Following is the speech by the Secretary for Justice, Ms Elsie Leung in the Legislative Council today (Wednesday):
At yesterday's meeting of the House Committee, I gave a full explanation of the options that were available in resolving the current problems, and the reasons why an NPCSC interpretation is the right approach. I do not intend to repeat all that I said yesterday. Copies of that speech have been laid before every Honourable Members and, in due course, can be found on the website of the Legislative Council Secretariat and in the Legislative Councils's Library. Instead, I will highlight some key legal points and reply to criticisms that have emerged.
Choosing between interpretation and amendment
I believe that members of the legal profession generally agree that both an NPCSC interpretation and an amendment of the Basic Law are lawful ways to solve our problems. There is, however, a fundamental difference between an interpretation and an amendment. An interpretation reflects the true legislative intent of a provision, whereas an amendment changes the legislative intent.
The question whether an estimated 1.67 million people have the right of abode in Hong Kong depends on the true legislative intent of the Basic Law. The ultimate authority for deciding that question is vested in the NPCSC. That arrangement may seem strange to those trained in the common law, but it reflects the fact that Hong Kong is part of the People's Republic of China, which has a civil law tradition.
When the Immigration Ordinance was amended in 1997 to introduce the 'time of birth' and 'one way permit' provisions, both the SAR Government and the legislature believed that they reflected the true legislative intent of the Basic Law. As was explained yesterday, both provisions have foundations that go back before the Basic Law was promulgated, and relevant provisions of the Basic Law were understood to have been built on those foundations.
In the light of this historical background, the Administration believes there are good grounds for seeking an NPCSC interpretation of the relevant provisions in the Basic Law, namely articles 22(4) and 24(2)(3).
At yesterday's House Committee, I referred to the objections to the interpretation route that have been raised, and I explained that they were without foundation. The CFA's power of final adjudication will not be affected by the Administration's request for an NPCSC interpretation: the CFA's judgments will remain binding on the parties to the proceedings regardless of any such interpretation. Judicial independence will be fully maintained, since judges will continue to decide cases in accordance with the law, without interference, fear or favour. Hong Kong's high degree of autonomy will remain exactly the same as it was on 1 July 1997.
I am disappointed that two objections to an NPCSC interpretation continue to be voiced. One is that it would undermine the rule of law. I have yet to hear one person give a satisfactory explanation of this allegation. The rule of law means that everyone is subject to the law, and that independent judges decide cases in accordance with the law and without interference. Those fundamental principles would not be affected one iota by an NPCSC interpretation.
The second objection is that, by seeking an NPCSC interpretation, the Administration is opening the floodgates to other applications, and that this could lead to rights guaranteed in the Basic Law being taken away. There is no basis whatsoever for this allegation.
(1) In the first place, a litigant who loses in the CFA would not benefit from an NPCSC interpretation, since the judgment delivered by the CFA would be unaffected by it. Moreover, the vast majority of cases before the courts do not involve an interpretation of the Basic Law and so are entirely unaffected by the current debate.
(2) Secondly, the Standing Orders of the NPCSC limit the persons and bodies who can place items on the agenda. If someone sought an interpretation, he would need to persuade (for example) the State Council to support this.
(3) Thirdly, it is wrong to assume that the NPCSC's power of interpretation would in future be lightly exercised. In fact, since 1949, the NPCSC has exercised its power of interpretation on only eight occasions.
(4) Fourthly, if the NPCSC did decide to interpret the Basic Law, its interpretation would have to be consistent with its true legislative effect. Rights guaranteed by the Basic Law could not be taken away.
(5) Fifthly, 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.
Some commentators have criticised the Administration for not spelling out the circumstances under which it will seek an NPCSC interpretation. They have suggested that there should be some formalised mechanism, or some convention, that would impose constraints on the Administration and prevent abuse of this process. We note this suggestion and will consider it.
I would, however, like to emphasize that the Administration will only seek an NPCSC interpretation in the most exceptional circumstances, where there are good legal grounds for doing so. The manner in which the power of interpretation should be exercised by the NPCSC is a matter entirely for the NPCSC itself to determine.
Clarification of PC Proposals
Some members have queried the proposal that the NPCSC should clarify whether the Preparatory Committee's views on right of abode reflected the true legislative intent of the Basic Law.
The main purpose of seeking an NPCSC interpretation is to ascertain the meaning of BL 22(4) and BL 24(2)(3) in accordance with their true legislative intent. However, there are other unsettled issues relating to BL 24(2). It is important that there should be certainty as to who does, and who does not, have right of abode under that article. Without this, the Administration cannot properly plan the social services and other facilities that those with the right of abode will need. It would therefore be helpful to know whether and, if so, to what extent the Preparatory Committee's Proposals did reflect the true legislative intent of the article. The reference in the paper, tabled by the Administration yesterday, to the question whether those proposals have 'legal effect' was intended to mean no more than this. It is not intended that the proposals should be directly give any special legal status.
Changing the principles of interpretation?
Another criticism that has been made is that, if the NPCSC ascertains the meaning of provisions in the Basic Law by reference to their true legislative intent, this would fundamentally affect the way in which the courts interpret the Basic Law in future.
I do not consider that the principles of interpretation set out by the CFA in one of the right of abode cases are inconsistent with the approach of ascertaining the true legislative intent. The CFA emphasised (and I quote) that 'in ascertaining the true meaning of the instrument (i.e. the Basic Law), the courts must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context...'.
I nevertheless accept that there are different schools of thought as to the manner in which a constitution should be interpreted. This is evident in the United State America where, after its constitution has been in force for over 200 years, there is still a lively debate as to the correct approach to interpretation. Given that the Basic Law has not yet been in force for two years, it is to be expected that a similar debate will emerge here.
Morale of the judiciary
Finally, I wish to refer to allegation that the morale of the judiciary will be adversely affected by the Administration's decision, and that some judges may resign. I sincerely hope that this is not the case. I do understand that, to some lawyers trained in the common law, the exercise of a power of interpretation by a non-judicial body is an alien concept. However, I hope that they will appreciate that, under our new constitutional order, such a power may legitimately be exercised in respect of the Basic Law.
In conclusion, I would again emphasize that the decision to seek an NPCSC interpretation is not only lawful, but is appropriate, in the special circumstances that we are dealing with. Such an interpretation could resolve our problems, without in any way undermining the rule of law, the independence of the judiciary, or Hong Kong's high degree of autonomy. The NPCSC's power of interpretation is a pivotal feature of 'one country, two systems'. Its exercise in the current circumstances will ensure that the Basic Law is faithfully implemented in Hong Kong.
End/Wednesday, May 19, 1999