Basic Law of the Hong Kong Special Administrative Region/Explanations

Explanations on the Draft Interpretation of Paragraph 2, Article 53 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China by the Standing Committee of the National People's Congress

At the 15th Session of the Standing Committee of the Tenth National People's Congress on 24 April 2005

Li Fei, Deputy Director of the Legislative Affairs Committee of the NPC Standing Committee

Chairman, Vice Chairmen, Secretary-General, Fellow Members,

I am entrusted by the Chairmen's Council to make explanations on the Draft Interpretation of Paragraph 2, Article 53 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China by the Standing Committee of the National People's Congress.

On April 6, Mr. Donald Tsang, Acting Chief Executive of the Hong Kong Special Administrative Region, acting on powers and functions conferred on him by Article 43 and Article 48 Item 2 of the Basic Law, submitted to the State Council a Report requesting the Standing Committee of the National People's Congress to make an interpretation of Paragraph 2, Article 53 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China. The Report says that since the State Council accepted Mr. Tung Chee Hwa's resignation as the Chief Executive of the HKSAR on March 12, a new Chief Executive is to be elected on July 10, as required by the Basic Law and the Chief Executive Election Ordinance of Hong Kong. The SAR Government is of the view that the term of office of the new Chief Executive selected through a by- election shall be the remainder of that of the previous Chief Executive, and accordingly, it needs to amend the Chief Executive Election Ordinance to prescribe explicitly the term of office of the new Chief Executive selected through a by-election when the office becomes vacant before the tenure of the previous Chief Executive expires. However, divergent views have arisen on this in Hong Kong society. One view supports the remainder of the term of office of the previous Chief Executive, and the other is for a five-year term for the new Chief Executive. Furthermore, some members of the Legislative Council and individual Hong Kong citizens have publicly requested for possible judicial review of a draft amendment to the Chief Executive Election Ordinance. In fact, the court received an application for such judicial review on April 4. The SAR Government, therefore, now faces two problems: (a) To ensure the on-time completion of the legislative procedure of a draft amendment, it needs to have an authoritative and decisive legal interpretation of the relevant provisions of the Basic Law before there can be a solid foundation for local legislation; and (b) If a judicial review process should start, it will take a fairly long time to complete, which is highly likely to make it impossible to have a timely and lawful selection of the new Chief Executive on July 10. If the new Chief Executive cannot be elected on the legally scheduled date of July 10, it will have a negative impact on important decision-making, administration and normal operation of the SAR Government and may even trigger a constitutional crisis. In addition, it will prompt Hong Kong citizens and the international community to question the resolve and ability of the SAR to implement the Basic Law, and adversely affect the financial market and investors' confidence. All this will not be in the interest of Hong Kong's stability and prosperity. Hence this Report to the State Council suggesting that it request an interpretation of Paragraph 2, Article 53 of the Basic Law concerning the term of office of the new Chief Executive from the Standing Committee of the National People's Congress.

Having studied the Report of Acting Chief Executive Mr. Donald Tsang, the State Council considers that the question raised in the Report bears on the correct implementation of Paragraph 2, Article 53 of the Basic Law, the smooth selection of a new Chief Executive of the HKSAR and his subsequent appointment by the Central People's Government, and so submits to the NPC Standing Committee a Proposal requesting interpretation of Paragraph 2, Article 53 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China. Having examined the Proposal of the State Council, the Chairmen's Council of the NPC Standing Committee, and acting with the aim of ensuring correct implementation of the Basic Law, was of the opinion that, in accordance with Item 4, Article 67 of the Constitution of the People's Republic of China concerning the interpretation of statutes by the NPC Standing Committee and Article 158 of the Basic Law, which says that "the power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress", it is both necessary and appropriate for the NPC Standing Committee to interpret the relevant provisions of the Basic Law. Therefore, the Chairmen's Council came up with a Draft Interpretation of Paragraph 2, Article 53 of the Basic Law of HKSAR of the People's Republic of China by the Standing Committee of the National People's Congress and, in accordance with the Basic Law, sought opinions from the Committee for the Basic Law of HKSAR under the NPC Standing Committee. In the meantime, the views and opinions from NPC deputies from HKSAR, members of the National Committee of CPPCC and community representatives including legal professionals in Hong Kong were listened to successively. Now, let me make an explanation of the Draft Interpretation.

Article 45 of the Basic Law provides for the basic principles on the election and appointment of the Chief Executive, including reference to Annex I of the Basic Law for the specific method of selecting the Chief Executive. Article 53 provides for selection of a new Chief Executive in the event that the office of the Chief Executive becomes vacant, which clearly requires compliance with Article 45. As for the term of office of the Chief Executive, Article 46 provides for the duration of the term of office of a Chief Executive under normal circumstances and the limit of consecutive terms. That is, the Chief Executive shall serve a five-year term and may be re-elected and serve another term. However, Article 46 does not say how the term of office of a new Chief Executive shall be calculated when he is elected to fill the vacated office of the previous Chief Executive.

During the drafting of Article 53 by the Basic Law Drafting Committee, the Special Group Concerned with the Political Structure had some discussion about how to calculate the term of office of a new Chief Executive elected to fill the vacated office of the previous Chief Executive -- whether a full five-year term of office starting anew or the remainder of the term left by the previous Chief Executive. The discussion left clear changes in the wording of the relevant provisions of the Draft Basic Law. In the compilation of the first drafts of the Basic Law made in December 1987, there is the provision "In the event that the office of Chief Executive of HKSAR becomes vacant, a new Chief Executive shall be selected within six months." In the draft Basic Law released in April 1988 (for solicitation of opinions), this provision was changed into, " In the event that the office of Chief Executive becomes vacant, a Chief Executive of a new term shall be selected within six months." In the draft Basic Law released in February 1989 and in Paragraph 2, Article 53 of the Basic Law as approved by the Seventh NPC at its Third Session in April 1990, the wording was again changed into, "In the event that the office of Chief Executive becomes vacant, a new Chief Executive shall be selected within six months in accordance with the provisions of Article 45 of this Law." This version (Chinese) removed "of a term" and added the proviso "in accordance with the provisions of Article 45 of this Law." That is to say, in the event of vacancy, a new Chief Executive shall be selected in accordance with the provisions of Article 45, and the term of his office shall be determined by the method of selection provided for under Article 45.

Paragraph 1, Article 45 of the Basic Law stipulates, "The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People's Government." Paragraph 2 stipulates, "The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures." Paragraph 3 stipulates, "The specific method for selecting the Chief Executive is prescribed in Annex I 'Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region'." Paragraphs 1 and 2 set forth the basic principles for the election and appointment of the Chief Executive, while Paragraph 3 provides for the specific method of selecting the Chief Executive as contained in the Annex I of the Basic Law.

Clause 1 of Annex I of the Basic Law stipulates, "The Chief Executive shall be elected by a broadly representative Election Committee in accordance with this Law and appointed by the Central People's Government." Clause 2 stipulates, "The term of office of the Election Committee shall be five years." Setting up an Election Committee with a five-year term, whose statutory responsibility and task is none other than electing the Chief Executive, and one of its important aims is to facilitate the selecting of a new Chief Executive in time when that office becomes vacant during those five years. Meanwhile, the five-year term of the Election Committee indicates that its mandate is to elect a Chief Executive for a five-year term, but not exceeding that term. This is a unique institutional arrangement under the Basic Law. Therefore, when the office of the Chief Executive becomes vacant before the five-year term expires, the new Chief Executive to be elected by that Election Committee can only serve the remainder of the term of office of the previous Chief Executive but not going beyond the five-year term. At the same time, Clause 7 of Annex I of the Basic Law stipulates, "If there is a need to amend the method for selecting the Chief Executives for the terms subsequent to the year 2007, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People's Congress for approval." With regard to this clause, Chairman Ji Pengfei of the Drafting Committee for the Basic Law, in explaining the draft Basic Law, specially expounded the principle of "selection by election by a broadly representative Election Committee in the decade between 1997 and 2007," indicating that the HKSAR in its first ten years shall have two five-year term Chief Executives. In other words, HKSAR, during its first decade, can only have its first and second Chief Executives, each in office for five years, whose combined terms shall not go beyond the year 2007. If there is a need for amending the method for selecting the Chief Executives, it could be done after 2007. Should such amendments be made to Annex I, the term of office of the new Chief Executive following the vacancy would be determined by the method for selecting the Chief Executive to be adopted then.

In accordance with Annex I of the Basic Law, the Standing Committee of the National People's Congress adopted in April 2004 the Decision on Questions Related to the Method for Selecting HKSAR Chief Executive in 2007 and That for Forming Legislative Council in 2008. It reads, "To the election of the third Chief Executive of the HKSAR in 2007, the method of universal suffrage shall not be applied." On that premise, "specific methods for selecting the third Chief Executive of the HKSAR in 2007" could "be appropriately modified consistent with the principle of gradual and orderly progress". These provisions indicate that the third Chief Executive will be elected in 2007 by the selecting method prevailing at the time, and the new Chief Executive selected to fill the vacancy left by the second Chief Executive shall only serve out the remainder of the term of office of the previous Chief Executive, rather than serving a full five-year term.

At present, the Constitutional Development Task Force of HKSAR Government is widely canvassing public views on how to amend the method of selecting the third Chief Executive in 2007. Hong Kong citizens in their large numbers are looking forward to electing their third Chief Executive by an appropriately amended method of selection. The Central Government, too, sincerely hopes to see further amendments to the method of selecting the Chief Executive which are based on broad consensus reached among Hong Kong citizens of various sectors and that can reflect progress of democracy in Hong Kong.

At present, the legislative intent, it is clarified that the term of office of the new Chief Executive filling the vacancy shall be the remainder of the term of office of the previous Chief Executive, thus enabling the HKSAR gradually and orderly to develop democracy in Hong Kong in 2007 in accordance with the Basic Law and the relevant decision of the NPC Standing Committee, and create conditions step by step for progress towards the eventual goal of universal suffrage. To do this is in full compliance with the Basic Law and serves the interests of all sections of Hong Kong society.

I hereby submit for our deliberation the Draft Interpretation of Paragraph 2, Article 53 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China by the Standing Committee of the National People's Congress.