The confusion over Hong Kong's Basic Law and what it means for the new Chief Executive (CE) continues. I'm not a lawyer (thank God). But the Basic Law is written in plain English. The key article for this discussion is Article 46:

The term of office of the Chief Executive of the Hong Kong Special Administrative Region shall be five years. He or she may serve for not more than two consecutive terms.

Now Beijing is changing its mind on how long the next CE, The Don, can serve. Basic Law "guardian" Wang Zhenmin has joined the flip-flopping crowd. On March 11 Wang had said if the CE served less than half of the full term in office that should not be counted as a term of office under Article 46. Secretary for Justice Elsie Leung has said the same. But now the pro-Beijing camp are clearly opposed to The Don but have to live with it. But they are not going to put up with him for 12 years. So Beijing is back-tracking as a quid pro quo for their supporting The Don now.

The SCMP has reprinted three letters from Basic Law "experts" Xu Chongde and Lian Xisheng to Elsie Leung detailing the rationale for a two-year term for the new CE. As an episode in convoluted legal reasoning it is difficult to beat. However it misses a couple of key things, namely logic and any reference to the clear meaning of the original Basic Law.

Now it might be me. But if there was so much thought, discussion and intention for the Basic Law, why not write the Article to reflect it? Article 46 as written is clear and seemingly plain. Why write one thing but mean another? Sometimes laws are ambiguous and their applications unclear; in those cases they need interpretation. That's why courts exist. In this case it is the NPC not courts that will do the interpretation - another perversion of the rule of law. But here the Article is clear. The only people making it ambiguous are Beijing for their own political ends. And Hong Kong's leadership are jumping in to anticipate and repeat Beijing's view. Why don't they have a conference call and sort out the message once and for, so at least they can avoid these embarrassing flip-flops?

I'd clearly welcome any input from those better versed in legal and constitution issues. But for this layman these justifications seem like hogwash. The comparisons with the American constitution border on insulting.

Call me old fashioned but instead of trying to get inside the mind of the drafters, I prefer to look at what they wrote on the page.

The Hong Kong government was originally of the view that Tung Chee-hwa's successor should serve a five-year term, but later determined that the successor should serve only the remainder of the chief executive's term. Here are the complete versions of three letters written by mainland Basic Law experts Xu Chongde and Lian Xisheng to Secretary for Justice Elsie Leung Oi-sie laying out the rationale for a two-year term. In the letters, released by the Department of Justice, the experts list their recollection of the period during the drafting of the Basic Law, discussions that were held and the legal and constitutional basis for their opinion.

MARCH 7: Question of vacancy answered with 5-year term for electors

Dear Ms Leung,

I refer to your call on March 7 in which you inquired about the legislative process and the legislative intent of the provisions related to the term of the chief executive in the Basic Law of the Hong Kong Special Administrative Region (HKSAR). My recollections of the relevant events are set out below.

Between 1985 and 1990, I was a member of the group on the political structure and participated in drafting the Basic Law of Hong Kong. I recall that in the course of drafting Article 53 of the Basic Law which provides that "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", there were changes back and forth in respect of the wording of ("the new chief executive"). Initially it was written in the form of the current provision. However, it was changed into ("the chief executive of the new term") in the course of drafting. Later, the words ("term") were deleted. The above changes were made mainly because members had different understanding towards the term of the new chief executive when the office of the chief executive was left vacant. Some members considered that it should be the residue of the unexpired term, while some others thought that it should be a new term. Why were the words ("term") eventually deleted? I remember that at that time it was mainly based on the following understanding:

(1) The chief executive could certainly mean an individual holding that office. However, in the Basic Law, the chief executive is primarily a state organ and an integral part of the political structure of the SAR. The chief executive, the executive authorities, the legislature and the judiciary together form the political structure of the HKSAR. Therefore, "the term of office of the chief executive shall be five years" as referred to by us means, to a very great extent, that each term of office of that organ is five years. In practice, the same chief executive would normally serve throughout the five-year term of office of the chief executive. However, the possibility that two or more persons holding the office in succession within the same term could not be ruled out. And the five-year term of office of the chief executive as a state organ would not be affected.

(2) If we were to look at the practice in the mainland, it will show that irrespective of whether it is the National People's Congress, its Standing Committee, the president of the People's Republic of China, the State Council, a local People's Congress or a local government, the term of office of these organs is not determined by the appointment or departure of a particular individual but rather by the term of office of the respective organs as provided for in the Constitution. For instance, the governors of provinces and the mayors of municipalities in the mainland change frequently but this does not mean that the respective governments have to be changed as well. Instead, the new governors and the new mayors will continue to serve out the unexpired term of their predecessors. The People's Congress system is not practised in the HKSAR. Nevertheless, it is specified that the chief executive shall be elected by an election committee and that the term of office of the election committee shall be five years. This was drawn up with reference to the practice adopted in the mainland regarding the term of office.

(3) The situation of the United States was also taken into account at that time. A president of the United States shall hold office for four years in each term. When President [John F.] Kennedy was assassinated after assuming the presidency for two years and 10 months, Vice-President [Lyndon] Johnson succeeded as president for the remaining unexpired term of his predecessor. After one year and six-and-a-half months on his second term of presidency, [Richard] Nixon resigned from office as a result of the Watergate incident. His unexpired term was served by his successor, Vice-President [Gerald] Ford. The practice adopted by the United States to elect both president and vice-president at the same time is to resolve the issue of serving the remainder of the unexpired term of a president in case the office fell vacant prematurely.

In the course of drafting the Basic Law, it was suggested by some members that a deputy post be created so that in the event the office of chief executive became vacant, the deputy could fill the vacancy for the remainder of the term. This view, however, was not adopted.

Instead, it was decided that the issue of filling the chief executive's vacancy in the event that his office became vacant be resolved by providing that the term of the election committee shall be five years. This means that in the event that the office of chief executive becomes vacant, a new chief executive shall be returned in a by-election of the election committee to serve the remainder of the unexpired term.

I recall that in the course of drafting Annex I to the Basic Law, there was a provision stating that "the election committee shall be dissolved after the appointment of the chief executive by the Central People's Government", but it was subsequently amended as "the term of office of the election committee shall be five years". The amendment was made to resolve the issue of remaining term and it is clear that it is not for the election committee of the current term to elect a chief executive of a new term.

This also serves to confirm that the purpose of deleting the words ("term") in ("the chief executive of the new term") mentioned earlier was to underline the fact that where a chief executive is returned in a by-election of the five-year-term election committee, he shall only be the new chief executive instead of the chief executive of a new term.

The above account is just some of my personal recollection for your reference.

Yours sincerely,
XU CHONGDE
Professor of the Law School of the Renmin University and Member of the Hong Kong Basic Law Drafting Committee

MARCH 8: Wording changed to clarify length of term

Dear Ms Leung,

With regard to the questions you raised in our telephone conversation, apart from my comments made on the phone, I have checked the information on hand as requested. At the time in question, I was a member of the Basic Law Drafting Committee secretariat and participated throughout the drafting process of the Basic Law in the capacity of the committee's legal expert. I participated in the work of the Special Group Concerned with the Political Structure, which was one of the special working groups. My recollections of what happened during the drafting process of the Basic Law in relation to the issue of the term of a chief executive returned in a by-election after his predecessor had vacated office were roughly as follows:

(1) This issue was not discussed as a very key issue at the meetings of the Special Group Concerned with the Political Structure and the plenary session of the Basic Law Drafting Committee. It was only discussed in general terms at the secretariat meetings. It was because [on] this question, though raised by someone during the process, the viewpoint of members from the mainland and Hong Kong did not diverge widely and the divergence was not substantive.

According to the legal concept of mainland members, the new chief executive returned in a by-election by an election committee with a term of office, should be the successor of the original chief executive. Hence, his term of office should be the residue of his predecessor's term. This was very clear-cut in the political and legal systems of the mainland and it seemed that discussion was not necessary.

I remember that some members from Hong Kong also shared the same understanding regarding this issue. There were some other members from Hong Kong who expressed different opinions and views during the discussion process. For instance, some suggested that there should be a post of deputy chief executive to act as the chief executive when the office fell vacant and some suggested that the practice of common law countries, making reference to the stipulations of Amendment XXII of the United States Constitution, should be adopted, etc. However, as these were not mainstream views, they were unable to draw sufficient attention and hence were not adopted.

(2) The legislative intent of this issue was already manifested in the related provisions of the Basic Law. In this regard, we should note that in order to manifest clearly the legislative intent of the related issue, the wording of the provisions had been adjusted.

Example 1: At the Eighth Plenary Session of the Basic Law Drafting Committee held on January 11, 1989, the chairman's committee amended Article 53(2) of the Draft Basic Law (for Solicitation of Opinions) which stipulated that "in the event that the office of chief executive becomes vacant, a chief executive of the new term shall be selected within six months" to "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".

Although this amendment only involved a change in the wording, it indicated on one hand that the provision was tightened and became more complete, while it manifested on the other hand that the chief executive returned in a by-election would only be a new chief executive. It would not mark the beginning of a new term of the chief executive.

Example 2: Article 1 of Annex I to the Draft Basic Law released by the National People's Congress Standing Committee (NPCSC) on February 21, 1989, provided that "The chief executive shall be elected by a broadly representative election committee and appointed by the Central People's Government", while Article 7 provided that "The election committee shall be dissolved after the appointment of the chief executive by the Central People's Government". It was later considered that the office of the chief executive might fall vacant during his term of office for whatever reasons and that as a result, a by-election might be required and specific provisions were made in the Basic Law. In order to provide a safeguard in the mechanism for the by-election arrangements that might become necessary subsequent to the vacation of the office of the chief executive and to give effect to the connection between the provisions, the provision was amended to read as "the term of office of the election committee shall be five years" in the final draft endorsed for submission to the NPCSC by the drafting committee at its 9th meeting on February 16, 1990. The fact that the term of the election committee is the same as that of the chief executive proves that the office of the chief executive is designed on a term basis. While the chief executive is an individual, he is also an important part of the political structure of Hong Kong and is provided for in the first part of the chapter on political structure in the Basic Law. Each and every organ in the political structure is subject to a term of office as a general rule. While there may be some differences in the wording, their nature and meaning remain the same.

Furthermore, in accordance with Article 7 of Annex I to the Basic Law, the chief executive for the third term is to be selected in 2007. Similarly, this illustrates the fact that the term of the chief executive is designed as a five-year one. Therefore, if the term of the substitute chief executive is to run afresh for a full term of five years, this will no doubt be in contravention of the existing provisions in Annex I to the Basic law.

The above is some of my recollection of the related issues for your reference.

Yours sincerely,
LIAN XISHENG
Professor, China University of Politics and Law

MARCH 10: Grasp relationship between concepts

Dear Ms Leung,

On the question of why a legal provision has to be read in conjunction with related legal provisions in understanding or construing the meaning of that legal provision, I would like to present my views for your reference.

(1) From the perspective of legal theory, it is necessary to have a clear grasp of the relationship between "legal norms" and "legal provisions" in order to ensure that a piece of legislation is in harmony and consistent within itself, and is coherent, cohesive and complete. In terms of legislative theory, legal norms refer to the content of legal provisions, while legal provisions are the textual expression of such norms. These two concepts are connected and yet should be differentiated.

In actual legislative practice, generally speaking, a legal norm may be expressed with the use of one legal provision, but there are many cases in which a legal norm can only be given full expression through a number of legal provisions. There are even instances where various component parts of one legal norm are found scattered among several legal documents. The connection and differences between these two concepts must be duly noted and properly handled in the legislative process so that a coherent logical relationship is accurately expressed in the text through a number of related legal provisions which are used to express a particular legal norm. Only in this way can we guarantee that the enacted legislation will be fault-proof and easily enforceable.

(2) It is precisely for this reason that there is a key concept underlying the rule of understanding and construing a law in the mainland, namely that consideration has to be given to the overall structure of the legislation, the internal connection among provisions and the logical relationship in the arrangement of content. This is a point of great importance in statutory interpretation, for it is the basis on which the legislative intent may be correctly revealed and the meaning of certain provisions determined. Under this rule, ascertaining the meaning of a provision from the full text of the law in which it is found is a prerequisite for achieving a correct understanding and interpretation of the provision in question. The full text of a law refers to all the constituents of that piece of legislation. It does not only include its legal provisions, but also encompasses such other contents as its preamble and annexes that are closely associated with those provisions.

(3) In the legislative practice in the mainland, sometimes the legislators, based on the consideration of structural arrangement, after taking into account the legislative intent, may use another provision to further define the meaning of a provision that seems to be clear on its face with a view to filling a gap in the latter provision. Under such circumstances, there is a need to make reference to the relevant provisions so as to define the meaning of a provision that seems to be clear on its face. Theories about legal interpretation in the mainland consider that if the literal meaning of the law is narrower than its legislative intent, an interpretation broader than its literal meaning can be made by making reference to other relevant provisions. Thus, it is absolutely necessary to understand and interpret a legal term from the full text of the law, even though the term seems clear and unmistakable, and its meaning can be interpreted literally without the need to make reference to other provisions.

(4) In interpreting the law, the court follows the rule of interpretation with reference to the full text and reconciles the relevant provisions so as to accurately confirm the correct meaning of a provision that may give rise to ambiguity and to reveal the relevance of other legal provisions. By doing so, the courts are not restrained by the literal meaning of the wording, so as to avoid making an interpretation out of context or arriving at a partial understanding that may lead to a wrong judgment. This may also be the underlying principle of legal interpretation adopted in the common law jurisdictions.

It is because even under the "golden rule" of statutory interpretation in the common law (the judges may vary the literal meaning of a legal term by reading in some implied meaning or omitting part of the literal meaning of the wording), the legislative intent and purpose as contained in the full text of the law should be ascertained.

My views are stated above for your reference.

Yours sincerely,
LIAN XISHENG