7 \) q/ O; X4 p( `2 VTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。香港大律師公會就普通法的意義和第45條對公民提名的影響發表了意見。如果香港法庭甚至全國人民代表大會常務委員現在需要解釋第45條，那麼大律師公會的 意見就會很重要。但是現在的重點是修改基本法附件一，以及全國人大常務委員會是否可以合法的批准一項修改以確立第45條和公民提名的一致性。即使有該委員 會的某些成員表態指出該修訂不大可能會被批准，修改的合法性是一個獨立的問題，而修改基本法附件一在法律上是絕對可能的。 2 l/ \" T6 m$ R% ^+ k說公民提名與第45條的原意不符是一回事，但如果在有行政長官和三分之二香港立法會議員支持的前題下，說人大常委會沒有法律權力批准一項推定附件一中公民提名的條款與第45條一致的修訂又是另一回事。 . t; H0 l0 e0 J2 Y7 P8 utvb now,tvbnow,bttvbtvb now,tvbnow,bttvb0 \9 H6 D: Q7 y) R
﹝註﹞請注意，修改基本法第159條有另外的程序。公仔箱論壇+ O% @ O: p3 c% k4 F
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( 作者簡介：楊艾文教授和傅華伶教授在香港大學法律學院任教。) ( b+ u: G. O; x5 ttvb now,tvbnow,bttvb 5 O( \ v' _2 Z# w! eTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。英文原文： ' e3 j! z/ s. g5.39.217.76 " m" @- n& z, n3 K公仔箱論壇Truth about Civil Nominations 3 X% k. L8 J, w9 L1 z( FAsking the right question in Hong Kong’s political reform debateTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。6 U& p& ?( \$ z. q
, A$ q% R5 d1 z( y2 }/ x2 v: G公仔箱論壇Simon NM Young and Hualing Fu5.39.217.760 L; J" Y( O" K5 o' T
. w: P9 i( b C+ f$ |5.39.217.76The 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. 0 U. b# N5 O9 b8 `* c5 A5.39.217.76 3 S% ?% a% x% y% ^) D8 B5 R: GSo 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. 9 e t, {& K% B9 w2 I; N7 o公仔箱論壇公仔箱論壇7 k6 ~' O0 n7 H3 W. N, {% H+ {" X
What 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. : p% Q8 q0 w: D- X% L% W9 ]0 |. dTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。# R6 c7 g7 o; e3 }6 q) g
The 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. ; B* `1 d0 d! d1 l2 R' V. QTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。 1 p2 Y' d# U' Z2 S6 GTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。Professor Simon NM Young and Professor Hualing Fu teach in the Faculty of Law,The University of Hong Kong公仔箱論壇; K' [$ i, N7 a2 A
TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。! k7 c* D' N9 N! h
**Note that there is a separate procedure for amending the Basic Law articles in Article 159.5.39.217.768 C( m, t# l4 l; q
（原刊於「Design Democracy Hong Kong 港人講普選」；「Design Democracy Hong Kong 港人講普選」facebook專頁）
