|NPCSC's interpretation on term of new CE legal and constitutional
In response to the "Letter to Hong Kong" by the Honourable Audrey Eu broadcast on RTHK Radio 3 today (May 8), a Constitutional Affairs Bureau spokesman strongly refuted any suggestion that the HKSAR Government was not acting in accordance with the Basic Law in inviting the State Council to request the Standing Committee of the National People's Congress (NPCSC) to make an interpretation on the term of office of the new Chief Executive.
The spokesman said, "Article 43 of the Basic Law provides that the Chief Executive shall be the head of the HKSAR and shall represent the Region. He shall be accountable to the Central People's Government and the HKSAR in accordance with the provisions of the Basic Law. Article 48(2) provides that the Chief Executive shall be responsible for the implementation of the Basic Law and other laws which, in accordance with the Basic Law, apply in the HKSAR."
"Given that the Chief Executive has these constitutional powers and functions, it is lawful and constitutional for the Acting Chief Executive 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 he considers that such an interpretation is necessary for the effective implementation of the Basic Law."
The spokesman emphasised that according to the Constitution and the Basic Law, the NPCSC has the constitutional power to interpret the Basic Law. This is an integral part of the constitutional structure of the HKSAR.
"The NPCSC has the power to interpret every provision in the Basic Law. An NPCSC interpretation can be issued other than in the circumstances provided for in Article 158(3)," he added.
"The interpretation by the NPCSC has provided a firm constitutional basis for the Amendment Bill concerning the term of office of the new Chief Executive. We hope that the Legislative Council will pass the Bill at its sitting on May 25 to complement the election on July 10," he said.
On the HKSAR Government's position on the term of office of the new Chief Executive, the spokesman said that the Secretary for Justice had considered the common law principles of legal interpretation.
"We cannot read Article 46 in isolation. We should also read Article 45 and Annex I in dealing with the election of a new Chief Executive under Article 53. These are principles which are recognised by Hong Kong courts."
The spokesman said, "According to the NPCSC's interpretation, the "remainder term" requirement will continue to be in effect unless and until amendments are made to the method for selecting the Chief Executive specified in Annex I to the Basic Law. "
"We recognise that a number of issues outside the scope of the Amendment Bill, for example, the Basic Law provision that the Chief Executive may serve for not more than two consecutive terms, may need to be addressed. We will study these issues carefully and thoroughly. In the process of our research, we may, as and where appropriate, seek views from legal experts in the Mainland and Hong Kong, and listen to views from the community," he said.
On the constitutional review, the spokesman reiterated that the HKSAR Government was committed to further opening up the methods for selecting the Chief Executive in 2007 and forming the Legislative Council in 2008.
The Constitutional Development Task Force, led by the Chief Secretary for Administration, had been consulting the public on changes to be made to the two methods.
"The period of consultation concerning the Fourth Report has been extended until May 31. We will endeavour to publish the Fifth Report in the latter half of this year after consulting the new Chief Executive who will be elected on July 10. Thereafter, we would deal with the amendments to Annex I and Annex II to the Basic Law within this year," the spokesman said.
Ends/Sunday, May 8, 2005