13/5/99 - A Constitutionally Acceptable Solution

The Bar's Views on the Right of Abode Case

Press Release

13 May1999

A CONSTITUTIONALLY ACCEPTABLE SOLUTION

Foreward

1. We respect and applaud the Central Government's repeated public declaration that it would not of its own accord seek to get involved in the present search for a solution to the problems said to arise from the Court of Final Appeal ("CFA") in the Right of Abode case ("the Problem").

2. The question we have to face today therefore is not whether the Central Government has the power or should exercise that power to interpret any provision of the Basic Law.

3. The question today is whether constitutionally or legally, the SAR Government should abandon the amendment route and take steps or be seen to be taking steps to seek re-interpretation of Article 24 of the Basic Law as a means to deal with the Problem.

4. Before we continue, we should point out that there is a subtle distinction between constitutionality and legality. In constitutional law, sometimes a solution even if legal, may not be constitutionally acceptable to a particular constitutional framework legally put in place.

The Power of Interpretation Under the Chinese Constitution

5. Under the Chinese Constitution, there is a distinction between interpretation of the Constitution and interpretation of other laws, including basic laws. This can be seen from Articles 67(1) & (4) of the Constitution. It is also to be noted that the National People's Congress ("NPC") has the sole power to amend the Constitution and other laws including basic laws but does not have the power to interpret either the Constitution or other laws: Article 62. This power to amend is unqualified and supreme. The NPC Standing Committee ("NPCSC") on the other hand, does not have any unqualified power to amend but has the power to interpret both the Constitution and other laws.

6. It will be seen from Article 67(3) & (4), that there is a distinction of the functions and powers of the NPC Standing Committee ("NPCSC") to on the one hand, "partially supplement and amend, when the [NPC] is not in session, laws enacted by the [NPC] provided that the basic principles of these laws are not contravened" (see Article 67(3)) and on the other hand "to interpret laws" (see Article 67(4)).

7. As to the power of interpretation, there is a further distinction between legislative and judicial interpretation: see Lun Lifa Jieshi (On Legislative Interpretation), Zhongguo Faxue, No. 6, 1993, p.36.

8. In a resolution passed at the 19th meeting of the NPCSC held on 10th June 1981, it was said that in relation to laws which required further clarification or supplement the NPCSC shall interpret or use legislative orders (Fa Ning) to regulate such laws.

9. Obviously, a supplement and amendment of the laws cannot and should not be disguised as an "interpretation". This is accepted by many Chinese jurists: see e.g. Lun Lifa Jieshi, supra., where the joint authors said (at p.38):-

"In our view, one should not openly approve or encourage interpretation to take the place of amendment of the laws, or the authority and unity of the legal system would be undermined."

10. A Fortiorai, one should not approve or encourage interpretation to take the place of amendment of the Basic Law without open debate as envisaged under Article 159 of the Basic Law.

11. Later in the same article (at p.40), the authors revealed that at the moment, there is no established formula or procedure as to how the power of interpretation is to be exercised by the NPCSC.

12. Furthermore, if the power to supplement or amend is circumscribed by the qualification not to contravene the basic principles of the laws, then clearly, the same qualification will be even more pertinent in the case of interpretation.

13. In the present case, the Court of Final Appeal ("CFA") is entrusted under Article 158 of our Basic Law by the NPCSC when adjudicating cases to interpret the Basic Law. This power to interpret was granted to the SAR as part of the constitutional package under Article 2 of the Basic Law. In a proper exercise of its jurisdiction and the power so entrusted, the CFA has interpreted Article 24 and delivered a final adjudication as to the rights of people coming under that article.

14. For the NPCSC to exercise its power to "re-interpret" so as to overturn the CFA decision would be to overturn an interpretation which is legal and properly reached under the Basic Law and as authorised by the NPCSC itself. To do so, will also be contrary to the basic principles of the Basic Law and that constitutional package granted to the SAR which clearly stipulated that the Hong Kong SAR shall have a high degree of autonomy, judicial independence and the power of final adjudication under Articles 2, 19, 80 and 82. Furthermore, it will be contrary to the spirit and intent of Article 158 which guarantees that any interpretation should not affect a previous decision of the CFA.

15. It is also arguable that such an interpretation also contravenes the basic principle enshrined in the Joint Declaration as to the independence of the Judiciary and the power of final adjudication. This is what I would call a basic constitutional objection.

16. There is a further purely legal objection from the Chinese law point of view. Legal interpretation in China can take several forms: language interpretation, logic interpretation, context interpretation and historic interpretation, see Fa Lu Gai Lun by Peng Jun Liang at pp.81-82. In the case of Article 24, it is difficult to see how the first three forms of interpretation can extend the meaning of Article 24 to cover the situation desired by the SAR Government.

17. It follows that a proper interpretation short of supplementing or amending Article 24 cannot legally achieve the result which the SAR Government desires. To abuse this procedure to achieve the ends desired will be legally impermissible under the Chinese Constitution or Chinese Law.

18. For all these reasons, even if the NPCSC does have the power to "interpret" the Basic Law in the present case, it is not constitutionally or legally acceptable for the SAR Government to ask NPCSC to do so.

Whether SAR Government Has A Power To Refer

19. It is plain from Article 158 and indeed from the rest of the Basic Law that there is no provision or procedure for the SAR Government to refer any article under the Basic Law to the NPCSC for interpretation in the absence of a legal dispute. It is equally obvious that there is no such provision or procedure to overturn an interpretation already pronounced by the CFA.

20. It has been suggested that such a power is to be implied from Article 48. That, with respect, is a violent distortion of the language and meaning of Article 48. What that article provides is that the Chief Executive ("CE") is responsible for the implementation of the Basic Law and other laws. Article 81 further confirms that the existing legal system should be preserved. What all this means is that where the CFA has given an interpretation of the Basic Law, the CE is entrusted with the duty to implement the CFA's decision. This was the position as regards general laws before the Handover. This should be the position as regards all laws including the Basic Law after the Handover.

21. Even under Chinese Laws, the approach is no different. The concept of implementation of the law by the executive simply means that the executive must carry out its duties in accordance with the law. See: Fa Lu Gai Lun by Peng Jun Liang at p.182.

Should There Be A Reference By The SAR Government

22. Even assuming the SAR Government has the power to seek an interpretation of the Basic Law, quite plainly in view of the fact that there is already a legally binding interpretation of Article 24 reached by the CFA, any attempt to overturn this interpretation by the SAR Government will be contrary to Articles 2, 8, 18, 19, 48, 81, 158 and 159 of the Basic Law, not to mention the spirit and intent of the Joint Declaration.

23. There is a greater objection to the SAR Government undertaking this dangerous course. Under our existing legal system preserved under Article 81 of the Basic Law, the SAR Government, like anyone else, must obey a ruling of the Court unless and until the law is changed. As pointed out by one of our Appeal Court Judges, it is worth recalling the words of Wilson J. in In re Bachand v. Dupuis [1946] 2 D.L.R. 641 at 655:-

"The whole value of the legal system - the integrity of the rule of law - is at once destroyed if it becomes possible for officials by arbitrary decisions made, not in the public court rooms but in the private office of officialdom, without hearing the parties, without taking evidence, free of all obedience to settled legal principles, and subject to no appeal, effectively to overrule the Courts .............."

24. In this respect, one can find similar concepts being espoused by Chinese jurists. In Ji Ben Gai Lun, edited by a number of highly respected professors and lawyers, it was said at pp.93-94:-

"When the NPCSC authorizes the HKSAR Courts to apply the Basic Law in adjudicating cases and to interpret on its own provisions of the Basic Law concerning matters of autonomy of the HKSAR, it means the Hong Kong Courts have the power to interpret the provisions falling within the scope of its autonomy without having to invite the NPCSC to give an interpretation. The parties to the proceedings have no right to request the NPCSC for an interpretation. As most of the provisions of the Basic Law fall within the scope of a high degree of autonomy of the HKSAR, the scope of interpretation of the Basic Law by the HKSAR Courts is thus very wide." (emphasis supplied)

25. For the SAR Government to be seen to be actively taking steps to overturn a decision of the CFA by substituting its interpretation of Article 24 by another and different interpretation from the NPCSC must give rise to the impression that the SAR Government is seriously challenging the Rule of Law in Hong Kong under our legal system as preserved under the Basic Law.

Proposals For A Solution

26. In these circumstances, it is submitted that the only constitutionally acceptable solution is for the SAR Government to introduce legislation immediately after full consultation with the immigration authorities of the Central Government to implement the decision of the CFA. As a long term solution, the SAR Government could seek to amend Article 24 under Article 159.

27. Gauging from the tenacity of public opinion and the various stances of the major political parties in Hong Kong, it is inconceivable that the SAR Government would not be able to secure the necessary consent of the legislative Council.

28. The proposed amendment will be simple and provided a suitably worded amendment is put forward, there is no reason to think that such a proposal, having secured the consent of the CE and the legislative Council, should be rejected by the NPC.

29. For all these reasons, we will respectfully call for such an amendment and immediate action to avoid the present deeply decisive controversy surrounding the sensitive question of "re-interpretation" by the NPCSC.

For further enquiries, please contact Mr. Alan Leong, SC at 2526 6182, Mr. Johannes Chan at 2859 2935 and Mr. Ambrose Ho at 2524 2156.

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The Bar's Views on the Right of Abode Case
Press Release 13 May1999 A CONSTITUTIONALLY ACCEPTABLE SOLUTION Foreward 1. We respect and applaud the Central Government's repeated public declaration that it would not of its own accord seek to get involved in the present search for a solution to the problems said to arise from the Court of Final Appeal ("CFA") in the Right of Abode case ("the Problem"). 2. The question we have to face today therefore is not whether the Central Government has the power or should exercise that power to interpret any provision of the Basic Law. 3. The question today is whether constitutionally or legally, the SAR Government should abandon the amendment route and take steps or be seen to be taking steps to seek re-interpretation of Article 24 of the Basic Law as a means to deal with the Problem. 4. Before we continue, we should point out that there is a subtle distinction between constitutionality and legality. In constitutional law, sometimes a solution even if legal, may not be constitutionally acceptable to a particular constitutional framework legally put in place. The Power of Interpretation Under the Chinese Constitution 5. Under the Chinese Constitution, there is a distinction between interpretation of the Constitution and interpretation of other laws, including basic laws. This can be seen from Articles 67(1) & (4) of the Constitution. It is also to be noted that the National People's Congress ("NPC") has the sole power to amend the Constitution and other laws including basic laws but does not have the power to interpret either the Constitution or other laws: Article 62. This power to amend is unqualified and supreme. The NPC Standing Committee ("NPCSC") on the other hand, does not have any unqualified power to amend but has the power to interpret both the Constitution and other laws. 6. It will be seen from Article 67(3) & (4), that there is a distinction of the functions and powers of the NPC Standing Committee ("NPCSC") to on the one hand, "partially supplement and amend, when the [NPC] is not in session, laws enacted by the [NPC] provided that the basic principles of these laws are not contravened" (see Article 67(3)) and on the other hand "to interpret laws" (see Article 67(4)). 7. As to the power of interpretation, there is a further distinction between legislative and judicial interpretation: see Lun Lifa Jieshi (On Legislative Interpretation), Zhongguo Faxue, No. 6, 1993, p.36. 8. In a resolution passed at the 19th meeting of the NPCSC held on 10th June 1981, it was said that in relation to laws which required further clarification or supplement the NPCSC shall interpret or use legislative orders (Fa Ning) to regulate such laws. 9. Obviously, a supplement and amendment of the laws cannot and should not be disguised as an "interpretation". This is accepted by many Chinese jurists: see e.g. Lun Lifa Jieshi, supra., where the joint authors said (at p.38):- "In our view, one should not openly approve or encourage interpretation to take the place of amendment of the laws, or the authority and unity of the legal system would be undermined." 10. A Fortiorai, one should not approve or encourage interpretation to take the place of amendment of the Basic Law without open debate as envisaged under Article 159 of the Basic Law. 11. Later in the same article (at p.40), the authors revealed that at the moment, there is no established formula or procedure as to how the power of interpretation is to be exercised by the NPCSC. 12. Furthermore, if the power to supplement or amend is circumscribed by the qualification not to contravene the basic principles of the laws, then clearly, the same qualification will be even more pertinent in the case of interpretation. 13. In the present case, the Court of Final Appeal ("CFA") is entrusted under Article 158 of our Basic Law by the NPCSC when adjudicating cases to interpret the Basic Law. This power to interpret was granted to the SAR as part of the constitutional package under Article 2 of the Basic Law. In a proper exercise of its jurisdiction and the power so entrusted, the CFA has interpreted Article 24 and delivered a final adjudication as to the rights of people coming under that article. 14. For the NPCSC to exercise its power to "re-interpret" so as to overturn the CFA decision would be to overturn an interpretation which is legal and properly reached under the Basic Law and as authorised by the NPCSC itself. To do so, will also be contrary to the basic principles of the Basic Law and that constitutional package granted to the SAR which clearly stipulated that the Hong Kong SAR shall have a high degree of autonomy, judicial independence and the power of final adjudication under Articles 2, 19, 80 and 82. Furthermore, it will be contrary to the spirit and intent of Article 158 which guarantees that any interpretation should not affect a previous decision of the CFA. 15. It is also arguable that such an interpretation also contravenes the basic principle enshrined in the Joint Declaration as to the independence of the Judiciary and the power of final adjudication. This is what I would call a basic constitutional objection. 16. There is a further purely legal objection from the Chinese law point of view. Legal interpretation in China can take several forms: language interpretation, logic interpretation, context interpretation and historic interpretation, see Fa Lu Gai Lun by Peng Jun Liang at pp.81-82. In the case of Article 24, it is difficult to see how the first three forms of interpretation can extend the meaning of Article 24 to cover the situation desired by the SAR Government. 17. It follows that a proper interpretation short of supplementing or amending Article 24 cannot legally achieve the result which the SAR Government desires. To abuse this procedure to achieve the ends desired will be legally impermissible under the Chinese Constitution or Chinese Law. 18. For all these reasons, even if the NPCSC does have the power to "interpret" the Basic Law in the present case, it is not constitutionally or legally acceptable for the SAR Government to ask NPCSC to do so. Whether SAR Government Has A Power To Refer 19. It is plain from Article 158 and indeed from the rest of the Basic Law that there is no provision or procedure for the SAR Government to refer any article under the Basic Law to the NPCSC for interpretation in the absence of a legal dispute. It is equally obvious that there is no such provision or procedure to overturn an interpretation already pronounced by the CFA. 20. It has been suggested that such a power is to be implied from Article 48. That, with respect, is a violent distortion of the language and meaning of Article 48. What that article provides is that the Chief Executive ("CE") is responsible for the implementation of the Basic Law and other laws. Article 81 further confirms that the existing legal system should be preserved. What all this means is that where the CFA has given an interpretation of the Basic Law, the CE is entrusted with the duty to implement the CFA's decision. This was the position as regards general laws before the Handover. This should be the position as regards all laws including the Basic Law after the Handover. 21. Even under Chinese Laws, the approach is no different. The concept of implementation of the law by the executive simply means that the executive must carry out its duties in accordance with the law. See: Fa Lu Gai Lun by Peng Jun Liang at p.182. Should There Be A Reference By The SAR Government 22. Even assuming the SAR Government has the power to seek an interpretation of the Basic Law, quite plainly in view of the fact that there is already a legally binding interpretation of Article 24 reached by the CFA, any attempt to overturn this interpretation by the SAR Government will be contrary to Articles 2, 8, 18, 19, 48, 81, 158 and 159 of the Basic Law, not to mention the spirit and intent of the Joint Declaration. 23. There is a greater objection to the SAR Government undertaking this dangerous course. Under our existing legal system preserved under Article 81 of the Basic Law, the SAR Government, like anyone else, must obey a ruling of the Court unless and until the law is changed. As pointed out by one of our Appeal Court Judges, it is worth recalling the words of Wilson J. in In re Bachand v. Dupuis [1946] 2 D.L.R. 641 at 655:- "The whole value of the legal system - the integrity of the rule of law - is at once destroyed if it becomes possible for officials by arbitrary decisions made, not in the public court rooms but in the private office of officialdom, without hearing the parties, without taking evidence, free of all obedience to settled legal principles, and subject to no appeal, effectively to overrule the Courts .............." 24. In this respect, one can find similar concepts being espoused by Chinese jurists. In Ji Ben Gai Lun, edited by a number of highly respected professors and lawyers, it was said at pp.93-94:- "When the NPCSC authorizes the HKSAR Courts to apply the Basic Law in adjudicating cases and to interpret on its own provisions of the Basic Law concerning matters of autonomy of the HKSAR, it means the Hong Kong Courts have the power to interpret the provisions falling within the scope of its autonomy without having to invite the NPCSC to give an interpretation. The parties to the proceedings have no right to request the NPCSC for an interpretation. As most of the provisions of the Basic Law fall within the scope of a high degree of autonomy of the HKSAR, the scope of interpretation of the Basic Law by the HKSAR Courts is thus very wide." (emphasis supplied) 25. For the SAR Government to be seen to be actively taking steps to overturn a decision of the CFA by substituting its interpretation of Article 24 by another and different interpretation from the NPCSC must give rise to the impression that the SAR Government is seriously challenging the Rule of Law in Hong Kong under our legal system as preserved under the Basic Law. Proposals For A Solution 26. In these circumstances, it is submitted that the only constitutionally acceptable solution is for the SAR Government to introduce legislation immediately after full consultation with the immigration authorities of the Central Government to implement the decision of the CFA. As a long term solution, the SAR Government could seek to amend Article 24 under Article 159. 27. Gauging from the tenacity of public opinion and the various stances of the major political parties in Hong Kong, it is inconceivable that the SAR Government would not be able to secure the necessary consent of the legislative Council. 28. The proposed amendment will be simple and provided a suitably worded amendment is put forward, there is no reason to think that such a proposal, having secured the consent of the CE and the legislative Council, should be rejected by the NPC. 29. For all these reasons, we will respectfully call for such an amendment and immediate action to avoid the present deeply decisive controversy surrounding the sensitive question of "re-interpretation" by the NPCSC. For further enquiries, please contact Mr. Alan Leong, SC at 2526 6182, Mr. Johannes Chan at 2859 2935 and Mr. Ambrose Ho at 2524 2156.










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