No need for a formal mechanism for illegal efforts


Hong Kong Human Rights Monitor has been invited by the Legislative Council Panel on Constitutional Affairs to express its views on whether there is a need to establish a formal mechanism for the Hong Kong Special Administrative Region (SAR) Government to seek interpretation of the provisions of the Basic Law.

Power of the Standing Committee to interpret the Basic Law

Human Rights Monitor wants to clarify at the outset that the Standing Committee of the National People's Congress cannot interpret the Basic Law, unless in the context of a referral from the Court of Final Appeal (CFA) under Article 158(3).

The Monitor's view is that the Standing Committee of the NPC has the formal constitutional power of interpretation of the Basic Law under Article 158(1) but that it has delegated this power to the courts of the HKSAR for all intents and purposes, and has only reserved the right of interpretation when specifically identified circumstances in Article 158(3) call for such referral from the CFA.

The Monitor believes that this interpretation of Article 158 is not merely an ordinary and natural reading of the Article, but if there was any doubt about it, it is a purposive interpretation which gives effect to the "one country, two systems" principle. Other parts of the Basic Law indicate that this reading is correct. In particular:

-- those provisions in Articles 2, 19 and 82 of the Basic Law concerning the power of final adjudication of the Hong Kong Court of Appeal;

-- Article 39 of the Basic Law which guarantees the continued application of the International Covenant on Civil and Political Rights which requires an independent judiciary, and Article 85 of the Basic Law which provides for the non-interference of the court's trial of cases before them, and

-- the provisions in Articles 8, 18, 19, 81 and 82 in respect to the preservation of the common law system.

Moreover there is an international dimension to the issue. The Sino-British Joint Declaration guarantees that the judicial system previously practised in Hong Kong before the Re-unification shall be maintained except for those changes consequent upon the vesting of the power of final ajudication in the courts of the Hong Kong Special Administrative Region. The SAR judicial system envisaged in the Joint Declaration is one that is based firmly in the common law.

In a common law system, neither the executive nor the legislative branch of government has the power of interpretation of the law. Only the court has the final say on what the law is and how a law should be interpreted. In exceptional cases where there is a need for a referral due to constitutional or any other issue, the referral will be to a court which then interprets the law in a judicial manner.

Even in civil law systems final interpretation of the law is a matter for a constitutional court and not the legislature. Our common law court can never be said to be free from intervention in its final adjudication of cases if the Standing committee is allowed to actually interpret the law and to bind our court with such an interpretation whether it is before, during or after the adjudication of the cases. Such a limit to the power of final adjudication is repugnant to a common law system. Not even in a civil law system can the court be said to be free from interference if such intervention is allowed to happen.

The only appropriate interpretation in this case is to adopt the interpretation proposed by the Court of Final Appeal making the role of the Standing Committee (and the Basic Law Committee) purely ceremonial.

The Human Rights Monitor considers judicial referral to be a matter which should be left to the Hong Kong judiciary to manage its own affairs.

We would also like to remind Members that the power of legislative interpretation by the Standing Committee has been subject to criticism by some of the legal experts in China, who suggest the abolition of this controversial power. Legislative interpretation is not necessary as the Standing Committee has the power to legislate and to amend the PRC laws. We should not, for the SAR Government's convenience sake, retard the legal reforms in the Mainland legal system. Nevertheless, such legislative interpretation is not only repugnant to our common law system but should also be excluded by Article 159, which provides specifically that the amendment procedure of the Basic Law should not be allowed to be circumvented under the guise of legislative interpretation.

Power of the SAR Government to seek interpretations

A basic principle of the rule of law is that unless a public authority is empowered by the law to do certain things, it simply has no power to do so. The power to seek interpretation is vested only in the Court of Final Appeal and not in the SAR Government.

Chief Executive Tung Chee-hwa relies on Articles 43 and 48(2) in claiming that he has the power to seek assistance from the Central Peoples' Government, including the power to seek interpretation (re-interpretation) of the relevant provisions of the Basic Law already interpreted by the Hong Kong CFA in its final adjudication in Cheung Lai-hwa's case, an interpretation which was different from hat of the SAR Government. (Para. 1, CE's Report on Seeking Assistance from the CPG).

The Monitor does not think that there is anything in the articles which empowers the Chief Executive to seek an interpretation of the Basic Law to reverse an interpretation by the CFA when the SAR Government finds its own interpretation to be different from the latter's.

Article 43 provides,

"(1) The Chief Executive of the Hong Kong Special Administrative Region shall be the head of the Hong Kong Special Administrative Region.

(2) The Chief Executive of the Hong Kong Special Administrative Region shall be accountable to the Central People's Government and the Hong Kong Special Administrative Region in accordance with the provisions of this Law."

Article 43 may require the Chief Executive to make reports to the Hong Kong Special Administrative Region shall be accountable to the Central People's Government but does not of itself enable him to seek an interpretation in a way that is wholly inconsistent with our common law system. Indeed Article 43(2) subject the Chief Executive's accountability to " the provisions of this [Basic] Law." Thus Article 43 should be construed to require the Chief Executive to refrain from doing any thing to undermine the Hong Kong's autonomy and clearly prohibit him from seek an interpretation of Article 24 which is one of the articles in Chapter III of the Basic Law. The chapter and all the articles in it devote solely to the rights and duties of the Hong Kong residents, a matter entirely within the limit of autonomy of the SAR and the interpretation of which a matter envisaged to be left strictly only to the Hong Kong courts for interpretation.

With regard to Article 48(2), this provision states that one of the powers and functions of the Chief Executive,

"To be responsible for the implementation of this Law and other laws which, in accordance with this Law, apply in the Hong Kong Special Administrative Region;".

On the contrary, in our common law system, the law is what the court says what it is. A proper interpretation of Article 48(2) would require the Chief Executive to implement the law, including the Basic Law, as have been authoritatively interpreted by the court. To seek a re-interpretation to override the CFA's interpretation is an act inconsistent with the power and function specified in Article 48(2).

Moreover, as mentioned above, the Basic Law guarantees the continuation of a number of institutions important to the success of Hong Kong, including our common law system, the power of final adjudication, the independence of judiciary, the non-interference with the court in any trial, and our autonomy. The Chief Executive is required by Article 48(2) to uphold these institutions provided for under other articles of the Basic Law. His very act of seeking an interpretation is a serious blow to those important institutions preserved by the Basic Law.

If the Chief Executive or the SAR Government is not satisfied with the Court's interpretation or if the Government considers that such an interpretation no longer serves Hong Kong's interest, the Government should seek to amend the Basic Law in accordance with Article 159 of the Basic Law.

In addition to the lack of legal authority for the Chief Executive to seek an interpretation, there is concern that either he or the SAR Government would come back again and again to use interpretation as a means to reverse or even pre-empt the court's decision. There are also legitimate concerns that the referral process by the SAR Government for an interpretation has been secretive, biased in favour of the Government and generally suffers from a lack of transparency and procedural fairness. Moreover, there are also concerns that the Chief Executive or the SAR Government may refer an article of the Basic Law on matters entirely within the limits of Hong Kong's autonomy thereby wholly undermining the autonomy of the SAR.

Conclusion

A process which is illegal in itself cannot be legitimized or regularized by a formal mechanism of supplementing it with procedures, guidelines,etc., purportedly for regulating its use. Such measures may only serve to mislead the public and perhaps the Chinese authorities into believing that it is legal for the Chief Executive or the SAR Government to seek such interpretations from the Standing Committee.

Moreover, in the recent effort by the Government effort to seek an interpretation from the Standing Committee, the Government has departed from its traditional strategy of justifying the undermining of our much treasured institutions and its infringement of people's rights by referring to a dubious common law argument. As Professor Yash Ghai has pointed out, this is in fact a paradigm shift. To face such an unprecedented challenge, those who treasure the rule of law must defend our common law system rigorously by rejecting the transformation of our legal institutions into those on the Mainland. This is a matter of preserving our legal institutions as guaranteed in the Joint Declaration and the Basic Law, a matter which is crucial to the success or failure of the "one country, two systems" arrangement.

Human Rights Monitor has just illustrated above that both the Chief Executive and the Hong Kong SAR Government to have no power to request the Standing Committee, directly or indirectly, for an interpretation of any provision of the Basic Law. We have also demonstrated that the Standing Committee has no power to entertain requests for interpretation except those from the CFA in accordance with Article 158(3). The Standing Committee has no jurisdiction to initiate an interpretation on its own. And, in entertaining a referral by the Hong Kong CFA, the Standing Committee should only adopt the interpretation proposed by the CFA.

Therefore, there is no other channel in which the Standing Committee can legitimately interpret the Basic Law other than Article 158(3). Since an Article 158(3) referral will never bring an article of the Basic Law within Hong Kong's limits of autonomy before the Standing committee for interpretation, there is no need to prevent the interpretation of such articles, nor is there a need to establish any other formal mechanism for interpretation.

The best legal recourse is to prevent the SAR Government from seeking such interpretation and restraining the Standing Committee by persuasion, and in the alternative, by invoking the court to achieve the same.


1999 (c) Hong Kong Human Rights Monitor