DSS12602 Introduction to

Legal System
Lecture 7- Constitutional History of Hong Kong (II): Conflict
over interpretation.
Synopsis
• The interpretation of Basic Law
• The two different legal systems
• Five occasions of interpretation from NPCSC
• Unresolved issues
The interpretation of Basic Law
• Article 160: //…… If any laws are later discovered to be in contravention of
this Law, they shall be amended or cease to have force in accordance with
the procedure as prescribed by this Law……
• Documents, certificates, contracts, and rights and obligations valid under
the laws previously in force in Hong Kong shall continue to be valid and be
recognized and protected by the Hong Kong Special Administrative Region,
provided that they do not contravene this Law//
• Enacted under the Constitution of the PRC, the Basic Law is a national law
composing elements of “one country, two systems”, "a high degree of
autonomy" and "Hong Kong People administering Hong Kong".
The interpretation of Basic Law
• //Article 158
(1) The power of interpretation of this Law shall be vested in the
Standing Committee of the National People's Congress.

(2) The Standing Committee of the National People's Congress shall

authorize the courts of the Hong Kong Special Administrative Region
to interpret on their own, in adjudicating cases, the provisions of this
Law which are within the limits of the autonomy of the Region.
The Interpretation of Basic Law
• (3) The courts of the Hong Kong Special Administrative Region may also interpret other
provisions of this Law in adjudicating cases. However, if the courts of the Region, in
adjudicating cases, need to interpret the provisions of this Law concerning affairs which
are the responsibility of the Central People's Government, or concerning the relationship
between the Central Authorities and the Region, and if such interpretation will affect the
judgments on the cases, the courts of the Region shall, before making their final
judgments which are not appealable, seek an interpretation of the relevant provisions
from the Standing Committee of the National People's Congress through the Court of
Final Appeal of the Region. When the Standing Committee makes an interpretation of
the provisions concerned, the courts of the Region, in applying those provisions, shall
follow the interpretation of the Standing Committee. However, judgments previously
rendered shall not be affected.
(4) The Standing Committee of the National People's Congress shall consult its
Committee for the Basic Law of the Hong Kong Special Administrative Region before
giving an interpretation of this Law. //
The Interpretation of Basic Law
• According to Article 67 of the PRC Constitution,
• The Standing Committee of the National People's Congress exercises the
following functions and powers:
(1) to interpret the Constitution and supervise its enforcement;
(2) to enact and amend laws, with the exception of those which should be
enacted by the National People's Congress;
(3) to partially supplement and amend, when the National People’s
Congress is not in session, laws enacted by the National People's Congress
provided that the basic principles of those laws are not contravened;
(4) to interpret laws;
Two Legal Systems
• Hong Kong: common law system = independent judiciary. Emphasis of
separation of powers. CFA as the final authority in interpreting laws.
• China: National People’s Congress (NPC) as both the highest
legislative and judicial organ: as the final interpreter of the
Constitution (and, when NPC is not meeting, delegating its power to
the Standing Committee of NPC).
 arguably can be called the socialist legal system.
• So, when there comes a case involving interpretation of Basic Law,
and the CFA and NPCSP disagree, what will happen?
Two Legal Systems
• Hong Kong: the court claims the right of Constitutional Review

 Weak Constitutional Review:

i) Court construe laws in a way compatible with the constitution;
ii) It can review and rule that certain legislations are incompatible
with the constitution, but cannot stop their application.

 Strong Constitutional Review:

Court can actually strike a legislation out of the statute book, or to
declare that it is no longer applicable.

 Hong Kong court adopt a strong Constitutional Review.

Two Legal Systems
• China: there is a court system, and (arguably) adopt a civil law
approach. But it is under NPC.
 and the court has no power of constitutional review (weak or
strong); the power to interpret constitution is in NPC and NPCSC.

• Political rather than legal approach in interpretation:

 no hearing proceeding
 no testimony and evidence
 not “case-based”
 no comprehensive reasoning: no stare decisis, ratio decidendi and
obiter dicta
The Two Systems
• The thesis that Hong Kong courts do not have the jurisdiction to review
acts of the NPC or its SC was developed by the Court of Appeal in the case
of Ma Wai Kwan.
 The Hong Kong courts have no jurisdiction to entertain any claim that a
legislative act of the NPC or its SC is invalid, or otherwise to determine the
validity of the act on the basis of whether it is inconsistent with the Basic
Law.
• The Court of Appeal: “ Hong Kong as a local or regional court, it had no
power to overturn an act of a sovereign authority such as the NPC or its
SC.”
• Therefore, even when NPCSC act that in invalid, The court of Hong Kong
have no any power or jurisdiction to examine it.
The Ng Ka Ling Case
• The argument of the CFA in Ma Wai Kwan is overturned.
 and triggered, eventually, the first case of NPCSC interpretation of
Basic Law.
• The Background, or the concrete case:
 BL article 24: children born in Mainland China, with one of the
parents to be HK permanent resident, have right of abode in HK.
 BL article 22: //For entry into the Hong Kong Special Administrative
Region, people from other parts of China must apply for approval.//
 Ng Ka Ling: come to HK without Chinese authority’s approval, to
join her father. Is this illegal immigration?
The Ng Ka Ling case
• The Immigration Ordinance as passed in 1997 considered this as
illegal: people in the mainland China, even if their parents are Hong
Kong permanent residents, need to apply for an exit permit from the
Chinese authority.
• The CFA ruled that this arrangement is unconstitutional.
 BL article 24 is in the list of Fundamental Rights. Right of abode
should be enjoyed by all Hong Kong citizens.
• Government: estimated that 1.6 million mainland residents would
populate to Hong Kong over 10 years and it would cause an
unbearable burden for the city.
The Ng Ka Ling case

• The CFA ruled in Ng Ka Ling that:

1) it has the duty and right to enforce and interpret BL

2) it therefore has the right to examine legislative acts of NPC and
NPCSC to see whether they are consistent with BL
3) “… and to declare them to be invalid if found to be inconsistent”.
4) The court should adopt a “purposive” and “generous”
interpretation regarding the Fundamental Rights of HK citizens.
5) it has to make a reference to the NPCSC according to BL article 158
(3) only if the adjudication satisfy “the classification condition” and
“the necessity condition”.
The Ng Ka Ling case
• “The Classification Condition” is meet if judging the case involve
questions on the BL provisions that concern
a) affairs which are the responsibility of the Central People’s
Government, e.g. foreign affairs, national-defence;
b) the relationship between Central Authorities and the Region
i.e. the “excluded provision”.

• “The Necessity Condition”

 that it is necessary to interpret such provisions in BL in
adjudicating the case.
The Ng Ka Ling case
• The CFA ruled that in the Ng Ka Ling case:
 Classification condition is not meet: article 24 is not “excluded
provision” (in Chapter III of BL)
 Necessity condition is not meet: article 22 is not necessary in
judging the case, though it is one of the “excluded provision” (in
Chapter II of BL).
 so, no reference to NPCSC is needed.

• The government, and the Central government, disagree.

The Ng Ka Ling case
• The CE reported to the State Council the problems which it
encountered in the implementation of the Basic Law and sought
assistance from the State Council.
• The CE Tung Chee Hwa decided to seek interpretation of two BL
provisions, articles 22 and 24 concerning the right of abode from the
NPCSC.
• NPC overturned the decision of CFA and ruled that “people from
other parts of China” included those children of HK permanent
residents who born and live in China.
 and both article 22 and 24 are interpreted = reject the
classification condition of the CFA.
• The NPCSC overturned the CFA’s judgement saying it was “not
consistent with the legislative intent.”
The Ng Ka Ling case
• The first case of interpretation sparked great controversy in society.
Hundreds of Hong Kong lawyers protested against the interpretation
in a silent parade. Many regarded that NPCSC undermined the judicial
independence of Hong Kong.
• WikiLeaks also said that 5 judges in CFA
once considered resigned collectively in
protest against the interpretation.
2 nd NPCSC interpretation of BL
• Article 45 of the Basic Law states that the chief executive of Hong Kong, will
ultimately be elected by universal suffrage.
• In 2003, citizens started to discuss about the political reform and selecting
method of chief executive at 2007.
• In 2004, Chairperson's Council of the NPCSC submit the application to
NPCSC, and the NPCSC issued an interpretation of the two annexes,
entirely of its own volition.
• The interpretation added two new rules to the process, first is the chief
executive must report to the NPCSC. Second rule is the NPCSC can decide
whether it is necessary.
• It cause the political reform process has been changed from “trilogy” to
“quintet”.
• Again, the interpretation sparked protests.
3 rd NPCSC interpretation of BL
• In 2005, CE Tung Chee Hwa has resigned, citing poor health.
• According to the Article 46 of the Basic Law, the tenure of HKSAR Chief
Executive shall be 5 years and he/ she cannot serve for more than two
consecutive terms.
• The term of office of the next Chief Executive aroused public discuss about
whether is a full five-year term or the remaining term of office.
• There is controversy over the term of office of the chief executive by-
election.
• In April, the acting chief executive, Donald Tsang, requested an
interpretation of the Basic Law.
• The reason of that is because neither the Basic Law (Article 53) nor the
Chief Executive Election Ordinance specified what should happen next.
• The NPCSC explained that the term of office of the chief executive by-
election is the original remaining term of the chief executive.
4 th NPCSC interpretation of BL
• In 2008, the Democratic Republic of Congo (Congo) offered mining rights to China
Railway Group in return for invest millions of dollars in infrastructure.
• US company FG Hemisphere Associates LLC (FG) wanted grab $102 million of fees
from China Railway Group which can repay the debts Congo owed.
• Congo took this case to Hong Kong courts in 2010, use "diplomatic immunity" in
the hope that it would block the company from recovering its debt.
• The Court of Appeal of the High Court ruled in accordance with "restrictive
immunity" in common law which ruled in favor of FG.
• In 2011, Congo took the case to Hong Kong’s Court of Final Appeal. And the Final
Court requested that the NPCSC in Beijing interpret the article 13 and 19 in the
Basic Law.
• NPCSC ruled that Congo should have the right to absolute diplomatic immunity,
because the central government was responsible for Hong Kong’s foreign affairs.
5 th NPCSC interpretation of BL
• In October 2016, when the Youngspiration of Mr Leung Chung-hang and
Miss Yau Wai-ching sworn as Legislative Council Members, they displayed
and read out slogans which purporting to propagate Hong Kong
independence and humiliate China in Hong Kong.
• The chair of LegCo stopped them and arranged them to take the oath
again.
• However, Chief Executive Leung Chun-ying and the Hong Kong government
required judicial review and deprived their disqualification of members of
the Legislative Council.
• People's Congress Chairman Zhang Dejiang suddenly requested
interpretation on the oath of public officials of the law before their verdict.
• In November, it was passed by the NPC Standing Committee.
Unresolved Issues
• What should be the proper procedure of Interpretation?
 who should take the initiative? Gov.? NPCSC? Court?
• The nature of the NPCSC interpretation: legislation or adjudication?
• The legitimacy of interpretation
 is it lawful or legitimate even to have a system of NPCSC
interpretation?
 how can its legitimacy be improved?
 is it lawful or legitimate for the CFA to have strong Constitutional
Review?
 Legal or a political problem?