An issue on the nature of autonomy: Opinion

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Last updated at: (Beijing Time) Friday, December 12, 2003

An issue on the nature of autonomy: Opinion

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CHINESE

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Misled by a few Hong Kong political actors and without unambiguous clearance from the Constitutional Affairs Bureau of the Hong Kong Special Administrative Region (HKSAR), many people have been thinking that election by universal suffrage is a purely local matter.

On December 4, a quartet of Beijing legal experts felt compelled to state the HKSAR's democratic development is not merely an internal affair of the territory, but rather something that concerns the responsibility of the central government and the relationship between the central authorities and the SAR.

Notwithstanding that some people may be unhappy, I believe the opinion expressed by those four legal experts is proper, judging from the relevant provisions of the Hong Kong Basic Law:

1. "Method for the selection of the chief executive of the HKSAR" and "Method for the Formation of the Legislative Council of the HKSAR and Its Voting Procedure" are provided in Annexes I and II of the Basic Law. By No 26 of the Decree of the President of the People's Republic of China on April 4, 1990, and the "Decision of the National People's Congress (NPC) on the Hong Kong Basic Law" adopted by the NPC the same day, the Basic Law has included its annexes. It means the annexes of the Basic Law cannot be separated from the Basic Law itself.

2. In both annexes, it is stated that "If there is a need to amend the method for selecting the chief executive for the terms subsequent to the year 2007, ..." (Annex I) and "if there is a need to amend the provision of this Annex" (Annex II). The problem will then be who will decide the question of need. It is surely a question of interpretation of the Basic Law.

If there is a relevant case to be adjudicated on this matter, then the courts of the region will be passively required to construe in accordance with Article 158 (2) and (3) of the Basic Law. If there is not such an appropriate case, the NPC standing committee (NPCSC) as conferred by Article 158 (1) of the Basic Law will perhaps need to give its construction after solicitation of Hong Kong public opinions. Since the NPCSC is in fact one of the central authorities of the whole country under the Chinese Constitution, the illustration on whether "there is a need" is again a matter to be decided outside autonomy of the region.

3. Even the words "subsequent to the year 2007" need some sort of clarification. They may either include or exclude the year 2007 itself. By July 1, 2007, the chief executive of the region on the third term will have assumed office. If the words "subsequent to the year 2007" exclude the year 2007 as "subsequent" normally means "later" or "following" according to common English dictionaries, then it is too early now to review the method for selection of the chief executive in 2012. Again, it may be another issue of interpretation to be ordained by the NPCSC.

4. It may also be appreciated in both Annexes of the Basic Law that any amendment to Annex 1 "shall be reported to the NPCSC for approval" whilst any amendment to Annex II "shall be reported to the NPCSC for the record."

From the viewpoint of constitutional and administrative law, "for approval" means a prior check and balance mechanism is in place before something to be concurred with can be implemented. "For the record" is another thing. It refers to subsequent check and balance mechanism after something reported is being implemented.

By the general principles of interpretation of law, "reported for approval" implies either approval or disapproval, whilst "reported for the record" implies either acceptance for record or return for follow-up rectification. Again, both different mechanisms are not purely an autonomous matter. Please note the special procedures should be applied to amend Annex I and II of the Basic Law. Endorsement of a two-thirds majority of all the members of the Legislative Council (LegCo) and the consent of the chief executive are both "a must" before it can be reported to the NPCSC for approval or for the record as the case may likely be.

5. Subsequent to legitimate amendment to Annex I of the Basic Law, corresponding local legislation on the election of the chief executive can proceed. Normal procedure is applied to pass the Bill. After the Bill has been signed by the chief executive, it can be reported to the NPCSC for approval. If the amendment to Annex II is not returned by the NPCSC, the corresponding Bill for election of the LegCo can also be passed and signed as local legislation, and then reported to the NPCSC for the record.

By Article 17 (3) of the Basic Law, the NPCSC after consulting the committee for the Basic Law may return the relevant election ordinances in question, should they be in contradiction with the legitimately amended Annex I and II of the Basic Law.

From these analyses, there are probably three stages for review and implementation of the selection of the chief executive and of the formation of the LegCo subsequent to the year 2007 as follows:

Stage 1. Solicitation of public opinions. In this stage, the authentic meaning of "subsequent to the year 2007" should be pursued and a decision on whether "there is a need" to amend both Annex I and II of the Basic Law, or to amend one but not the other should also be confirmed with the NPCSC. There is also a possibility that no amendment will be desirable.

Stage 2. Amendment to corresponding Annexes of the Basic Law. Once the NPCSC has decided to amend, the HKSAR government should again solicit public opinions in light of the actual local situation and in accordance with the principle of gradual and orderly progress as stipulated in Articles 45 (2) and 68 (2) of the Basic Law.

With a consensus to safeguarding the interests of all strata and of all sectors of society and taking the impacts on the social stability and the economic prosperity of the HKSAR into consideration, the HKSAR may propose the corresponding amendments by the specific procedures given in Annex I and II of the Basic Law.

Stage 3. Local legislation. Once the legitimate amendments to Annexes I and II of the Basic Law have been rectified, the HKSAR government should also solicit public opinions on the detailed implementation of the said amendments in the said Annexes.

With due regard to the principle in Article 45 (2) and 68 (2) of the Basic Law, local legislation in conformity with the amended Annexes of the Basic Law can be proceeded.

China Daily news, by Song Sio-Chong, affiliated with the Hong Kong Political, Economic and Cultural Society.

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