How should Basic Law be 'interpreted' for the times?
Frank Ching says the central government's apparent unwillingness to amend the Basic Law leaves us stuck with 'interpretations'
The Hong Kong government's request for the Court of Final Appeal to consider asking the National People's Congress Standing Committee for a clarification of the committee's 1999 interpretation of the Basic Law is, in the words of Chief Executive Leung Chun-ying, an attempt to "tidy up" legal loose ends.
But other loose ends may emerge from this exercise, if the court does decide to accept the government's suggestion.
The committee ruled 12 years ago on the right of abode of mainland-born children of Hong Kong residents. In its interpretation, it said the legislative intent of its interpretation, as well as the relevant provision in the Basic Law, Article 24(2), was reflected in the 1996 Preparatory Committee "opinions".
These "opinions" amounted to amendments to the Basic Law. For example, while the Basic Law says that "Chinese citizens born in Hong Kong" are permanent residents of Hong Kong, the "opinions" exclude babies born to "illegal immigrants, overstayers or people resident temporarily in Hong Kong".
But Hong Kong's top court did not consider what the Standing Committee said about the "opinions" to be binding and the government did not challenge this view. Now, the government wishes to revisit the issue.
The court is scheduled to hear a case in February regarding whether foreign domestic helpers can gain right of abode. The government hopes to resolve that and the mainland mothers issue at the same time with a clarification.
Secretary for Justice Rimsky Yuen Kwok-keung has explained that the government itself is not asking for an interpretation. Instead, it is suggesting that the court consider whether it should ask for one.
The exact language used by the government in addressing the court has not been disclosed. It is unclear if the Standing Committee will be invited to "clarify" its 1999 interpretation or to issue a new one.
Under the Basic Law, the Standing Committee's interpretations are binding on Hong Kong. However, the Basic Law is silent on "clarifications" of interpretations by the Standing Committee.
It is unclear what status a "clarification" alone will have. If the court simply asks for a "clarification" and not an interpretation, will the resulting "clarification" be any more binding than the words used by the Standing Committee in its 1999 interpretation?
Normally, if legislation is ambiguous, the legislature simply amends the law to make it clear. Article 159 of the Basic Law says: "The power of amendment of this law shall be vested in the National People's Congress."
However, the Chinese government has always rejected suggestions to amend the Basic Law, presumably because it does not accept that the original drafting was flawed.
That is why Hong Kong is stuck with the problem of seeking "interpretations" of the Basic Law - and now clarifications of interpretations - when in every other country they would be considered amendments.