Audrey EU: Interpretation Is A Lose-Lose Move For Everyone

China's announcement that the National People's Congress Standing Committee (NPCSC) will interpret two provisions in the Basic Law at a meeting that begins on Friday is a real shocker. At a stroke, it threatens to throttle any further discussion of democratization in the territory and undermine Hong Kong's rule of law.

The lack of transparency and the speed at which the interpretation is being made run counter to the legislative process in most civilized countries. Despite the imminence of the event, no attempt has been made to solicit the views of the people of Hong Kong. The only people who have been allowed to see a draft of the interpretation are the 12 Hong Kong and mainland members of the Basic Law Committee, an appointed body under the NPCSC. They are expected to let the interpretation go through on the nod. Indeed they have already defended it, saying the draft is relatively mild, only concerns general principles and is likely to be acceptable to the people of Hong Kong.

Nonetheless fears persist that the interpretation will make it impossible to introduce universal suffrage for the selection of Hong Kong's next chief executive in 2007 -- even though the Hong Kong government had previously acknowledged that the annexes to the Basic Law permit changes to be made in that year, provided the procedures therein are complied with.

It is difficult to imagine a dumber and more unnecessary move. Paragraph 7 of Annex I of the Basic Law, one of the two provisions to be interpreted, already stipulates that no changes can be made to the way Hong Kong's chief executive is chosen without the endorsement of two-thirds of the members of the Legislative Council, the consent of the chief executive -- currently Tung Chee Hwa -- and it being "reported to the NPCSC for approval." Paragraph 3 of Annex II, the other provision to be interpreted, lays down a similar procedure, save that the last step is being "reported to the NPCSC for the record."

That means no changes can be made without the consent of all three parties, through a three-step procedure which has not yet been given a chance to get underway. Even if elections in September return a majority of democrats to the Legislative Council -- as Beijing seems to fear -- any resolution they introduce to change Hong Kong's political system would still require the approval of the current chief executive and the NPCSC.

But now the interpretation threatens to turn this three-step procedure on its head, allowing the NPCSC to veto any further discussion of political reform before it even reaches the first stage.

The interpretation also has worrying implications for Hong Kong's legal system. The territory follows the common law, with laws being passed by the legislature and interpreted by the courts. China follows a different system, under which laws can be interpreted by the NPCSC, which is essentially a political organ. In recognition of Hong Kong's separate system, Article 158 of the Basic Law -- while acknowledging the NPCSC's power of interpretation -- sets out a procedure for Hong Kong's highest court to decide whether to refer an issue involving the Basic Law to the NPCSC for interpretation. And it has been repeatedly acknowledged that this should be a very rare event. In fact the final court has never made such a reference.

Instead the only reference so far was by Mr. Tung in 1999, after the Hong Kong Court of Final Appeal ruled against the government in a landmark decision on the right of abode. The wounds caused by the controversy over that interpretation were only just beginning to heal when the sudden announcement of this new interpretation, this time on Beijing's own initiative, have sent fresh shockwaves through the Hong Kong community.

Even though the NPCSC has the legal authority to interpret the Basic Law, it is extremely unwise to use this power to resolve what is essentially a political issue. When Hong Kong should introduce universal suffrage is a matter for political debate. Indeed Beijing has just announced that it is sending a special envoy to listen to the views of Hong Kong people in coming months. He is Zhu Yucheng, director of the Hong Kong and Macau Research Institute at the Development Research Center of China's State Council. A taskforce headed by Hong Kong's chief secretary, Donald Tsang, is also in the midst of consulting the public about political reform. Such consultation is the proper way to resolve political issues. Now, by instead resorting to the purported exercise of a legal power Beijing is demonstrating its lack of respect for the rule of law.

An unnecessary interpretation on Beijing's own initiative will undermine Hong Kong's high degree of autonomy and set a worrying precedent for the future. Other provisions in the Basic Law on balancing the budget, Hong Kong's low tax policy and public finance -- all these could fall victim to rewriting by the NPCSC in future, under the guise of issuing another interpretation. In fact, it should not really be termed interpretation at all, since what it really amounts to is amending the Basic Law without going through the proper legal procedures.

Governments should formulate policies through discussion and consensus, rather than resorting to rule by naked power, even when -- as in this case -- it is cloaked in the letter of the law. The NPCSC interpretation is like a nuclear weapon which should never be used. And if Beijing does persist in going down the path of ruling out universal suffrage in 2007, it will drive even many moderates, who don't necessarily support the early introduction of full democracy, into opposition.

The negative effects that will flow from this move are almost too numerous to mention. It will marginalize the Hong Kong government, which is supposed to serve as the bridge between Hong Kong people and the central authorities, undermine the one country, two systems concept, and damage international confidence in Hong Kong and all of China. It is the wrong way to go and a lose-lose move for everyone involved.

Ms. Eu is a democratically elected member of Hong Kong's Legislative Council.

(Published on Asian Wall Street Journal on 30 March 2004)