Written evidence from HK Basic Law Institute (HNG0771)

What is the Basic Law Institute

1.              The Basic Law Institute of Hong Kong is a not-for-profit, non-governmental institution originally established in 1999 under the Hong Kong Societies Ordinance, but now incorporated under the Hong Kong Companies Ordinance. Its activities, and views expressed by its representatives, are independent of either the Central Government of the People’s Republic of Hong Kong or the Government of the Hong Kong Special Administrative Region. As its name suggests, its focus is the Basic Law of the Hong Kong Special Administrative Region. Its objectives include: furthering knowledge and understanding of the Basic Law; the establishment and maintenance in Hong Kong of a public library of resources and materials relating to the Basic Law[1]; commissioning and publishing research and analysis relating to the Basic Law and its interpretation; and providing platforms for, and stimulating, debate about the Basic Law.

Terms of reference of the Foreign Affairs Committee

2.              The Institute notes that, pursuant to its general terms of reference, namely to examine the expenditure, administration, and policy of the Foreign and Commonwealth Office (“FCO”) and its associated public bodies, in July 2014 the Foreign Affairs Committee commenced an inquiry into (1) how the FCO monitors the implementation of the Joint Declaration, as well as (2) the broad range of the UK’s relations with Hong Kong, including economic and cultural ties.

Submission

3.              The Sino-British Declaration provided that:

“ The above-stated basic policies of the People’s Republic of China regarding Hong Kong and the elaboration of them in Annex 1 to this Joint Declaration will be stipulated, in a Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, by the National People’s Congress of the People’s Republic of China, and they will remain unchanged for 50 years.”

4.              This provision required the main contents of the Joint Declaration, i.e. the basic policies of the People’s Republic of China relating to Hong Kong, to be supplanted by a national law of the People’s Republic of China to be passed by the National People’s Congress and to become justiciable by, in particular, citizens of Hong Kong, as a form of constitution.

5.              In 1989 there was a debate in the British Parliament in respect of the final draft of the Basic Law, which concluded with a resolution that the draft accurately reflected the contents of the Joint Declaration. On 4 April 1990, the National People’s Congress promulgated the Basic Law, as in accordance with the constitution of the People’s Republic of China. The Basic Law was brought into force as a national law of the People’s Republic of China and the law in Hong Kong with effect from 1 July 1997.

6.              With the enactment and bringing into force of the Basic Law effective 1 July 1997, the main part of the Joint Declaration, Annex 1, became effectively spent. However, two important obligations on the part of the British Government continue. First, the British Government’s role is, until 30 June 2047, to ensure that the Basic Law, continuing the basic policies in legislative format, will remain in effect for 50 years from 1 July 1997. Secondly, until 30 June 2047 the British Government is obliged to support the Joint Declaration and the Basic Law which implements it.

7.              As to the former obligation, the Institute welcomes the Foreign Affairs Committee’s inquiry insofar as it seeks to hold the British Government to account in respect of its efforts to ensure that the Basic Law does remain in effect, for 50 years from 1 July 1997.

8.              However, such an inquiry by the Foreign Affairs Committee must not be conducted in a manner which amounts to interference in the affairs of Hong Kong or the PRC. Insofar as the Foreign Affairs Committee takes steps to come to Hong Kong as part of the conduct of its inquiry, without regard to the views of the Government of the People’s Republic of China or the Government of the Hong Kong SAR, that would appear to amount to an interference in the affairs of Hong Kong and the PRC.

9.              As to the latter obligation, the British Government cannot now adopt any position which is inconsistent with the agreements reached between the British Government and the People’s Republic of China underpinning and relating to the Joint Declaration. Where there is ambiguity in the scope and meaning of the Joint Declaration or the Basic Law, the British Government is obliged to assist in their proper interpretation. For example, the British Government can make available to the public documents relating to the negotiation of the Joint Declaration which, due to the passage of time, can be declassified. The Institute would welcome such steps by the British Government. Such steps would make public more materials relating to the Basic Law. They would likely reduce the scope for ambiguity of the Joint Declaration and the Basic Law, including minimize the scope for disputes before the courts of Hong Kong. They would be of material benefit to the people of Hong Kong. They would aid relationships between the British Government and the People’s Republic of China and the Hong Kong Government respectively. They would be consistent with principles of open government understood to be adopted generally by the British Government.

10.              As an important example, in the FCO’s reports, for example the report for January to June 1999, the FCO referred to the Hong Kong’s high degree of autonomy, and expressed concern as to the possibility that decisions by the Hong Kong Government to seek an interpretation of the Basic Law might be seen as undermining the independence of the judicial system and the robustness of the rule of law, which are important to Hong Kong’s high degree of autonomy. However, it is fundamental to bear in mind that, in the case in question which led to the request for an interpretation from the Standing Committee of the National People’s Congress, the very issue that was at stake was whether, as the National People’s Congress confirmed on 26 June 1999, the Hong Kong courts had made a decision that conflicted with the basic policies of the People’s Republic of China regarding Hong Kong. As an absolutely fundamental matter, the British Government and the People’s Republic of China had agreed that those basic policies, reflected in the Basic Law, would remain unchanged for 50 years from 1 July 1997. The Joint Declaration, and the Basic Law which supplanted it insofar as Annex 1 was concerned, provide that Hong Kong has a high degree of automony, and the courts of Hong Kong shall have jurisdiction, except in the following respects: (1) ex hypothesi, the basic policies enshrined in the Basic Law; (2) defence; and (3) foreign affairs.

11.              The Institute has obtained an opinion from Sir Michael Wood K.C.M.G., which the Institute is pleased to share with the Foreign Affairs Committee. A copy of the opinion accompanies this submission.

12.              As a final matter, the Institute notes that the FCO has provided reports to the British Parliament every six months since 1 July 1997. In discussions with representatives of the FCO as long ago as 2006, the Institute understood that the FCO anticipated that consideration would be given to reducing the frequency of the reports. The Institute believes that, as a practical matter, it would be sensible for the frequency of reports to be reduced to one every two years, with scope for ad hoc reports to be produced when considered appropriate.

Right of Abode Example

13.              Paras.14.2 and 14.3, Six-Monthly Report, January-June, 1997:

“The Hong Kong and Chinese Government announced in April detailed agreement on the implementation of the new rules on right of abode…”

“…The office of the Chief Executive (Designate) introduced draft legislation into the provisional legislature in early June. This was passed into law by the HKSAR Reunification Ordinance adopted by the provisional legislature on 1 July. This legislation did not conflict in substance with the details agreed between the British and Chinese Governments.”
 

14.              CFA Judgment on Ng Ka-ling v The Director of Immigration (19 January, 1999), Per Chief Justice Li:

“Mr Ma SC for the Director relies on an agreement reached in the Sino-British Joint Liaison Group (“JLG”) between the Chinese and United Kingdom Governments.  We do not have the record of any such agreement. The evidence of it relied on by the Director is in a booklet on the right of abode in the Region published by the Immigration Department in April 1997. It contained a passage to the same effect as what is now legislated in para 1(2)(b) of Schedule 1 excluding a child born out of wedlock as far as a father is concerned save where legitimated by subsequent marriage of his parents. The booklet stated that it is compiled ‘on the basis of the existing immigration regulations and practices and the common view of the British and Chinese sides in the [JLG]’…

“Mr Ma SC relies on Article 31 of the Vienna Convention on the Law of Treaties… Mr Ma SC argues that the agreement reached in the JLG is a subsequent agreement and by virtue of Article 31 of the Vienna Convention, the interpretation of this part of the Joint Declaration should follow the subsequent agreement in the JLG and the Basic Law should be similarly interpreted.
 

The JLG was established by the Joint Declaration Annex 2 “in order to meet the requirements for liaison, consultation and the exchange of information”. Its functions include that of conducting consultations on the implementation of the Joint Declaration (para 3(a) of Annex II). It shall be an organ for liaison and not an organ of power (para 6 of Annex II). Assuming that its functions include the making of a subsequent agreement between the two Governments regarding the interpretation of the Joint Declaration or the application of its provisions in terms of Article 31(3)(a) of the Vienna Convention, the agreement, in our view, does not affect the matter.

First, the basis on which the agreement was reached is uncertain. It may have been reached on the basis of a pragmatic solution to the matter and not as a matter of interpretation or application. It is doubtful whether the basis was interpretation or application as the booklet does not discriminate as far as the mother is concerned between a child born out of wedlock and one born in wedlock (Para 1(2)(a) also does not so discriminate). If the matter were interpretation or application, it is difficult to conceive of a proper basis for the distinction between the relationship with the father in contrast to that with the mother.

Secondly, even if the agreement reached were on the basis of interpretation or application, Article 31(3)(a) only provides that it shall be taken into account.  Having done so, the Court can reach a different view.  We consider that the conclusion we have come to is plainly correct.

Accordingly, we hold that para 1(2)(b) of Schedule 1 is unconstitutional…”
 

15.              Para. 6 (P.4), Six-Monthly Report, January-June 1999:

“…The British Consulate-General issued a statement making clear that we welcomed the re-affirmation of Hong Kong’s autonomy in judicial matters, which was enshrined in the Joint Declaration; and noted that the judgments had bolstered international confidence in the integrity of “One Country, Two Systems”. It also made clear that any move to restrict the independent judicial power of the Court would be a matter of serious concern to us.”
 

16.              Para. 1 (P.6), Six-Monthly Report, January-June 1999,

“On 26 June, the Standing Committee of the NPC endorsed the interpretation sought by the SAR Government of Articles 22 and 24 of the Basic Law. In its interpretation, the Standing Committee stated that the relevant provisions concerned affairs governed by the Central Authorities or the relationship between the Central Authorities and the SAR. The Standing Committee said that the CFA had not sought an interpretation from the NPC Standing Committee before reaching its judgment, as provided for in Article 158(3) of the Basic Law; and that the CFA’s judgment had run counter to the original legislative intent of the Basic Law. It said that Hong Kong courts should follow the Committee’s interpretation when adjudicating future cases on right of abode.”

17.              Para. 2, The Interpretation by the NPCSC of Articles 22(4) and 24(2)(3) of the Basic Law, 26 June 1999:

“…The legislative intent as stated by this Interpretation, together with the legislative intent of all other categories of Article 24(2) of the Basic Law … have been reflected in the ‘Opinions on the Implementation of Article 24(2) of the Basic Law…’ adopted at the Fourth Plenary Meeting of the Preparatory Committee for [the HKSAR] of the [NPC] on 10 August 1996.”[2]
 

18.              CFA judgment on The Director of Immigraton v Chong Fung Yuen (20 July 2001), Per Chief Justice Li:

“Article 158(3) in focusing on the provision in question requires the Court to consider the character of the provision.  The question is whether the provision has the character of one which concerns affairs which are the responsibility of the Central People’s Government or the relationship between the Central Authorities and the Region.  Article 24(2)(1) prescribes the category of Chinese citizens born in Hong Kong before or after 1 July 1997 to be permanent residents.  Its character is that of a provision defining one category of permanent residents who are entitled to the right of abode.  In our view, having regard to its character, art. 24(2)(1) does not concern affairs which are the responsibility of the Central People’s Government or the relationship between the Central Authorities and the Region.  It is a provision within the Region’s autonomy and is not an excluded provision.  Accordingly, a judicial reference to the Standing Committee is not required…”

“The Director relies on the statement in the Interpretation that the legislative intent of all other categories of art. 24(2) have been reflected in the Preparatory Committee’s Opinions on the implementation of art. 24(2) (“the statement in question”).  As has been pointed out, he accepts that it is not a binding interpretation of art. 24(2)(1) by the Standing Committee.  His argument is that the common law is sufficiently flexible to enable the Court to take such statement into account and hold in favour of the interpretation contended for by the Director.

As discussed above, on the common law approach, the Court’s task is to construe the language in art. 24(2)(1) in the light of its context and purpose in order to ascertain the legislative intent as expressed in the language.  As concluded earlier, the meaning of art. 24(2)(1) is clear; there is no ambiguity.  It means Chinese citizens born in Hong Kong before or after 1 July 1997.  In conformity with the common law, the Court is unable, on the basis of the statement in question, to depart from what it considers to be the clear meaning of art. 24(2)(1) in favour of a meaning which the language cannot bear.[3]”

19.              Para. 23, Six-Monthly Report, July-December, 2001:

“A spokesman for the Legislative Affairs Commission of the NPCSC expressed concern about the ruling in the [Chong Fung Yuen] case, saying that it did not fully correspond with the NPCSC's 1999 Interpretation. The SAR Government however made clear, as it had done before the ruling, that it would accept the Court's decision. We welcome this…”

20.              Para. 18(f), Visit by Mr. Hoo and Mr. Stephen Wong to London – Notes of meeting (24, 25 and 27 July 2006) prepared by the Hong Kong Economic and Trade Office, London:

“Mr. Hoo considered the UK Government had the responsibility to set the record straight and support the CPG in their interpretation of the BL if that was the true legal intent at the time of drafting. Quoting the example of “right of abode” which was a concept introduced by the UK government, he pointed out that when the question of the right of abode of certain mainlanders arose, the UK government did not do anything to support the CPG, and when the CPG tried to solve the problem by interpreting the BL, the UK government joined others to put the blame on the CPG. Mr. Hoo felt that the UK government should help identify the problems, and where appropriate, come up with constructive solutions … Mr. Hoo relied that it would be very constructive for the UK government to simply set the historical and diplomatic records straight which the signatories to the JD are obliged to do.”

January 2015