The resignation of Tung Chee-hwa has raised an important constitutional issue. Should the next chief executive, to be elected in July, be appointed for a full five-year term, or should he only fill the remainder of Mr Tung's term?
I have already explained fully why I believe the law requires the new chief executive to fill only the remainder of the term. Now, I would like to answer some of the criticism raised in respect of my view.
Some say that the government's change in stance is damaging to the rule of law. That is not the case. The position that the government took in the past, and the one that it takes now, were both based on respect for the rule of law and on information then available to us and that has since come to light. That position has changed, but for good reasons. Legal issues are rarely black and white. They involve a professional judgment call, made after opposing arguments are weighed.
In the current situation, new arguments have recently emerged, based in part on earlier drafts of the Basic Law, documents which throw light on the discussions during the drafting process, and recollection of some drafters. Having considered those new arguments and information, I consider that our earlier position was incorrect. We must, therefore, admit our mistake and change our view. To do otherwise would be disrespectful of the rule of law.
Some say that if the current dispute is resolved by an interpretation of the Basic Law by the Standing Committee of the National People's Congress, it would be a blow to the rule of law. The Basic Law was adopted by the NPC and, under the Chinese Constitution, the NPC Standing Committee has the power to interpret all laws made by the NPC itself. The exercise of this power is lawful and constitutional.
Some detractors say that the contribution of mainland legal experts to this debate has undermined our autonomy. Again, I disagree. The Basic Law confers a high degree of autonomy on the special administrative region, but it does not confer absolute autonomy. The appointment of the chief executive is clearly the responsibility of the central government and it directly affects the relationship between the central authorities and the SAR. We do not, therefore, have the autonomy to determine the meaning of provisions relating to that appointment. This being so, it is perfectly sensible to seek advice from mainland legal experts.
