Following is the transcript (English portion) of remarks by the Secretary for Constitutional and Mainland Affairs, Mr Stephen Lam, at a media session after attending a radio programme this morning (July 24):
Reporter: Your final proposal could leave room for judicial review. Would you do something to plug the loophole before you put that forward?
Secretary for Constitutional and Mainland Affairs: In past months, we have examined very closely the various possible options to enable us to plug this loophole. We believe that by putting forward a proposal to enable the original candidate list of the resigning member to fill these ensuing vacancies is a constitutional step. This approach has been used by established democracies around the world, such as Germany, Finland, Poland, etc. We also believe that this loophole needs to be plugged and that is why in launching this consultation exercise, we have outlined four possible options. Option 2 has been proposed by the Government. The other three options have been put forward in the process of our discussions in past months.
As things stand, none of these options have been ruled to be unconstitutional and indeed, legal academics including Professor Albert Chan has stated that there is no readily apparent reason to consider these four options to be unconstitutional. He has stated that Option 1 which restricts the rights of a resigning member to stand in the ensuing by-election to be probably a proportionate response. Likewise, restricting the application of the same candidate list to put forward a replacement Legislative Council Member is maybe also a proportionate response.
We have examined various jurisdictions and we have put forth the fourth option to set out the possibility of using the same candidate list to fill vacancies and if this is not successful, then we will leave the vacancy standing there. This is an approach used by jurisdictions like Germany, Czech Republic, Poland and New Zealand, and since these established democracies around the world use such an approach, we believe that there is room for us to consider whether this is in line with the Basic Law in Hong Kong.
Reporter: Do you mean that your proposal will stand the test of judicial review? You are confident about that?
Secretary for Constitutional and Mainland Affairs: Well, what I would say is that in Hong Kong, we have established the Special Administrative Region for 14 years. The Basic Law is still a relatively young constitution. Any constitution would need at least several decades of implementation for unclear points to be clarified through a constitutional process, and through appeals to the Court of Final Appeal for these rules to be definitively and finally established.
On our part, as the HKSAR Government, we will do our very best to examine these issues, to listen to public views and when necessary to defend our position in the cause of Hong Kong. We believe that there is a possibility of any newly enacted legislation to be tested in the courts of Hong Kong and we have to prepare for that eventuality. In the mean time, we will listen very closely to the views of political parties, academics, different sectors and members of the public. We hope that following these two months of public consultation, if necessary, we will adjust our package and make doubly sure that it will be constitutionally viable.
(Please also refer to the Chinese portion of the transcript.)
Ends/Sunday, July 24, 2011