Let History Resolve CE's Term

http://hkupop.hku.hk/english/columns/columns79.html

Robert Ting-Yiu Chung (Director of Public Opinion Programme, the University of Hong Kong)

Translated by Carmen Ka-Man Chan (Research Executive, Public Opinion Programme, the University of Hong Kong)

Note: This article represents the view of the author and not the University of Hong Kong.

With the stepping down of CH Tung, and his succession by Donald Tsang, everything is heading for a good new start. Unfortunately, a new controversy has erupted even before things begin to settle, as to whether the term of office of the new Chief Executive should be 2 or 5 years.

While we are yet to debate the goods and bads of Tung's rule, there is little doubt that Tung had undercut Hong Kong's rule of law. In 1997, almost immediately after the establishment of the HKSAR, controversy sparked on the right of abode of Hong Kong people's children in the Mainland. After a series of judicial reviews which placed Tung's government at a losing position, Tung did something peculiar and unforgiving. He gave up our courts' power of final adjudication.

Tung's judgment then, even before consulting the public and conducting in-depth studies, was that the mainlanders would be a burden to Hong Kong's economy. Tung first pointed his fingers to the mainlanders, and then mobilized the government to argue against their residency, including the use of a post-decision study to show that 1.67 million mainlanders would swamp Hong Kong. This clearly demonstrated Tung's impatience at the beginning of his rule.

Tung's thoughts at that time might be out of good intentions. Yet, because of his lack of understanding to Hong Kong's society and rule of law, his misjudgement was disastrous to Hong Kong.

At present, the argument on whether the new CE's term of office should be 2 or 5 years is quite similar to the right of abode argument then, as both have been raised to the "pro-China" and "anti-China" levels very soon. Neither the Chief Executive's Office nor the Central Government could understand that many academics and experts insisting on rule of law in fact love China even more than those people against the right of abode.

At that time, Tung could not see this problem clearly. He was so eager to serve the mother country that he took the initiative to seek the interpretation from the National People's Congress. This was a serious fault in Tung's governance. While this became a precedent, the NPC's interpretation has gradually become automatic. What Tung should really do then was to pacify the conflicts between the 2 sides, so as to protect Hong Kong's core values on one hand, and to take care of the Central Government's good intentions on the other hand. As a matter of fact, at that time, the Central Government did not want to have interpretation of the Basic Law, but only participated in the discussion though the speeches of the legal experts. However, Tung did not understand the good intentions and Hong Kong people did not realize that too. The incident, as a result, ended in tragedy.

The irony is that, after Tung stepped down, the last question he has left to Hong Kong was the first question since he took up his office, just like the reproduction of the history. The crux of the arguments over the CE's term and right of abode issue was basically the same.

The dismissal of Tung by the Central Government is a friendly response to the public opinion in Hong Kong. Another unnecessary interpretation, if this is the case, will only weaken the Central Government's good intentions. In the author's view, the Central Government is also unwilling to have another interpretation. On the other hand, due to the considerations in political reality, as well as the concept of law serving the politics, no matter how clear the wordings in the Basic Law are, and the interpretation will add difficulties to the integration of laws in the 2 places, it is really hard for the Central Government to give free hands for the new CE to rule for 5 years. It is understandable that the Central Government worries that the HKSAR's governance will go beyond control again. Besides, because of one's own interest, some politicians have once again raised the arguments to the "pro-China" and "anti-China" levels, transforming the sensible arguments to irrational ones.

Before Tung resigned, he has advised Elsie Leung, the Secretary for Justice, to exchange views with the mainland legal experts. Elsie Leung, basing on the opinions of mainland Basic Law Drafting Committee members and constitutional law experts, concluded that it should be a 2-year term. Tung and Elsie Leung have completely got around the local Basic Law Drafting Committee members, Basic Law Consultative Committee members and legal experts, as they knew their conclusion would not be in line with the local legal spirit. In local courts, law and politics are totally independent. This is the success of the rule of law in Hong Kong, and it can also serve as a reference for the mainland in the "one country, two systems".

The reason of Elsie Leung's conclusion was rather far-fetched. Apart from getting around the local legal opinions selectively, one of her points was that since Basic Law was passed in mainland, in order to determine the CE's term, even the Common Law legislations' interpretation principles were given up, we still needed to follow the mainland legal principles and the principles of Chinese leaders' by-elections.

The author is not a legal expert, and would only like to point out one or two points that the experts in two places may have ignored. At present, the establishment and operation of the Provisional Legislative Council still falls into the vacuum of the Basic Law. The appearance of the Provisional Legislative Council has postponed the establishment of the first and the Legislative Council sessions afterwards for one year. As a result, there is a mismatch of session and year in Annex II of the Basic Law, i.e. the fourth session of the Legislative Council has cut ties with the constitutional review in 2007. While the formation of the new Legislative Council has already cut ties with 2007 basing on the practical situation, why can't the year of the new CE's term as stipulated in Annex I cut ties with 2007 as well? Besides, the stipulations in the Basic Law on the CE and Legislative Council have not specified or implied that the HKSAR Government's terms need to be matched with those of the Chinese leaders. Otherwise, the different terms in Hong Kong and Macau may also lead to many questions.

Due to the limitation of space, the author could not go into details of each legal viewpoint here. The author only wishes to suggest a solution which will go better with the public opinion. In the author's view, the public generally wants to see fewer conflicts and more harmonious relationship between the Central Government and the HKSAR Governement. Yet, at the same time, the public also hopes that the local rule of law spirit can be safeguarded. The resignation of Tung is a very good chance, and how to solve the contradictions through understanding is our challenge.

The author believes that after the Basic Law has been implemented for 10 years, this will be a suitable time for a review. If we all focus on the review and revision of the Basic Law after 2007, and put the inadequacies of the Basic Law at present in debate and record, then any local legislation or NPC's interpretation arising from instant needs will only be considered as "temporary" measures and can be revised after the Basic Law has been reviewed 3 or 4 years later. Of course, the revision work of the Basic Law has to be like its drafting at that time, with mutual discussion and adequate interactions between the 2 places. Hong Kong people's opinions need to be absorbed thoroughly and completely, so that the virtues of the "one country, two systems" can be highlighted.

At present the urgent task for the governments in both places is to convene a research group on the term of the CE and enact some "temporary" measures to deal with the problem. Even though the legal experts in the 2 places cannot reach the consensus, they may decide on a 2-year or 5-year term basing on individual articulations. Assuming the final decision is the former and the Hong Kong people then apply for judicial review, the NPC will be eventually "forced" to make a decision of 2 years. Yet, if the NPC, when interpreting the Basic Law, is able to point out this is only an expedient, and affirm the agenda for the review of the Basic Law, it is believed that a lot of people will also understand this.

On the contrary, if under individual articulations, the term of the new CE has become a 5- year one, whereas the government of the 2 places, after evaluating the Basic Law, has decided that the CE from the by-election should only serve the remaining term of the original CE, then the revised Basic Law can specify when the term of the next CE starts at the same time, which in fact will shorten the term of the CE then. This should be feasible if this is supported by public opinion and matches the interest of the 2 places. The question lies in the wisdom of the leaders in the 2 places and the tolerance of the people both in and out of the governments.

Many questions in the history lie in the grey area. If "one country, two systems" can be successful, it is because it has left a sovereignty and institutional question, which cannot be solved instantly, to time to solve. Why can't we put aside the controversy over the CE's term and leave it to time to solve as well?