SCMP Tuesday, July 3, 2001
Don't give away our autonomy
MARGARET NG and LAU NAI-KEUNG
Emotion registers more easily than reason. When legislator and barrister Audrey Eu Yuet-mee, SC, walked out of a Legislative Council bills committee meeting last week after strongly criticising the Government's stance, it is her anger, and such snippets as "rubbish" and "betraying Hong Kong's high degree of autonomy" which stick. What was at stake, where the controversy lies, and what solution could be found, remains hazy to most people.
Yet the Chief Executive Election Bill is an important bill. The controversy concerns fundamental principles and reveals deep problems. How the dispute will be resolved when the bill comes to a vote before the full council next week on July 11 matters. It is necessary to understand the issue.
The main aim of the bill is to provide for the election of the Chief Executive. There is some urgency in this because Tung Chee-hwa's term expires on June 30 next year, and an election has to be held before that date. So, to begin with, the bill has to say when an election has to be held. The answer is, when the Chief Executive office becomes vacant. The vacancy is then declared, and the whole election machinery kick-starts.
This part of the matter is provided for in Clauses 4 and 5 of the bill. Clause 4 states: "The office of the Chief Executive becomes vacant - (a) on the expiry of the term of office of the Chief Executive; (b) if the Chief Executive dies; or (c) if the Central People's Government revokes the appointment of the Chief Executive."
Drafted this way, 4(c) seems to suggest that the Central People's Government (CPG) can remove the Chief Executive whenever it likes, without cause or restriction. The bills committee was concerned. The Democrats objected because this would undermine the autonomy of the SAR. Tsang Yok-sing, chairman of the Democratic Alliance for Betterment of Hong Kong, objected because this does not accord with the intention of the Basic Law. In his view, the Basic Law makes clear that once the Chief Executive has been appointed by the CPG, the trigger for his removal can only come from the SAR.
Ms Eu and I probably represent the lawyer's point of view, which is that 4(c) suggests the CPG has an unrestricted power to remove the Chief Executive, and this reflects an unacceptable interpretation of the Basic Law. If 4(c) is approved it could be taken to imply that Legco accepts this problematic interpretation.
The Government's response is that Clause 4 only describes the fact of a vacancy having occurred. While domestic legislation in Hong Kong cannot confer any new power on the CPG, neither can it take away any power the CPG already has. Thus far, the Government is correct.
The Government began to get into serious trouble when officials went on to state what, in the Government's view, the CPG's power to remove the Chief Executive was. In the long course of this debate, officials changed their position several times.
First, it said that, as a matter of common-law principle, the power of appointment of the CPG implies a power of removal. But this has now been shown to be an incorrect statement of the common law.
Then the Government relied on the Chinese constitution, which expressly gives the CPG the power to appoint certain Chinese officials and the power to remove them from office. This has been shown to be irrelevant. Not only is the Chief Executive of the SAR not among those Chinese officials named in the constitution, but Legco is empowered to pass laws only under the Basic Law, not on the basis of other articles of the Chinese constitution.
The Government has agreed to confine itself to the Basic Law. However, the Basic Law only expressly provides for the appointment of the Chief Executive by the CPG - notably under Articles 15 and 45 - but not his removal by the CPG. It is accepted that the CPG's power of removal is clearly implied in two circumstances: when the Chief Executive has to resign under Article 52 - which refers to such circumstances as serious illness and conflict with the Legislative Council - and when he has been impeached by Legco under Article 73(9) for a serious breach of law or dereliction of duty. Here, there is no serious controversy.
But a huge controversy erupted when the Government proposed to spell out 4(c) by including not only the CPG's right to remove the Chief Executive in the circumstances provided for by the above two provisions of the Basic Law, but also a sweeping subclause allowing it to do so "under any other circumstances under the Basic Law".
The controversy is over what is meant by such other circumstances? If there are circumstances other than Articles 52 and 73(9), they should be made explicit. Otherwise, the original uncertainty and suggestion of an unrestricted power of removal by the CPG is back in full force. If there are no other circumstances, then this subclause should be removed.
In a detailed and lucid paper, the Bar Association set out its opinion that, whatever the CPG's power under the Chinese constitution, the CPG does not have the unrestricted power to remove the Chief Executive under the Basic Law. Since the CPG's power of appointment is qualified - it has to appoint the Chief Executive in accordance with the Basic Law - its power of removal is also restricted. In the Bar's opinion, the CPG's implied power of removal does not go beyond that provided for in Articles 52 and 73(9). So the Bar does not consider it right for the bill to contain such a sweeping subclause.
In answer to questions from the bills committee, the Government changed its stance and enumerated several additional articles of the Basic Law it claimed related to the CPG's power to remove the Chief Executive. These include Articles 2, 12, 15, 43 and 47 - some of which provide for the SAR's high degree of autonomy. For example, Article 2 authorises the SAR to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the Basic Law.
This stance is even worse than the Government's opening position since it means that to accept the sweeping subclause would mean accepting that under the Basic Law the Chief Executive can be removed by the CPG for almost anything. By this time, the argument had gone on for more than four meetings, or eight hours.
So how is the matter to be resolved? Several sets of amendments to the bill have been proposed, including one from the Government which simply changes Clause 4(c) into "if the Central People's Government removes the Chief Executive from office in accordance with the Basic Law". However, this merely goes back to square one, by suggesting everything while resolving nothing.
The Democratic Party's proposed amendment, to be moved by party chairman Martin Lee Chu-ming, provides that Clause 4(c) be replaced with two provisions: that a vacancy for the Chief Executive arises if he resigns voluntarily in accordance with the provisions of Article 52 or for other reasons with the CPG's acceptance, or upon the CPG removing the Chief Executive for failure to resign when he should have done so under Article 52 or following Legco's impeachment under Article 73(9). This is in line with the Bar's opinion and reflects, in my opinion, the correct interpretation of the Basic Law.
Under amendments jointly proposed by Ms Eu and I, the entire Clause 4 would be deleted and replaced with the following: "An election shall be held - (a) when the office of the Chief Executive becomes vacant on the expiry of his term; or (b) when the office of the Chief Executive becomes vacant otherwise than on the expiry of his term."
The joint amendment puts aside the controversy and returns to the original purpose of the bill. The point is to provide that an election should be held when the Chief Executive's office becomes vacant. It does not prejudge what may give rise to that vacancy. If the office has become vacant, then an election shall be held in accordance with the law.
Nor can there be any doubt about whether a vacancy has arisen, because Clause 5 (which no one has questioned) provides that, where the office of the Chief Executive becomes vacant, the acting Chief Executive shall declare the vacancy by placing a notice in the Government Gazette. The Basic Law confers a high degree of autonomy on Hong Kong. Deciding how to elect the Chief Executive and conducting the election without the intervention of Beijing - which will only remove a duly appointed Chief Executive with due cause and under due process under the Basic Law - are among some of the most fundamental features of this autonomy.
This autonomy should not be undermined lightly or thrown away. Even if the Government is not prepared to assert it by accepting Mr Lee's amendment, it should at least accept the amendment jointly proposed by Ms Eu and myself, on the safe grounds that it does not pre-empt any interpretation of the Basic Law.
Margaret Ng Ngoi-yee is a legislator representing the legal profession.