As the government has shown, Basic Law text is open to interpretation

Cliff Buddle says previous controversies have shown that the Basic Law text is open to interpretation, no matter what officials might tell us today

PUBLISHED : Wednesday, 26 March, 2014, 5:23pm
UPDATED : Thursday, 27 March, 2014, 2:17am

The government's enthusiasm for closely following the wording of the Basic Law on universal suffrage is easy to understand. The law's apparent requirement that candidates for chief executive be nominated by a broadly representative committee allows officials to conveniently brush aside proposals involving nominations by the public.

But this assumes there is only one way of interpreting the law - and that it means precisely what it says. In the past, the government has strongly resisted such an approach. Indeed, there have been times it has argued the Basic Law means something completely different to what it actually says.

Not on this occasion. Chief Secretary Carrie Lam Cheng Yuet-ngor has said Article 45 of the Basic Law "clearly states that the power to nominate candidates is vested in the nominating committee". Writing in this newspaper, she added: "Any proposal bypassing the committee or undermining its substantive nomination power will not be acceptable in the realm of law."

Then there is the view of Secretary for Justice Rimsky Yuen Kwok-keung who tells us the language of Article 45 is "abundantly clear" and that allowing nominations from the public or political parties would be inconsistent with it. When interpreting the Basic Law, he adds, the court cannot ignore the clear language used.

This strong attachment to the wording of the Basic Law is refreshing. The law should, as far as possible, mean what it says. Otherwise, why draft it in the first place? However, constitutions are expressed in broad terms and are often open to different interpretations. The various constitutional controversies of the past 17 years have taught us that interpreting the Basic Law is not as simple as looking up the words in a dictionary.

Take, for example, one of the court battles over the right of abode in 1999. Chinese citizens "born of" a Hong Kong permanent resident have the right to live in Hong Kong, according to the clear wording of the Basic Law. But this, the government argued, did not include those born before their parents become permanent residents.

And where was the government's fondness for the wording of the Basic Law in 2000 and 2001, when it told courts a provision giving the right of abode to all Chinese citizens born in Hong Kong should be interpreted in a way that would exclude many in that position from claiming the right? Such arguments prompted one appeal court judge to ask whether the government was suggesting the court "rip up the Basic Law".

The reality is that the Basic Law does not always mean what it says. Once this is understood, it is not so difficult to fit public nomination for the chief executive within the meaning of its provisions - especially if taken together with the right to vote and stand provided by the International Covenant on Civil and Political Rights.

It might well make sense to focus on reform proposals more likely to be approved in Beijing. That is a political, rather than a legal question. But we should remember our officials' attachment to the wording of the Basic Law. They may not find it quite so convenient the next time a controversy arises.

Cliff Buddle is the Post's editor, special projects