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Following is the speech by the Secretary for Justice, Ms Elsie Leung, in the motion debate on the interpretation of the Basic Law in the Legislative Council today (Wednesday):

Madam President,

While I share the principles that the Honourable Member seeks to uphold of "one country, two systems", a high degree of autonomy and judicial independence, I do not accept that they are in any way compromised by a request to the Standing Committee of the National People's Congress for an interpretation.

On the 19 May 1999, this Council has had a full debate on the interpretation of the Basic Law by the NPCSC and decided "That this Council supports the Chief Executive's decision to request the State Council to approach the Standing Committee of the National People's Congress to interpret Article 22(4) and Article 24(2)(3) of the Basic Law". I am glad to be given an opportunity to explain again why such interpretation of the Basic Law does not depart from the principles of 'one country, two systems', a high degree of autonomy and judicial independence.

The Administration is fully committed to upholding those principles. It also accepts that only in very exceptional circumstances should it seek an interpretation of the Basic Law from the NPCSC.

Let me deal first with the request for an NPCSC interpretation. I think that it is widely accepted that Article 22(4) of the Basic Law concerns the relationship between the Central Authorities and the SAR. It provides that, for entry into the HKSAR, people from other parts of China must apply for approval.

The other provision in respect of which an interpretation has been sought is Article 24(2)(3). This provides that persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2) of Article 24(2) shall be permanent residents of the HKSAR. Since this provision concerns the right of abode of persons born and living in the Mainland, it clearly impinges on issues that concern the Central Authorities.

Given this fact and, given the circumstances in which the NPCSC has been asked to interpret BL 24(2)(3), an NPCSC interpretation of that article would be appropriate. Let me remind Honourable Members of the circumstances in which the request has been made.

(1) First, there is overwhelming public support for steps to be taken to prevent the influx of possibly 1.67 million people within the next ten years.

(2) Secondly, the HKSAR does not have the autonomy to solve the problem itself, unless the CFA were prepared, at some unknown future date, to change its interpretation of the two articles in another case.

(3) Thirdly, the SAR must therefore seek the assistance of the Central Authorities, either by way of an amendment to the Basic Law or an NPCSC interpretation. Whilst this Council may amend any local law to deal with the unacceptable effects of a court decision, this Council cannot interpret or amend the Basic Law. In considering a request for assistance there is no question of the Central Authorities interfering unilaterally in Hong Kong's affairs.

(4)

Fourthly, having regard to the history behind the two articles, such as the opinion of the Preparatory Committee in 1996, there are good grounds for seeking an interpretation, rather than an amendment, of the Basic Law.

(5) Fifthly, the decision to seek an NPCSC interpretation has been supported by a majority of Members of this Council.

Some people doubt whether the NPCSC has sufficient authority to interpret those provisions of the Basic Law which are within the limits of the autonomy of the HKSAR. My answer is: it does. Article 158(2) empowers the courts of the HKSAR to interpret on their own the provisions of the Basic Law which are within the limits of the autonomy of the Region and Article 158(3) provides that the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions concerning affairs which are the responsibility of the CPG or concerning the relationship between the Central Authorities and the Region. Both of these articles concern the power of interpretation in the adjudication of cases, i.e. the power of judicial interpretation. If that is the only delineation of the power of interpretation between the courts of the HKSAR and the NPCSC, there would be no need for Article 158(1) which unequivocally and without any restriction states that the power of interpretation of the Basic Law shall be vested in the Standing Committee of the National People's Congress. As I have previously explained, the power of interpretation of law is vested in the NPCSC by the Constitution of the PRC and this includes the power to clarify, define and supplement the laws, a power which is different from the power of judicial interpretation. Such power has never been abdicated by the NPCSC, whether it is in respect of matters within or outside the limits of the autonomy of the Region, and such power if exercised, cannot be questioned by the courts of the Region.

In view of all these circumstances, it cannot fairly be said that an NPCSC interpretation of BL 24(2)(3) or any provisions that concern the SAR's autonomy would undermine the principles of 'one country, two systems', a high degree of autonomy, or judicial independence. Let me explain why.

The principle of 'one country, two systems' is a uniquely creative concept which guarantees that Hong Kong's legal, economic and political systems are safeguarded after Reunification. With regard to the legal system, continuity in the substance of our laws is provided for in Articles 8 and 18 of the Basic Law; and continuity in our judicial system is provided for in Articles 19 and 81. For almost all purposes, therefore, our legal system operates now in the same way as it did before Reunification. However, I say 'almost all purposes' because, where the interpretation of any provision in the Basic Law is involved, the Basic Law provides that the NPCSC is the ultimate authority. Since the Basic Law enshrines the concept of 'one country, two systems', and also empowers the NPCSC to interpret it, it cannot be said that the exercise of that power is contrary to the concept of 'one country, two systems'.

What about our high degree of autonomy? The HKSAR has been granted a high degree of autonomy so it can decide for itself the principles and policies it will adopt when implementing the Basic Law in areas other than defence and foreign affairs. In relation to the current debate on right of abode, the SARG has carefully assessed all the options available and come to the view that accepting up to 1.67 million new immigrants within the next ten years would over-stretch the SAR's resources and create an intolerable burden. There is overwhelming public support in the SAR seeking to avoid the large influx of people. But it does not have the autonomy to implement that policy. Within Hong Kong, only the CFA has the power to change its interpretation of the Basic Law, and clearly this is not an option that can be relied upon. The only other available options are an amendment of the Basic Law or an NPCSC interpretation of it. If either option is pursued at the request of the SAR, our high degree of autonomy is not undermined.

Finally, there is judicial independence. That is the cornerstone of Hong Kong's way of life and must not be undermined. But, as I explained to this Council's House Committee last Tuesday, an NPCSC interpretation would not interfere with our judges' freedom to decide cases in accordance with the law, and without fear or favour. Just as the courts must abide by any new law or amendment of local laws enacted by this Council, the effect of which may be to reverse an earlier judgment, an NPCSC interpretation, made in accordance with the Basic Law, would be an authoritative statement of the law which judges would be duty-bound to follow.

I accept that there are deep concerns underlying this motion. But I believe that, if the issues are analysed calmly and carefully, the proposal made last week to request an NPCSC interpretation will be seen as in the best interests of Hong Kong, and not as undermining the principles referred to in the motion. I urge Members to vote against the Motion.

I would like to respond to the statements made by some Honourable Members just now:

(1) The difference between an interpretation and an amendment of the law is: an amendment can differ from the true legislative intent while an interpretation clarifies and supplements within the original confines of the law and cannot conflict with the original provision.

(2) The procedure for an amendment is: According to Articles 43 and 48(2) of the Basic Law, the Chief Executive is responsible to the Central People's Government and is charged with implementing the Basic Law. If irresolvable problems are encountered in the course of implementation, he makes a report to the State Council. Under the rules of procedure of the NPCSC, the State Council is empowered to submit recommendations and propose legislation. In the event of the State Council requesting an NPCSC interpretation of the Basic Law, if allowed for inclusion in the NPCSC's agenda, the NPCSC will consult the Basic Law Committee in accordance with Article 158(4) of the Basic Law, and resolve to give an interpretation.

(3) Whether the NPCSC decides to make an interpretation, to what extent and how, are beyond the SAR's jurisdiction. It is a matter for the NPCSC itself. There is no question of the SAR advising the NPCSC how to make an interpretation.

(4) Having considered various materials, the SARG has come to the conclusion that the Court of Final Appeal's interpretation of Articles 22(4) and 24(2)(3) of the Basic Law does not reflect the true legislative intent, and has therefore made a request for an NPCSC interpretation. The SARG has no power of interpretation or the power to change the Court of Final Appeal's interpretation.

(5) I am grateful to the Honourable Members for raising the idea of setting a mechanism for the SARG to seek the NPCSC's interpretation. The SARG will consider this carefully. It is a complex issue and the SARG has not made any commitment.

(6) Article 23 of the Basic Law: the Central People's Government has given the SAR the autonomy to legislate in accordance with that provision, allowing the SAR much leeway. The NPCSC cannot interpret the laws made by the SAR Legislative Council under Article 23 of the Basic Law. It can only interpret the Basic Law and its interpretation cannot conflict with the true legislative intent.

In conclusion, may I repeat that I fully understand the concerns that underlie this motion. As I have said, the SARG will not, save in highly exceptional circumstances, seek such an interpretation.

The whole issue reflects the principle of 'one country, two systems': whilst our Court of Final Appeal is vested with the power of final adjudication in legal proceedings and may interpret the Basic Law in accordance with Article 158(2) and (3) in the legal system applicable to HKSAR, the NPCSC, being the highest organ of the country is vested with the power of interpretation of the Basic Law which interpretation is binding on the HKSAR courts. Under Article 158(1), the NPCSC has the power of final interpretation of the Basic Law. The Basic Law itself provides the interface between the Mainland legal system and the Hong Kong legal system. We should have the confidence to allow the two systems to interact according to our 'mini-constitution', and the present issue is a vital step in the implementation of 'one country, two systems'.

Thank you. Madam President.

End/Wednesday, May 26, 1999.

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