*******************************************

Following is the letter from the Secretary for Justice, Ms Elsie Leung to Professor Helen Siu Fung-har of the Anthropology Department, Yale University in RTHK's "Hong Kong Letter" programme today (April 8):

Helen,

I am very glad to learn that you will be coming back to Hong Kong to teach for a year. That will be a great benefit for the students of the Chinese University but a great loss to those in Yale University. I still remember when you returned to Hong Kong last year. We had a lively discussion, during one of the dinner gatherings with our friends, about the role of Chinese culture in the modern world. It is a shame that we did not have time to discuss this more deeply, but very soon we can meet regularly to do that.

I am busy as usual and, since the beginning of April, I have participated in several events organized to commemorate the promulgation of the Basic Law 10 years ago. Looking back, I feel that it was not easy for us to have arrived at the present situation. The Drafting Committee for the Basic Law was officially established in July 1985 and the Basic Law promulgated in April 1990. During those 5 years, members of the Drafting Committee from both the Mainland and Hong Kong, members of the Hong Kong Basic Law Consultative Committee, and countless people from all walks of life who offered advice and suggestions behind the scenes had all racked their brains in the drafting of the Basic Law. In drafting the Basic Law, they had to base it on the Joint Declaration, take into account the overall situation of the Mainland and Hong Kong, consider the differences in social and physical systems left over by history, and foresee the need to cope with future development. Those who were not involved cannot imagine how difficult it was to reconcile the conflict and argument involved. The 160 provisions have embodied the painstaking efforts and wisdom of so many people. To cite one example, over one hundred revisions had been made to the consultation draft of the Basic Law before it was submitted to the National People's Congress, and most of these amendments were based on comments of the general public of Hong Kong.

The Basic Law has been implemented for nearly three years. It is clear that, in practice, the Basic Law is able to safeguard the rights, freedom and lifestyle of the people of Hong Kong and that the efforts put in by all those involved in the drafting and implementation of the Basic Law were not wasted.

Since it came into operation, there have been numerous court cases about the interpretation of the Basic Law. This may have led many people to think that the Basic Law was not considered thoroughly during the drafting stage. Such a view is based on a misunderstanding of the nature of the Basic Law. General legislative provisions can be, and indeed have to be, drafted in a precise and detailed way. Even when frequent amendments to the provisions are required in order to accommodate the ever-changing social conditions, they will not create a profound impact on society. However, the Basic Law is a piece of constitutional legislation which is fundamental to our society. Stability and foreseeability are paramount features of it, as they are of constitutions in other parts of the world. In order to cater for the pace of social developments, the Basic Law could not have been written in a very detailed manner. The detailed provisions will have to be provided for by other legislation. As I have said before: the Basic Law is the skeleton, and the other legislation is the flesh. The legislation can be amended to adapt to the ever-changing social conditions but it can never go beyond the confines of the Basic Law. The Basic Law cannot be construed by adopting a normal literal interpretation approach, its legislative intent must be considered. Even in the common law system, there are a number of general rules governing statutory interpretation, such as littera scripta manet, ejusdem generis rule and intention of the legislation predominates and so on. Therefore, one cannot insist on a narrow literal interpretation of the Basic Law but has to take into account the discussions leading to its present form. Most importantly, one should adopt an open mind (and not insist upon one's belief based on past experience). Further, through litigation under our court system the true legislative reasoning behind the provisions can be clearly revealed. To take the American Constitution as an example: there were only 45 words contained in The First Amendment to the American Constitution. During the last 200 years, numerous court cases about the Amendment have been instigated. Litigation is inevitable during the initial stage when our new constitutional order is established, indeed it serves to demonstrate the vitality of the provisions of the Basic Law. The experience gained by our judiciary and lawyers during this period will form the basis by which further exploration of the jurisprudence concerning the Basic Law is facilitated. Moreover, the number of cases also demonstrates the people's confidence in the independence of the judiciary. If not for their confidence that cases can be adjudged impartially in our courts, why would people bother to bring their cases for the court's adjudication?

This litigation helps to provide a clear elucidation on the relevant provisions of the Basic Law so that when the courts and the related parties encounter the same problem in future, they will know what to follow. For instance, when the NPCSC interpretation was sought, the ultimate power of interpretation of the Standing Committee of the National People's Congress was reaffirmed; in the National flag case, the Court of Final Appeal, on the one hand, upheld the freedom of expression granted to Hong Kong people and enshrined in the Basic Law and, on the other hand, defended the integrity of both the National flag and the Regional flag by pointing out that freedom of expression is not without limit; and in the right of abode saga, the Courts at all levels set out in clear terms whether or not some mainlanders have the right of abode in Hong Kong. Through these cases, the Basic Law has played a positive role in protecting the freedom of Hong Kong people and in maintaining the status of Hong Kong as an international city.

The preservation of the common law system, and judicial independence, and the constant upholding of the rule of law are all illustrations of the successful implementation of the Basic Law. The spirit of the Basic Law is "One country two systems" and "Hong Kong people running Hong Kong". In the three years since the implementation of the Basic Law, even those foreign governments and people who have been very critical towards the PRC Government cannot find fault in this regard. In the Mainland, all organs, from the central authorities and ministries to the provinces and municipalities, have demonstrated their respect for the high degree of autonomy enjoyed by the HKSAR. All kinds of pessimistic predictions expressed in the past fell away one by one.

Very often, our attention is easily attracted to eye-catching disputes, and what happens everyday is neglected. The Basic Law has been implemented successfully in all aspects of life, ranging from macro matters like Hong Kong's status as an international city and its political system, to daily matters such as the daily lives of Hong Kong people, their employment as well as freedom and rights of all kinds. The Basic Law has safeguarded the essentials in Hong Kong's success and the way of life that we treasure. Let's take the forthcoming Easter holidays as an example. The effect of the Basic Law can actually be seen in the processes involved, namely, the provisions relating to freedom to enter or leave the territory, the use of travelling documents, freedom of currency exchange, the signing of agreements by Hong Kong with other countries on civil aviation matters, etc. It can be said that we are enjoying, in each and every moment, the fruits of the implementation of the Basic Law. Not everyone takes the view that the provisions of the Basic Law are perfect, but it should nevertheless be our responsibility to support and abide by the Basic Law as Chinese citizens.

Ten years' time is not a lengthy period. Hong Kong has nevertheless faced a lot of ups and downs since the promulgation of the Basic Law. With Hong Kong's people maintaining their pragmatic attitudes, it is fortunate that all difficulties have been overcome one by one. The tempest is over, and golden rays are piercing dark clouds. With the PRC's imminent accession to the WTO and the passing away of the Asian economic crisis, our vision is now open to years of opportunities. I sincerely hope that Hong Kong in ten years' time would develop, just as the Basic Law does, and continue to prosper into a sophisticated and diversified international city with a remarkable rule of law.

Words cannot always express all thoughts. Goodbye for the moment.

Elsie

8.4.2000

End/Saturday, April 8, 2000

NNNN