April 06, 2005

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Donald Tsang has declared we must go to Beijing for a Basic Law interpretation to prevent certian chaos. Today the Executive Council will endorse the decision to ask the National People's Congress to interpret the Basic Law over the next Chief Executive's (CE) term of office. Hopefully they'll at least ask to clarify how many terms the next CE can run for as well...may as well get it all over with in one hit. This will be the third time since 1997 the NPC has interpreted the Basic Law, which makes me wonder what the drafters of the Basic Law think about their work being "corrected" so often.

Here is the Basic Law and its 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 you can pretend to be the NPC. Have your say!

ESWN translates a great post by a Hong Kong blogger on the problems facing the pan-democratic camp (orginal post from Shiu Shiu) in offering a candidate for CE. Go read it.

Update: via Fumier comes the Nude King's comparison of the non-democratic elections in both the Vatican and Hong Kong [At least I think it does - my work blocks access to the Nude King!].

Second update below...

Finally from the SCMP op-ed page I'm going to reproduce Margaret Ng, the LegCo representative for the legal profession. Read it all.

The term of office of the new chief executive is a legal question, not a political one. Politically, there may well be much to say for giving Tung Chee-hwa's heir apparent, Donald Tsang Yam-kuen, a two-year rather than five-year term. But this is not an available option, since the Basic Law is clear and straightforward. Whether a vacancy in the chief executive's office arises as a result of the expiry of his term, his death, resignation or removal mid-term, the new leader is to be selected and appointed by the same procedure, and for the same term of five years.

These provisions may give rise to unwelcome consequences under some circumstances. For example, anticipated reform may have to be postponed because there will not be a chief executive election in 2007. But even so, fudging the law to achieve a political aim will be too high a price to pay. Democracy must be built on a firm foundation of the rule of law.

The government, which has previously taken the position that the Basic Law is straightforward in stipulating a term of five years for any new chief executive, without exception, is now busy making up an "ambiguity". It says that the Basic Law does not say in so many words that a new chief executive elected to fill a mid-term vacancy has the same term of five years, and therefore some other term may be applicable. Perhaps realising how unconvincing this argument is, the government now puts forward another one: that a five-year term will give rise to an "extraordinary" consequence of postponing Hong Kong's democratisation. This is disingenuous, because the government had already rejected this during the Legislative Council's scrutiny of the Chief Executive Election Bill in June 2001.

A legislator had asked about the term of a new chief executive filling a vacancy which arose mid-term. The government answered unequivocally "five years". At that time, Martin Lee Chu-ming and I raised the question that this would have an implication on the timing of the political reform permissible after 2007, should the post fall vacant before June 30 of that year. The administration was asked to consider the matter carefully but, nevertheless, confirmed its position. It should not now profess surprise.

Many and diverse are the attempts of the government to obfuscate the law: that the Basic Law should be interpreted according to practice in the mainland; that one or two Basic Law drafters recalled that less than a full term was intended; that earlier drafts of Article 53 and Article 46, and records of consultation on them, show that questions were raised about what the term should be; and so on.

The bottom line is that the powerful Legislative Commission, a working committee to the Standing Committee of the National People's Congress, has taken the view that the new leader serves only the remainder of the term. Thus, all the seeming reasoning of our government is but a charade. Naked power, not the rule of law, governs "one country, two systems".

And so, in the latest round of the so-called consultation of political groups and professional bodies, the government puts the question bluntly: how do they propose to solve the problem?

"The problem" is defined as ensuring that all possible challenges to the government's position will be conclusively put to an end well before the chief executive's election on July 10. The answer that is sought cannot be more obvious: an interpretation by the Standing Committee at the earliest possible date.

Such an event will deal the rule of law and "one country, two systems" a serious blow. It is not just the intervention of the central authorities that will render the adjudication of local courts irrelevant and impotent; the content of the interpretation itself is such that the law will be made to lie.

What she said.

Update 2: Hemlock discusses the Basic Law interpretation with Winky Ip:

The real question is – what’s the point of having a constitution if its meaning is hidden and may bear no relationship to its wording? What sort of guarantees can such a ground-breaking masterpiece provide? Winky, the master manipulator of the public mood, deftly diverts my attention to other matters. “I ordered dim sum and they’ve given me congee,” she says, looking at the tray that has just appeared before her. “And you asked for noodles, and they’ve given you toast.”

We call over Gloria the winsome waitress and point out the problem. With a smile, she pulls out the menu and explains it to us. “What the chef actually intended to mean here by ‘dim sum’,” she explains, “is Cantonese morning meals in general – so obviously that includes congee. And of course toast is simply a form of noodles, both being made from flour.” Winky expresses full agreement, and apologizes to the girl for my habit of always making trouble.

Follow that link "ground-breaking masterpiece". It's hilarious.

posted by Simon on 04.06.05 at 12:53 PM in the Hong Kong democracy/politics category.


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Response To The Numbers Game
Excerpt: Simon's post on The Numbers Game for the CE election leads us through the Hong Kong blogosphere. The translation by ESWN of a post by a Chinese language blogger, Shiu Shiu is deemed significant. I'm not sure why as it contains obvious eye-rollers. First,
Weblog: Daai Tou Laam Diary
Tracked: April 6, 2005 12:53 PM


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