Li Fei, vice-chairman of the Legislative Affairs Commission of the National People's Congress, said on Wednesday: 'In the common law, people follow the wording of the law as closely as possible but in the continental law, people have to take into consideration the content, the context ... the wholeness, and its legislative intent.'
The debate over interpreting the Basic Law's provisions for the chief executive's term entered absurd territory this week. First, Secretary for Justice Elsie Leung Oi-sie tried to defend the government's abrupt U-turn by citing the opinion of mainland 'legal experts'. Then, one of those experts, Mr Li, made the above comments to the South China Morning Post.
It is admirable that mainland cadres aspire to have a real legal system. They are undoubtedly making progress, and there is nothing wrong with seeking to build their system on continental law. At the moment, however, discussing the legal systems of the mainland and Hong Kong as if they were peers is ridiculous. Hong Kong has a legislature empowered to rewrite draft laws submitted to it by the executive branch, and it has an independent judiciary capable of holding both to account. On the mainland, the rule of law does not yet exist.
This becomes most obvious in the statements of mainland legal experts when they fail to acknowledge the crux of the issue: words or intentions aside, the rule of law in Hong Kong is grounded in a commitment to due process.
If a law - in Hong Kong's case, the ordinance covering the chief executive's term - needs to be amended to enable the government's rule to continue, certain steps must be followed. First, the executive branch rewrites it. Second, the legislative branch approves it. Third, the public accepts it - and if it does not, then the ordinance is submitted to the judicial branch for review. The review can be the subject of an appeal through several layers, the highest of which should be the Court of Final Appeal. In reality, the NPC's Standing Committee has become the court of final appeal. Mainland legal experts now warn that it could become the court of first instance by issuing an interpretation the minute they believe the ordinance will be challenged.
It is entirely understandable that mainland legal experts choose to overlook the importance of due process in this case. No one wants to see a crisis emerge in Hong Kong if the chief executive's election is prevented from taking place within six months. A pre-emptive interpretation will be the most politically expedient solution. But why do the experts not suggest also having the NPC amend the Basic Law? This is within its right. Put clear wording into the Basic Law on the chief executive's term in the eventuality of a resignation, and it will be unchallengeable.
