The Don declares the only way forward is to ask Beijing to intervene over the term of the next Chief Executive in Hong Kong. Yesterday's coverage included an op-ed by Margaret Ng that emphasised the importance of the process rather than the politics. Today's SCMP editorial (reproduced in full below the fold) repeats the same point. The Basic Law has the mechanisms in place to properly deal with current events. That process leads to the same end point: asking the NPC to interpret the Basic Law and a 2 year term for the CE. But it would be via the courts, where the arguments on both sides can be aired and ruled upon. The editorial's conclusion:

Mr Tsang says such a move is needed because the government has "encountered a difficulty" and has to deal with a "practical issue". He is right to be concerned that failing to hold the election on time will damage Hong Kong's international reputation. But greater harm will be done by requesting an interpretation that imposes a strait-jacket on the courts and pays no respect to the proper judicial processes.

The Don is missing an opportunity here. Why not get the NPC to rule on The Link REIT case at the same time?

Other Reading: Tom looks at the litany of apologists in today's SCMP.

Today's SCMP editorial:

A request from Hong Kong to Beijing to interpret the Basic Law is a matter of great moment and seriousness. It should be made only out of necessity, not convenience. The Hong Kong government's request yesterday for central authorities to interpret the Basic Law has the great virtue that it will remove uncertainty about the length of the next chief executive's term. It will also ensure that any legal challenge in the courts is doomed to failure. But this pre-emptive move will strike a fresh blow to the rule of law. The move is not, as the government claims, the only solution to the problem - and it is not the best.

Acting Chief Executive Donald Tsang Yam-kuen made it clear yesterday the main purpose of the interpretation is to make sure no court action can derail the election planned for July 10. Two legal actions have already been launched. His comments amount to an admission that the government wants to tie the hands of the courts before they have even had an opportunity to consider the case. This is not necessary, nor is it desirable. It will undermine the judicial process.

The decision adds to the damage we believe has already been done to the traditional common law approach to the Basic Law by the decision to give the next chief executive a term of only two years. We have argued it breaches the wording of Hong Kong's constitution, which provides only for a five-year term.

It is abundantly clear, however, that Beijing prefers a two-year term. The central government sees a five-year term as being inconsistent with last year's interpretation of the Basic Law which implies there must be an election in 2007 - with some progress towards universal suffrage. A five-year term would conflict with the timetable the central government has laid down. Beijing has the ultimate power to interpret the Law: the term will be two years.

DAMAGE LIMITATION

The sentiment that the timetable should not be interrupted is shared by many in the pro-democracy camp - even if they give a higher priority to preserving the common law traditions and approaches. The question that now arises is how best to limit damage to Hong Kong's legal system. Mr Tsang said the government's request for an interpretation this month was the only viable solution. He said an alternative solution would have been preferable - if only one could be found.

But there is another way forward. It involves trusting the courts and relying on a process provided for in the Basic Law. If the legal actions had proceeded (in the absence of an interpretation) the lower courts may or may not have supported the government's position. But at least the arguments on both sides could be explored and the decision would be in the hands of our judges.

When a case reached the Court of Final Appeal, however, it would be highly likely that the NPC Standing Committee would be asked to step in. The request would not come from the government - it would come from the court, following the provisions of the Basic Law. Article 158 of the Basic Law requires the top court to refer to Beijing provisions that need to be interpreted in order to decide a case - if the articles concerned fall outside Hong Kong's autonomy. The length of the chief executive's term appears to fall into this category. The appointment of the chief executive is made by Beijing: it would be hard to argue the length of the term falls outside the central government's responsibilities.

MORE RESPECT

If this process were followed, the result would almost certainly be a two-year term. But it would be achieved through a process that allows the courts and the NPC Standing Committee to fulfil their respective roles. It would pay more respect to the integrity of Hong Kong's legal system. A hearing in the Court of Final Appeal would also give the court an opportunity to develop the process by which such disputes are to be resolved. The court would probably have to develop a test for deciding the circumstances in which it would ask Beijing for an interpretation. It would be up to the court to decide whether to make such a referral. But there are strong arguments that it would have to do so.

Mr Tsang expressed concern that the whole process could take so long the election would be derailed. This, too, is very unlikely. The court would have to take into account the Basic Law requirement that when a chief executive steps down a new one must be elected within six months. Confidence in the "one country, two systems" concept is damaged whenever an interpretation is delivered. The government claimed, when first requesting Beijing's intervention in 1999, that such a step would only be taken in the most exceptional circumstances.

Now, Mr Tsang says such a move is needed because the government has "encountered a difficulty" and has to deal with a "practical issue". He is right to be concerned that failing to hold the election on time would damage Hong Kong's international reputation. But greater harm will be done by requesting an interpretation that imposes a straitjacket on the courts and pays no respect to the proper judicial processes.

Full text of the NPC request:

[1] On March 12, 2005, the State Council approved by Order No 433 the request of Mr Tung Chee-hwa to resign from the office of the chief executive of the Hong Kong Special Administrative Region. According to the relevant provisions of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and the Chief Executive Election Ordinance of the Hong Kong Special Administrative Region, a new chief executive shall be elected on July 10.

[2] At a press conference held on March 12, the secretary for justice of the HKSAR explained the HKSAR government's position on the term of office of a new chief executive elected to fill a vacancy in the office of the chief executive, viz that the term of office of a new chief executive elected to fill the vacancy shall be the remainder of the term of the preceding chief executive. Accordingly, we need to amend the Chief Executive Election Ordinance to set out clearly and explicitly the term of office of a new chief executive elected to fill the vacancy in the office of the chief executive which arises other than due to the expiry of term.

[3] Moreover, we have to address a practical issue, which is that the term of the current Election Committee will expire on July 13 this year. At the same time, we need to elect a new chief executive within the six-month limit stipulated in Article 53 of the Basic Law. If we failed to elect a new chief executive on July 10, we would not be able to complete the tasks within the remaining two months. These tasks include further amending the Chief Executive Election Ordinance to change the 120-day limit stipulated therein for electing a new chief executive, forming a new Election Committee, and electing a new chief executive.

[4] If the HKSAR failed to elect a new chief executive lawfully and in time on July 10, it would affect adversely the formulation of major government policies, the governance of Hong Kong and the normal operation of the government. It might even precipitate a constitutional crisis. Also, residents of the SAR and the international community might cast doubts on the determination and the ability of the HKSAR to implement the Basic Law. It would also have a negative impact on the operation of the financial market and the confidence of investors. All these would not be conducive to the prosperity and stability of Hong Kong.

[5] On the term of office of the new chief executive, two different views have emerged in the community. Some support the view that it should be the remainder of the term; others consider that it should be a five-year term. It can be envisaged that the difference in opinion will persist. Moreover, a member of the Legislative Council and individual members of the community have stated publicly that they will be seeking judicial review of the bill to amend the Chief Executive Election Ordinance. In fact, the courts have received one such application on April 4. Therefore, the SAR Government is facing two issues:

(1) in order to ensure the timely completion of the legislative process for the amendment bill, we need an authoritative and definitive interpretation of the relevant provisions of the Basic Law, so as to provide a solid basis for the local legislation;

(2) in the event of a judicial review, once it has been initiated, it will take a relatively long time to complete the judicial process. It is quite possible that we would not be able to elect a new chief executive in time on July 10.

[6] In the past few weeks, the HKSAR government has been actively exploring viable options other than seeking an interpretation. However, we have not yet come across any viable option which on the one hand could ensure the election of a new chief executive lawfully and in time on July 10, and on the other hand, could obviate the need to seek an interpretation by the NPCSC [National People's Congress Standing Committee]. Many in the community have pointed out that, given the pressing circumstances, the only feasible and timely option is to seek an interpretation by the NPCSC.

[7] The HKSAR government very much hopes to avoid as far as possible seeking an interpretation in order to settle the matter. However, having taken into account all the considerations set out above, and bearing in mind the need to ensure the prosperity and stability of Hong Kong and the normal operation of all aspects of the community, I submit, in accordance with Article 43 and Article 48(2) of the Basic Law, this report to the State Council and propose to request the NPCSC to make an interpretation of Article 53(2) of the Basic Law regarding the term of office of the new chief executive.

[8] I hereby submit this report.

Acting chief executive of the Hong Kong Special Administrative Region, April 6, 2005