thus, the administration has not only fulfilled its unavoidable responsibility, but also met the requirements of Hong Kong's mini constitution and the rule of law.
Mainland legal experts, NPC's Legal Affairs Commission spokesman and the SAR government have repeatedly explained, and with sound reasoning, that the CE to be elected mid-term should serve only "the remaining (two) years" of his predecessor's term. Yet certain people refuse to stop beating the five-year drum. Some "pro-democracy" lawmakers went as far as to file a writ in court, seeking a judicial review of the "two-year" decision.
But judicial proceedings are time consuming affairs. It'll take a long time for the case to reach CFA. And since there's no guaranteeing a smooth process, the bypoll may turn into a Link REIT-like fiasco.
Some people have proposed other solutions, but none of them could guarantee that the CE election would be held on time. That left the SAR government with no other option but to seek NPCSC's interpretation.
According to Article 43, the CE is the head and representative of the SAR and is accountable to the central government and the SAR; and according to Article 48(2), he is responsible for the implementation of the Basic Law. So, given the looming threat of a constitutional crisis, it's only natural and logical for the SAR government to request (through the State Council) NPCSC to interpret the Basic Law.
Make no mistake, NPCSC's interpreting the Basic Law is by no means the same as amending it; it's neither creating new legal standards nor supplementing existing ones. Rather, it's an effort by NPCSC to provide within its duty and power explanations to ambiguities in Basic Law provisions.
Such an action will clarify the provisions of the Basic Law and help all sectors of society understand and implement the mini constitution correctly. It could also serve to provide a better definition of the relationship between Hong Kong and the central government, further promote the mutual adaptation of legal concepts held by each other, and eliminate differences for the sake of social stability.
(China Daily HK Edition April 20, 2005)
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