The SAR Government's appeal over the right-of-abode case involving three-year-old Chong Fung-yuen means the debate over the National People's Congress (NPC) Standing Committee's power to interpret the Basic Law has returned to haunt us. So I would like to share with the people of Hong Kong my own experience as a member of the Basic Law Drafting Committee (BLDC) during the 1980s.
During one discussion early in the drafting stage of the Basic Law, Ji Pengfei, chairman of the BLDC, encouraged all members to speak freely and make suggestions to improve the draft prior to it being finally promulgated into law by the NPC. I suggested that even after its promulgation, the Basic Law could still be amended as the Constitution of the People's Republic of China had been amended. Mr Ji reacted strongly to my comment, saying that the Basic Law could not be amended, and that the basic policy of the central Government on Hong Kong would never change. It was only after the meeting that I was told by another mainland member of the BLDC that Mr Ji had reacted so strongly to my observation because, on the mainland, the constitution could only be amended when the basic policy of the central Government had been fundamentally changed. And so it was good news for Hong Kong that Mr Ji had said so resolutely that the Basic Law could not be amended, which meant that the central Government's basic policy on Hong Kong would not change.
It took us a lot of time and effort in subsequent meetings to explain to our mainland fellow drafters that we needed an article in the Basic Law providing for its amendment - which is now provided for in Article 159. But from the long debate during 1999 over the interpretation provisions in Article 158, I have every reason to believe that the mainland legal experts still do not understand, or will not accept, that under our common-law system, interpretation of the law is exclusively for the courts whereas amendment is for the legislature.
At the heart of that controversy in 1999 was whether Article 24 of the Basic Law, which states who is entitled to the right of abode in Hong Kong, should be reinterpreted by the NPC Standing Committee according to the provisions of Article 158. Or whether it should instead be amended according to the provisions of Article 159, in light of the Court of Final Appeal's (CFA) judgment in January of that year.
And we were told by Elsie Leung Oi-sie, the Secretary for Justice, (whose view no doubt coincided with that from Beijing) that if the way in which the CFA interpreted a provision in the Basic Law was correct, but the result of its interpretation would disrupt the community of Hong Kong, for example by a sudden influx of what the Government claimed would be 1.67 million immigrants from the mainland into Hong Kong (a figure which was, in fact, a big lie), then the proper thing to do would be for the NPC to amend Article 24 of the Basic Law. But if the CFA's interpretation was wrong, the proper thing would be to seek a reinterpretation of the article by the NPC Standing Committee in order to get it right.
Hence the problem: who is to decide whether the CFA has got it right? Miss Leung's answer: the SAR Government.
But the problem with that was that the SAR Government happened to be a litigant in that case, the party who lost before the CFA. And so we had a most ridiculous and also unconstitutional situation where it was up to the Government, the losing party, to decide whether the CFA had given a correct interpretation of Article 24 of the Basic Law - thus putting itself above the CFA.
Now, in the Chong case soon to be heard by the CFA, the Government has urged the court to refer another part of Article 24 to the NPC Standing Committee for an interpretation, which would then be binding on the court.
One wonders whether Miss Leung really understands her role as Secretary for Justice in these constitutional cases. She is, of course, the legal adviser to the Government and represents it in every action brought by or against it. But she also has a much more fundamental role to play, that is to uphold the Basic Law and the high degree of autonomy under the 'one country, two systems' principle, which must include the integrity of our legal system, especially the CFA. She has the responsibility of explaining to and persuading the Chief Executive and the central Government that under the common-law system, only the courts interpret laws and that laws should not be interpreted by either the Government which implements them, nor the legislature which makes them. And although the NPC Standing Committee has the power to interpret the Basic Law, every time it is called upon by the SAR Government to do so, the perception in and outside Hong Kong is that our own legal system has failed and can no longer be relied upon to interpret our laws.
On such fundamental and constitutional issues, the Secretary for Justice is no ordinary advocate who can be forgiven for taking every point in favour of her client - for she has the much more important role of defending our legal system.