The Secretary for Justice, Ms Elsie Leung has reiterated that while it is understandable people opposed to seeking interpretation of the Basic Law by the NPCSC (National People's Congress Standing Committee) would feel worried that it could become a "superior" to the Court of Final Appeal, there is no substance to such worries.
Speaking on Radio Television Hong Kong's "Hong Kong Letter" programme this (Saturday) morning, Ms Leung gave three reasons to allay such worries.
Firstly, she said, the NPCSC is not a body with judicial powers. As the standing committee of the National People's Congress, the highest organ of power of the country, and with responsibility as parliament to 12 billion people, it will not lightly exercise a power which it has used only scarcely. It will not lightly assist the Hong Kong Special Administrative Region in its litigation efforts either.
Secondly, Ms Leung said, the interpretation power of the NPCSC can only be exercised in respect of provisions in the Basic Law, and its interpretations do not constitute a retrial or an appeal, and will not alter the decision of the Court of Final Appeal in the case.
Thirdly, she added, interpretations by the NPCSC must be consistent with the legislative intent of the Basic Law and absolutely cannot contravene its true intent. For this reason, the power and scope of interpretation are narrower than those of making amendment, and this is one of the reasons why the government chooses the interpretation route, she said.
Ms Leung stressed that the stand of the HKSAR government is very clear. The CFA decision has effect, and the government has to carry it out. It is just that in the present case, the interpretation by the CFA of the relevant provisions in the Basic Law would bring about consequences which are intolerable to Hong Kong, and the government has no alternative but to seek a solution through NPCSC's interpretation of the provisions.
She noted that in common law jurisdictions, the executive bodies often seek to amend the law through their legislatures if interpretations of the law by the courts cannot be implemented in practice.
In effect, this is a measure to alter the effects of court decisions, but no one has ever said the legislatures are superior to the courts or that there is interference with the independence of the judiciary and damage to the rule of law.
What the HKSAR government is doing is a lawful recourse under the present constitutional order, and would solve what could probably be the greatest problem encountered by the SAR since the Transition, while observing the prerequisites of not hurting judicial independence and the rule of law. The interpretation power of the NPCSC is provided under Article 67(4) of the PRC Constitution and Article 158(1) of the Basic Law. It cannot be in contravention of the high degree of autonomy and "one country, two systems", Ms Leung said.
The Secretary for Justice stressed that what the government is doing now has full legal basis and does not seek to overturn the CFA decision. It is apparent that the majority of people, including members of the legal profession, have not queried legislative interpretation as an acceptable and established practice under the Civil Law system. There is in fact such a constitutional provision in Greece and Belgium, she said.
Article 158(1) of the Basic Law clearly embodies this concept of "legislative interpretation" and the CFA judgment of February 26 also states clearly that "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."
Ms Leung said she and her department have always stood by the principle of not providing legal opinions to the HKSAR government which are against the rule of law or which impede judicial independence.
She pointed out that it was not an easy decision to make to seek interpretation of Articles 22(4) and 24(2)(3) of the Basic Law. She is completely certain about the legal basis of the decision, and the great majority of people in Hong Kong, including those in the legal profession, consider that there is legal basis, but implementing "one country, two systems" in the early stages of the HKSAR will require the understanding and acceptance of all people, she said.
End/Saturday, May 22, 1999