We are told that the Hong Kong government now accepts, after consultation with mainland experts, that the term of Tung Chee-hwa's successor must be two years. The experts advised that the legislative intent was that a successor to a chief executive whose term comes to a premature end should be appointed only to complete the remainder of the term.
Yet a spokesman for the National People's Congress Legal Affairs Commission puts the responsibility for the two-year decision squarely on the Hong Kong government's shoulders.
Another consequence of this interpretation is that, since the remainder of the term belongs, as it were, to the predecessor, a person now appointed chief executive could serve for more than 10 years; that is two five-year terms on top of the two-years, (contrary to Article 46 of the Basic Law).
I do not intend to explore the oddity of the interpretation and the convoluted justification by the Legal Affairs Commission, or the attribution of the decision to the Hong Kong government (which tends to follow Beijing's lead in these matters). My interest is in the techniques used for politically driven interpretations. In this case, there is the secret weapon of 'legislative intent', which seems to have led former solicitor-general Daniel Fung Wah-kin and Basic Law Committee member Raymond Wu Wai-yung to change their minds about supporting a five-year term.
I call it a secret weapon as it is culled from the confidential archives of the State Council, to which others have no access. Additionally, it seems that Beijing and its friends have a monopoly on 'legislative intent', notwithstanding that the Basic Law was drafted jointly by mainland and Hong Kong experts.
Legislative intent is a legitimate source for interpretation. But care must be taken in its use. The intent must have been evident when the law was enacted. 'Legislative intent' was used to overrule the Court of Final Appeal in the right of abode case, when the 'evidence' of the intent was the opinion of the Preparatory Committee, years after the Basic Law was enacted.
There has to be clear evidence of a general consensus on the so-called legislative intent. Law-making is complex, involving many participants, and this was particularly so with the Basic Law.