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SCA's speech at HKU's conference on comparative experiences of autonomy

Following is the speech delivered by Secretary for Constitutional Affairs Mr Stephen Lam at International Conference on Comparative National Experiences of Autonomy : Purpose, Structures, and Institutions at the University of Hong Kong this morning (April 9)(English only):

One Country, Two Systems : High Degree of Autonomy

Professor Yash Ghai, Lord David Steel, Hon Bob Rae, Ladies & Gentlemen,

I would like to begin by emphasizing how valuable it is for us to have this opportunity in Hong Kong to explore questions of autonomy and experience of autonomy around different parts of the world. Here in Hong Kong we pride ourselves on being an international city and it is always nice to have the opportunity to receive friends from overseas. For my part this morning, Professor, it is a distinct pleasure to be able to meet once again Lord Steel and Hon Bob Rae. On behalf of the Hong Kong Government, I extend a very warm welcome to all of you for coming to Hong Kong.

I have the opportunity to meet both speakers on the panel during the 1980s and 1990s. Lord Steel, as I mentioned just before we began, I had the benefit of meeting you and friends of the Liberal Party back in the 1980s when I was working in the Hong Kong Government Office in London. During my time there, Sir Jack Cater was the Commissioner and we had different opportunities to brief you and Members of the Parliament of the Liberal Party on arrangements being made for the future of Hong Kong. I remember that on one occasion you were very kind to receive a delegation from the Unofficial Members of the Executive and Legislative Councils, led by Sir S.Y. Chung.

Bob, our previous association lies rather closer in time in the 1990s when I was establishing the Hong Kong Economic and Trade Office in Canada. I warmly recall the many occasions on which you as the Premier of Ontario officiated at events hosted by Hong Kong e.g. when we hosted Festival Hong Kong in Canada in 1992. That was the time when Canada was having a second attempt to address the Quebec question on the basis of the Charlotte Town Accord. I remember on one occasion in an open forum in front of Toronto Townhall, you asked the audience "give me a yes vote". The outcome was otherwise, I mean across the country. With you in charge of Ontario, everything goes. The Quebec question remains and I continue to watch that with very close interest.

Questions left over from history

Problems left over from history are difficult to resolve. In the case of Hong Kong, we resolved that particular question in 1984 peacefully, amicably and practically. The concept of "One Country, Two Systems" was put forth in the 1980s and incorporated in the Sino-British Joint Declaration. "One Country, Two Systems", "Hong Kong People Ruling Hong Kong" and "A High Degree of Autonomy" - those principles were transformed into the Basic Law in 1990. For 13 years between 1984 and 1997, we in Hong Kong worked very hard to put "One Country, Two Systems" into practice and to make it into a reality.

During this period, the colleagues of the Hong Kong Government together with the Hong Kong community, the Legislative Council and our international partners continued to work unceasingly and put in a lot of efforts to make this work on June 30 and July 1, 1997. That day of transition came and went without a hitch. Hong Kong remains Asia's world city.

Extensive Autonomies

The autonomies which Hong Kong enjoys surpass those which are available to provinces in Canada and the states in the US or Australia. Our counterparts in those jurisdictions do not have :

* membership of the World Trade Organisation (WTO) or a seat in the Asia Pacific Economic Co-operation Forum;

* their own currency or monetary authority;

We have :

* air services agreements with foreign governments;

* over 130 bilateral agreements in a range of areas covering investment protection, extradition, mutual legal assistance, transfer of sentenced persons, and other areas;

* a Special Administrative Region passport which enables Hong Kong Chinese nationals to travel to over 130 countries and regions visa free;

* a Court of Final Appeal, beyond which adjudication of court cases do not go to a national or federal court (I shall have more to say on this particular point a little later).

I put forward this list of autonomy not to belittle the achievements of our counterparts in those foreign jurisdictions that I mentioned. I have a great deal of respect for our counterparts in Canada, Australia, the US and the other parts of the world. They have achieved a lot for their communities and a lot for mankind. But rather the point I wish to illustrate is that here in Hong Kong on the basis of the Basic Law, we have a capacity and the ability to operate at an international level with foreign governments and international organisations which we did not quite have before 1997.

We now also have constitutional institutions which govern our executive, legislative and judicial powers. This is unique. As I mentioned, Bob, back in Canada, you try to define a "distinct society" for Quebec. Here in Hong Kong, our constitution and our existence as a Special Administrative Region are truly distinct. We have, as I mentioned, a judiciary which deals with all court cases in Hong Kong, no further appeals. We now have a Chief Executive which is returned by election albeit through an electoral college of 800 people. This is different from and an improvement on what used to apply before 1997 when Governors were appointed by London. We also have a Legislative Council which is fully elected - 30 seats by direct geographical constituencies, 30 seats by functional constituencies. The element of direct geographical elections has increased since reversion to Chinese sovereignty in 1997. All bills and budgets must be approved by the Legislative Council before they are implemented. So like many different parts of the world, we as the Government propose and members of the Legislative Council dispose.

New Progress

So much for the constitutional institutions which we have enshrined in Hong Kong. But since 1997, things have moved on and we have secured new progress. Bob, in North America when I was there in Canada, you initiated the North American free trade agreement. This has brought about economic growth and trade expansion.

Here in Hong Kong in 2003, we concluded the Closer Economic Partnership Arrangement (CEPA) with Beijing, which for all intents and purposes is a free trade agreement. Subject to the rules of CEPA, goods manufactured in Hong Kong can enter Mainland China duty-free. Professionals qualified in Hong Kong can either operate in Mainland China on their own or in association with their Mainland counterparts. This free trade arrangement was never envisaged when the Basic Law was adopted in 1990. It has been made possible because the Basic Law preserves Hong Kong's separate membership of the WTO and because China has gained accession to the WTO.

Thus, the Basic Law has not only retained Hong Kong's systems beyond 1997. We now have further room for growth.

Evolution of Common Law System

The growth was not limited, has not been limited, to trade and economy. The common law system in Hong Kong has grown in the last seven and a half years. You may find this statement somewhat surprising in view of the current controversy which surrounds us about our application to the Central People's Government for a case to be put to the Standing Committee of the National People's Congress to apply for an interpretation of the Basic Law regarding the term of office which the new Chief Executive to be elected on July 10, 2005 should serve. This question of term of office will be resolved. The HKSAR Government believes that the new Chief Executive should serve the remainder of the term i.e. two years, because we consider it to be the original legislative intent.

But this question apart, let's go back to the bigger picture. I say that the common law system in Hong Kong has grown in the last seven and a half years for three reasons. Firstly, the Court of Final Appeal has replaced the Privy Council to deal with all court cases in Hong Kong. Appeals no longer go to a sovereign capital. This expansion in the function of Hong Kong courts means that our judiciary now plays a larger and more important role.

Secondly, due to the judicial autonomy that we exercise, the common law has continued to evolve in Hong Kong on its own. Precedents set by Hong Kong courts have acquired a life on its own, but we can still refer to precedents established by other common law jurisdictions as persuasive authority. This is important to Hong Kong. It is also because of this philosophy, this ethos that we invite senior judges from Australia, from the UK, from New Zealand to take part as non-permanent judges of our Court of Final Appeal.

Thirdly, court cases are always finally adjudicated in Hong Kong. Appeals never go to Beijing. This was the case even back in 1999, when we applied to the Standing Committee of the National People's Congress to give us an interpretation regarding Article 24 of the Basic Law. That interpretation clarified that henceforth children born in the Mainland to Hong Kong people shall only be eligible for permanent residents in Hong Kong if at the time of birth, either one of the two parents has acquired permanent residence status in Hong Kong. That rule applied since that time of the NPCSC interpretation. But also back in 1999, we preserved and respected the Court of Final Appeal's power of final adjudication because it was on that basis that we allowed several thousand applicants for right of abode to remain in Hong Kong, even though at the time of their birth, neither one of the two parents had acquired permanent resident status in Hong Kong.

Now, I refer to this precedent because I want to demonstrate that the power of final interpretation over the Basic Law vested in the Standing Committee of the National People's Congress can co-exist with the power of final adjudication of the Court of Final Appeal over court cases. There is no contradiction whatsoever between the two.

I just want to elaborate a bit more of this. The constitutional arrangements governing the establishment, the institution of our Judiciary in Hong Kong is distinct. Our Court of Final Appeal has the power of final adjudication of all court cases arising in Hong Kong. It also has the power of final interpretation over Hong Kong common law and Hong Kong legislation. The Court of Final Appeal can apply and interpret Basic Law articles in dealing with court cases. For example, recently, it ruled as to whether civil servants' salaries in Hong Kong can be reduced on the basis of Basic Law articles. The ruling, so far, is against the Hong Kong Government. We are not supposed to reduce the salaries of Hong Kong civil servants. That case is going to the Court of Final Appeal.

But let me go back to Hong Kong courts. Where a particular Basic Law article concerns the responsibility of the Central People's Government or the relationship between the Central Authorities and the Hong Kong Special Administrative Region, the courts in Hong Kong shall seek an interpretation from the Standing Committee of the National People's Congress before making a final ruling.

This is only natural, because Hong Kong is not a sovereign entity. The Basic Law was not enacted in Hong Kong. It was enacted by Beijing to provide "One Country, Two Systems" with a constitutional basis and to make this a reality for Hong Kong.


Ladies and gentlemen, as we move forward to continue to implement "One Country, Two Systems" in Hong Kong, we have to bear in mind a few fundamental points.

Firstly, the Basic Law was made in Mainland China for implementation in a common law jurisdiction called Hong Kong where we espouse common law traditions.

We have to understand that in implementing this constitutional arrangement, the Basic Law, the two systems need to interact. But our mission is to make it, is to ensure that, through this interaction the common law system in Hong Kong thrives and continues to thrive strongly under Chinese sovereignty. In trotting down this path where no man has travelled before, we need to keep an open mind and we need to find practical solutions.

Secondly, aside from questions of jurisprudence, in this new era of globalisation, arrangements such as Closer Economic Partnership Arrangement will ensure that Hong Kong can continue to go from strength to strength. We shall see more of the developmental potentials of "One Country, Two Systems" coming to the fore. As China grows in the world, so will Hong Kong. I have every confidence that we will continue to be the foremost international financial centre of China and Asia's world city.

Last but not the least, within the framework of the Basic Law, we shall endeavour to enhance Hong Kong's democratic development. We are now in the midst of a public consultation exercise to explore how we can further open up the system for electing the Chief Executive in 2007 and for electing the Legislative Council in 2008.

Even though in those two years, we will not be pursuing hundred-percent universal suffrage for these two electoral models, we still have a lot of room to widen the franchise, to enhance public participation and to bring forward political development in Hong Kong. This is the clear aim of the Hong Kong Government. We want Hong Kong's democracy to progress and we shall make every effort to ensure that we do so. Thank you very much.

Ends/Saturday, April 9, 2005