Press Releases (338)

LC: SCA moves resumption of Second Reading on Chief Executive Election (Amendment) (Term of Office of the Chief Executive) Bill

Following is the translation of the speech delivered by the Secretary for Constitutional Affairs, Mr Stephen Lam, to move the Resumption of the Second Reading on the Chief Executive Election (Amendment) (Term of Office of the Chief Executive) Bill at the Legislative Council today (May 25):

Madam President,

On April 6, the Administration introduced into the Legislative Council ("LegCo") the Chief Executive Election (Amendment) (Term of Office of the Chief Executive) Bill. The relevant Bills Committee was set up immediately thereafter. A total of 58 Members joined the Bills Committee. This fully reflected Members' interest in the Bill and the Chief Executive ("CE") election. During the scrutiny of the Bill, Members held in-depth and thorough discussion on issues relating to the Bill and have put forward valuable views.

I would like to express my gratitude to the Chairman, Hon Tam Yiu-chung, the Vice-Chairman, Hon. Howard Young, and all Members of the Bills Committee. As the scrutiny of the Bill had to tie in with the arrangements for the election of the new CE, the Committee worked under a very tight schedule. A total of six meetings were held. Views from the community were also collected. A total of 18 deputations and individuals put forth their views to the Committee, most of which supported the proposals in the Bill. May I thank once again the Chairman and the Vice-Chairman of the Committee for their leadership, all Committee Members for their active participation in the scrutiny process, and the LegCo Secretariat for their assistance. All these efforts contributed to the smooth and timely completion of the scrutiny of the Bill.

Madam President, the State Council approved on March 12, 2005 the request of Mr Tung Chee-hwa to resign from the office of the CE of the Hong Kong Special Administrative Region ("HKSAR"). According to the relevant provisions of the Basic Law and the Chief Executive Election Ordinance, a new CE shall be elected on 10 July.

As for the term of office of a new CE returned in a by-election to fill the vacancy in the office, the Secretary for Justice stated the Administration's position on March 12 i.e. the term of a new CE returned in a by-election should be the remainder of the term of the preceding CE. Therefore, we need to amend the Chief Executive Election Ordinance to set out clearly in local legislation the term of office of a new CE returned in a by-election.

Originally, I did not intend to reiterate the justifications in this respect. But since quite a few Members have raised a number of points, I need to mention certain aspects of our rationale once again.

There is no direct link between Article 53(2) of the Basic Law and Article 46. Instead, Article 53(2) specifically refers to Article 45 of the Basic Law. Article 45 refers to Annex I which prescribes the specific method for selecting the CE. Annex I to the Basic Law stipulates that the CE shall be elected by an 800-member Election Committee ("EC"). The duty of the current EC is to elect the second term CE. The term of office of the second term CE runs from July 2002 to end of June 2007.

The Decision of the NPCSC made on April 26 last year specifically mentioned "the election of the CE of the HKSAR for the third term to be held in the year 2007...". The NPCSC has affirmed that the election of the CE to be held in 2007 is the election of the CE for the third term. According to the Administration' s proposal, the new CE election will fill the office left vacant by the CE for the second term. It is not an election of the CE for the third term. This is consistent with the interpretation of the term of office of the CE under the Decision; it is also consistent with the relevant provisions in Annex I.

When Article 53(2) of the Basic Law was first drafted, the wording "new CE" was used. It was subsequently changed to "the CE of a new term". But at a later stage, the wording was reverted to "new CE". This demonstrates that Article 53(2) does not provide for a new term to commence afresh.

The above justifications have been clearly set out in the Explanations provided by Deputy Director Li Fei to the NPCSC.

There were also one or two Members who specifically mentioned whether the Secretary for Justice had changed her legal position merely because she had listened to the views of some former drafters of the Basic Law and legal experts. In fact, apart from approaching and listening to the views of those who had participated in the drafting process of the Basic Law, the Secretary for Justice had considered in detail documents relating to the drafting history and the opinions of the Legislative Affairs Commission of the NPCSC. After these exchanges in the Mainland and having returned to Hong Kong, she had studied further the relevant issues according to common law principles with colleagues of the Department of Justice, before she reached the legal position as stated on 12 March.

Some Members have queried whether we still have to amend the local legislation after the NPCSC had made the Interpretation. Madam President, we have in fact considered this issue. We are of the view that if such an amendment were not made, some might argue that the newly elected CE should serve for five years. This would contravene the latest interpretation by the NPCSC on Article 53 of the Basic Law. The Chief Executive Election Ordinance should be suitably amended, so as to dovetail with the Basic Law and the latest interpretation by the NPCSC.

To ensure that a new CE will be elected lawfully and in time on 10 July, the Acting CE submitted a report on 6 April to the State Council in accordance with Articles 43 and 48(2) of the Basic Law and proposed to request the Standing Committee of the National People' s Congress ("NPCSC") to make an interpretation of Article 53(2) of the Basic Law regarding the term of office of the new CE. The report was released to the public on the same day.

After studying the report submitted by the Acting CE, the State Council decided on 10 April to request the NPCSC to make an interpretation of the relevant provisions of the Basic Law. In accordance with the Basic Law and after consulting the Committee for the Basic Law and listening to views of different sectors of the Hong Kong community, the NPCSC adopted the "Interpretation of Paragraph 2, Article 53 of the Basic Law of the Hong Kong Special Administrative Region of the People' s Republic of China by the NPCSC" on April 27.

According to the Interpretation, "Paragraph 2, Article 53 of the Basic Law stipulates, "In the event that the office of Chief Executive becomes vacant, a new Chief Executive shall be selected within six months in accordance with the provisions of Article 45 of this Law." The phrase "a new Chief Executive shall be selected ... in accordance with the provisions of Article 45 of this Law" implies that both the method of selecting and the term of office of the new Chief Executive shall be as prescribed and determined by the said Article."

Moreover, the Interpretation also stipulates, "... prior to the year 2007, when the Chief Executive is selected by the Election Committee with a five-year term of office, in the event that the office of the Chief Executive becomes vacant as he (she) fails to serve the full term of office of five years as prescribed by Article 46 of the Basic Law, the term of office of the new Chief Executive shall be the remainder of the previous Chief Executive; and that after 2007, the above-mentioned method for selecting the Chief Executive could be amended, and should the office of the Chief Executive then become vacant, the term of office of the new Chief Executive shall be determined in accordance with the amended method for the selection of the Chief Executive."

Madam President, I would also like to quote a paragraph from the Interpretation by the NPCSC of Article 7 of Annex I and Article III of Annex II to the Basic Law in April 2004. Paragraph 4 of the Interpretation provides as follows, "If no amendment is made to the method for selecting the Chief Executive, the method for forming the Legislative Council and its procedures for voting on bills and motions as stipulated in the two above-mentioned Annexes, the provisions relating to the method for selecting the Chief Executive in Annex I will still be applicable to the method for selecting the Chief Executive."

Madam President, I have quoted from these two interpretations as it is clear from their related content that the "remainder term" requirement will continue to be in effect unless and until amendments are made to the method for selecting the CE specified in Annex I to the Basic Law, in particular to the term of office of the Election Committee (EC).

We are now conducting a review on the method for selecting the CE in 2007. We will consider whether and how the method should be amended, taking into account the views of the community. We hope to make progress. However, at this stage, one cannot assume that there will necessarily be amendments to Annex I to the Basic Law, or that the current arrangement of having an EC with a five-year term of office will necessarily be replaced.

The Bill provides that the term of office of a CE who fills a vacancy in the office of the CE that arises other than due to expiry of the term of office shall last until the expiry of the term of the preceding CE. This is fully consistent with the Interpretation made by the NPCSC on April 27, 2005.

Madam President, I would like to take this opportunity to respond to some other views raised by Members in the course of the scrutiny of the Bill.

Some Members sought clarification on the legal basis for the Acting CE to submit a report to the State Council to request the NPCSC to make an interpretation regarding the term of office of the new CE. In accordance with Articles 43 and 48(2) of the Basic Law, it is lawful and constitutional for the Acting CE to make a report to the State Council and to recommend that the NPCSC be requested to make an interpretation of the relevant provision(s) of the Basic Law, if the Acting CE considers that such an interpretation is necessary for the effective implementation of the Basic Law. In a recent judicial review case concerning the term of office of a new CE heard by the Court of First Instance, the Court has confirmed that it is lawful for the Executive authorities to make a report to the State Council to seek an interpretation. Furthermore, in accordance with the Constitution and the Basic Law, the NPCSC can make an interpretation on any provision of the Basic Law. Besides, the NPCSC can make an interpretation other than in the course of judicial proceedings in the HKSAR. These points were affirmed in previous decisions of the Court of Final Appeal.

Madam President, in scrutinising the Bill, some Members have asked whether consequential amendments should be made to various provisions of the Chief Executive Election Ordinance in the light of the proposals in the Bill. Consequential amendments are made to ensure legal consistency between new legislative provisions and existing legislative provisions. Insofar as the Bill is concerned, we do not consider that consequential amendments are required, since there is no legal inconsistency between the provisions in the Bill and the provisions in the Chief Executive Election Ordinance and other legislation.

In general, consequential amendments are made only under certain circumstances. For example, consequential amendments could be technical amendments, which are required in the overall package for effective implementation of the relevant clauses. In other situation, because of the nature of the amendment provisions, we need to make consequential amendments together with the main amendment provisions so that they could dovetail with each other.

The current bill proposes a new subsection (1A) be added to section 3 of the Chief Executive Election Ordinance. This would not cause any problem in dovetailing as mentioned above. The other provisions relating to the term of the CE could be regarded as separate issues. We need to study them further before deciding whether relevant amendments should be required. This brings us back to certain issues raised by some Members during the scrutiny of the bill which are outside the scope of the bill. For example, the provision that a CE may serve for not more than two consecutive terms, and whether a by-election should be held in the event that a vacancy in the office of the CE arises shortly before the expiry of the term. These are important issues, but not urgent ones that need to be dealt with immediately. We will study them carefully and thoroughly. We will consider views from legal experts in the Mainland and Hong Kong, and listen to views from the community, before making the relevant decisions. We could address and commence discussion on these issues in Hong Kong in the second half of this year after the passage of the Bill.

Madam President, in scrutinising the Bill, some Members raised certain issues relating to the method for selecting the CE in future, including whether an upper limit should be set on the number of subscribers required to nominate a CE election candidate, whether polling should take place even if there were only one candidate, and whether the current provision which disallowed a CE elect to retain his or her membership of a political party should be amended. These issues are outside the scope of the Bill, we may consider dealing with them in the context of the review of the method for selecting the CE in 2007.

Finally, I would like to respond to the issue of the term of office of EC members. The term of the current EC will expire on 13 July. In scrutinizing the Bill, some Members asked how we would handle the situation if a vacancy arose in the office of the CE after the expiry of the term of the current EC and before a new EC is constituted. The position of the SAR Government is that we will not form a new EC lightly, as this may hinder the review of the method for selecting the CE in 2007. In the event of the office of the CE falling vacant again before July 1, 2007, the SAR Government will act in accordance with the Basic Law and the Chief Executive Election Ordinance. If necessary, we may consider forming a new EC, but the possible implications for the review of the method for selecting the CE in 2007 must be carefully considered.

Madam President, before concluding, I would like to respond to the point on the relationship between the recent interpretation and the judicial system and rule of law in Hong Kong. First, I would like to stress that it is part of our constitutional order that the power of interpreting the Basic Law is vested in the NPCSC. We should also appreciate that the Basic Law is a relatively new constitutional document. Therefore, it is natural that at its early stage of implementation, it may take some time before certain new issues are settled. We should recall that the three NPCSC interpretations made in the past seven years have in fact resolved certain major issues in Hong Kong, and they basically reflected the concerns of the community on these issues.

In 1999, the issue of right of abode was resolved through an interpretation by the NPCSC. This was accepted and supported by the Hong Kong community. This year we dealt with the issue of the term of office of a newly elected CE being the remainder term. Overall, the Hong Kong community accepts and supports organizing the by-election expeditiously in accordance with the Basic Law and local legislation. Last year, following the interpretation by the NPCSC and its decision on constitutional development, the Hong Kong community basically understood that on constitutional matters such as the development of political structure, according to the Constitution and the Basic Law, the NPCSC is the ultimate authority. Therefore, we should accept that it is part of the constitutional order for the NPCSC to exercise its power under the Constitution and the Basic Law to interpret the Basic Law.

Some Members, including the Honorable Cheung Man-kwong and the Honorable Martin Lee, stressed that we must preserve and safeguard the common law system. However, we have to bear in mind that, after the reunification in 1997, the common law system in Hong Kong has been preserved and there is room for it to develop further. This is also based on the Basic Law. The Basic Law allows that the laws previously in force in Hong Kong to be maintained. But the common law cannot prevail over the Basic Law. The Basic Law is a unique legal document. It was drafted and enacted under the legal system in the Mainland, and thereafter is to be exercised and implemented in Hong Kong, which is a common law jurisdiction. We should not consider the Basic Law solely under the principles of the common law. We need to consider the provisions of the Basic Law in a comprehensive manner. If required, we should study the drafting history and the relevant documents, and consider different views from legal experts, including those from the Mainland and Hong Kong.

If we look at the arrangements under the Basic Law, it is the NPCSC which has the final power of interpretation of the Basic Law. This power is vested in the NPCSC. However, the Basic Law also delegates powers to the courts of the HKSAR in three aspects. First, the power of final adjudication on Hong Kong court cases. Second, the final power of interpretation of the common law in Hong Kong. Third, the final power of interpretation of local legislation. The manner in which these powers are arranged and delegated has manifested "One Country" on the one hand, as the NPCSC has the final power of interpretation of the Basic Law, and "Two Systems" on the other hand, as cases arising in Hong Kong could be finally adjudicated in Hong Kong. Furthermore, our Court of Final Appeal and Hong Kong courts can apply and interpret the Basic Law in adjudicating our cases. Only in cases involving the provisions of the Basic Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the Court of Final Appeal of the HKSAR shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the NPCSC. There is a restriction here. Therefore, the Basic Law has in fact given adequate powers and made suitable arrangements to allow the common law system in Hong Kong to be preserved and to continue to develop.

I hope that Members will understand and accept that the NPCSC has the final power of interpretation of the Basic Law. This will not affect and undermine the judicial system or the rule of law in Hong Kong. This is indeed part of our constitutional order. We should respect, and further our understanding of, this system.

Madam President, the Bill is to provide a solid and clear legal basis for the election of a new CE. The nomination period will commence on 3 June. The Administration and the Electoral Affairs Commission will, as always, ensure that the election will be conducted in a fair and open manner, so that a new CE will be elected smoothly and in time for appointment by the Central People's Government. I appeal to Members to support the passage of the Bill. Thank you.

Ends/Wednesday, May 25, 2005