18/5/99 - A Constitutionally Acceptable Solution (Edited Version)

The Bar's Views on the Right of Abode Case

Press Release

18 May1999

A CONSTITUTIONALLY ACCEPTABLE SOLUTION (Edited Version)

The Bar respects and applauds 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"). 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. 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.

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. For example, legally speaking, the Queen of England always has the power to dissolve parliament but she will never do so of her own volition.

Distinction Between Power of Interpretation and Power of Amendment

Under the Chinese Constitution, the functions and powers of the National People's Congress ("NPC") and the Standing Committee of the NPC ("NPCSC") are separate and clearly defined. There is also a clear distinction between the power of amendment and power of interpretation. These distinct powers are separately vested in the NPC and NPCSC. The NPC has the sole power to amend the Constitution and other laws but does not have the power to interpret either the Constitution o r other laws; whereas the NPCSC does not have any unqualified power to amend but has the power to interpret both the Constitution and other laws.

However, as the NPC is convened only once every year, Article 67(3) of the Chinese Constitution empowers the NPCSC to "partially supplement and amend, when the [NPC] is not in session, laws enacted by the [NPC] provided that the basic principles of th ese laws are not contravened". This limited power to supplement and amend, however, is quite different from its power "to interpret laws" under Article 67(4).

The limited power of the NPCSC to supplement and amend laws cannot and should not be disguised as an "interpretation". This is accepted by many Chinese jurists including authors from NPCSC Research Centre and the Chinese University of Politics and La w:

"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." (see: Lun Lifa Jieshi (On Legislative Interpretation), Zhongguo Faxue, No.6, 1993, p.38).

Not only do the authors emphasize the distinction between amendment and interpretation, they further revealed that there is no established procedure as to how the power of interpretation is to be exercised by the NPCSC at the moment.

As noted above, the limited power of the NPCSC to supplement and amend is circumscribed by the qualification not to contravene the basic principles of the laws. Clearly, the same qualification will be even more pertinent in the case of interpretation.

Furthermore, there is practical significance in keeping the distinction. Under our Basic Law, the process of amendment laid down in Article 159 not only requires but guarantees participation and open debate by the people of Hong Kong through our LegC o members. Interpretation involves no such process. To approve or encourage interpretation to take the place of amendment is to deprive Hong Kong people of such participation.

On the other hand, under Article 158 of our Basic Law, the Court of Final Appeal ("CFA") is entrusted by the NPCSC to interpret the Basic Law when adjudicating cases. This power to interpret was granted to the SAR as part of the constitutional package under Article 2. 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.

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 is 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. 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. Such an interpretation also contravenes the basic principle enshrined in the Joint Declaration and in particular, Annex I which set out the Basic Policies of the Chinese Government as regards Hong Kong as to the independence of the Judiciary and the power of final adjudication. This is what we would call a basic constitutional objection.

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. 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.

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

It is plain from Article 158 and indeed from the rest of the Basic Law that there is no procedure for the SAR Government to refer any article under the Basic Law to the NPCSC for interpretation outside the context of legal proceedings. It is equally obvious that there is no such provision or procedure to overturn an interpretation already pronounced by the CFA. It has been suggested that such a power is to be implied from Article 48. That is a violent distortion of the language and meaning of Article 48. What Article 48 provides is that the Chief Executive ("CE") is responsible for the implementation of the Basic Law and other laws. 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.

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, p.182).

Should There Be A Reference By The SAR Government

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.

There is a further objection if the SAR Government were to undertake this dangerous course. Under our existing legal system the SAR Government, like anyone else, must obey a ruling of the Court unless and until the law is changed. As pointed out by o ne 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 .............."

In this respect, one can find similar concepts being espoused by Chinese jurists. In Ji Ben Fa Gai Lun, edited by a number of well 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 f all 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)

For the SAR Government to be seen to be actively taking steps to overturn a decision of the CFA by seeking a "re-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

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.

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.

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.

For all these reasons, the Bar calls for immediate action to avoid the present deeply decisive controversy surrounding the sensitive question of "re-interpretation" by the NPCSC.

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The Bar's Views on the Right of Abode Case
Press Release 18 May1999 A CONSTITUTIONALLY ACCEPTABLE SOLUTION (Edited Version) The Bar respects and applauds 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"). 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. 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. 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. For example, legally speaking, the Queen of England always has the power to dissolve parliament but she will never do so of her own volition. Distinction Between Power of Interpretation and Power of Amendment Under the Chinese Constitution, the functions and powers of the National People's Congress ("NPC") and the Standing Committee of the NPC ("NPCSC") are separate and clearly defined. There is also a clear distinction between the power of amendment and power of interpretation. These distinct powers are separately vested in the NPC and NPCSC. The NPC has the sole power to amend the Constitution and other laws but does not have the power to interpret either the Constitution o r other laws; whereas the NPCSC does not have any unqualified power to amend but has the power to interpret both the Constitution and other laws. However, as the NPC is convened only once every year, Article 67(3) of the Chinese Constitution empowers the NPCSC to "partially supplement and amend, when the [NPC] is not in session, laws enacted by the [NPC] provided that the basic principles of th ese laws are not contravened". This limited power to supplement and amend, however, is quite different from its power "to interpret laws" under Article 67(4). The limited power of the NPCSC to supplement and amend laws cannot and should not be disguised as an "interpretation". This is accepted by many Chinese jurists including authors from NPCSC Research Centre and the Chinese University of Politics and La w: "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." (see: Lun Lifa Jieshi (On Legislative Interpretation), Zhongguo Faxue, No.6, 1993, p.38). Not only do the authors emphasize the distinction between amendment and interpretation, they further revealed that there is no established procedure as to how the power of interpretation is to be exercised by the NPCSC at the moment. As noted above, the limited power of the NPCSC to supplement and amend is circumscribed by the qualification not to contravene the basic principles of the laws. Clearly, the same qualification will be even more pertinent in the case of interpretation. Furthermore, there is practical significance in keeping the distinction. Under our Basic Law, the process of amendment laid down in Article 159 not only requires but guarantees participation and open debate by the people of Hong Kong through our LegC o members. Interpretation involves no such process. To approve or encourage interpretation to take the place of amendment is to deprive Hong Kong people of such participation. On the other hand, under Article 158 of our Basic Law, the Court of Final Appeal ("CFA") is entrusted by the NPCSC to interpret the Basic Law when adjudicating cases. This power to interpret was granted to the SAR as part of the constitutional package under Article 2. 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. 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 is 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. 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. Such an interpretation also contravenes the basic principle enshrined in the Joint Declaration and in particular, Annex I which set out the Basic Policies of the Chinese Government as regards Hong Kong as to the independence of the Judiciary and the power of final adjudication. This is what we would call a basic constitutional objection. 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. 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. 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 It is plain from Article 158 and indeed from the rest of the Basic Law that there is no procedure for the SAR Government to refer any article under the Basic Law to the NPCSC for interpretation outside the context of legal proceedings. It is equally obvious that there is no such provision or procedure to overturn an interpretation already pronounced by the CFA. It has been suggested that such a power is to be implied from Article 48. That is a violent distortion of the language and meaning of Article 48. What Article 48 provides is that the Chief Executive ("CE") is responsible for the implementation of the Basic Law and other laws. 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. 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, p.182). Should There Be A Reference By The SAR Government 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. There is a further objection if the SAR Government were to undertake this dangerous course. Under our existing legal system the SAR Government, like anyone else, must obey a ruling of the Court unless and until the law is changed. As pointed out by o ne 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 .............." In this respect, one can find similar concepts being espoused by Chinese jurists. In Ji Ben Fa Gai Lun, edited by a number of well 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 f all 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) For the SAR Government to be seen to be actively taking steps to overturn a decision of the CFA by seeking a "re-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 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. 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. 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. For all these reasons, the Bar calls for immediate action to avoid the present deeply decisive controversy surrounding the sensitive question of "re-interpretation" by the NPCSC.










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