Explanations on Draft Interpretations of HK Basic Law Annexes

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Explanations on Draft Interpretations of HK Basic Law Annexes

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The following is a Xinhua translation of the Explanations on the Draft Interpretations of Clause 7 of Annex I and Clause 3 of Annex II to the Basic Law of the Hong Kong Special Administrative Region delivered on April 2 to the National People's Congress Standing Committee:

Explanations on "Interpretations of Clause 7 of Annex I and Clause 3 of Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China by the Standing Committee of the National People's Congress (draft)"

Delivered at the 8th meeting of the Standing Committee of the 10th National People's Congress (NPC) on April 2, 2004.

By Li Fei, vice-chairman of the Legislative Affairs Commission of the NPC Standing Committee Chairman, Vice Chairpersons, Secretary-general and members of the NPC Standing Committee:

Entrusted by the meeting of the chairman and vice chairpersons of the NPC Standing Committee, I hereby make explanations on "Interpretations of Clause 7 of Annex I and Clause 3 of Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China by the Standing Committee of the National People's Congress (draft)". The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (referred to as "Hong Kong Basic Law" in the following text) stipulates on Hong Kong's constitutional system in accordance with the principle of "one country, two systems" and a series of guidelines and policies the State has adopted for Hong Kong. It has taken into account Hong Kong's legal status and actual situation, as well as the interests of all social strata, and is conducive to the development of the capitalist economy in Hong Kong. While preserving the effective parts of Hong Kong's old constitutional system, the Basic Law states explicitly that the development of democracy in Hong Kong should follow the important principles of "conforming to the actual situation, seeking a gradual and orderly progress and guaranteeing a balanced representation". The fundamental aim of this Law is to safeguard the long-term prosperity and stability of Hong Kong. Methods for the Selection of the Chief Executive and the Formation of the Legislative Council of the Hong Kong Special Administrative Region (HKSAR) are important components of Hong Kong's constitutional system. The two methods are separately prescribed in Annex I and Annex II to the Hong Kong Basic Law. Currently, different understandings exist in the Hong Kong society regarding provisions in Clause 7 of Annex I and Clause 3 of Annex II. Clause 7 of Annex I of the Hong Kong Basic Law stipulates: "If there is a need to amend the method for selecting the Chief Executives for terms subsequent to the year 2007, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People's Congress for approval." Clause 3 of Annex II stipulates: "With regard to the method for forming the Legislative Council of the Hong Kong Special Administrative Region and its procedures for voting on bills and motions after 2007, if there is a need to amend the provisions of this Annex, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People's Congress for the record." At present different understandings of the two clauses mainly concentrate on four issues: I. Is the year 2007 included in the period defined as "subsequent to the year 2007" and "after 2007" in the annexes? II. Does the expression of "if there is a need to amend" mean that the methods must be amended? III. Who will decide whether or not the methods need amendments and who shall submit bills for amendments? IV. If the methods are not to be amended, shall the existing stipulations continue to be applicable or not?

The future development of Hong Kong's political structure has a bearing on the implementation of the principle of "one country, two systems" and the Hong Kong Basic Law, on relations between the central authorities and the Hong Kong SAR, on the interests of all social strata, all walks of life and all parties in Hong Kong, as well as on the long-term prosperity and stability of Hong Kong. Toensure a correct understanding and implementation of the Hong Kong Basic Law (of which the annexes are component parts), the meeting of the chairman and vice chairpersons of the NPC Standing Committee, in accordance with Subparagraph 4 of Article 67 of the Chinese Constitution, which grants the NPC Standing Committee the power to interpret laws, and the first paragraph of Article 158 of the Hong Kong Basic Law, which states that "the power of interpretation of this law shall be vested in the Standing Committee of the National People's Congress", accepting the suggestions of some NPC deputies, has put forth "Interpretations of Clause 7 of Annex I and Clause 3 of Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China by the Standing Committee of the National People's Congress (draft) (referred to as "draft interpretations" in the following text). In line with the fourth paragraph of Article 158 of the Hong Kong Basic Law, the NPC Standing Committee has consulted its Committee for the Basic Law of the Hong Kong SAR, heard the opinions of all circles in Hong Kong regarding the issue of constitutional development solicited by the Constitutional Development Task Force under the HKSAR Government, and also heard the opinions of NPC deputies and members of the Standing Committeeof the National Committee of the Chinese People's Political Consultative Conference from the Hong Kong SAR. The following are explanations on the draft interpretations:

I. On the meaning of "after 2007"

There are two different comprehensions in the Hong Kong society of the terms "subsequent to the year 2007" and "after 2007" in Clause 7 of Annex I and Clause 3 of Annex II to the Hong Kong Basic Law. One comprehension holds that "after 2007" refers to the period after the end of the year 2007, not including the year 2007. Therefore, when the Hong Kong SAR selects its Chief Executive for the third term in 2007, the selection method shall not be subject to any amendment. The other holds that the period "after 2007" includes the year 2007 itself and therefore the selection method shall be amended "if there is a need".

According to stipulations in relevant Chinese laws, any period defined in the laws as "before" or "after" a specific year shall include the year itself. Therefore, the period defined as "subsequent to the year 2007" and "after 2007" in Clause 7 of Annex I and Clause 3 of Annex II to the Hong Kong Basic Law shall be understood as including the year 2007. It is based on this understanding that Article 1 of the draft interpretations reads: "The period defined as 'subsequent to the year 2007' and 'after 2007' in the two annexes mentioned above shall include the year 2007."

II. On the meaning of "if there is a need to amend"

Article 45 of the Hong Kong Basic Law reads "The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People's Government." "The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administration Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executiveby universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures." Article 68 of the Hong Kong Basic Law provides: "The Legislative Council of the Hong Kong Special Administrative Region shall be constituted by election." "The method for forming the Legislative Council shall be specified in the light of the actual situation inthe Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the election of all the members of the Legislative Council by universal suffrage." The provisions in Articles 45 and 68 of the Hong Kong Basic Law and Annexes I and II to this Law on the specific methods of selecting the Chief Executive and forming the Legislative Council have all established and reflected the principles that constitutional development of Hong Kong must proceed from the actual situation of Hong Kong and that it must follow the principle of gradual and orderly progress and balanced representation. These are principles that must be adhered to for along period of time for constitutional development in Hong Kong. On this basis, "if there is a need to amend" in Clause 7 of Annex I and Clause 3 of Annex II shall be understood to mean that after 2007, the methods may be amended or they may not be amended, instead of that they must be amended by 2007. Therefore, Article 2of the draft Interpretations reads: " 'If there is a need to amend' in the two above-mentioned annexes, on the method of selecting the Chief Executive and the method of forming the Legislative Council, and the procedures for the Council's voting on bills and motions, after 2007, means that they may be amended or may not be amended."

III. On the issue of who shall decide if "there is a need to amend" and who shall propose amendment bills.

The Hong Kong SAR is a local administrative region with a high degree of autonomy under the direct jurisdiction of the Central People's Government. And its high degree of autonomy originates from authorization by the central authorities. The constitutional system of the Hong Kong Special Administrative Region has been decided by the Hong Kong Basic Law enacted by the NPC. China is a unitary state instead of a federation, and localities have no power to decide on or change their constitutional system on their own. Constitutional development in Hong Kong has a bearing on relations between the central authorities and the SAR, and should proceed within the framework of the Hong Kong Basic Law. The methods for selecting the Chief Executive and forming the Legislative Council, and the procedures for voting on bills and motions in the Legislative Council, are major issues in Hong Kong's constitutional development. The power to make decisions on whether or not there is a need to amend and how to amend rests with the central authorities. This is the most important principle established in the Chinese Constitution and the Hong Kong Basic Law, and is also an integral part of the "one country, two systems" principle.

Both Clause 7 of Annex I and Clause 3 of Annex II stipulate that amendments to the methods of selecting the Chief Executive and forming the Legislative Council, and procedures for voting on bills and motions in the Legislative Council, must be made with the endorsement of a two-thirds majority of all the members of the Council and the consent of the Chief Executive, and that they shall be reported to the NPC Standing Committee for approval or for the record. Such provisions firstly refer to prerequisite legal procedures for amending such methods or procedures, and secondly, demonstrate the central authorities' power of decision-making since such amendments must be reported for "approval" or for "the record" before taking effect. Based on the principle thatthe Chief Executive shall be accountable to the central authorities, if amendment really need be made, the Chief Executive shall report to the NPC Standing Committee, and the issue shall bedecided upon by the NPC Standing Committee in accordance with Articles 45 and 68 of the Hong Kong Basic Law and on the basis of the actual conditions of Hong Kong and the principle of gradual and orderly progress. This is the responsibility that the central authorities must bear for constitutional development in Hong Kong,and is essential for the protection of the interests of people of all social strata, all circles and from all walks of life in Hong Kong, for the gradual development of a democratic system suitable for Hong Kong's actual conditions, as well as for the maintenance of Hong Kong's long-term prosperity and stability.

Different perceptions and understandings exist in Hong Kong on who shall put forward the bills to amend the methods of selecting the Chief Executive and forming the Legislative Council, and procedures for voting on bills and motions in the Council. According to the Hong Kong Basic Law, the Hong Kong SAR shall have an executive-led constitutional system, and the Chief Executive shall be its head, represent the region and be accountable to the Central People's Government and the Hong Kong SAR. The Hong Kong Basic Law also stipulates "members of the Legislative Council of the Hong Kong Special Administrative Region may introduce bills inaccordance with provisions of this Law and legal procedures. Bills which do not relate to public expenditure and political structure or the operation of the government may be introduced individually or jointly by members of the Council." This means that draft laws relating to the constitutional system shall not be proposed by members of the Council individually or jointly. Therefore, bills and draft amendments regarding the revision of the methods for selecting the Chief Executive and forming the Legislative Council,and of the procedures for voting on bills and motions in the Council, shall be proposed to the Legislative Council by the HKSAR Government.

Based on the reasons mentioned above, Article 3 of the draft interpretations reads: "The provisions in the two annexes mentioned above, on requirements relating to the endorsement of a two-thirds majority, consent of the Chief Executive and reporting to the NPC Standing Committee for approval or for the record, refer to prerequisite legal procedures for amending the methods of selecting the Chief Executive and forming the Legislative Council,and the procedures for voting on bills and motions in the Legislative Council. Only upon the completion of the above-mentioned procedures, including the final approval or registration for the record by the Standing Committee of the National People's Congress in accordance with law, shall the amendments take effect.The Chief Executive of the Hong Kong Special Administrative Region shall submit a report to the Standing Committee of the National People's Congress if there is a need to amend the methods or voting procedures, which shall be decided upon by the Standing Committee of the National People's Congress in accordance with provisions of Articles 45 and 68 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, on the basis of the actual situation in the Hong Kong Special Administrative Region and the principle of gradual and orderly progress. Bills and draft amendments regarding the revision of the methods for selecting the Chief Executive and forming the Legislative Council, and of the procedures for voting on bills and motions in the Legislative Council, shall be proposed to the Legislative Council by the Hong Kong Special Administrative Regional Government."

IV. On the applicability of the existing stipulations if there is no amendment

If there is no amendment to the method of selecting the Chief Executive and the method of forming the Legislative Council, and the procedures for voting on bills and motions in the Council, after 2007, then it is necessary to clarify the methods for selecting the Chief Executive and forming the Legislative Council,and procedures of the Legislative Council for voting on bills and motions at that time. In light of the original intention of the legislative wording of "if there is a need to amend", where no amendment is made, the provisions on the method of selecting the Chief Executive in Annex I, the provisions on the method for forming the Third Legislative Council in Annex II and the provisions on procedures for voting on bills and motions in Annex II shall naturally prevail. Article 4 of the draft interpretations has made stipulations accordingly.

Chairman, Vice Chairpersons, Secretary General, and members of the Standing Committee,

The Hong Kong Basic Law has explicit stipulations on the principle of development of democracy and provides for the ultimate goal of selecting the Chief Executive and members of the Legislative Council through universal suffrage. Since Hong Kong's return to the motherland, positive and steady progress has been made in its democratic system. The people of Hong Kong have become masters of their own destiny and are enjoying broad democratic rights that they had never been entitled to before the return. Democracy in Hong Kong will be further developed and improved in practice in accordance with the Hong Kong Basic Law.

Now please deliberate over "Interpretations of Clause 7 of Annex I and Clause 3 of Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China by the Standing Committee of the National People's Congress (draft)" and my explanations.

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