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Following is the speech by the Secretary for Justice, Ms Elsie Leung at the Legislative Council House Committee meeting today (Tuesday):

Chairman,

On 10 and 11 May, 1999, I visited Hong Kong and Macau Affairs Office (HKMAO) in Beijing with the Secretary for Security. The purpose of our visit was mainly to find out the procedure regarding the amendment and interpretation of the Basic Law in accordance with Articles 158 and 159 of the Basic Law. Our visit was preceded by the visit of the Chief Secretary for Administration on 5 May during which the concern of Hong Kong people towards the Right of Abode issue was raised and the various options as well as their anxieties over the various options were fully represented.

We had a session with the officials of HKMAO together with officials of the Legislative Affairs Committee (LAC) of the National People's Congress (NPC) and another session with HKMAO. The discussions centered mainly on the procedures involved. The Mainland officials explained that -

(a) Amendment of law and interpretation of law differs in their scope in that -

(i) an 'interpretation' is dictated by and is confined to the scope and intent of the relevant articles per se; but

(ii)an 'amendment' could go beyond the original provision of the relevant articles, provided that it complies with BL 159(4).

(b) The Basic Law is a constitutional document and should not be amended frequently.

(c) The power of interpretation of law is only exercised by the Standing Committee sparingly, and the Standing Committee will not make an interpretation of the Basic Law unless the issue cannot be resolved by HKSAR and the Standing Committee is requested to do so.

Officials of HKMAO and LAC emphasized that the Central People's Government will only accede to the request of HKSAR for assistance as a last resort and that they are mindful of the importance of maintaining judicial independence, the rule of law and the integrity of the courts of the HKSAR as well as the high degree of autonomy and the concept of one country two systems.

As you know, the social problems arising from the interpretation made by the Court of Final Appeal would, if unchecked, become very serious. However if, in attempting to resolve those problems, there is any departure from the rule of law, any undermining of the Court of Final Appeal's power of final adjudication, or any weakening of Hong Kong's autonomy, the consequences could be even more serious. In finding a solution to the current problems, I can assure Members that there will be no, I repeat no, erosion of these cornerstones of Hong Kong's way of life. The SAR Government remains totally committed to the rule of law, the independence of the judiciary, and the faithful implementation of the Basic Law.

The CFA decision

First, let me discuss the status of the Court of Final Appeal decision. Article 82 of the Basic Law provides that the power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal of the Region. That is a constitutional provision which must, and will, be observed.

The SAR Government will do nothing to overturn the adjudication pronounced by the Court of Final Appeal in the right of abode cases. The dispute between the parties to those cases has been determined once and for all. The rights of those parties will remain unchanged by the action the Government proposes to take.

Furthermore, the interpretation of the Basic Law given by the Court of Final Appeal in those cases is currently an authoritative statement of the law that is binding on everyone in Hong Kong, including the Government. The Administration respects the court's decision and has been implementing it. But that does not mean that the community must forever live with the consequences of that interpretation if it considers them unbearable.

The options

Under a common law system, there are generally two ways by which a ruling by the highest court of appeal can cease to be good law. One is by a subsequent decision by the court itself in another case; and the other is by a legislative amendment. In the case of Hong Kong, there is a third possible way. If the court ruling involves an interpretation of provisions in the Basic Law, the Standing Committee of the National People's Congress has the power to give its interpretation of those provisions. This is provided for in Article 158 of the Basic Law. If the Standing Committee interprets the Basic Law in a way that differs from the interpretation given by the Court of Final Appeal, the court's interpretation will cease to be good law.

It is natural for those familiar with the common law system to object to a non-judicial body revising an interpretation of the law given by a final appellate court. Under the common law, the ultimate power to interpret the law is vested in the judiciary. However, Hong Kong is part of the People's Republic of China, which has a civil law system. Under the Mainland's system, the ultimate power to interpret statutes is vested in the NPCSC. Since the National People's Congress enacts statutes, it is considered that its Standing Committee, which is intimately involved in the legislative process, is in the best position to decide what the true legislative intent was. There are, in fact, other civil law jurisdictions in which parliaments have the power to issue authoritative interpretations of statutes, for example Belgium and Greece.

When the Basic Law was being prepared, a system had to be devised that would cater for the two fundamentally different systems that operate in Hong Kong and the Mainland. The solution adopted was to provide that

(1) the power of final adjudication shall be vested in the CFA;

(2) the power to interpret the Basic Law shall be vested in the NPCSC, which shall first consult the Committee for the Basic Law; and

(3) the NPCSC shall authorize the SAR courts to interpret provisions of the Basic Law in adjudicating cases, but in certain cases those courts shall first seek an interpretation of the NPCSC.

The NPCSC's power to interpret the Basic Law may be exercised by it in the absence of any reference to it by the CFA. It may also be exercised in respect of any provision in the Basic Law.

It is important to note that the NPCSC must interpret the Basic Law in accordance with its true legislative intent. This means that it could only differ from the CFA's interpretation if that interpretation was inconsistent with the true legislative intent. It cannot do so simply as a matter of expediency, on the basis that the consequences of the CFA's decision are regarded as intolerable.

There are therefore three possible ways in which the CFA's interpretation could lawfully cease to be good law, that is by a further CFA decision, an amendment of the Basic Law, or an NPCSC interpretation of the Basic Law.

Further CFA decision

The first option would be to invite the CFA to reconsider its decision on relevant issues when they are raised in a future case that comes before it. The advantage of this approach is that any change in the interpretation of the Basic Law would be achieved by local judicial action. We would therefore be solving our problems here in Hong Kong.

There is, however, no guarantee that an appropriate case will emerge in the foreseeable future or, if it did, that the CFA would reach a different conclusion. In theory, it could do so, but this is unlikely so shortly after its original decision. Moreover, if the CFA did change its interpretation of the Basic Law, there is a risk that this would be perceived to be the result of political pressure rather than reasoned legal debate. This would be very damaging to the credibility of the court.

It must be emphasized that this first option relates to a future case that may come before the CFA. There has been a suggestion that the CFA might change its interpretation in some other way, but there is no legal basis on which that could be done.

Having considered this option very carefully, the Administration has decided that it is not an acceptable solution. We cannot rely on the mere possibility that the CFA might at some future point in time reverse its decision. That would be far too speculative an approach to pressing problems.

The choice

That leaves a choice between an amendment and an NPCSC interpretation of the Basic Law. In deciding between an interpretation and an amendment, the Administration has been guided by firm principle, not expediency.

The principle relied upon is that there is a fundamental difference between an interpretation and an amendment. An interpretation is based on the true legislative intent of a provision. An amendment changes the legislative intent of a provision. If one needs to ascertain the true legislative intent of a provision in the Basic Law, the ultimate authority to decide that question is the NPCSC, which has the constitutional power to interpret that provision. If one needs to change the legislative intent of a Basic Law provision, the only body that has the power to do so is the National People's Congress, which has the constitutional power to amend the Basic Law.

The current debate on right of abode is concerned with the true meaning of the Basic Law. The CFA has interpreted relevant provisions of the Basic Law in a certain way. In so doing, it acted independently and after carefully considering the detailed arguments of the legal representatives of the parties. Its decision deserves all the respect that is due to a Court of Final Appeal consisting of judges of the highest calibre. But - and I say this with the greatest respect to the court - the CFA does not have the ultimate power to interpret the Basic Law. Its powers of interpretation are delegated to it by the NPCSC, which retains the ultimate power to decide on the true legislative intent of the Basic Law.

When the Immigration Ordinance was amended in 1997 to introduce the 'one way permit' and 'time of birth' provisions, both the SARG and the legislature believed that they reflected the true legislative intent of the two provisions in the Basic Law. The two provisions in question are Articles 22(4) and 24(2)(3) of the Basic Law.

Article 22(4) states that 'For entry into the Hong Kong Special Administration Region, people from other parts of China must apply for approval'. That Article reflects the Mainland's long-standing policy of controlling the number of persons who enter Hong Kong for the purposes of settlement in order to maintain Hong Kong's stability and prosperity. There is debate in the community as to whether the Court of Final Appeal's interpretation of the Article is consistent with its true legislative intent. Moreover, Article 22(4) concerns the relationship between the Central Authorities and the Region.

The other provision is Article 24(2)(3) of the Basic Law. The Article is based on a similar provision in the Joint Declaration. It is clear from an agreement in the Sino-British Joint Liaison Group, established under the Joint Declaration, that both China and Britain considered that the provision in the Joint Declaration applied only to those who were born after their parents had ordinarily resided in Hong Kong for seven years. Since the Basic Law was enacted to give effect to the Joint Declaration, when the Administration introduced amendments to the Immigration Ordinance in 1997, it considered that the true legislative intent of the Basic Law was the same.

In the light of that history, the Administration believes that there are good grounds for seeking an NPCSC interpretation of those two provisions.

Those are the only issues on which an NPCSC interpretation is sought. As Members know, the CFA also decided that children born on the Mainland out of wedlock may claim right of abode through their fathers as well as their mothers. The Administration accepts that the provision in the Immigration Ordinance to the contrary did not reflect the true legislative intent of the Basic Law. The Administration will not therefore seek an NPCSC interpretation on that issue. This underlines the fact that the Administration is adopting a principled approach, and is not acting out of expediency.

The objections to an NPCSC interpretation

The Administration is, of course, aware of the objections that have been raised to seeking an NPCSC interpretation. Some commentators have asserted that such an interpretation would undermine the rule of law, take away the CFA's power of final adjudication, undermine judicial independence, and damage Hong Kong's autonomy. These are very serious allegations. Are they justified?

As I have explained a moment ago, the NPCSC's power to interpret the Basic Law is part of our new constitutional order. The CFA has ruled that it cannot question the authority of the NPCSC to make such an interpretation, which would have to be followed by the SAR courts. It would therefore be entirely consistent with our new constitutional order for the NPCSC to interpret the Basic Law provisions relating to right of abode, and for everyone, including the judiciary, to be subject to that interpretation.

What about the CFA's power of final adjudication? Adjudication means the hearing and disposing of a case by applying the law. In respect of civil proceedings, the CFA decides which party wins. The CFA adjudicated the cases concerning right of abode in January this year, and decided which parties won. The judgment it delivered in those cases is final so far as the parties to the cases are concerned, and would remain so even if the NPCSC interprets the Basic Law in a different way from the CFA. There is no question of the CFA becoming a court of semi-final appeal as has been alleged. An interpretation could change only the principles that are to be applied to claims for right of abode by other persons that are pending or are made in the future.

Although the CFA has the power of final adjudication, it is not given the power of final interpretation of the Basic Law. That is vested in the NPCSC. An interpretation by the NPCSC would therefore reflect the respective roles given to the CFA and the NPCSC by the Basic Law.

Would judicial independence be undermined by an interpretation? Judges have the freedom to decide cases in accordance with the law, without interference. The CFA decided the right of abode case without interference. But under Hong Kong's new constitutional order, the ultimate power to interpret the Basic Law is vested in the NPCSC. Judicial independence does not mean that the courts should be free to depart from an interpretation of the Basic Law made by the NPCSC. On the contrary, the rule of law requires the courts to comply with authoritative statements of the law. An NPCSC interpretation would not interfere with Hong Kong judges' freedom to decide future cases in accordance with the law.

What about Hong Kong's autonomy? The Basic Law is derived from Article 31 of the Chinese Constitution. By virtue of Article 158(1) of the Basic Law the ultimate authority to interpret the Basic Law is given to the NPCSC, not to the SAR courts. If the NPCSC exercises its power of interpretation, it would not be depriving Hong Kong of any legal powers granted to it, or diminishing Hong Kong's autonomy. Moreover if there is a strong demand in the community for the current problems to be resolved, an interpretation should not be seen as an 'interference' with Hong Kong's autonomy, but as a response to that demand. After all, Hong Kong does not have the autonomy to resolve the current problems, save through another CFA decision.

Some commentators have doubted whether an NPCSC interpretation could effectively solve the current problems. They say that an interpretation would not be retrospective and so could not take away accrued right of abode. I do not accept that analysis. An interpretation of a legislative provision tells us what that provision means, and what it has always meant. It is well established under common law decisions that the effect of a court decision overruling a previous interpretation is that the previous interpretation can no longer be relied upon. Any claim made under that provision must be determined in accordance with the new interpretation. I see no reason why that principle should not be applicable to an NPCSC interpretation. The result would be that all those (other than the parties to the CFA judgment) who claim the right of abode would have their claims determined in accordance with the NPCSC interpretation.

Others have argued that if the NPCSC were to interpret the Basic Law in respect of the right of abode, it could do so in respect of other provisions that are within Hong Kong's autonomy. That is correct as a matter of law, but is subject to two major limitations. Firstly, any NPCSC interpretation of the Basic Law must be consistent with its true legislative intent. There is therefore no possibility of guarantees being taken away. Secondly, it is wrong to assume that the NPCSC's power of interpretation would in future be lightly exercised. In fact, since the 1950s, the NPCSC has exercised its power of interpretation on only eight occasions. The last two of these interpretations were made in 1996 and 1998 respectively, when the NPCSC's interpretation of the PRC Nationality Law had the practical effect of allowing Hong Kong and Macau Chinese citizens to retain their Chinese nationality despite holding foreign passports which they could use for overseas travel.

The current problems are wholly exceptional in nature, and relate to one of the most fundamental issues for any community, namely who has the right to join the community as a permanent resident. If the NPCSC's power of interpretation is exercised in respect of such a fundamental issue, there is no basis for assuming that it would be exercised simply to benefit (for example) the private interests of a litigant in commercial proceedings.

In the final analysis, the objections to an NPCSC interpretation largely boil down to a matter of perception. It is said that such an interpretation would give rise to a 'perception' that the rule of law is being undermined, and judicial independence interfered with. My answer to that is to emphasize that we should pay more attention to the true legal position rather than to any misguided 'perceptions'. I also consider that the legal profession has a duty to explain the true legal position, rather than to emphasize, and thereby create, negative perceptions.

Conclusion

I believe I have said enough to indicate that an NPCSC interpretation is not only a lawful, but is the appropriate, way in which the problems could be resolved. The Administration is adopting a principled approach in coming to this decision. If the NPCSC interprets the two provisions differently from the CFA, then most of the current problems will be solved and there will be no need to amend the Basic Law. I believe that such an outcome would be truly beneficial to Hong Kong, and would be entirely in accordance with the rule of law, the independence of the judiciary, and Hong Kong's autonomy.

History has entrusted to us the implementation of the concept of "One country, two systems". We must shoulder the responsibility of dealing with this extremely difficult problem, so that the concept of "one country, two systems" will be solidly established in the system of the HKSAR.

End/Tuesday, May 18, 1999

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