A Threat to the Basis of Our Autonomy
Recently, a number of members newly appointed to the Basic Law Committee
have commented on the legality of the new law on the right of abode of
children born in China. This is a dangerous trend.
The independence of the Judiciary and autonomy of the Hong Kong SAR could be severely compromised if the trend is allowed to develop. It may appear attractive to people who want to win to have such powerful allies publicly backing them up, but the price is too high.
If we are not careful, the Basic Law Committee could become some kind of super-Court of Final Appeal as well as some kind of super-legislative council of the SAR. Just imagine: if the Basic Law Committee could pronounce valid a Hong Kong law whose validity is under challenge before the court, is this supposed to influence the court's judgment?
When even an ordinary lawyer would refrain from detailed comment to avoid any impression he or she was trying to influence the court, how can an authoritative body such as the Basic Law Committee behave with less self-restraint?
It is also suggested that the Basic Law Committee may be invited by the SAR Government to give an opinion on the validity of any law passed by the SAR legislature, or that any SAR law reported to the National People's Congress' (NPC) Standing Committee for the record under Article 19 of the Basic Law is to be regarded as valid unless returned for the advice of the Basic Law Committee. This will have the effect of creating some kind of "negative vetting" procedure under the Basic Law Committee. The authority of Hong Kong laws will then be derived not so much from the SAR legislature as from that committee.
If such a vetting procedure were adopted, much of the power of the SAR courts to interpret the Basic Law would be rendered meaningless for any practical purpose. The reason is obvious: if any court should form a view different from that of the Basic Law Committee, its judgment would be appealed against.
If and when the appeal went to the Court of Final Appeal, that court might take the same view as the Basic Law Committee or it might not. Either way it would cause great public confusion or a loss of confidence in the court's independence or both.
All the above goes to show the highly undesirable likely consequences of giving the Basic Law Committee that role. What is even more important to point out is that it is wrong and contrary to the letter and spirit of the Basic Law to thrust such a role on the Basic Law Committee.
Although there is no provision in the Basic Law specifying the ambit of the powers and function of the Basic Law Committee, the matter is clear from looking at all those articles in which that committee is mentioned, and from a proposal of the Basic Law Drafting Committee on the establishment of that committee, appended to the Basic Law.
In that proposal, the Basic Law Committee is to be a working committee
under the Standing Committee of the NPC. Its function is to study
questions arising only from articles 17, 18, 158 and 159 of the Basic Law,
in relation to which it is to submit its views to the Standing Committee
of the NPC.
If one reads these articles carefully, it is plain that the first three articles mentioned require the views of the Basic Law Committee on laws enacted by the SAR only on the question of whether they are or are not in conformity with the provisions of the Basic Law (1) regarding affairs within the responsibility of the central authorities, i.e., defence and foreign affairs, and (2) regarding the relationship between the central authorities.
On no other questions concerning the conformity of an SAR law with the Basic Law is action by the Standing Committee after consulting the Basic Law Committee's view provided for in the Basic Law. An SAR law which has to do only with the right of abode in Hong Kong as an instance of Article 24 of the Basic Law cannot be said to fall under either of those two headings.
Under Article 17, laws passed by the SAR legislature have to be reported to the Standing Committee "for the record". If that committee, after consulting the Basic Law Committee, considers any SAR law passed does not conform with the Basic Law in either of the two areas referred to earlier, then the Standing Committee may "return" the law in question to the SAR, but without amending it. Thereupon, that law will be invalidated, and the SAR is left to decide what to do about it, if anything.
Article 17 certainly does not say that any SAR law not returned is, for that fact alone, to be pronounced valid or compatible with all the Basic Law's provisions, or even with those in the two areas specified. It cannot be argued that it has that effect by implication.
Also there is no time-frame. The Standing Committee is not required to return an SAR law within a certain time limit after which the law concerned is supposed to be valid or validated. Presumably the Standing Committee can do so any time after an SAR law has been passed and reported to it. Meanwhile, the law is to have effect. If and when it is invalidated, the invalidation, Article 17 expressly says, is not retroactive. The spirit of all this is clearly to implement the policy of a high degree of autonomy for the SAR legislature, and the SAR as a whole. It is absurd that we in Hong Kong should attempt to cut down on our own autonomy by inviting or inventing an overall vetting and approval process.
Article 158 is a controversial article because it limits the jurisdiction of the Court of Final Appeal of the SAR. But the role of the Basic Law Committee envisaged is certainly far from making it some kind of super-Court of Final Appeal.
Only the Court of Final Appeal can refer a matter to the Standing Committee for interpretation. Only the interpretation of provisions of the Basic Law in the two areas specified earlier need to be referred, and only then when the interpretation of a provision in these areas would affect the decision of the court in a case it is hearing. In all other situations, the Court of Final Appeal has full power to interpret any part of the Basic Law as it considers right. This means, although the Basic Law Committee or, which is more likely, some of its members publicly take a certain stance on the compatibility of a particular SAR law with some provision of the Basic Law (say, whether the new right of abode law is compatible with Article 24), the courts may well come to a different view. Indeed, the courts should ignore that stance in coming to its view. But, inevitably, if the court announces the same view, the public may think this is succumbing to the Basic Law Committee; conversely, if the court comes to a different view, the public will feel confused.
It is relevant to note that not all of the members of the Basic Law Committee are jurists. Too extensive an interference by the committee in the judicial process may have the result of making non-legal considerations prevail over legal ones.
The last of these four articles -- Article 159 -- does not limit the Basic Law Committee's input to the two areas specified. But that article deals only with the amendment of the Basic Law, which is not likely occur on a routine basis.
Of course, the above proposal on the function of the Basic Law Committee is not set in stone. It can be expanded. But one would suggest that any expansion must take into consideration the effect it would have on the SAR's autonomy.
The operation of the committee is also as yet unspecified; should it meet in public or in private? Is it purely advisory, or quasi-judicial? For a referral from the Court of Final Appeal, should it hear legal submissions from the parties? Should the court itself make any recommendation, as some people have suggested? Would there be written opinions setting out its reasons and arguments? Does it follow precedents?
These questions need very careful and sensitive handling. By leaning
too much to the judicial side, the committee may start to look like some
kind of a limited Privy Council; too much towards the "layman" and advisory
side, and it may have an undesirable impact on the SAR legal system.
In any event, members of such a highly authoritative body should always conduct themselves with prudence and reticence. Just as the public should not be tempted to make "super-kings" of its members, its members should not be tempted to slip into that role.