Interpretation of Basic Law (2)

Speech for the motion debate at the Legislative Council meeting

Madam President:

when I was drafting the Basic Law as a member of the Drafting Committee of the Basic Law, a question was asked of me repeatedly while we were discussing over two very controversial articles, Article 19 in relation to the meaning of the expressions "acts of state" and "facts of state", and also Article 158, the interpretation of the Basic Law. The question was: What if the courts should get it wrong? (錯了怎麼辦？) And my answer was this, "Well, if the judge in the first instance has pronounced judgment and the Government does not agree with it, the correct way is to appeal to the Court of Appeal of three judges, and if they still dismiss your appeal, the correct way to go about it is to go further, to the Court of Final Appeal (CFA). But if the CFA is still against you, I am afraid that is it, because that is final and that is now the law, and in future, all courts are bound by their decision." So, there is no question of the CFA getting it wrong. Now, Madam President, of course, this principle is well-known even to our law students. But unfortunately, it is not well-known to our Government.

One major flaw in the Government's case, that they should go to the Standing Committee for reinterpretation of various articles of the Basic Law after the CFA has actually adjudicated on them, is that if the CFA has got it right but the community cannot bear the social consequences of it, the correct thing to do is to amend. But if the CFA has got it wrong, the correct way to go about it is to interpret.

The question is this: Who is to pontificate over this question and say whether the CFA is right or wrong? There is nothing in the Basic Law which says who can overrule the CFA or who can decide whether they are right or wrong. Because once you say that, there is another organ or organization which or person who has that power, the CFA is not final. I would have thought that that is elementary.

But it seems that the Government believes that almost any Tom, Dick and Harry can say that the CFA is wrong. If that is so, in every case where the CFA has to rely on an interpretation of the Basic Law before coming to its decision, there is always a loser, and the loser will always say that the CFA has got it wrong. Can it be that this person, this unhappy defendant, can then ask the Standing Committee of the National People's Congress (NPC) to reinterpret the same articles of the Basic Law?

It seems that our Government believes that if the Chief Executive believes the CFA is wrong and the Secretary of Justice also believes it, so the executive has come to an overall decision in the Executive Council that the CFA is wrong in that its judgment goes against the original legislative intent, it can come to this Council for endorsement and likewise, it could go to the delegates of the Hong Kong Special Administrative Region to the NPC for endorsement.

Are they saying that the Chief Executive, the executive authorities and the legislature are in a position to judge the CFA to be wrong? Let us sit back and consider. Why do we have courts? The courts are there to adjudicate in disputes between citizens, but very often, our courts are called upon to adjudicate in disputes between the citizen and the Government. For example, the court will hold or may hold that in making a certain decision, the government department concerned has acted contrary to the rules of natural justice, or simply contrary to certain statute law.

Now, there the court is deciding in a dispute between the citizen and the Government. At other times, the court may say that the legislature, in passing a certain law, has gone against the Basic Law, our constitution, and so the court will declare that law to be null and void.

So, Madam President, the courts are there to decide whether the Government is wrong or whether the legislature is wrong, so as to do justice to the citizens. But how can we turn the tables and have the executive and the legislature to declare the courts to be wrong when they have struck down certain laws passed by the provisional legislature? We are turning the whole thing on its head. How can the Administration be so silly as not to understand what I consider to be elementary principles of law? And we are in this difficulty because they claim to be superior to the CFA.

Now, Madam President, we cannot allow this attitude to continue. We are becoming the laughing stock of the entire world, if the executive and the legislature can combine to declare the CFA to be wrong.

Thank you.

Mr. Martin Lee

26 May 1999