Question and Answer Session - DOC

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					Transcript of the Question and Answer Session Chairman: Thank you for coming back to the second part of this seminar. We will go straight into it. But before then I do want to make a couple of housekeeping announcements. I have been told that some people would really appreciate the comments of the speakers earlier, and would like to have the prepared texts of the speakers. So any of you who are interested in a copy of the prepared texts, would you please drop your name or a name-card at the exit with the organisers, and they will contact the speakers to have, if available, the text sent to you. And I notice some of the speakers speak from scribbled hand-written notes, others from typed notes. Anyway, so if you are interested in the texts, please let the organisers know and the organisers will do their best to get the texts to you. The second point is that we will now have an open question and answer period. In

order to facilitate this and in order to save time, I am going to recognise two or three people at a time in order, so that the staff members who are on the floor will hand the mikes to the questioners ahead of time, so that we don‟t have to have one mike running around to waste time. And I really don‟t know anybody, I don‟t know your opinions, please trust me, I will probably do a random kind of recognition, probably from a geographical distribution from extreme left to extreme right, and also I will probably recognise somebody on the aisle here. Please identify yourselves very briefly, your name, your affiliation, and the questioners may give an opinion but please do not exceed two minutes. I think I am going to be stricter at the second-half than I was the first-half. And the answers should also be limited to two minutes. If you cannot handle a question in two minutes, then we will have the electricity cut-off from your mike. That‟s the best I can do. I don‟t know what else I can do. So with these rules, and also I understand some of the panellists need to leave at 5:00 sharp and I don‟t know – may I ask the organisers, shall we go for a full hour or shall we end at 5 o‟clock? I have a question to ask: Shall we end at 5:00 or shall we go on for a full hour? All right, the law has been set. We will end at 5:15, so we have approximately one hour, maybe 55 minutes, to go for this. Question (Mr K.C. Kwok – Economist and part-time member of CPU): I have two

questions, if I may. First of all, I think the representative from the Bar raised the point that the Government does not have – I don‟t know what is the most appropriate term – but does not have the power to seek an interpretation. The point I want to ask
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is: is there any body there who could challenge the right of the Government to seek an interpretation and therefore somebody, some authority, has to clarify on that point first before any interpretation could be done? My second question is, reference was made to the legislative intent, I don‟t think we have spent too much time talking about it. My recollection is very simple, that the legislative intent is to enable the children who are Canadians and Australians to come back to Hong Kong. Now the issue is very different. If the interpretation of the Standing Committee of the NPC is such that the legislative intent is not what the CFA ruled and say that the CFA made the wrong ruling, thus what will that mean to the state of the CFA or the rule of law in Hong Kong? Chairman: Thank you. I think the question was directed to Mr Tong.

Mr Ronny Tong: I will try to answer it in two minutes. We live in a legal system where people are entitled to challenge administrative acts. So if the Government purports to do something which on the face of it is not legal or legally justifiable, anyone is entitled to challenge it. Now I am not saying, necessarily, here that positively the Government does not have power. But it is a very complicated question and I think it is very likely that someone would challenge the Government if it were to do that. I‟m not sure whether the second question was directed to me. Chairman: The legislative intent.

Mr Ronny Tong: Under our system, the legislative intent is to be ascertained from the language of the document, and if not the language of the document, the most you can do is to look at the formal documents generated in the course of drafting that document. Chairman: Thank you. The second questioner please.

(Question in Cantonese.) Chairman: Thank you. I don‟t know who should answer that question. Since the question was asked in Cantonese and since you were the only person who gave his talk in Cantonese, Mr Liao may I assign you to be the respondent. Of
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course others who wish to add should feel free to add, please. (Answers in Cantonese) Chairman: Any others? Okay. Then the questioner there. Yes, please.

(Question and answers in Cantonese) Answer continued in English: Once you are committed to do something, then you

will find ways and means as best as possible to deal with it. But if you are half-heartedly thinking about it, then I think you probably won‟t be getting anywhere. (Answer continued in Cantonese) (Follow-up question in Cantonese) Chairman: Your question has been given answers by two people in four minutes. Maybe wait for the next round. This gentleman here and that gentleman there, and that gentleman there. Question (Philip Dykes – HK Bar Association): My question is addressed to the two gentlemen on my extreme left – your extreme right. It is this. Are there any procedural inhibitions which may affect a reference for interpretation to the Standing Committee, given that: one, the Government when arguing the case in the Court of Final Appeal did not seek an interpretation; secondly, whether or not persons affected by an interpretation will be, as it were, party to the transmission of the matter for reference in the sense that they may have a say? Because it appears at the moment that Government wishes to make a reference about matters arising in a court case which have affected the rights and obligations of individuals. So, as I say, as far as you understand – you two gentlemen on the left, particularly Mr Gu who speaks with a Chinese constitutional background – procedurally, will those things be taken into account? Professor Peter Wesley-Smith: I don‟t think I can answer that. I know that there

are Standing Orders and so on for the Standing Committee but in terms of more precise procedural matters I have to defer to Mr Gu.

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Mr Gu Minkang: We are used to conservative issues but it seems to me the Hong Kong Government, according to Article 48 (2), they do have a power, that is the Chief Executive shall exercise the final power and function to be responsible for the implementation of this law and other laws which, in accordance with this law, apply to the Hong Kong Special SAR. The detailed procedural matter is still under consideration because it is seemingly a new issue we never made before. But we would say that the interpretation will be a flexible approach because by looking at the Chinese history the Chinese Government only have one case using the word interpretation. That is regarding the Nationality Law in Hong Kong. But other interpretation (is) usually done through a decision and the resolution. So for this reason we suggest it could be less harmful interpretation because of the policy. Did I answer your question? Question: (Inaudible) Well, that is the question beyond the – Well, let me say that Mr Woo may take a crack at it.

Mr Gu Minkang: Chairman:

Mr Roderick Woo: Actually, Article 12 of the Standing Order of the Standing Committee of the National People‟s Congress provides that a Chairman‟s Meeting shall submit bills within the jurisdiction for deliberation by the Standing Committee. And these are the people who can submit bills for consideration by the Standing Committee: One is The State Council, then The Central Military Commission, The Supreme People‟s Court, The Supreme People‟s Procuratory and Select Committees of the National People‟s Congress. These are the organisations or people who can submit bills for consideration by the Standing Committee. And ten or more members of the Standing Committee may propose bills to the Standing Committee too, provided that the bill is within the jurisdiction of the Standing Committee. I suppose not dissimilar – and a big suppose – not dissimilar to politics in America and some other places where you might have to do some lobbying if you were to seek the help of people within the Standing Committee or the State Council. But the actual procedure, I admit I do not know.

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Chairman: Thank you. Does anyone on my left know? to the next questioner‟s question.

If not, we will go

Mr Alan Hoo: Actually, I would like to share in the concern expressed by Philip Dykes‟ question. I think, if I understand it correctly, it is that if the SAR Government, before the CFA hearing, did not choose to make Article reference of its own but instead asked the Court itself to consider whether it should submit under 158 (3) for interpretation, whether that would operate – let me put it loosely – as some sort of estoppel in the sense that the perception does not seem to be too good. It seems like I want to see what the CFA is going to decide and if the decision proves to be unpalatable I will then go and ask for an interpretation. And I think that obviously is a question that the Administration ought to answer at some stage. But I just want to say I share in the concern of that question because it does seem to give that perception. As far as the second part of the question as to whether interested or affected parties should be given an input, I hazard to say that there may be conventions that surround the Standing Order that allows for interpretation to be made by all these bodies. I am sure affected parties will be able to make their input. But then, again, I think those of us up here, with the exception of the gentleman second from the extreme right, has any expertise in these constitutional conventions in China. Answer: Can I just say one sentence. In a book which I read this morning, written in 1993, it was said that up to that point no procedure had been set in relation to how interpretations are to be sought. Chairman: Thank you. I will go to the next questioner.

Question (Mr Eric Cheung – Law Faculty, HKU): I think the issue here is not whether the NPC actually has the legal power to interpret the Basic Law, the issue here is whether the Hong Kong Government, after presenting its arguments or its legal interpretation of the resolution of the Basic Law, and having been rejected, whether the Hong Kong Government can then still think that it is wiser than the CFA and then suggest to the Central Authorities that the correct legal interpretation should still be that taken by Government but not by the CFA. And on this issue I want to ask three questions. First of all, for those who speak or support the route for interpretation or
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reinterpretation, actually, as I understand it, you base your opinion on the basis that the CFA decision was wrong because as Professor Wesley-Smith actually divided these six questions into three sets you can‟t refer, three sets you can – it‟s based on the decision that if that view is correct, we are wrong. Under our system, is it for the Executive Government or for some outsider to say which interpretation is wrong or whether we accept that the final adjudication of the Court means that that is the correct interpretation as far as we are concerned? So, the question here is that if it is legitimate for Government to refer the matter to the NPCSC for reinterpretation, does it follow that it is also legitimate for Government, in the coming national flag-burning case, either before the decision, refer the matter to the NPCSC for interpretation, or after losing the case also refer it for interpretation? Because it must follow, if the Government maintains its stand is correct and the thing is correct, if it loses its case that means the Court is wrong, so it refers it to the NPCSC. So that is the first question. Chairman: Mr Eric Cheung: I think your two minutes is up. Can I ask one more question?

Chairman: Your two minutes is up. Let me say, I‟m sorry, I didn‟t foresee that you could ask multiple questions in two minutes. Could I have the panellists answer your first two questions and see whether they can do it within a short time and go ahead. Who wishes to answer the question? Go ahead. Professor Peter Wesley-Smith: Just to ask the question, really, is to provide

something of an answer. Of course no one would like to see Government playing that game. I think what we are looking at, what is regarded as something of a crisis now, one can argue whether in fact there is a crisis, a practical, social, economic crisis – and that the Government is surveying different ways of dealing with that constitutionally. So one has to look at the question in these circumstances. But in the flag-burning case, yes, it would clearly be highly upsetting if Government lost the case in the CFA and then immediately went to the Standing Committee. Mr Andrew Liao: I think you bring in the question of fair-play between litigants. I think the Government was more than just a litigant because it oversees the overall interests of Hong Kong, socio-economics in the long term as well. So I don‟t think
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the question of fair-play really comes into it by saying that you have two bites of the cherry. (Inaudible question from the floor) Mr Andrew Liao: Well, all right, but I thought that you were saying that because the Government should have referred if they think they should, before the CFA came to a decision, and they should not do it now because they have a decision against them. I thought that was the question, that that was firstly. If that not be so, then I will go on to the next thing. I think the one essential thing is this: whether it is interpretation or amendment, we have to look at it on the basis that, well, if the CFA decision reflects correctly the true legislative intent of the relevant provision, then there must be amendment. If it doesn‟t, it must be the interpretation, logically, that must be right. Because we can‟t bury our heads in the sand and say: Try it on the basis of expediency, otherwise say which is the correct route. As a matter of logic, it must be right that if the CFA interprets the true legislative intent correctly, there must be amendment. If it doesn‟t, then it must be interpretation. Chairman: Thank you. Yes, please.

Mr Ronny Tong: I would like to add something because I am very disturbed by the question. It disturbs me whenever a lawyer says: Is the SAR Government above the CFA, or is it the CFA has the final word? Nobody is above the law. Let‟s get it right. It‟s the law. The three different branches of government have to implement the law, right? The question of independence of the Judiciary should not be equated with infallibility. Courts have made mistakes. What happens? Let me ask you a very extreme example. Let‟s say the CFA, one day gives a judgement saying that the PLA Garrison, get out of Hong Kong; foreign affairs, we are going to be at war with America, let‟s say, right? If it is a decision which is clearly beyond its competence, what happens then? What happens then? My answer to that, if somebody asked me, my answer to that would be that the NPC will declare that the judgement of the CFA is ultra vires. We have to go back to the law. I think it is also wrong to say that the CFA judgement is wrong. The CFA judgement
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is not wrong insofar that it construed the words that it was faced with. But the decision, as it turned out, is contrary – if you accept what I say – to the original intent of the Joint Declaration and the basic policies behind Article 24. If that is so, then the Executive Branch of Government must be responsible to correct it. And that goes to my final … (end of tape side B) Chairman: … that gentleman, Mr Mak, could not continue his question. Now I think, given what has just happened, I think I will give you thirty seconds, Mr Mak to ask your remaining question and see if the panellists can answer. (Question and answer in Cantonese) Chairman: question. Just a second. One of the panellists wants to answer the same

Mr Gu Minkang: I think the issue here is you cannot really say the judgement of the CFA is entirely wrong, because the interpretation, the bottom-line, you can see is protection of human rights. But I think there is a conflict between the legal interpretation, the judgement, and the reality. As a judge they have to confront the reality. So in order to solve the contradiction there must be some compromised way. So for this reason I think that if the law authorised Hong Kong SAR to exercise the power, I think it has also authorised the NPC or NPCSC to do their job. In reality it may affect a little bit the judgement itself, but you cannot say – I think it is a legal process, it‟s a legal power, so the obstruction must exist. But we try to minimise that kind of harmful consequence. Question (Paul Mueller):Actually, my question was about from what have we been able to discern the principles or the statutory procedures regarding referrals to the Standing Committee to exercise a power to interpret? And the panellists indicated – I guess Professor Gu referred to six or seven previous cases, and Mr Hoo referred to eight – but I think the previous dialogue indicated that as a matter of the Chinese Constitutional Law there isn‟t a lot of technical knowledge of that on the panel and so I think the previous dialogue really dealt with the answer to my question. Chairman: questioning now. Question (Carol Peterson – HKU): It seems that there is no question that from the
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I think I can ask for further questioning.

Another round of

point of view of rule of law, amendment is a lot cleaner if you cannot implement this decision. Because there is no question that although you might hope that the Hong Kong Government won‟t get into the habit of running to Beijing for an interpretation every time it loses the case, we can‟t be sure that that won‟t happen and I think there is a real danger that Hong Kong‟s reputation as a place of impartial justice could be greatly damaged if the Hong Kong Government does go for a reinterpretation when it loses a case. So I would like to return to the question of amendment and I have a question for the first two speakers. Your main argument against amendment seems to be that you think it would violate Article 159 because it would change a basic policy of the Chinese Government towards the Hong Kong SAR. Now, I have never interpreted, in my own mind, basic policy to mean every word of the Basic Law. Basic policy, as I understand it, is supposed to refer to the fundamental policies of the Basic Law and expressed in the Joint Declaration: autonomy, judicial independence, including the right of final adjudication - that kind of fundamental principle. You seem to be interpreting basic policy to mean every word of the Basic Law. And if that‟s true, then no amendment could ever be made to the Basic Law. Which is clearly not the case because Article 159 provides for a procedure for amendment. So I would like to ask both of you, under what criteria have you decided that the definition of permanent resident is a basic policy and cannot be amended? Mr Andrew Liao: It must be right that the right of abode intended to be granted to certain people must be a fundament right, mustn‟t it? Because in the Joint Declaration, paragraph 3 says that: “The … declares that the basic policy of the People‟s Republic of China regarding Hong Kong are as follows:” And in sub-paragraph – let me find it first – it talks about … “that the current socio-economic systems in Hong Kong will remain unchanged and so will be the lifestyle, rights and freedoms including those of the person, of speech, of the press, of assembly, of association, of travel, of movement” Now, are those not matters touching on right of abode, the right to stay here, to enter
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here, to live here? provides for:

And then in Annex 1 to the Joint Declaration, 14, it says that – it

“foreign categories, the persons having the right of abode”. Follow-up question (Carol Peterson – HKU): Mr Andrew Liao: But that‟s in the Annex.

Yes, that‟s the Annex but -- Can I finish first?

Chairman: I think Mr Tong is eager to speak and he is about to leave, so I give him the chance. Mr Ronny Tong: I don‟t want to sound rude but I‟m afraid my learned friend, Mr Liao, may be making a false point. Article 159 does not say that you cannot amend this law contrary to the Joint Declaration. I‟m sorry, it‟s wrong.

Mr Andrew Liao: No, no, I‟m not saying that. Can I just finish. I haven‟t finished, you don‟t know what I‟m talking about. You cannot assume what I‟m talking about. My point is, Annex 1 is an implementation of the basic policies – basic policies. And Article 159 says you can‟t amend to contravene the basic policies. That is Annex 1. Follow-up question (Carol Peterson – HKU): Mr Andrew Liao: fundamentals. (inaudible)

No, no, I‟m not saying that you can‟t amend anything, but the

Chairman: May I have the floor. Normally, the chair should not interject and ask questions but as a total novice, as a concerned citizen, I have a question that I want to ask. I have heard today, among the specialists – legal scholars, practitioners – use two different terms for one approach: interpretation and reinterpretation. Are we asking for reinterpretation or are we asking for interpretation, because I‟m getting confused? Has the Standing Committee already interpreted, therefore we go for reinterpretation? Or haven‟t they interpreted and we are going for interpretation? Could I be enlightened?

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Mr Ronny Tong : That is a valid question. The point here is that a power to interpret has been given to the Court of Final Appeal in Hong Kong, by the Standing Committee. The Court has exercised that power and has given an interpretation. As I say, the interpretation was given pursuant to the power granted to it by the Standing Committee. And therefore for anyone to try to go to the Standing Committee and ask for an interpretation contrary to that existing interpretation is reinterpretation. I hope I‟ve answered your question. Answer: Can I also follow on. I think that, with respect, is too facile an analysis. adjudication exclude the And that is and round.

What the Court did was a judicial interpretation within the course of an between the parties before it. That, under the Basic Law, does not express power of legislative interpretation by the Standing Committee. where, I … say, the interface, the problems, just going round Adjudication and interpretation are two separate concepts.

And if I can come back to the question which was directed to both of us, I take objection to the words “it‟s much cleaner”. I mean as a matter of constitutional law principle, I can‟t find anything that says, “Well, it is much cleaner, let‟s go for amendment”. I mean we have doctrines of necessity. Amending a Constitution, to me, by any means, must suggest that you are either changing your position – you must first find out what is your original position, whether you call it a basic policy, your intent, what is it originally was agreed? The genesis here that led to the Basic Law is not like the Four Fathers of America, this was because two countries resolved a question of sovereignty over Hong Kong, that is the genesis of the Joint Declaration. What the parties agreed as the basic policies that led to England returning Hong Kong to China must obviously be important when you construe the basic policies. And therefore if you look at the construction and say, “Well, are we changing our mind, are we adding something to it - like the US Constitution, the First Amendment, Assembly, Chief Amendment – are we adding something, something which was not there before?” Fine. Then do it. There must be clear legal principles for you to do something. And as far as I am concerned, whichever way you look at it, amendment seems to me wrong. Why do you want to amend when there is an express power of interpretation? If you

have no confidence in the integrity of the SAR Government or no confidence in the integrity of the Standing Committee, that is quite another thing. That is beyond the scope of what lawyers should approach. I hope that answers to some extent your
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question. Question (Michael DeGolyer – HK Transition Project): Again, I‟m not asking a question in terms as a lawyer but just as yourself, an interested citizen. It seems that the material cause of the Court of Final Appeal‟s ruling being controversial is its supposed economic and social impact, and its supposed impact is based on a survey with controversial and very flawed methodology and government‟s estimates of that impact which are even more flawed. Legally, couldn‟t the Government set up a register, require parents in question to register, give details of their children for whom they seek such rights, prove parental relationship to those children, and then survey the children to see whether they themselves actually intend to exercise such rights by moving to Hong Kong? Isn‟t, in effect, the Government legally seeking a pre-emptive ruling prior to any real damage being inflicted on Hong Kong? In other words, it is all theoretical in this case. And could the NPC refuse to “interpret” on the basis that there has been no damage inflicted other than to Hong Kong‟s relationship with Mainlanders and people‟s love of China? Chairman: front. Thank you. That statement requires no answer, so the lady in

Follow-up question from Mr Michael DeGolyer: Chairman:

No, it was a question.

You said you didn‟t ask for an answer.

Follow-up question by Michael DeGolyer – HK Transition Project: Could the Government legally set up such a register and go to such procedure, and is it legally seeking a ruling? Chairman: Who do you intend to ask? It‟s to whoever

Follow-up question by Michael DeGolyer – HK Transition Project: on the panel could answer. Answer: Chairman: I‟ll answer you.

That is a question for the Government.

I thought that was a rhetorical question.
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Follow-up question by Michael DeGoyer – HK Transition Project: not a rhetorical question at all.

No, it was

Question: As a political scientist, I find the debate today very narrowly construed because I think the debate about the legal options makes an assumption, maybe prematurely, that we are going to think of ways how to throw the ruling of the CFA over the right of abode out of the window. But I think we have not had a full debate about whether we need to do so and whether there will be other means that we can achieve the base values on the one hand, and also other concerns of the majority of the people in the community. I think many people in the political scientist community will share with me the ridiculous way the Government has administered the surveys, the questionnaires, and the way they have presented the statistics and the scenarios to the community at large. May I also say I share with this lady who raised the question about the basic policies as mentioned in the Basic Law, that I was amazed when I heard from two panel speakers earlier on how they interpret what they mean by the basic policies in the Basic Law, because that would mean – well, I cannot envisage a possibility that we can have any meaningful amendment to the Basic Law, not to say an amendment with regard to our political structure and elections. I think it is important for us to bear in mind that it is no question that the National People‟s Congress and its Committee has the power to interpret the Basic Law. But the question is whether we should allow our Government to abuse the legal system. Something legal is not necessarily to be done. That is what I think. Answer: I think you have not understood clearly my point about amendment. I am not, certainly, suggesting that you can‟t amend the Basic Law. Now, if you assume that the CFA decision is right in interpreting the Article 24, that includes people born at a time before either parent had resided for seven years. By an amendment you are taking away rights from people. That would be contrary to the intention as interpreted by the Court of Final Appeal. By so doing you are taking rights away from people. Now, if that was originally intended, if those people were originally intended to be covered, by way of amendment you are cutting down rights, you are taking rights accrued, under the intended original draft, from people who were then entitled. And that is the problem about the amendment. I‟m not saying that you
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can‟t amend. But I say, when you amend you have to make sure that you are not taking away accrued rights. Question (Shiu Sin Por – „One Country, Two Systems‟ Research Institute): Let me add a little bit to the question the two ladies ask which they are persisting in asking, I think it‟s a very simple answer. How do you define basic policy? That is the Appendix of the Joint Declaration. That definition of Permanent Resident was within the Appendix 14 of the Joint Declaration which says, that is the basic policy of China; that is the part, including all the Appendix should not and cannot be amended. One example. That doesn‟t mean the whole Basic Law cannot be amended. Let‟s say, one issue that you‟re so interested in, the way of election, was not within that Appendix. The Appendix only says that the legislature should be elected, it didn‟t say how. And the Basic Law gives the certain way of how to elect the legislature for the next ten years. And certainly, when the time comes, you can amend that to the degree that as long as there‟s election, you can do it any way you want in accordance with the procedures to amend the Basic Law, without violating the basic policy that is stipulated in the Appendix of the Joint Declaration. The definition what is part of a basic policy of China towards Hong Kong is very clear, it is not arbitrary. It is in the Joint Declaration, as the speaker gave it. And that does not cover the whole of the Basic Law. There are certain parts of the Basic Law that can be changed in accordance with social developments in Hong Kong. Chairman: I presume that did not require an answer. Okay. I want first to say that clearly it is important that

Question (Yash Ghai – HKU):

one could find the intention of the legislature. I was sitting in the Court of Final Appeal when Dennis Chang made the point that both he and the Government side – and Geoffrey Ma was nodding his head – had looked through every conceivable document as a background for the Basic Law and they could find nothing which said that Article 22 applied to 24. So my view is that we are not going to get very much help from the intention of legislators because if these two legal teams, with all their resources and all the access they had to documents, could not find anything there which declared the intention, then I think we have to fall back, as Ronny Tong said, on the wording of the legislature. The question I really want to ask is directed at anybody who wants to answer but particularly to Alan Hoo, who I think correctly identified a major problem in the Basic
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Law, and this is when there is interface of two legal systems. If you look at the problems we have had since the transfer, almost all of them or the majority of them, reside in the area of interface. Now, I understood Alan Hoo to say that when that happens we must apply common law, as common law is and procedures are, and then when it refers to the Chinese Law they must apply their principles, their method. Well, it seems to me, that is going to cause schizophrenia. I think that we have two very different – and they are not just like the system in Europe, different countries have different systems, you have to have a common court because basically they have the same legal principles - we don‟t have that, unfortunately, we have very different approaches in the two parts of China on that. So it seems to me, we have to find some way of reconciling somehow the application of two different norms. I would argue that the really crucial question is how to operate 158, and I don‟t think we can forget 159 when we are doing that, and I would suggest that if you come back to the notion of intention, it is intention, as the CFA said, in a broad way. We start first with the intention of the Basic Law, intention of the Joint Declaration, before we look disparately at individual words. And I would also say that we cannot, perhaps, apply every aspect of Chinese Law because the Basic Law is a different kind of law from ordinary Chinese Law. For example, as far as I understand it, the only law in the Chinese legal system, except the Constitution itself, which actually provides for a specific method of amendment of a document, only the Basic Law provides that. So it seems to me that is to some extent intended to control the whole concept of its interpretation. It can‟t be as broad-ranging as it is in the normal Chinese Law. So if I can try to conclude – you have been very generous –Chairman: I‟ve been generous because your name was mentioned earlier.

Question Cont‟d (Yash Ghai– HKU): I was just going to ask Alan and whoever else wants to say - and this is an honest question, it is not loaded question, because I‟ve been grappling with this – how do we move forward? I have suggested in an article in the local paper some time ago that one way to proceed would be to judicialise as much as we can 158. Somebody mentioned we are all afraid to go to the NPC in a way. Why are we afraid to go? Because we don‟t have confidence in their procedures. That is, I suppose, a Philip Dykes‟ point too. But if we could somehow judicialise 158, then I
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think it would be much easier for us to use the 158 mechanism. Some of us feel very, really, uneasy about the notion of going because it is not the NPC that will decide it, it is decided by a few officials. And I think the quotation from … wonderfully captures that process. So I should be very grateful for, Alan, your view and anybody else who wants to speak on this. Mr Alan Hoo: I think as far as the CFA judgement is concerned, the judgement itself states that – the Court actually says this: “Mr Ma, for the Director, relies on an agreement reached in the Sino-British Joint Liaison Group between the Chinese and the United Kingdom Governments. We do not have the record of any such agreement.” So that, to me, was the first astounding state of affairs – probably right. He is

arguing that there is an agreement we should look at under the Article 31 (3) (a) of the Vienna Convention of Law Treaties, which allows you to look at subsequent agreements to interpret the intent of the nations concerned. We don‟t have the record. They were looking at a booklet. But the ruling of the Court, however, did not detract from the point that intent is necessary, it did not detract from the point that it is legitimate for the Court, when interpreting, to search for the intent. But all it says: All right, we don‟t have that before us. And then it said that: Well, Article 31 (3) only meant we have to take it into account; well, we have, and therefore we come to this conclusion. So, basically, they have taken into account something which is not there before them. So that explains that part of it. The other aspect is - I think it is, with respect, wrong in the common law system where the court - and unlike the Continental system - is there to get at the ultimate, dare I say, loosely, truth – the ultimate answer. They are there – they are only as good as what is placed in front of them. And if that is what they have, you can‟t look at: Well, we have Dennis Chang, he is very comprehensive. Oh well, in this case we didn‟t have Dennis Chang. So, I mean, you can‟t have a qualitative judgement. Chairman: Excuse me. I think time is ticking away and since earlier I already recognised Professor Albert Chan, please Professor Chan. I think he should probably be the last questioner and then we will let whoever on the panel wishes to
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respond and then we should conclude this session. Don‟t vote with your feet too early. Question (Albert Chen – HKU): I think the most interesting point made in the whole seminar today, is the point made at the very beginning by Mr Alan Hoo and Mr Andrew Liao, concerning the different consequences of interpretation and amendment. They are arguing that if we think that the CFA‟s decision is wrong then the only way to deal with it is interpretation. And if the CFA‟s decision is right then amendment would be a possible option. And using the amendment option, they argue, would imply that we recognise that the CFA decision is right. But I think that this argument must be limited to a very peculiar context which is our „one country, two systems‟ situation. Take the case of any other country in which the Final Appeal Court has made an interpretation of the constitutional document, and even if all the people and the Government think that that interpretation is wrong, there is nothing which they can do except to amend the Constitution. And that is why the US Constitution was amended a number of times, and more recently there was a proposed constitutional amendment to deal with the Supreme Court decision to decriminalise flag-burning, although the amendment was not passed. So I would take issue with the proposition, as a general proposition, that amendment of the constitutional document to be proposed after a decision of the Final Appeal Court would imply a recognition that the decision is right. Amendment can be made even if it is dubious whether the decision is right. Sometimes the constitutional language may be ambiguous. Sometimes the language may be so ambiguous that the Court can choose one interpretation or another interpretation and there is a high degree of freedom of choice, so it is difficult to say whether an interpretation is right or wrong. And the only thing which can be done is to clarify the legislative language, the constitutional language, by way of an amendment. So I think that the Article 24 situation falls into this category of ambiguous language. So I would not say that we can - as Professor Peter Wesley-Smith mentioned the phrase “that the CFA‟s decision is demonstrably wrong on the Article 24 point”. Although I argued in a very long paper that that decision is probably demonstrably wrong as far as the interpretation of 158 and Article 22 is concerned. Having said that, I do take the point which Mr Alan Hoo and Mr Andrew Liao raised,
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namely that since we have „one country, two systems‟ and since the power to amend the Basic Law is not the power of the people of Hong Kong or its legislature, therefore we have to take into account the views of the Mainland side. If it is their view that Article 24 should be interpreted in a particular way, that in their view it is unambiguous, in their view the Preparatory Committee decision should be given effect to administer the Chinese Law, etc, so if in their view the whole problem lies with the wrong interpretation of the Basic Law and they would absolutely refuse to adopt any amendment to it proposed by Hong Kong, then in such a situation I would think that an interpretation by the Standing Committee of Article 24 is acceptable and is not a total denial of the rule of law in Hong Kong. And so on this point I am open to being persuaded or am in the process being persuaded by Professor Peter Wesley-Smith.

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