' P- d2 \8 R+ k2 i/ O- k' D1 Zwww2.tvboxnow.comTruth about Civil Nominations % r8 @8 M) l8 A3 D2 mAsking the right question in Hong Kong’s political reform debate w" P9 q `1 M0 _+ m( c$ b5 u
* i: f) C H5 s( b; pSimon NM Young and Hualing Fu * Y! X. s1 h7 U# i5 T8 t3 L! _9 z" a$ Z" {1 q& P2 I' S
The Government, Hong Kong Bar Association,and Law Society of Hong Kong have asked the wrong question about civil nominations. They have asked whether it is possible to interpret Article 45 of the Basic Law to include the mechanism of civil nomination when the provision so plainly reserves the power of nomination to a nominating committee. Framed in this way one can see why there is little hope for civil nominations in the current debate. But do not forget that the current exercise is a law reform and law making exercise, not a purely interpretative exercise. There is one important constraint: we can amend Annex I but not the articles of the Basic Law.**Still the proper question to ask is the following: as a matter of Chinese law – because the Basic Law is a Chinese statute – is it legally permissible to amend Annex I to include the option of civil nomination, without changing Article 45? Remember that Article 45 references Annex I in this way: “The specific method for selecting the Chief Executive is prescribed in Annex I”. One might ask, what is the difference – ‘are you not also creating an internal contradiction’? Well no, because as law drafters know, it is possible to include a deeming provision in Annex I to ensure logical and legal consistency. Such a provision might look something like this: “A qualified person who obtains the signed support of 20,000 [for example] general electors shall be deemed to be nominated in accordance with Article 45.” On their face, Article 45 and Annex I would be logically, textually and legally consistent. It may not be consistent with the original purpose of Article 45, but that is a different question. $ F9 q0 X. A8 vwww2.tvboxnow.com7 E6 L; v. u% H
So imagine for a second that the Basic Law was a piece of Hong Kong legislation. It would certainly be lawful for the legislature to amend the annex to include the option of civil nomination and to deem such option consistent with Article 45. Deeming provisions are frequently used to extend the definition of a word or expression in ways that may seem unnatural or unusual. The best example of this is s. 7(1) of the Interpretation and General Clauses Ordinance, which deems all references in legislation to “he”or “his” to include the “feminine and neuter genders”. In the Department of Justice’s 2012 legislative drafting guide, it is said that the use of deeming clauses is “generally associated with, or traditionally used to create, legal fictions”. Even if on their face the two provisions appeared to contradict each other, the common law system still allows the legislature to enact the law but leaves it to courts to work out the contradiction by applying rules of statutory interpretation.www2.tvboxnow.com& v& F- N% S4 |" [3 _# ~' V8 d
& N: O7 w% ~- y5 S9 V/ V1 x! KWhat is the position under Chinese law?Chinese statutes are not usually drafted with annexes but when found in legal instruments they serve to specify instances or examples of a general rule or category prescribed in the articles. Annexes have the same legal status as other articles of the same law. There is no basis to think that the annexes are subordinate to the articles in the way that administrative regulations, local regulations and rules are subordinate (Legislation Law, Art. 79). Article 85 of the Legislation Law contemplates that a new provision enacted in one law might be inconsistent with an existing provision in another law. There is nothing unlawful about such a situation. The issue is only one of how to interpret the two provisions compatibly. Only where “it is hard to decide which provision shall prevail” should a ruling by the Standing Committee of the National People’s Congress be needed. A deeming provision in the new law can help to make clear which of the two laws prevail. If the deeming provision in the new law deems the new provision to be consistent with the old provision then it will be clear that the new provision prevails and supersedes any previous understanding of the law. Deeming provisions are commonly used in Chinese legislation in the same way they are used in Hong Kong legislation.公仔箱論壇4 I, n/ d5 B: [# V* I
! f/ J- f1 { U {* v* ^8 \ owww2.tvboxnow.comThe Hong Kong Bar Association expressed its view on the common law meaning and effect of Article 45 in relation to civil nominations. Such a view is important if the question of interpretation of Article 45 was before a Hong Kong court or even the Standing Committee. However the issue now is one of amendment of the Basic Law’s Annex I and whether it is lawful for the Standing Committee to approve an amendment that deems civil nominations consistent with Article 45. Even if statements made by certain members of that committee make it highly unlikely that such an amendment would ever be approved, the question of legality is a separate one and it should be made clear that the amendment is legally possible. It is one thing to say that civil nominations is inconsistent with the original intent of Article 45 but it is quite another to say that the Standing Committee has no legal authority to approve an amendment to Annex I that deems civil nominations to be consistent with Article 45, after having the support of the Chief Executive and two-thirds of Hong Kong legislators.% @* J& |. F9 U
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Professor Simon NM Young and Professor Hualing Fu teach in the Faculty of Law,The University of Hong Kong公仔箱論壇* W! V. F5 G) W) m) r G% W! ?
