A poor case of law drafting

PUBLISHED : Thursday, 14 April, 2005, 12:00am
UPDATED : Thursday, 14 April, 2005, 12:00am

Now that the State Council has accepted the Hong Kong government's request to ask the National People's Congress Standing Committee for another Basic Law interpretation, the debate over whether the chief executive to be elected in July should serve two or five years will be purely academic, since the committee, no doubt, will decide in favour of two.

The arguments marshalled by mainland legal experts in favour of a two-year term have not been entirely persuasive, but they have presented a credible case regarding the original legislative intent.

One point is the five-year term of the Election Committee, which, we are told, should coincide with the five-year term of the chief executive. But, in fact, there is a two-year gap between them.

Another point is rooted in drafting history. There was an early draft in which the Chinese version had two terms, 'the chief executive of the new term' and 'the new chief executive', both of which were translated into English as 'the new chief executive'.

The Hong Kong Bar Association believes that if the drafting committee had intended the two terms 'to have different legal consequences, different expressions would have been used in the English translation of the respective drafts'. However, the Basic Law is, after all, a Chinese law and in the case of any discrepancy, the Chinese text prevails.

But the strength of this argument is weakened somewhat by the fact that in the final text of the Basic Law, even the Chinese version no longer maintained the distinction between a 'chief executive of the new term' and 'a new chief executive'.

Moreover, it cannot be denied that nowhere in the Basic Law does it say that a person elected to fill a vacancy would not get a full five-year term, but would only serve the rest of his predecessor's term. This is an example of poor law drafting.

In 1999, another example of poor drafting emerged during the debate on the right of abode of mainland children of Hong Kong permanent residents. The Basic Law simply spoke of people of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, without specifying that at the time of their birth, at least one parent must be a permanent resident.

In that case, the Standing Committee, at the request of the Hong Kong government, issued an interpretation explaining that the legislative intent was to grant right of abode only to children born after at least one of their parents had become a permanent resident.

The Macau Basic Law, drafted three years after Hong Kong's, was much more clearly worded. The relevant section spelled out who had the right of abode in Macau: 'Chinese citizens who have ordinarily resided in Macau for a continuous period of not less than seven years before or after the establishment of the Macau special administrative region, and their children of Chinese nationality born outside Macau after they have become permanent residents.' The word 'after' made the meaning crystal clear.

In this case, the Macau Basic Law provided some guidance about the thinking of the drafters.

So, what about the term of a chief executive elected to fill a vacancy: does the Macau Basic Law provide any help there?

Alas, it does not. The wording is identical to that in Hong Kong's Basic Law, except that 'Hong Kong' is replaced by 'Macau'. This means that, even three years later, the drafters of the Basic Law had not discovered a glaring omission. China, after all, is relatively new at the business of legal drafting. It is entirely possible that other instances of poor drafting may emerge.

Frank Ching is a Hong Kong-based writer and commentator