Whether the tenure of the new chief executive to be elected in July should be two years or five has undoubtedly become the talk of the town. Advocates on both sides are insisting that they are correct and refusing to budge.

Under such circumstances, it has been suggested that the draft documents of the Basic Law be referred to in order to find out the legislative intent of the related provisions.

There is, however, also the view that under common law, unless the provision in question is ambiguously worded, it is not necessary to find out the legislative intent behind it. This theory seems reasonable on the surface, but is actually problematic.

It is true that legal provisions are supposed to be written as clearly as possible so that law enforcers and members of the public can understand and implement them. Yet, in the current discussion, there is a glaring discrepancy in people's interpretation of Articles 46 and 53 as well as Annex I of the mini constitution, and completely different conclusions have been drawn from them. That means there are indeed ambiguities in those provisions and there is the need to find out the legislative intent.

As a matter of fact, adhering to the common law tradition and resorting to the Basic Law's legislative intent are not necessarily mutually incompatible. As we all know, the UK is a country without a complete constitution. As a consequence, Hong Kong under colonial rule also lacked a set of laws serving a similar function; and Hong Kong people are not very familiar with the concept of "violation of the constitution". Legal interpretation in the territory, therefore, has been relatively straightforward, and has been done only at the level of literal meaning of the provisions.

The situation, however, is different in other countries that also practise common law, such as the US, Canada and Australia. Senior counsel Daniel Fung has pointed out that since constitutional provisions have a bearing on the overall operation of society, they must reflect public opinion. Hence, the courts of all mature judicial areas, when hearing cases involving the country's constitution, invariably take into serious account the drafts of the related provisions before making their rulings.

As far as I know, the US Supreme Court, in passing judgments on such cases, often cites the words of constitution drafters. That is to say, interpreting constitutional laws according to common law principles does not preclude us from seeking to understand legislative intent at the same time. On the contrary, that is what the majority of common law countries have often been doing.

After reunification, it is not sufficient for Hong Kong to interpret the Basic Law only from the angle of common law. In practising "One Country, Two Systems", Hong Kong has been able to retain its original common law system, while the Basic Law, which originated from continental law, has become Hong Kong's mini constitution. This situation is what makes the local legal system different from before. Here is one good example:

According to the common law tradition which Hong Kong upholds, the right to interpret laws belongs to the court. Yet it is a legislature - the National People's Congress Standing Committee - that has the right to interpret the Basic Law. Although the NPCSC has delegated this power to Hong Kong's courts of law, there is a limitation to this power, namely, that the NPCSC reserves the right to ultimate interpretation of the Basic Law. If one tries to comprehend such an arrangement from the viewpoint of common law principles, one would run into big trouble.

Furthermore, even if Basic Law provisions show no ambiguity in themselves, errors would still occur if the provisions' legislative intent are totally ignored, as happened before. On January 29, 1999, when the Court of Final Appeal (CFA) ruled on a case concerning the right for Hongkongers' mainland offspring to reside in the SAR, it did so according to related provisions in the Basic Law. Nevertheless, the final verdict did not tally with the legislative intent. Upon request by the SAR government, the NPCSC gave its explanation on the legislative intent of Article 22(4) and Article 24(2)(3) of the Basic Law.

In a subsequent ruling, the CFA admitted that the NPCSC has the "general" and "absolute" power to interpret the Basic Law, and its interpretation is valid and binding, by which SAR courts must abide. Obviously, in saying so, CFA acknowledged that the NPCSC's power to interpret the Basic Law according to the legislative intent is beyond question.

Under "One Country, Two Systems", Hong Kong's legal system has shown some unprecedented characteristics. It is understandable that legal practitioners trained under the common law system feel strange about it.

For this very reason, Secretary for Justice Elsie Leung reminded Hong Kong people that the Basic Law is a key link in the local legal system, a novelty that involves two completely independent legal regimes. She stressed that we ought to look at the meaning of the Basic Law with an open mind. I believe Leung's words would provide an element of enlightenment amidst the on-going controversy.

(HK Edition 03/22/2005 page2)