LC Paper No. CB(2) 2913/98-99
(These minutes have seen by the Administration)

Ref : CB2/PL/CA

Legislative Council
Panel on Constitutional Affairs

Members Present :

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon Emily LAU Wai-hing, JP (Deputy Chairman)
Hon LEE Wing-tat
Hon Martin LEE Chu-ming, SC, JP
Hon Ambrose CHEUNG Wing-sum, JP
Hon Howard YOUNG, JP
Hon Ambrose LAU Hon-chuen, JP

Members Absent :

Hon Margaret NG
Hon Ronald ARCULLI, JP
Hon CHEUNG Man-kwong
Hon Christine LOH
Hon Gary CHENG Kai-nam
Hon Jasper TSANG Yok-sing, JP
Dr Hon YEUNG Sum
Hon SZETO Wah

Members Attending :

Hon LEE Kai-ming, JP
Hon NG Leung-sing
Hon CHOY So-yuk

Public Officers Attending :

Mr Michael M Y SUEN

Secretary for Constitutional Affairs

Ms Carol YIP

Acting Deputy Secretary for Constitutional Affairs

Mr R C ALLCOCK

Deputy Law Officer
Department of Justice

Mr Peter WONG

Senior Assistant Solicitor General (Basic Law Unit)
Department of Justice

Miss Cathy CHU

Principal Assistant Secretary (Security)

Clerk in Attendance :

Mrs Justina LAM

Assistant Secretary General 2

Staff in Attendance :

Mr Jimmy MA

Legal Adviser

Mr LAW Wing-lok

Chief Assistant Secretary (2) 5

I. Briefing by the Administration
(LC Paper No. CB(2) 2201/98-99(01))

1. The Deputy Chairman welcomed the Administration's representatives to the meeting.

2. Secretary for Constitutional Affairs (SCA) outlined the main points in the paper which was prepared by the Administration in response to the Panel's request. SCA said that in accordance with Articles 43 and 48(2) of the Basic Law (BL), the Chief Executive (CE) had reported to the State Council the problems he had encountered in the implementation of the BL and sought assistance of the State Council to seek an interpretation from the Standing Committee of the National People's Congress (NPCSC) on the legislative intent of BL 22(4) and 24(2)(3). He added that under Article 12 of the Standing Order of the NPCSC, authorized organs or persons which could submit a bill/motion for deliberation by the NPCSC included the State Council, Central Military Commission, Supreme People's Court, Supreme People's Procuratorate, special committees of the NPC and a joint submission by ten or more members of the NPCSC. He also pointed out that under BL 158(4), the NPCSC was required to consult the Basic Law Committee of the Hong Kong Special Administration Region (HKSAR) before giving an interpretation of the BL.

3. SCA further said that CE had pledged that the Administration would only seek the NPCSC's interpretation of the BL in the most exceptional circumstances. SCA also said that the Secretary for Justice had informed Members at the Council meetings on 26 May 1999 and 2 June 1999 that the Administration would consider carefully the suggestion of establishing a formal mechanism. SCA added that CE's report requesting the State Council to approach the NPCSC for an interpretation of BL 22(4) and 24(2)(3) was lodged with the Hong Kong and Macau Affairs Office on 21 May 1999 for submission to the State Council. The Administration would make public the report as soon as the State Council had accepted the report and referred the matter to the NPCSC.

4. The Chairman thanked SCA for his introduction and invited questions from Members.

5. Mr Martin LEE suggested that as the paper covered five separate issues, the meeting should deal with one issue at a time. Members agreed.

6. Mr Howard YOUNG asked whether the Administration had considered other options under Article 12 of the NPCSC's Standing Order, such as seeking the assistance of the special committees of the NPC or obtaining a joint submission by ten or more members of the NPCSC, before arriving at the decision to request the State Council's assistance for seeking an interpretation of the NPCSC.

7. SCA said that BL 43 provided that CE "shall be the head of the Hong Kong Special Administration Region and shall represent the Region". It further provided that CE "shall be accountable to the Central People's Government and the Hong Kong Special Administration Region in accordance with the provisions of this Law". It would therefore be appropriate for CE to act on behalf of the HKSAR and submit a request to the Central People's Government (i.e. the State Council) for an NPCSC interpretation.

8. Mr YOUNG further asked whether the Administration would consider approaching the special committees of the NPC or the Basic Law Committee, instead of the State Council, if it decided to seek an NPCSC interpretation of the BL on a future occasion. In reply, SCA said that special committees of the NPCSC included committees such as the Financial and Economic Committee, the Nationalities Committee and the Overseas Chinese Affairs Committee and a few others, but not the Basic Law Committee. He reiterated that as one of the powers and functions of CE was to implement the BL, it was the responsibility of CE to approach the State Council if he encountered problems in the implementation of the BL. He added that whether persons other than CE could request the State Council to approach the NPCSC for an interpretation of the BL was a separate issue.

9. The Chairman opined that it was not clear that BL 43 and 48(2) taken together provided the legal basis for CE to approach the State Council for an interpretation of the BL by the NPCSC.

10. Mr Martin LEE said that BL158 and 159 stipulated the powers of interpretation and amendment of the BL respectively. He asked whether it was CE who determined that in coming to a particular judgment, the Court of Final Appeal (CFA)'s interpretation of the relevant provisions of the BL was wrong, given that the request to the State Council for an NPCSC interpretation was submitted by CE. He also asked whether an individual who lost in the CFA could approach the NPCSC through the State Council for an interpretation of the BL. He further said that in his view, a constitutional problem had arisen as a result of the CE's decision to seek an NPCSC interpretation after the Government had lost in the CFA.

11. Deputy Law Officer (Dep LO) replied that despite the absence of any express provisions in the BL empowering CE to request the State Council to seek an NPCSC interpretation, it was lawful for CE to take such a course of action in view of the constitutional duties imposed upon CE by virtue of BL 43 and 48(2). Dep LO also said that there were no provisions in the BL preventing an individual from seeking an interpretation of the BL from the NPCSC. He pointed out, however, that a litigant who lost in the CFA would not benefit from a request for an NPCSC interpretation since the judgment delivered by the CFA would be binding on the parties to the proceedings, regardless of the outcome of the NPCSC's interpretation.

12. Dep LO further said that whilst the CFA had the power of final adjudication in legal proceedings, it was clear from the provisions in BL 158 that the NPCSC was vested with the ultimate power of interpretation of the BL. Should the NPCSC interpret the relevant provisions differently from the CFA, the NPCSC's interpretation would be binding on the HKSAR courts. He maintained that the CE's decision to seek an NPCSC interpretation was both constitutional and lawful.

13. Mr Martin LEE further asked whether CE would seek an NPCSC interpretation on behalf of the individuals who claimed right of abode (ROA), if they, and not the Government, lost in the CFA and requested CE to approach the State Council to seek an NPCSC interpretation. Dep LO replied that he could not see how the individuals concerned would benefit from an NPCSC interpretation as the CFA's judgment would remain binding on the parties to the proceedings even if the NPCSC interpretation differed from that of the CFA.

14. Mr Martin LEE said an NPCSC interpretation might affect other persons in similar situations as those of the individuals in the ROA cases. He asked the Administration to affirm whether CE would seek an NPCSC interpretation on behalf of the individuals concerned if they lost in the CFA.

15. In reply, Dep LO reiterated that the Administration would only seek the NPCSC's interpretation in the most exceptional circumstances. He considered Mr LEE's assumption that someone had simply lost in the CFA and CE ought to help him and seek an NPCSC interpretation was not a good assumption in the context of the subject matter under discussion. SCA added that without the relevant details it would be difficult for the Administration to give a reply as to whether CE would seek an NPCSC interpretation if the plaintiffs lost in a similar case that might arise in the future. SCA further said that in the ROA cases in question, the CE's decision to request the CPG's assistance to seek an NPCSC interpretation was to ascertain the meaning of BL 22(4) and 24(2)(3) in accordance with the true legislative intent.

16. Responding to Mr Martin LEE's earlier question about who determined that the CFA's interpretation of the relevant provisions in the BL was wrong, Dep. LO said that the Government's position was that they considered that there were good grounds for believing that the Immigration (Amendment) (No.2) Ordinance and Immigration (Amendment) (No.3) Ordinance enacted in 1997 reflected the true legislative intent of BL 22(4) and 24(2)(3), and that the Government was seeking an NPCSC interpretation to ascertain the true legislative intent of those provisions.

17. Mr Martin LEE asked what the term "they" referred to in Dep LO's reply meant. Dep LO said that the term referred to CE as head of the HKSAR.

18. Mr LEE Wing-tat asked whether an individual who lost in the CFA could request an interpretation of the BL from the NPCSC. SCA replied that the individual concerned could approach the authorized organs or persons set out in Article 12 of the NPCSC's Standing Order for assistance. How these organs or persons would deal with the individual's request was a matter for them to decide.

19. Mr LEE Wing-tat further asked whether, apart from the most exceptional circumstances, there were other circumstances in which CE would seek an NPCSC interpretation upon request of an individual who lost in the CFA. SCA said that it would be difficult to give a reply without knowing the relevant details. He pointed out, however, that the Administration would deal with such a request in a transparent manner.

20. Mr Ambrose CHEUNG expressed doubts as to whether BL 43 and 48(2) provided a legal basis for CE to seek an NPCSC interpretation of the BL. He asked whether the Administration had taken any measures, such as seeking the NPCSC to interpret BL 43 and 48(2), so as to prevent the affected parties in the ROA cases bringing legal proceedings against the Government if the NPCSC's interpretation resulted in the rights conferred on them by the CFA judgment being taken away.

21. Dep LO said that the Department of Justice had given advice to CE that it was lawful for him to seek an NPCSC interpretation in exercise of the constitutional duties imposed upon him under BL 43 and 48(2). If someone was of the view that the CE's decision to seek an NPCSC interpretation was unlawful, that person could, if he so wished, institute legal proceedings against CE.

22. Mr CHEUNG further said that as he understood it, the HKSAR included both the Government and the people of the HKSAR. He asked whether the Administration would set up a formal mechanism setting out the circumstances under which CE and members of the public could seek an NPCSC interpretation of provisions in the BL.

23. Dep LO explained that the NPCSC operated according to its Standing Orders and it would not be appropriate for the Administration to set up a mechanism which restricted the operation of the NPCSC. He reiterated that in seeking an NPCSC interpretation of BL 22(4) and 24(2)(3), CE had acted in accordance with the provisions of the BL and the Standing Orders of the NPCSC.

24. Miss Emily LAU also expressed concern as to whether BL 43 and BL 48(2) provided a legal basis for CE to seek an NPCSC interpretation. She pointed out that according to what Professor Albert CHEN had said at the Panel meeting on 29 May 1999, the two provisions could only be regarded to contain a hidden meaning that CE had the power to seek such interpretation under the Chinese legal system. She asked whether the Administration had applied the Chinese legal concept in deducing that CE had such a power under the two provisions of the BL concerned.

25. In reply, Dep LO said that in the strict common law sense, the word "power" meant an ability to impose an obligation or liability on other persons. He pointed out that CE was not exercising a "power" to force NPCSC to give an interpretation, he was simply making a request to seek an interpretation to the State Council. He also pointed out that as a general rule, one did not need statutory power to make a request. He added that given that BL 43 and 48(2) imposed duties on CE to report to the State Council and to implement the BL, it was lawful under the common law principles for CE to seek the assistance of the State Council if he encountered problems in the implementation of the BL.

26. Referring to the Administration's earlier statement that the No.2 and No.3 Amendment Ordinances enacted in 1997 reflected the true legislative intent of BL 22(4) and BL 24(2)(3), Miss LAU asked why the Government did not seek a reference to the NPCSC under BL 158 for an interpretation of the two provisions in question during the CFA's hearing of the ROA cases.

27. Dep. LO said that during the CFA proceedings, the Government submitted that BL 22(4) was a provision which concerned the relationship of the Central Authorities and the HKSAR, and the CFA assumed this to be the case. In so far as CE's decision to seek an interpretation of BL 22(4) was concerned, there was general consensus that BL 22(4) was outside the limits of the autonomy of the HKSAR, and there was therefore good reason for asking the NPCSC to exercise its power of interpretation on this provision. He reiterated that CE would seek an NPCSC interpretation only in the most exceptional circumstances and stressed that CE would not approach the State Council to request an interpretation from the NPCSC every time the Government lost in the CFA. He further said that the Administration had explained that the NPCSC could be legitimately asked to interpret the relevant provisions in the BL.

28. Miss LAU pointed out that the Government had indicated at one stage during the CFA proceedings that it would seek an interpretation from the NPCSC under BL 158, but it subsequently clarified in the course of the hearing that it would not seek an NPCSC interpretation. She further said that CE's decision to seek an NPCSC interpretation after the CFA had delivered its judgment was tantamount to seeking to overturn the CFA judgment. In her view, such an action on the part of CE would undermine the rule of law and the CFA's power of final adjudication.

29. Dep LO said that under BL 158(3), a reference to the NPCSC must be made by the CFA if two tests were satisfied: firstly, if there was a need to intrepret a provision of the BL which was outside the limits of the autonomy of the HKSAR, and on this the Government had submitted during the CFA proceedings that BL 22(4) concerned the relationship of the Central Authorities and the HKSAR; and secondly, that such interpretation would affect the judgment on the case. He further said that the Government did put to the CFA that if the two tests were satisfied, the CFA must make a reference to the NPCSC for an interpretation. However, only the CFA could determine during the course of its proceedings whether the second test was satisfied.

30. Miss LAU asked the Legal Adviser for his opinion on whether BL 43 and 48(2) provided a legal basis for CE to seek an NPCSC interpretation, given that there were no express provisions in BL 158 conferring such power on CE. In response, the Legal Adviser said that it would not be appropriate for him to debate the legal issues regarding the legality of CE's decision at the meeting as the Administration had suggested the possibility of litigation on the issues. However, he pointed out that the BL was a constitutional document and according to the Administration, CE as head of the HKSAR had the constitutional responsibility to approach the State Council if he encountered problems in the implementation of the BL. He further said that anyone whose legal interest was prejudiced by CE's decision to approach the State Council for seeking an NPCSC interpretation could institute legal proceedings in respect of that approach by CE.

31. The Chairman asked whether any individual who disagreed with the CFA's interpretation of the BL could approach the State Council to seek an NPCSC interpretation, regardless of whether the individual was a party to the proceedings concerned.

32. SCA pointed out that under BL 48(2), CE had the duty to implement the BL. In addition, BL 43 provided that CE was accountable to the State Council. CE was therefore in a unique position and only CE had the constitutional responsibility to implement the BL, and seek assistance from the State Council if he encountered any problem in its implementation. This constitutional responsibility did not apply to any other person. SCA further said that any person could submit a petition or complaint to LegCo under its redress system or to the Chief Executive if he felt that the rights conferred on him by the BL had been taken away as a result of any action taken by the Government.

33. Miss LAU asked whether an NPCSC interpretation would result in the CFA judgments being overturned. In reply, Dep. LO said that the judgment delivered by the CFA in the ROA cases was final as far as the parties to the proceedings were concerned. It would remain unaffected even if the NPCSC interpretation differed from that of the CFA. He added that the NPCSC interpretation would change only the principles that were to be applied to claims for ROA by other persons that were pending or would be made in the future.

34. Miss LAU further asked whether the Legal Adviser had approached the Department of Justice for clarification on the effect of the CFA judgment on other persons in the same position as those in the ROA cases. The Legal Adviser said that he had written to the Department of Justice on behalf of the Chairman of the Panel on Security, Hon James TO, seeking clarification on how the "test cases" would affect those persons whose circumstances were the same as the named applicants in the "test cases", as well as how an NPCSC interpretation which had an effect contrary to that of the CFA judgment would affect those who would be qualified for ROA by virtue of the CFA judgment. He further said that the letter was sent on 20 May 1999 but no reply had yet been received. Dep. LO said he thought that the Secretary for Security had stated that persons in the same position as the parties in the ROA cases would be treated in the same way. The Chairman said that the queries raised in the Legal Adviser's letter would be considered at a later stage when a reply from the Department of Justice was received.

35. The Chairman pointed out that under the Letters Patent, the Governor was responsible to the United Kingdom Government in London for the administration of Hong Kong, while CE was accountable to both the Central People's Government and the HKSAR under BL 43 and 48(2). He asked the Legal Adviser to do a research on the constitutional role of CE under the BL via-a-vis that of the Governor under the Letters Patent, particularly in regard to implementing laws and handling complaints.

36. Dep LO said that he was not sure what the significance of that difference was in the context of the subject matter under discussion. He pointed out that in seeking an NPCSC interpretation of BL 22(4) and 24(2)(3), CE was fulfilling his constitutional duty to the Central People's Government and HKSAR. As regards handling complaints, while the Governor had the responsibility to handle complaints and petitions under the colonial system, CE also had the duty to handle complaints and petitions under BL 48(13). In the event that a litigant who lost in the CFA submitted a complaint to CE, whether CE would take action in support of the complainant would depend on the circumstances of the complaint in question. Dep LO stressed that in implementing laws, CE clearly must act in accordance with the BL and ensure that the BL was complied with in the HKSAR.

37. The Chairman asked whether, in the event of the CFA rejecting a request of the Government for the CFA to seek an NPCSC interpretation during the proceedings of the CFA, CE could rely on BL 43 and 48(2) to request the State Council to ask the NPCSC for an interpretation. Dep LO replied that any person could write to the State Council at any time requesting an NPCSC interpretation of the BL. Whether the State Council would entertain the request was another matter.

38. Referring to paragraph 11 of the Secretary for Justice's speech delivered at the special House Committee meeting on 18 May 1999, Mr Martin LEE said that it would not be right for the Government to seek an NPCSC interpretation to overturn the CFA's interpretation of BL 24(2)(3) which concerned matters that were within the limits of the autonomy of the HKSAR. He pointed out that BL 82 provided that the power of final adjudication was vested in the CFA and that the CFA had the power under BL 158(2) to interpret provisions of the BL which were within the limits of the autonomy of the HKSAR.

39. Dep LO responded that as a matter of law BL 24(2)(3) was not outside the limits of the autonomy of the HKSAR. However, in a general sense and in the context of matters concerning immigration from the Mainland, BL 24(2)(3) could be considered to have an effect on the HKSAR's relationship with the Central Authorities. He also pointed out that there was a difference between the CFA's power of final adjudication and NPCSC's power of final interpretation of the BL. He stressed that the CFA's adjudication in relation to the time of birth issue under BL 24(2)(3) was final and not appealable as between the parties to the case. However, the CFA did not have the final power to interpret BL 24(2)(3) which was vested in the NPCSC.

40. Mr Martin LEE disagreed with Dep LO's assertion. He said that final adjudication included not only determining the result of the case but also giving an interpretation of the provisions concerned. Dep LO said that Professor Yash GHAI had stated in his leading work on the BL that there was a clear distinction between adjudication and interpretation. Mr Martin LEE pointed out that Professor GHAI's statement was made in the context of BL 158(3) which provided that the courts of the HKSAR should, before making their final judgments which were not appealable, seek an interpretation of the relevant provisions which concerned the relationship between the Central Authorities and the HKSAR. Mr LEE further said that in the ROA cases in question, the CFA had interpreted the provisions of BL 24(2)(3) which concerned matters within the limits of the autonomy of the HKSAR in accordance with BL 158(2), and hence its interpretation must be regarded as final.

41. The Chairman shared Mr LEE's view and said that members would have the opportunity to seek clarification from Professor GHAI as he would be attending the special Panel meeting to be held on 12 June 1999.

42. Miss Emily LAU suggested that the Administration should draw up formal procedures for seeking interpretation of the BL from the NPCSC, setting out for example how consultation with the relevant bodies such as LegCo would be conducted. SCA responded that as with the proposal of setting up a mechanism for seeking an NPCSC interpretation, there were complex issues involved in putting in place a set of procedures to be followed in seeking an NPCSC interpretation. He reiterated that the Administration would need to consider these issues carefully and stressed that the Administration could not make any commitment at this stage.

43. Miss LAU requested the Administration to provide Members with a paper setting out details of the legislative proposals that would be presented to LegCo following the NPCSC's interpretation of BL 22(4) and 24(2)(3).

44. Dep LO responded that the Administration would need to introduce legislative provisions to implement the CFA's judgment on the "born out of wedlock" issue. Whether additional legislation would be required would depend on the outcome of the NPCSC interpretation. SCA further said that CE's report to the State Council requesting an NPCSC interpretation of BL 22(4) and 24(2)(3) would be made public in about one week's time. In response to Miss LAU's request, Dep LO said that the Administration would prepare a paper detailing the legislative measures that needed to be put in place on the ROA issue for Members' information.

45. Mr Martin LEE expressed dissatisfaction that CE's report was not made public as soon as it was submitted to the State Council. SCA maintained that the Administration considered it appropriate to release the report after the State Council had accepted the report and referred the matter to the NPCSC.

46. Mr LEE Kai-ming said that the Government of the HKSAR had reported the enactment of the Immigration (Amendment) (No.2) Ordinance 1997 and the Immigration (Amendment) (No.3) Ordinance 1997 to the NPCSC for the record in accordance with BL 17. He was of the view that the fact that the NPCSC had not returned the legislation concerned was an indication that the provisions contained in the legislation were in conformity with the BL. He asked whether the Government had made known this fact to the CFA in the course of the hearing of the ROA cases.

47. Dep LO replied that the relevant legislation had been duly reported to the NPCSC for the record. However, the Administration was not seeking to argue that the fact that the NPCSC had not returned the legislation concerned in any way made the legislation free from challenge.

48. Mr Ambrose CHEUNG referred to the Administration's earlier statement that CE could, by virtue of BL 43 and 48(2), seek an NPCSC interpretation of the BL during court proceedings. He asked the Administration to provide a written submission on the impact of the exercise of such power by CE on the independence of the judiciary as provided under BL 2, 85 and 158.

49. The Chairman called the meeting to a close at this juncture. .

50. The meeting ended at 4:30 pm.

Legislative Council Secretariat
29 September 1999