Is amendment of the Basic Law constitutional and a viable legal option?
Those advocating the option to amend the Basic Law have hitherto proceeded upon the assumption that such an amendment is constitutional and will provide a satisfactory legal solution to the problem that Hong Kong is facing consequent upon the decisions of the CFA. But is such an amendment constitutional? Will it not lead to further constitutional crisis in Hong Kong? Will it indeed provide a satisfactory legal solution to the problem?
The Basic Law is the constitution of the HKSAR. It’s amendment is subject to constraints. Article 159(4) of the Basic Law provides:
“No amendment to this Law shall contravene the established basic policies of the People’s Republic of China regarding Hong Kong.”
This is the fundamental guarantee under the Basic Law to ensure that such established basic policies will remain unchanged for 50 years, as enshrined in the Joint Declaration. Any amendment which contravenes such established basic policies would be unconstitutional.
The debate on the choice between the option to amend the Basic Law by the NPC and the option to interpret the Basic Law by the NPC Standing Committee has hitherto proceeded upon the assumption that the amendment option is constitutional. This may be a dangerous assumption.
According to the CFA decisions, two more categories of children of Chinese nationality born outside Hong Kong are entitled to the right of abode in Hong Kong under Article 24(2)(3) of the Basic Law, namely: children whose father or mother has become a permanent resident after their birth; and children born out of wedlock. CFA has also decided that Article 22(4) and hence the so-called “one-way permit” exit control measure do not apply to persons having the right of abode under Article 24(2)(3).
The Basic Law stipulates and implements China’s basic policies regarding Hong Kong, as stated in the Joint Declaration and elaborated in Annex 1 thereto. Article 24(2)(3) of the Basic Law is a stipulation and implementation of China’s basic policies on the right of abode in Hong Kong as elaborated in the Joint Declaration Annex 1 Part XIV.
This is so for three reasons. Firstly, the CFA observed that the definition of permanent residents in Article 24 of the Basic Law had its origin in the Joint Declaration Annex 1 Part XIV. Secondly, there is a presumption that domestic legislation is intended to give effect to the terms of an international agreement. In this case, the domestic legislation is the Basic Law and the international agreement is the Joint Declaration. Thirdly, the relevant provisions in Article 24(2)(3) of the Basic Law and those contained in the Joint Declaration Annex 1 Part XIV are similar in wordings.
It therefore follows that if the CFA decisions on Article 24(2)(3) of the Basic Law reflects NPC’s true legislative intent and hence China’s basic policies declared under the Joint Declaration, any amendment of the Basic Law to alter or limit the effect of such decisions would be forbidden by Article 159(4) of the Basic Law. Indeed, it may be argued to be a breach of the Joint Declaration.
Article 22(4) also implements similar provisions in the Joint Declaration Annex 1 Part XIV. For the same reasons expressed above in connection with Article 24(2)(3), it should not be assumed that an amendment of Article 22(4) to reverse the effect of CFA’s decision on the “one-way permit” system will be constitutional.
Even assuming that the NPC is agreeable to effect such an amendment, the constitutionality of such an amendment will still be susceptible of being challenged in the Hong Kong Courts. According to CFA’s decision, Hong Kong Courts can determine whether an act of the NPC or its Standing Committee is inconsistent with the Basic Law. Bound by its own decisions on Articles 22(4) and 24(2)(3) of the Basic Law, it would follow that the CFA will be constrained to find any amendment to alter or limit the effect of its decisions unconstitutional. One would then revert back to the situation that Hong Kong is now facing.
Given that there are serious questions concerning the constitutionality of such an amendment, the interpretation option would have to be considered. Article 158(1) of the Basic Law, consistent with Article 67(4) of the Chinese Constitution, vests the power of interpretation of the Basic Law in the NPC Standing Committee. This constitutional power should however be exercised with care and restraint. It is argued that the exercise of this power, if confined to the following two areas, should raise less objections.
Firstly, regarding children whose father or mother has only become a permanent resident after their birth, the opinion of the Preparatory Committee (adopted at its 4th plenary session on 10 August 1996) on the implementation of Article 24(2)(3) of the Basic Law, i.e., one of the parents should be a permanent resident at the time of the child’s birth, was reported to the NPC as part of its Working Report on 10 March 1997. On 14 March 1997, the NPC made a resolution to approve the Working Report. An interpretation by the NPC Standing Committee as to whether this opinion, its adoption by the Preparatory Committee and NPC’s resolution to approve the Working Report containing the same were consistent with Article 24(2)(3), questions apparently not specifically argued by the parties before the CFA, should alleviate the concern that such an interpretation would question the correctness of the CFA’s decision on the materials and submissions that were put and made before it.
Secondly, as Article 22(4) of the Basic Law is concerned with the relationship between the Central Authorities and the HKSAR, a provision the interpretation of which the CFA is bound to refer to the NPC Standing Committee under Article 158(3) of the Basic Law, it should be less objectionable for the NPC Standing Committee to interpret the meaning of Article 22(4), i.e., whether it and hence the “one-way permit” exit control measure apply to persons having the right of abode under Article 24(2)(3). As Professor Albert H.Y. Chen commented in his paper “A Critical Commentary on the Application of Article 158 of the Basic Law” (Law Working Paper Series, Paper No.23 March 1999), the CFA lacked the jurisdiction to interpret Article 22(4).
Finally, it should not be assumed that the NPC Standing Committee would blindly adopt any option that might be put forward. They are and should in no way be less concerned about the constitutionality of each option.