If the chief executive (CE) to be elected in the July 10 bypoll serves five years in office, it could thwart Hong Kong's constitutional progress towards greater democracy in 2007 and undermine human rights values as enshrined in the Basic Law.

Secretary for Justice Elsie Leung said this in two separate letters issued to deny the charges of the Bar Association and Law Society on the subject, which some vested interests are trying to politicize. The letters were issued after Leung met Bar Association and Law Society members as well as Article 45 Concern Group lawmakers.

The government is seeking to amend the Chief Executive Election Ordinance to clarify that the new CE's term will be the remainder of his predecessor's. In the letters, Leung has laid out the legal rationale for a two-year term, countering the legal arguments for a five-year term.

If the Basic Law is interpreted as saying that the next CE should serve a five-year term, this would have "anomalous" consequences, she said.

For that would mean the present Election Committee, formed in 2000, elects a CE who serves until 2010. That in turn means no progress towards greater democracy in the 2007 CE election.

It could also make the community wait until 2010 for a more representative Election Committee to select a CE, Leung said.

She also rejected the Law Society argument that Article 46 is unambiguous, and thus an interpretation is unnecessary.

Although Article 46 stipulates the CE's term shall be five years, other relevant provisions and Annex I of the Basic Law too has to be referred to.

"If one were to adopt a narrow, literal construction of this provision in isolation, it could be argued that each CE must serve a full five-year term. However, having regard to provisions concerning the resignation of the CE (Article 52) and the possibility of a vacancy in the office of CE (Article 53), it is clear that this is not the case," she said.

After the meeting, Bar Association Chairman Philip Dykes said his organization would study the merits of Leung's and the association's arguments.

The association vice-chairman, Rimsky Yuen S.C., said that if an interpretation of the Basic Law by the National People's Congress Standing Committee (NPCSC) is needed, it should be the Court of Final Appeal, not the SAR government, which should initiate the proceedings, as stipulated in Article 158 of the Basic Law.

An interpretation of the Basic Law by NPCSC does not necessarily mean that the rule of law would be undermined, Yuen said.

But Margaret Ng of the Article 45 Concern Group, who represents the legal sector in the Legislative Council, said NPCSC's interpretation would harm the rule of law in Hong Kong.

Lawmaker Audrey Eu said she had asked Leung to pledge that the government would adopt a hands-off approach and let local courts resolve the matter.

Also yesterday, acting Chief Executive Donald Tsang met members of the Liberal Party and Confederation of Trade Unions as well as other independent lawmakers. Liberal Party Chairman James Tien said it would be ideal for the SAR government to ask NPCSC to interpret the Basic Law during its bi-monthly meeting this month.

"Otherwise, it would be too late... and impossible for a new chief executive to be returned as scheduled," Tien said.

In the meantime, independent lawmaker Albert Chan informed Tsang that he would file a judicial review against the government next week. Chan said the review would give Hong Kong a good opportunity to resolve the legal dispute surrounding the term of the next CE.

A spokesman for Donald Tsang responded last night that the SAR government respects the rights of any person to mount a judicial review, and it will act in accordance with the law to handle the issue.

Legal intent vs literal meaning

Following is the response of the Department of Justice to the Law Society's statement of March 18, 2005, on the Chief Executive's (CE) term of office:

The Law Society has stated that:

"Under the common law rules of statutory interpretation provisions are to be interpreted according to their literal meaning. It is only when the provisions are unclear or ambiguous that the rules relating to legislative intention need to be considered. The provisions of Article 46 are unambiguous and their meaning clear. Accordingly it is incorrect to apply any meaning to its provisions other than that which is readily apparent, namely that the term of office of the CE shall be five years."

The Department of Justice respects the views of the Law Society but takes issue with these statements.

Literal meaning and legislative intent

The leading work on common law statutory interpretation is Francis Bennion's Statutory Interpretation: A Code (4th ed, 2002). According to Bennion, "The sole object in statutory interpretation is to arrive at the legislative intention". Among the authorities cited for this proposition is the case of Attorney General for Canada v Hallett & Carey Ltd [1952] AC 427, in which Lord Radcliffe stated (at p. 449) that:

"There are many so-called rules of construction that courts of law have resorted to in their interpretation of statutes but the paramount rule remains that every statute is to be expounded according to its manifest and expressed intention."

In the case of Director of Immigration v Chong Fong-yuen, Hong Kong's Court of Final Appeal ruled that, in ascertaining the legislative intention of the Basic Law, the courts should act as follows:

"Their duty is to ascertain what was meant by the language used and to give effect to the legislative intent as expressed in the language.

"Whilst the courts must avoid a literal, technical, narrow or rigid approach, they cannot give the language a meaning which the language cannot bear.

"To assist in the task of interpretation of the provision in question, the courts consider what is within the Basic Law, including provisions in the Basic Law other than the provision in question."

Ambiguous?

In the case of Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436 at 463, Viscount Simonds stated that "the elementary rule must be observed that no one should profess to understand any part of a statute...before he has read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous." One should not, therefore, conclude that Article 46 is or is not ambiguous until one has studied other relevant provisions in the Basic Law.

Article 46

Article 46 of the Basic Law states that "The term of office of the CE of the Hong Kong Special Administrative Region shall be five years." If one were to adopt a narrow, literal, construction of this provision in isolation, it could be argued that each CE must serve a full five-year term. However, having regard to provisions concerning the resignation of the CE (Article 52) and the possibility of a vacancy in the office of CE (Article 53), it is clear that this is not the case.

The question that is posed by the current situation is this: what happens to the five-year term of office of the CE if a particular incumbent leaves that office prematurely? There are two possible answers:

1) the five-year term of office is cut short and the new CE is to serve a new five-year term; or

2) the five-year term of office remains in existence and the new CE serves the remainder of that term.

There is therefore an ambiguity that must be resolved by reference to other parts of the Basic Law. Of particular relevance are Articles 53 and 45, and Annex I of the Basic Law.

Articles 53 and 45

Article 53 provides that:

"In the event that the office of CE becomes vacant, a new CE shall be selected within six months in accordance with the provisions of Article 45 of this Law."

Article 45 provides that the ultimate aim is the selection of the CE by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.

This is to be achieved in accordance with the principle of gradual and orderly progress. The specific method for selecting the CE is prescribed in Annex I to the Basic Law.

Annex I

Annex I provides that the CE shall be elected by a broadly representative Election Committee, which is to have a term of office of five years. Although the five-year term of the Election Committee has not, in practice, run in parallel with the five-year term of office of the CE, there was intended to be a link between the two terms of office. The Election Committee formed in the year 2000 elected the second-term CE in 2002. It was intended that another Election Committee should be formed to elect the third-term CE in 2007.

The intended election in 2007 is important, since Annex I provides for the possibility of an amendment of the method for selecting the CE for the terms subsequent to that year. The HKSAR government Constitutional Development Task Force is seeking to achieve a consensus on amendments that would be in line with the principle of gradual and orderly progress towards universal suffrage. If this can be achieved, and Annex I is amended, an Election Committee formed to elect the third-term CE in 2007 would be more representative than the current one.

Resolving the ambiguity

If the Basic Law is interpreted as requiring the CE who is elected this July to serve a five-year term, this would have the following consequences:

1) the current Election Committee, which was formed in the year 2000, would be electing a CE who serves until 2010;

2) no progress towards greater democracy in the election of the CE could be made in the year 2007;

3) the community would have to wait until 2010 until a more representative Election Committee could select another CE.

These consequences would be anomalous. It is an established common law principle of statutory interpretation that the courts seek to avoid a construction that creates an anomaly or otherwise produces an irrational or illogical result (Bennion, Statutory Interpretation p. 845).

An interpretation that results in the original five-year term of office being partly filled by a new CE would avoid such a result. It would also be beneficial to the development of democracy and the human rights values enshrined in the Basic Law.

For these reasons, the court should lean in favour of the latter interpretation.

Judicial review on CE tenure goes against mainstream public opinion

After the Link-REIT incident, it has become sort of a fad for some people to apply for legal aid to seek judicial review against the government.

Media reports say that after "pro-democracy" legislator Albert Chan Wai-yip said he would move court against the government for deciding that the new chief executive (CE) should only serve the rest of Tung Chee-hwa's term, the chairman of the Grassroots Democratic Society, Carl Ching, and citizen Chan Yuet-tung too declared their intent to do so. The media has labelled the three forthcoming lawsuits "a political version of the Link-REIT incident". We see dark clouds gathering over the Victoria Harbour, casting a long shadow over the business environment of Hong Kong.

If the Link-REIT incident caused great financial losses to the SAR government and many of its residents, the judicial reviews against the CE's tenure could be even more ominous.

First of all, since litigations can take months and even years, who knows how much taxpayers' money the government would have to spend if the Legal Aid Department does accept the applications.

Second, once the litigants ask the court to issue an injunction forbidding the Legislative Council from discussing amendments to the Chief Executive Election Ordinance or the government from holding the by-poll on July 10, the emergence of a new CE will be in serious doubt.

Though Albert Chan has said he would not seek a court injunction, there's no guarantee others would not do so. And, with their examples to follow, certainly nobody can guarantee there'd be no more copycats. It is really sad for Hong Kong residents that the election of their new leader legally and on time hinges on so many uncertainties. It is a situation that those who wish prosperity and stability for Hong Kong do not want to see.

A poll conducted by the Hong Kong Public Opinion Research Centre on March 22 showed that 65 per cent respondents were against subjecting the CE tenure issue to judicial review, and only 22.6 per cent favoured such a move. These results were a true reflection that the majority of Hong Kong residents are against the making of "a political version of the Link-REIT incident" by some politicians. They also embodied the popular desire for stability, development and harmony.

If those "pro-democracy" politicians and their supporters are really for the good of Hong Kong rather than performing self-promoting political stunts at the expense of public money, they should heed the majority's opinion, give up their court review demands and stop trying to derail the CE election.

Some 10,000 people took to the streets on New Year's Day to voice their indignation at those who pulled the strings behind the Link-REIT incident. We hope those launching the "political version of the Link-REIT incident" have learnt a lesson from that.

Certainly, the political version is, after all, different from the original. Thanks to the Basic Law acting as a "guardian angel", even though the handful of politicians defy mainstream opinion and try to create a political crisis by threatening to seek a judicial review, they cannot possibly achieve their purpose.

That's because according to Articles 43 and 45 of the mini-constitution, the CE is appointed by the central government, and he is accountable both to the SAR government and the central authorities. Any litigation over the CE's tenure thus concerns the relationship between Beijing and the SAR.

Article 158 stipulates that if the local courts "in adjudicating cases, need to interpret provisions of this 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 courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the NPCSC through the Court of Final Appeal. When the NPCSC makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation."

It is not difficult to see from this provision that the mini-constitution has provided the final "safety net" for the controversy over the new CE's tenure. If somebody seeks a judicial review, the SAR government and the judicial authorities are obliged to initiate the relevant legal procedures to settle the row and defuse the constitutional crisis through legal means.

It has been pointed out that while Hong Kong people do not sit well with the possibility of another interpretation of the Basic Law by NPCSC, they are even more unhappy with the prospect of total political chaos. As the city is still nursing its wounds from the Link REIT debacle, the government and residents both should beware of the likelihood of the recurrence of aLink-REIT-style tragedy in the CE by-election.

Acting CE Donald Tsang said recently he had heard of plans for judicial review and was worried that the July election might be aborted.

Because footing legal bills with legal aid money involves public funds and interests, it is a right that must not be abused. And the litigants must pay regard to public opinion, especially when it comes to key issues that have a strong bearing on the stability of the local political scene, such as a CE election.

It's proper to seek views of mainland legal experts

Following is the response of the Department of Justice to the Hong Kong Bar Association's statement of March 17, 2005, on the chief executive's (CE) term of office:

The Department of Justice respects the views set out by the Bar Association in its statement of March 17, 2005. However, it wishes to make the following responses to those views.

Consulting mainland legal scholars

The Bar Association expressed concern about the Secretary for Justice's reliance on mainland legal scholars when coming to her view on the CE's term of office. The Bar asked whether the Secretary for Justice is prepared to canvass the views of mainland scholars on, for example, the meaning of any of the fundamental rights guaranteed under Chapter III of the Basic Law.

The Department of Justice wishes to emphasize that the provisions in the Basic Law relating to the appointment of the CE are provisions concerning affairs which are the responsibility of the central people's government, and which concern the relationship between the central authorities and the Region. That being so, they are provisions that are treated under the Basic Law in a different way from provisions that are within Hong Kong's high degree of autonomy. In particular, if the Hong Kong Court of Final Appeal needs to interpret the provisions relating to the appointment of the CE, it would be required by Article 158(3) of the Basic Law to seek an interpretation of them by the Standing Committee of the National People's Congress (NPCSC), and would be required to follow that interpretation.

This being so, the Department of Justice considers it appropriate to seek the views of mainland legal experts, particularly the views of members of the Legislative Affairs Commission of the NPCSC, as to the way in which the NPCSC would interpret those provisions.

That does not mean that the Department of Justice should also seek the views of mainland legal experts in respect of provisions that are within our autonomy. For advice on those provisions, which include guarantees of fundamental human rights, we will continue to rely on Hong Kong's common law legal experts.

Article 17 of the Basic Law

The Bar refers to the fact that section 3(1) of the CE Election Ordinance (Cap 569) states that the term of office of the CE is five years, and that the NPCSC did not exercise its powers under Article 17 of the Basic Law to return it on the grounds of inconsistency with specified provisions of the Basic Law. Both these facts are accurate. However, the Department of Justice does not consider that they help to determine the term of office of the CE to be elected this July.

The length of that term of office is to be determined by the Basic Law, which would override any local legislation that is inconsistent with it. However, section 3(1) of the CE Election Ordinance merely reiterates what is stated in Article 46. There was therefore no reason for the NPCSC to return that ordinance as being inconsistent with Article 46.

Possible challenge to Cap 569

The Department of Justice accepts the Bar's submissions that:

1) an amendment to the CE Election Ordinance could be challenged in the courts as being inconsistent with Article 46 of the Basic Law; and

2) if such a challenge reached the Court of Final Appeal, it would be required by Article 158 of the Basic Law to refer relevant provisions of the Basic Law for interpretation by the NPCSC before final adjudication.

However, the Department of Justice does not accept that such an outcome would be "undesirable", as the Bar asserts (without explanation). Any such challenge and reference would be in accordance with the rule of law, access to justice, and constitutional principles.

Basic Law recollections and text

The Bar states that there are advantages in the common law approach of construing legislative intent by reference to the language of text in its context and its purpose, as opposed to relying on recollections of mainland scholars of "assumptions behind the intent of the Basic Law Drafting Committee and the NPC in adopting the Basic Law".

The Department of Justice agrees that there are advantages in the common law approach towards statutory interpretation. However, it notes that, when construing the Basic Law, the courts are not restricted to "the language of text in its context and its purpose". The Court of Final Appeal ruled in the case of Director of Immigration v Chong Fung-yuen that: "Extrinsic materials which throw light on the context or purpose of the Basic Law or its particular provisions may generally be used as an aid to the interpretation of the Basic Law."

The Department of Justice considers that, applying common law principles of interpretation and having regard to relevant extrinsic materials, the Basic Law should be construed as requiring the CE to be elected in July to serve the remainder of Mr Tung (Chee-hwa)'s five-year term.

Election Committee

The Bar does not accept the Secretary for Justice's reliance on the "legislative intent of the original design" of the Election Committee. However, the Bar's argument relies on the way that design has been carried out in practice. As the Secretary for Justice made clear in her statement on 12 March 2005, although there has been some time lag between the terms of an Election Committee and the CE, the legislative intent of the original design should still hold.

Consecutive office holders of same term of office

The Bar takes issue with the Secretary for Justice's view that "a CE who vacates his office prematurely and the CE returned in the by-election can be regarded as consecutive office holders of the same term of office". It argues that an election for the CE cannot be compared with a by-election for membership of a body that endures for its appointed term although members may come and go.

The Department of Justice considers that the Bar's view on this point begs the question whether or not the appointed term of office of the second-term CE endures after Mr Tung left that office. The Bar seems to assume that it does not. However, Article 46 of the Basic Law states that "The term of office of the CE of the Hong Kong Special Administrative Region shall be five years". Having regard to other parts of the Basic Law, particularly the provisions relating to the Election Committee, the Department of Justice considers that Article 46 requires the term of office of the second-term CE to remain as five years, notwithstanding Mr Tung's departure. The CE to be elected in July therefore must serve in that office for the remainder of that term.

Drafting history

The Bar does not consider that the parts of the Basic Law drafting history referred to by the Secretary for Justice are helpful in the resolution of the issue. It considers that:

1) notes and records relied on are off limits to the ordinary researcher; and

2) if changes in the Chinese text of the Basic Law drafts were intended to have different legal consequences, then different expressions would also have been used in the English translations of those drafts.

With regard to paragraph 1) above, the background material that the Secretary for Justice has referred to consists of nine documents, at least five of which are public documents available at the Basic Law Library. All nine documents have been provided to members of the Legislative Council.

With regard to the paragraph 2) above, it is clear that the Chinese text of the Basic Law is the primary text. According to the decision adopted by the NPCSC on 28 June 1990, in the case of discrepancy between the two texts in the implication of any words used, the Chinese text shall prevail. The Department of Justice therefore considers it reasonable to draw inferences from changes in the Chinese text of the Basic Law drafts, even if those changes were not reflected in the English text.

(China Daily HK Edition April 4, 2005)