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The recent interpretation of the Basic Law by the Standing Committee of the National People's Congress has prompted some criticism.
No one doubts that the Standing Committee has the power to make such an interpretation -- the power is expressly set out in the Basic Law itself. But there has nevertheless been criticism on various other grounds.
Some argue that the Standing Committee's power of interpretation should never be exercised. They say that this undermines Hong Kong's high degree of autonomy, and blurs the distinction between the "two systems" in Hong Kong and the mainland.
But Hong Kong's high degree of autonomy is defined by the Basic Law, and is subject to the Standing Committee's power of interpretation. The exercise of that power is a reflection of the limits of Hong Kong's high degree of autonomy, not an erosion of it.
Moreover, the "two systems" are not entirely separate. They exist within "one country". The relationship between Hong Kong and the central authorities is set out in the Basic Law, which is a law enacted by the NPC that applies throughout the whole country. An interpretation by the Standing Committee is the exercise of a constitutional power that was designed to ensure that the Basic Law is correctly implemented throughout the whole country.
Others argue that the power of interpretation should not have been exercised in this case, since the provisions in question are quite clear. But the debate in Hong Kong on those provisions has revealed many areas of uncertainty and differing interpretations. Let me give two examples.
Annex I of the Basic Law refers to the possibility of amending the method for selecting the chief executive "for the terms subsequent to the year 2007". The next chief executive will be selected in the year 2007. Different views had been expressed as to whether amendments could be made for the purposes of that selection process. The Standing Committee's interpretation has made it clear that, if there is a need to amend that process, it can be amended for the year 2007 itself.
Secondly, Annex II of the Basic Law sets out how the Legislative Council shall be formed in its first three terms. It then provides how that annex can be amended if there is a need to do so. What it does not make clear is how the fourth term Legislative Council is to be formed if there is no need to amend Annex II or if no agreement can be reached on the nature of the amendment.
Some people had feared there would be a vacuum which only the National People's Congress could fill by amending the Basic Law. The Standing Committee has now ruled that this would not be the case. If the annex is not amended, the method for forming the third term of the Legislative Council set out in the annex would continue to apply.
Another objection to the interpretation was based on the fact that it was initiated in Beijing, not from Hong Kong. On the only previous occasion when the Standing Committee issued an interpretation, it was at the request of the chief executive. The request was made because it was estimated that an interpretation given by the Court of Final Appeal could lead to a 25 per cent increase in Hong Kong's population within ten years. Critics at the time argued that an interpretation by the Standing Committee in such circumstances was unconstitutional. The Court of Final Appeal subsequently held otherwise.
In the present case, critics can no longer argue that the Standing Committee's interpretation is unconstitutional, nor can they say it interferes with judicial independence. Instead, they complain that it "opens the door" for the Standing Committee to interpret any provision in the Basic Law whenever it wants. In fact, the Standing Committee has always had that power, but has clearly exercised self-restraint in its exercise. That self-restraint is no surprise. The Standing Committee has the power to interpret any of the PRC's national laws but very rarely exercises that power.
The final criticism is based on the view that the recent interpretation is, in effect, an amendment to the Basic Law. This view leads to concern that the Standing Committee has placed "new hurdles" in the way of Hong Kong's democratic development, and that, in future, freedoms in Hong Kong could be restricted through "interpretations" that are in effect amendments.
In order to answer this criticism, it is necessary to look at the provisions that were interpreted, and the aspect of the interpretation that has been most criticized. The two annexes of the Basic Law provide a mechanism by which the methods for selecting the chief executive, and for forming the Legislative Council, can be amended "if there is a need" to do so. The annexes do not, however, explain how it is to be determined whether or not there is a need for any amendments.
If the matter were to be resolved judicially, the court would have to decide on the correct procedures. Such a decision, which "involves expounding the verbal formula of the enactment creatively, using its wording as a guide to the imputed intention", would not be condemned as an "amendment" of the Basic Law.
We should not apply double standards and regard the interpretation by the Standing Committee as an amendment. It merely clarifies the procedures to be followed: the chief executive shall make a report to the Standing Committee as regards whether there is a need to make an amendment, and the Standing Committee shall make a determination on this issue "in the light of the actual situation" in Hong Kong, and "in accordance with the principle of gradual and orderly progress".
Some people claim that the interpretation has put an end to the current debate on democratic development. That seems unlikely. There appear to be strong aspirations for such development in Hong Kong. But those aspirations must be kept within the constitutional framework.
The Basic Law lays down the principle of "gradual and orderly progress" in respect of the methods for selecting the chief executive and for forming the Legislative Council. When considering the implications of that principle, it is worth remembering that there were no elections for our top official before 1997, and that members of the community only began to select some legislators through direct elections in 1991.
Hong Kong began its democratic development comparatively recently. As we take that development forward, we should not forget that Hong Kong has already achieved remarkable prosperity and stability, and an enviable reputation for protecting human rights. "Gradual and orderly progress" is a formula that allows us to move forward on the firm basis of those achievements.
The author is solicitor general of the Department of Justice, Hong Kong SAR government.
(China Daily HK Edition April 15, 2004)
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