CS makes statement on term of office of new CE

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Following is the translation of the statement made by the Chief Secretary for Administration, Mr Donald Tsang, at the Legislative Council sitting today (April 6) concerning the term of office of the new Chief Executive:

Madam President,

After thorough and careful consideration, the SAR Government has decided to submit a Report to the State Council, proposing that the State Council make a request to the Standing Committee of the National People's Congress ("NPCSC") to interpret, at their meeting to be held at the end of April, Article 53 of the Basic Law concerning the term of office of the new Chief Executive. We have made arrangements for the Chief Executive's Office to submit the Report to the State Council later today. I would like to thank you, Madam President, for allowing me to explain to Members and the general public at the Sitting today the rationale and considerations behind our decision.

On 12 March this year, the State Council approved by Order the request of Mr Tung Chee Hwa to resign from the office of the Chief Executive. The office of the Chief Executive became vacant on that date. Article 53 of the Basic Law stipulates that, in the event that the office of the Chief Executive becomes vacant, a new Chief Executive shall be selected within six months in accordance with the provisions of Article 45 of the Basic Law. Section 10 of the Chief Executive Election Ordinance ("CEEO") requires that we shall hold the election on 10 July, not earlier nor later.

Regarding the term of office of a new Chief Executive to be elected to fill a vacancy in the office of the Chief Executive which arose other than due to the expiry of term, the Secretary for Justice had examined thoroughly and carefully the relevant provisions of the Basic Law and the legislative intent of such provisions, and explained the position of the Government at the press conference held on 12 March and the LegCo House Committee meeting held on 15 March. Our position is that the term of office of the new Chief Executive shall be the remainder of the term of the preceding Chief Executive.

As the CEEO has no express provision regarding the term of office of the new Chief Executive elected to fill the vacancy in the office of the Chief Executive which arises other than due to the expiry of term, we will submit the Chief Executive Election (Amendment) (Term of office of Chief Executive) Bill ("the Bill") to this Council for First Reading and commencement of Second Reading debate today. The purpose of the Bill is to set out clearly and explicitly the term of office of the Chief Executive in accordance with the position of the SAR Government.

Madam President, I believe that Members fully understand that the SAR Government has the responsibility to elect a new Chief Executive lawfully and in time on 10 July. This is a constitutional and legal requirement which we must fulfil. This is also the expectation of Members and the community which we must meet.

Moreover, we have to address a practical issue. On the one hand, the term of the current Election Committee will expire on 13 July this year. On the other hand, we need to elect a new Chief Executive within the 6-month limit stipulated in Article 53 of the Basic Law. If we failed to elect a new Chief Executive on 10 July, we would not be able to complete the tasks within the remaining two months. These tasks include further amending the CEEO to change the 120-day limit stipulated therein for electing a new Chief Executive, forming a new Election Committee, and electing a new Chief Executive.

If the SAR failed to elect a new Chief Executive lawfully and in time on 10 July, it would affect adversely the formulation of major government policies, the governance of Hong Kong and the normal operation of the Government. It might even precipitate a constitutional crisis. Also, residents of the SAR and the international community might cast doubts on the determination and the ability of the SAR to implement the Basic Law. It would also have a negative impact on the operation of the financial market and the confidence of investors. All these would not be conducive to the prosperity and stability of Hong Kong.

Madam President, ever since the issue of the term of office of the new Chief Executive became a subject of discussion in the community, the SAR Government has been listening attentively to the views of LegCo Members, the legal profession, media commentators and various sectors of the community. Some consider that it should be the remainder of the term; others consider that it should be a five-year term. We note that some LegCo Members have stated publicly their opposition to the Bill that we will submit today. More importantly, a LegCo Member and individual members of the community have stated publicly that they will be seeking judicial review of the Bill. In fact, the courts have received one such application on 4 April. Therefore, we are facing two issues:

(i) matters relating to the legislative process; and

(ii) matters relating to judicial proceedings.

On matters relating to the legislative process, I hope that Members will adopt a reasonable and pragmatic attitude, and will make the best use of time available to pass the Bill before the end of May. However, since some Members consider that the Bill is inconsistent with the Basic Law, in order to ensure the timely completion of the legislative process, we need the most authoritative interpretation of the relevant provisions of the Basic Law to provide a more solid basis for the local legislation.

As regards judicial proceedings, it is highly likely that we will be facing challenge by way of judicial review. Once the judicial process is initiated, it will take a relatively long time to go through the Court of First Instance, the Court of Appeal and the Court of Final Appeal. Past experience has also shown that there are a range of uncertainties involved in this process. Furthermore, the CPG is vested with the substantive power to appoint the Chief Executive. The term of office of the Chief Executive is a matter which falls within the responsibility of the CPG, and which concerns the relationship between the Central Authorities and the SAR. Therefore, when a case is brought before the Court of Final Appeal, the Court will need to seek an interpretation by the NPCSC in accordance with Article 158(3) of the Basic Law.

Even if the courts could expedite the process in view of the urgency of the matter, we might not be able to finish the proceedings in time. The request for interpretation by the NPCSC alone would take some time, and it has to fit in with the meeting schedule of the NPCSC. Therefore, if the interpretation by the NPCSC was sought through the judicial process, it is quite possible that we would not be able to elect a new Chief Executive in time on 10 July.

Madam President, some Members have proposed amending the Basic Law to specify the term of office of the new Chief Executive. We note that the Legislative Affairs Commission of the NPCSC has stated earlier on that the Basic Law already has a clear design regarding the term of office of the new Chief Executive to fill the vacancy in the office of the Chief Executive. The legislative intent is clear. The current difference in opinions arises from different understanding of the Basic Law. The legislative intent could be clearly made clear through legal interpretation, and there is no need to amend the Basic Law. Furthermore, the power to amend the Basic Law is vested with the National People's Congress ("NPC"). The next session of the NPC will not be convened until March 2006. In terms of timing, it is not possible to amend the Basic Law in time before 10 July.

The fact is, in the past few weeks, the community has put forth quite a few suggestions on how the issue of the term of office of the new Chief Executive may be resolved. However, we have not yet come across any option which, on the one hand, could ensure the election of a new Chief Executive lawfully and in time on 10 July and, on the other hand, could obviate the need to seek an interpretation by the NPCSC.

Madam President, I understand that although interpretation is a constitutional arrangement provided for in the Basic Law, many in the community still hope to avoid as far as possible seeking an interpretation to settle the matter. In the past seven years, we have had two interpretations. I fully understand the impact of interpretation on our residents and the community. If only there were an option which could obviate the need to seek an interpretation and which could resolve the problem, I would have gladly adopted it. However, as I have said, we have yet to come across such an option to date.

I have carefully reflected on the matter and the circumstances we face. In order to preserve the stability of the community and the effective operation of the SAR Government, I, as the Acting Chief Executive, have finally decided to request the Central Authorities to make an interpretation to settle the matter. I fully understand that this decision would not necessarily be well received. However, I am confident that the decision would not affect "One Country Two Systems", "Hong Kong people ruling Hong Kong" and "a high degree of autonomy". Nor would it damage the rule of law on which Hong Kong's success is based. Under the design of "One Country Two Systems", the NPCSC has the power to interpret the Basic Law. This is part of Hong Kong's constitutional structure. To settle the issue of the term of office of the Chief Executive by seeking the most authoritative interpretation in accordance with the Basis Law is lawful and constitutional.

Madam President, in order to remove the uncertainties affecting the normal operation of the Government and the community, we must elect a new Chief Executive lawfully and in time on 10 July, and ensure that the electoral process and the result will not face any legal challenge. In view of the pressing circumstances, after full and careful consideration, and on the basis of preserving the rule of law and "One Country Two Systems", we consider that seeking an interpretation by NPCSC is the only way forward and is consistent with the fundamental interests of Hong Kong.

I hope that LegCo Members and the community will understand the consideration behind the decision of the SAR Government to seek an interpretation by the NPCSC. This is a correct and necessary decision. I appeal to every one of you to support the decision of the Government, so that Hong Kong could elect a new Chief Executive lawfully and in time on 10 July.

Thank you, Madam President.

Ends/Wednesday, April 6, 2005

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