Responses to the NPCSC interpretation to the Basic Law
CE's transcript
CS's statement and transcript
The Democratic Party
Democratic Alliance for Betterment of Hong Kong
Hong Kong Bar Association chairman Edward Chan King-sang
Members of Article 45 Concern Group
Member of the Basic Law Committee Albert Chen Hung-yee
Dean of the University of Hong Kong's law faculty Johannes Chan Man-mun
E-Letter of Christine Loh
Human Rights Watch
U.S. Department of State Deputy Spokesman Adam Ereli
Democratic Party chairman Yeung Sum warned that the damage had been done to Hong Kong's autonomy and a bad precedent had been set in Beijing exercising its power to interpret the mini-constitution whenever it liked to tackle sensitive issues.
"The interpretation has created something out of the blue as it has used political power to create a checkpoint for democracy and political reform. The fact now is that the special administrative region cannot even make an amendment proposal itself but needs to first get Beijing's approval," Dr Yeung said.
Yeung also said the negative effect would be deep and prolonged. "[It was] designed to strengthen the position of the central government at the expense of the high degree of autonomy that Hong Kong had been promised.
"The so-called soft package, or moderate interpretation, had but one meaning - that the SAR government itself had no power to initiate change," he said.
"It is clear that the central government has simply used the interpretation exercise to achieve its political objectives."
Former party chairman Martin Lee said the interpretation was a bad precedent which undermined the authority of the local courts.
"The central government can now use this precedent to dispense with human rights and the rule of law as stipulated in the Basic Law," he said.
His colleague, Albert Ho Chun-yan, warned that the "unnecessary act" could open the door for the central government to interpret other clauses in the Basic Law in future to "direct" Hong Kong's administration.
The Democrats urged people to vote for the pro-democracy camp as a way to pressure the government.
Democratic Alliance for Betterment of Hong Kong Democratic Alliance for Betterment of Hong Kong The chairman of the Democratic Alliance for Betterment of Hong Kong, Ma Lik, said the interpretation could resolve unnecessary political disputes and push the political development of Hong Kong back on the right track.
The party said as long as the chief executive fully consulted the public before filing a report to the National People's Congress, the people of Hong Kong would play a major role in the reform process.
Hong Kong Bar Association chairman Edward Chan King-sang
Hong Kong Bar Association chairman Edward Chan King-sang said the interpretation was ``unfortunate'' as it actually amounted to a law amendment.
Chan: "From the common law perspective, they are not interpreting the laws but enacting new laws."
The interpretation had inserted a fourth requirement for political reform that was nowhere to be found in the original texts of the Basic Law annexes, Mr Chan said. The new requirement was that the Hong Kong government report to the Standing Committee to allow it to "make an initial decision" before the process for changing the electoral methods could be initiated.
Mr Chan said this opened a fresh avenue for legal challenges against the government since the interpretation had imposed a legal obligation on it to compile such a report.
"The interpretation was designed to resolve disputes but in reality it has enlarged the prospects for more disputes," Chan said.
"Political issues should not be legalised, but the standing committee has managed to fit political issues into a legal framework and then legalised it."
Members of Article 45 Concern Group
Article 45 Concern Group member and independent lawmaker Audrey Eu said the interpretation of the Basic Law had thrown up new barriers to the election of the chief executive and the Legislative Council. "When [the NPC] said interpretation, they meant amendment," Eu said, "the Standing Committee had interpreted the Basic Law in such a way as to suit Beijing's political goals."
Ms Eu said the interpretation dealt a blow to the authority of the Basic Law since it gave the impression the Standing Committee could interpret it when it wished.
Member of the Basic Law Committee Albert Chen Hung-yee
Albert Chen Hung-yee said the interpretations had cleared up doubts surrounding procedures for constitutional reform. Professor Chen, a member of the Basic Law Committee, said they confirmed Hong Kong had an important role to play in reforms.
"Not only [does] Hong Kong have the right to speak, it can even take the initiative to suggest there is a need to change the current procedure," Professor Chen said.
Dean of the University of Hong Kong's law faculty Johannes Chan Man-mun
Dean of the University of Hong Kong's law faculty Johannes Chan Man-mun said that besides inserting a new hurdle, the committee had not clarified anything. Rather, it had raised new questions.
"On what basis should the chief executive make [an] application to the NPC Standing Committee [to change electoral methods]? And on what basis should the Standing Committee approve it?" Professor Chan asked.
He said even if the application was approved, it would still need the consent of two-thirds of Hong Kong legislators. "If there are further changes [to the proposal] during the discussion in Hong Kong, what will happen? Will the Standing Committee accept them all? OR will the committee have an ultimate power of initiation?"
"The NPC [National People's Congress] did not like the way the political discussion was being handled in Hong Kong so it decided to add or subtract something from the Basic Law during a closed door meeting.
"By doing this, the authority of the Basic Law and the rule of law in Hong Kong have been tarnished," Chan said.
Beijing's decision to have the SCNPC interpret the Basic Law (BL) represents a new Hong Kong policy sparked by fear of the 1 July 2003 protest.
Beijing seems to have lost confidence in the Tung Administration ability to handle the consitutional reform debate and thus feel it must assert itself to reduce risk of another large protest this year.
A. Effect of interpretation - back to front
New reporting procedure: By requiring a new process of having the Chief Executive (CE) first prepare a report for the SCNPC's approval on whether there is a "need" for change, LegCo cannot put forward any proposal on political reform without the preliminary approval of the SCNPC.
Back to front process: Reading BL Articles 45 and 68 together with Clause 3 Annex I and Clause 7 Annex II, the SCNPC's involvement is set at the end of the process, especially in the case of LegCo elections, whereas the interpretation has now put it back to front.
Amended BL: The effect of the interpretation is that it has amended the BL.
Danger of expediency: According to NPC deputy, Raymond Wu, Hong Kong can expect more interpretations. Lets hope he is wrong.
Issue of certainty: By using interpretation to amend the BL, it increases uncertainty, thereby compromising Hong Kong's autonomy and rule of law in the common law tradition.
"Two systems": In implementating "one country, two systems", there are two fundamentally different systems and both need to be accommodated. The question is whether this is being successfully done.
B. Chief Executive report to SCNPC
Task Force's report: Chief Secretary, Donald Tsang, said yesterday that the Task Force on Constitutional Development's report [see 31/1 eNewsletter] will likely form the basis of the CE's report to the SCNPC.
CE's report: The CE's report is likely to be produced in the foreseeable future and will identify a "need" for change in order to create an "improve political system" for more effective governance although it will be to tinker with the current system rather than replace it with universal suffrage.
Why no universal suffrage: "Ruling Hong Kong with patriots as the main body" is Beijing's guiding principle in considering reform. In its view, Hong Kong is not yet ready for universal suffrage in 2007-2008 because a system of free elections may not return leaders who are sufficiently patriotic. Therefore, Hong Kong's constitutional development must proceed in a "gradual and orderly" manner to ensure that the majority of those ruling Hong Kong are "patriots". This was what the patriotism episode (Feb-Mar) was all about.
Opportunities: As the SCNPC interpretation has not explicitly shut out more major reform in 2007-2008 altogether, the pro-democracy camp needs to consider how to exploit opportunities to influence the CE's report by continuing to encourage public support for universal suffrage.
Beijing's charm offensive: Beijing will try to foil the pro-democracy camp's efforts by embarking on a charm offensive to convince the political elites and general public that gradual change is best and that the SCNPC interpretation was for the good of all. Hence, Hong Kong-based mainland officials met three pro-democracy legislators on 30 March who wanted to go to Beijing to put views to the SCNPC; and Qiao Xiayang - the deputy general secretary of the SCNPC - flies to Hong Kong today to meet people to ease concerns.
C. Observations
1. Will Beijing's charm succeed?
This will depend on how charming they are. If mainland officials can depart from their entrenched distrust of Hong Kong and be prepared to build relations with the pro-democracy camp, then the charm offensive may well work. It could then also open a new chapter in nation-building where Hong Kong and Beijing can begin to build a more normal relationship rather than continue to wallow in pre-1997 colonial context. The fact that the Tung Administration has not built trust between Hong Kong and Beijing may well be his greatest failure leading to the 1 July 2003 protest and now Beijing's need to interpret the BL.
2. How will the interpretation affect the LegCo election?
As Beijing starts its charm offensive, the pro-democracy camp is considering its options and the general public is digesting what the interpretation really means to Hong Kong. It is too early to predict how this episode may affect politics in the coming months, including the 12 September LegCo Election. How well Beijing conducts its charm offensive will be a factor.
CHRISTINE LOH
(New York, April 7, 2004) -- The Chinese government's new interpretation of the Basic Law pushes back the day when Hong Kong people will be able to exercise their right to choose their political leaders, Human Rights Watch said today. The decision means that electoral reforms can only be initiated by Beijing's hand-picked Chief Executive, and bars Hong Kong's legislature from taking any action without his approval.
The 1984 Joint Declaration between China and the United Kingdom, which established the terms of the transfer of Hong Kong sovereignty from Britain to China, and the Beijing-promulgated Basic Law guarantee Hong Kong people "high degree of autonomy" and basic human rights. Recent opinion polls in Hong Kong have shown large majorities in favor of direct elections and greater democracy.
"The Basic Law created the possibility and even the expectation of a fully elected legislature and a directly elected executive," said Brad Adams, executive director of Human Rights Watch's Asia division. "Issuing this interpretation was a transparent attempt to stifle public debate about greater democracy. Beijing's disinterest in what people in Hong Kong think or want couldn't be more apparent."
The new interpretation suggests that Beijing's goal is to preserve the status quo. At present, a majority of seats in Hong Kong's Legislative Council (LegCo) are elected by narrowly defined professional groups, while the Chief Executive is chosen by an election committee under the effective control of Beijing. Continuing with the current system would ignore the provisions in the Basic Law annexes that allow for amendments to Hong Kong's election system after 2007 and the obligation in Articles 45 and 68 of the Basic Law to move toward universal suffrage for the election of the Chief Executive and LegCo.
Beijing's move directly contradicts previous assurances by Chief Tung Chee-Hwa. During a visit to the United States in September 1997, Tung said that the Basic Law "says very clearly that at the end of that time we are going to move into universal suffrage if it is at that time the wish of the Hong Kong people." Tung went on to say that although the Basic Law can be amended to accelerate the process, "we got it about right, a 10-year process going forward, and looking at ultimately universal suffrage."
This looks like China and Tung have played a game of bait and switch with the Hong Kong people, suggesting an openness to more democratization just after the handover in 1997 but now making it clear that it is not in the offing, said Adams. This interpretation contradicts both the spirit of the Basic Law and the expectations of Hong Kong people, said Adams.
Under Article 25 of the International Covenant on Civil and Political Rights, all individuals have the right to "vote and be elected at genuine periodic elections which shall be by universal and equal suffrage." The Human Rights Committee has called on states to protect the right to participate in elections by "adopt(ing) such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights (Article 25) protects." The Committee has also stated that "article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant."
Human Rights Watch also faulted the Chinese government for an interpretation that went well beyond the scope of the Basic Law itself. While Article 158 allows the Standing Committee of the National People's Congress, China's highest legislative body, to issue interpretations of Basic Law provisions, those interpretations should be limited to resolving textual ambiguities, and should be issued only in conformity with Beijing's obligation under the Basic Law to preserve Hong Kong's autonomy and its common law system.
Because the interpretation issued today increases Beijing's power by adding procedural requirements not found in the Basic Law, it is essentially an amendment to the Basic Law, said Adams. China has no right to do this.
Under Article 159 of the Basic Law, all amendments must be approved by a 2/3 vote of the Hong Kong LegCo, and no amendment may "contravene the established basic policies of the People's Republic of China regarding Hong Kong," including those related to human rights.
"The Basic Law contains key protections for the people of Hong Kong,'' said Adams. If Beijing can change Basic Law provisions relating to elections, then what's to stop it from going after other parts of the Basic Law that protect other basic human rights?
The interpretation by the Standing Committee added a new procedural requirement in order to democratize Hong Kong's electoral system. Under Beijing's interpretation, LegCo is barred from initiating a reform of the election law. Instead, the reform process can only be initiated by the Chief Executive, who is effectively appointed by Beijing. The Standing Committee must then approve any reform proposals initiated by the Chief Executive before the Legislative Council can weigh in.
These requirements are not found in the text of the Basic Law. Despite repeated calls by pro-democracy groups and political parties in Hong Kong to engage in an open and consultative process before issuing an interpretation, the central government refused to engage in any dialogue with the people of Hong Kong.
U.S. Department of State Deputy Spokesman Adam Ereli
QUESTION: You may have seen the report from Hong Kong about the Chinese are not giving the Hong Kong democracy advocates much leeway these days. And you may have seen an announcement on that, in fact, today. Any comment?
MR. ERELI: We have seen that report.
I guess our comment would be simply to restate our policy on Hong Kong and on democracy there, which I think you're very familiar with: That policy is that we support electoral reform and universal suffrage in Hong Kong in keeping with the Basic Law's own goals, and we would encourage dialogue, continuing dialogue between the Government of Hong Kong and the people of Hong Kong toward that end.
We would also encourage the Hong Kong Government to do everything possible to respond to the expressed aspirations of the Hong Kong people for electoral reform and universal suffrage.
We would also note that international confidence in Hong Kong is predicated on its rule of law and high degree of autonomy, and we will continue to watch the situation in Hong Kong closely, and our goal is to support Hong Kong's continued stability and prosperity.
QUESTION: Does that mean, Adam, that you believe that the Chinese parliament, the NPC, should not have the right of review over anything that has, over any changes that might be made?
MR. ERELI: I guess I'd put it this way: that Hong Kong's continued prosperity, Hong Kong's continued stability, Hong Kong's continued success depends on, and will continue to depend on the autonomy that was envisioned by Beijing nearly 20 years ago when it created the "One Country, Two Systems" framework, and that our aim is to support that, that kind of autonomy, that kind of prosperity, that kind of stability, consistent with the Basic Law.
QUESTION: What, but do you, do you think that the right of review by Beijing over, over, over what it goes on in Hong Kong is consistent with the Basic Law?
MR. ERELI: I'd put it this way: that the Basic Law guarantees "One Country, Two Systems," that it is critical for "One Country, Two Systems" that there be a fully autonomous and open society that is governed by the rule of law in Beijing. I'm sorry, in Hong Kong.
QUESTION: Okay. I'm try -- really, I'm only looking for a yes or no answer.
MR. ERELI: Sorry. I'm sorry if I can't accommodate.
QUESTION: Does that mean that you don't -- you don't have an opinion on whether the NPC should have final say?
MR. ERELI: No, it means that our opinion is that Hong Kong ought -- prosperity and stability is important to autonomy.
QUESTION: Right, I got that. You've said that three times now.
MR. ERELI: So that's, that's what our position is. That's the best I can do for you.