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The Secretary for Justice, Ms Elsie Leung said today (April 8) that litigation related to the Basic Law since Reunification serves to demonstrate the vitality of the provisions of the Basic Law.

In RTHK's programme "Hong Kong Letter", Ms Leung pointed out that litigation is inevitable during the initial stage when the new constitutional order was established. The experience gained by the judiciary and lawyers during this period will form the basis by which further exploration of the jurisprudence concerning the Basic Law is facilitated.

"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?" she said.

"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," she said.

"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," she said.

"Since the Basic Law came into operation, there have been numerous court cases about the interpretation. 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," Ms Leung said.

She said: "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," she said.

"The Basic Law cannot be construed by adopting a narrow 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," she added.

Ms Leung continued: "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 cases about the Amendment have been instigated."

"Since the implementation of the Basic Law, it 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, Ms Leung said.

"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," she said.

End/Saturday, April 8, 2000

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