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Following is the statement by the Secretary for Justice, Ms Elsie Leung at the Legislative Council's House Committee Meeting today (Friday):

I regret that I was unable to attend the House Committee meeting on Tuesday, 2 March 1999, since I was duty-bound to attend the Executive Council that morning. Remarks by some Honourable Members to the effect that I showed disrespect by not attending could equally have been levelled against me by members of the Executive Council, had I attended this committee's meeting instead of the Executive Council.

Members have asked me to give a briefing on my recent trip to Beijing and the judgment of the Court of Final Appeal on 26 February 1999. So far as my Beijing trip is concerned, I made a public statement immediately on my return to Hong Kong on 13 February. So far as the application is concerned, Mr Wingfield, who is the Law Officer in charge of the case, would have been totally competent to answer Members' questions on the case.

Therefore, the fact that I did not attend Tuesday's meeting does not mean any disrespect towards the Legislative Council, nor does it reflect any "LegCophobia".

The background

Let me start with the background. The Court of Final Appeal delivered its judgment in the right of abode case on 29 January 1999. Two aspects of the judgment gave rise to expressions of deep concern.

One aspect was the consequences for Hong Kong of the immigration of persons who, in accordance with the Court of Final Appeal's judgment, have a right of abode here. Concern was expressed, both here and in Beijing, that the judgment would result in large number of people coming here and exerting a great strain on Hong Kong.

Concerns were also expressed about statements in the judgment regarding the relationship between the Court of Final Appeal, the National People's Congress, and the Standing Committee of the National People's Congress. The CFA had stated that the courts of the Region have the jurisdiction to examine whether legislative acts of the National People's Congress or its Standing Committee are consistent with the Basic Law and to declare them to be invalid if found to be inconsistent. Some commentators, both here and in Beijing, regarded those statements to mean that the Court of Final Appeal had put itself above the National People's Congress, and that it had given itself the right to scrutinise and oversee each legislative act of the National People's Congress.

The Administration needed to address these issues. It was decided that I should visit Beijing in order to reflect local opinion and, at the same time, to gain a better understanding of Beijing's concerns. Before I went to Beijing, I studied the CFA decision carefully in order that I could explain it fully and accurately.

The trip to Beijing

My visit started on Friday, 12 February 1999 and ended before noon on the following day. In order to promote understanding of the concerns in Hong Kong, and of the decision itself, I handed over a copy of the Bar Association's two submissions in respect of the decision, articles by Mr. Anthony Neoh and Professor Albert Chen, and copies of the evidence in the cases.

When I returned to Hong Kong on Saturday, 13 February 1999, I made a statement at the Airport specifying the concerns that had been expressed to me. A copy of that statement was provided to Members at the House Committee meeting on Tuesday. I shall read the statement, in case some Members have not had an opportunity to read it. (A copy of the statement is at Annex.)

After my return, the Administration considered a number of options, including filing a notice of motion to the court, applying for clarification of part of the judgment which related to the National People's Congress and its Standing Committee.

The application to the court

After the Chinese New Year holiday, I forewarned the Chief Justice that the Government was considering the possibility of applying to the Court of Final Appeal for a clarification of part of the judgment. On Wednesday, 24 February 1999, the application was filed, and the hearing took place on Friday, 26 February 1999.

There have been a number of misleading reports to the effect that the application sought a 'rectification' of the judgment. Those reports are incorrect. Both the notice of motion and the submissions of counsel for the Director of Immigration made it absolutely clear that clarification of part of the judgment alone was sought. It was also made clear that the application did not ask the Court of Final Appeal to change either its decisions or the reason for its decisions.

The Court of Final Appeal ruled that it was prepared to take the exceptional course under its inherent jurisdiction of stating the following.

"The courts' judicial power is derived from the Basic Law. Article 158(1) vests the power of interpretation of the Basic Law in the Standing Committee. The courts' jurisdiction to interpret the Basic Law in adjudicating cases is derived by authorization from the Standing Committee under Articles 158(2) and 158(3). In our judgment on 29 January 1999, we said that the Court's jurisdiction to enforce and interpret the Basic Law is derived from and is subject to the provisions of the Basic Law which provisions include the foregoing."

"The Court's judgment on 29 January 1999 did not question the authority of the Standing Committee to make an interpretation under Article 158 which would have to be followed by the courts of the Region. The Court accepts that it cannot question that authority. Nor did the Courts judgment question, and the Court accepts that it cannot question, the authority of the National People's Congress or the Standing Committee to do any act which is in accordance with the provisions of the Basic Law and the procedure therein."

This statement did not depart from the original judgment. It has, I believe, helped to dispel some of the concerns that were previously expressed about the judgment.

New concerns

I am, of course, aware that the application to the court has itself given rise to concerns. In particular, it has been said that, by making the application, the Administration has put political pressure on the court and has undermined the independence of the judiciary. I reject this allegation. Courts exist for applicants. If an application is misconceived, the courts are perfectly able to dismiss it.

Moreover, the Administration did not subject the Court of Final Appeal to any political pressure whatsoever. To regard the application itself as applying political pressure on the court is entirely wrong. The CFA itself regarded the application as proper in the exceptional circumstances, since it proceeded to entertain it and clarify the position: and that, surely is what counts. Anyone who suggests or implies that judges of the CFA would or may give in to political pressure of any sort is manifestly not familiar with the calibre and the integrity of the judges who man the CFA.

Conclusion

Chairman, I would conclude this briefing by expressing the view that the results of my trip to Beijing and the application to the Court of Final Appeal have been entirely beneficial to Hong Kong. They have, I believe, led to a better understanding of issues of great constitutional, public and general importance. The rule of law, independence of the judiciary, and faithful implementation of the Basic Law have all been strengthened. I hope that the controversies surrounding the constitutional aspect of the CFA decision can now be left behind us, and we can move forward to deal with the entry arrangements for Certificate of Entitlement holders and service implications arising from the decision. I know that these are a matter of immense concern to the community.

Annex:

The following is the transcript of the statement made by the Secretary for Justice, Ms Elsie Leung, at the airport on her return from Beijing on February 13, 1999:

"I went to Beijing and represented the Chief Executive to express the views of Hong Kong people and of the SAR Government on the recent judgement of the Court of Final Appeal. I met with the legal experts yesterday. They were Professor Xiao Weiyun, Professor Xu Chongde and Professor Wu Jianfan. They were Basic Law drafters, they participated in the drafting of the Basic Law. I had also very useful exchanges with the officials of the Hong Kong and Macau Affairs Office this morning. The meeting was also participated by officials of the Legal Affairs Committee of the Standing Committee of the National People's Congress. We discussed the matter in detail; we had free and useful exchanges. I also met Mr Liao Hui, Director of the Hong Kong and Macau Affairs Office and also Mr He Chunlin, the Secretary-General of the Standing Committee of the NPC. Now we also had very useful discussion and exchanges on the matter. I think this sort of communication is necessary and also very useful.

"On the question of the Court of Final Appeal judgement, the Mainland authorities expressed the view that there were passages in the Court of Final Appeal judgement relating to the status and power of the National People's Congress and its Standing Committee, and they are of the opinion that this is contradictory to the principles in the Constitution and in the Basic Law, and they feel that that should be rectified. On the fact that as a result of the judgement of the Court of Final Appeal, the number of people entitled to right of abode in Hong Kong has been increased tremendously, and that there would be a burden on our resources, a burden on our society, and also that Hong Kong people are very concerned about this, they expressed understanding on the matter; however they said that those people who are entitled to right of abode in Hong Kong are at the moment until they come to Hong Kong residents of the Mainland and they must observe the laws of the Mainland, including the regulation relating to exit from the Mainland, but they are negotiating, the relevant authorities in the Mainland are negotiating, with the Immigration Department of Hong Kong to see what measures can be taken to ensure that these people will come to Hong Kong in an orderly way.

"I used every opportunity to express the concern of Hong Kong people on the fear over the rule of law as a result of the opinion expressed by the Mainland, and also it appeared that if the matter is not handled well, their confidence over the rule of law might be impaired. They expressed understanding of such sentiments, and they also said that in dealing with the matter, they will adhere strictly to the principle of "one country two systems" and also to the Basic Law. They will also take into consideration the prosperity and stability of Hong Kong. The Mainland officials agreed with what Mr Tung Chee Hwa said, that "one country two systems" is a new concept. That some problems have arisen in its implementation is inevitable but it doesn't mean that the Central People's Government have lost confidence over the Hong Kong SAR because of this matter. In the past 20 months very good relationship has been established between the Mainland and Hong Kong and since this is a problem within one country, they are confident that the matter will be resolved satisfactorily, and I must agree with that.

"I am reporting the matter to the Chief Executive and I hope that a satisfactory solution will be resolved with the co-operation and constructive participation of all parties, of all the people in Hong Kong. Thank you."

End/Friday, March 5, 1999

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