Explain and critically evaluate the role of courts in interpreting the Basic Law of the Hong Kong SAR since 1997.

A NPCSC Interpretation was made following a request from the Chief Executive, stating that the CFA failed to seek an interpretation from the NPCSC and has failed to follow what was required in Article 158(3). It further said that the CFA interpretation is not in conformity with the original legislative intent of the Basic Law of those provisions and the interpretation of article 24(3) and 22 falls within the excluded categories and the CFA had a duty to refer to the NPCSC for interpretation before making its final judgment. Eventually, NPCSC’s interpretation of article 22(4) and 24 supersedes the previous CFA’s interpretation.

Follow up to the NPCSC Interpretation, in Lau Kong Yung, the CFA conceded that the NPCSC has the general and unqualified power to interpret all provisions of Basic Law under Article 67(4) of the Chinese Constitution and Article 158(1) of the Basic Law. It denied the submission that NPCSC’s interpretation power only limits to the ‘excluded provisions’ because ‘such a limited power of interpretation would be inconsistent with the general power conferred by Article 158(1)’. Clearly, the court’s attitude towards acts of NPC has changed following the Ng Ka Ling case, by fully recognizing that the NPCSC could always issue any counter-measure in recalcitrant HKSAR courts’ interpretation by reinstalling its own understanding of the Basic Law provisions. But in Chong Fung Yuen and Tam Nga Yin, it seems that the CFA would read a NPCSC interpretation narrowly to minimize the impact of the terms of the interpretation. Apparently, there is a tendency that CFA does not wish to be led by the NPCSC, via subtle and instinctive techniques or at least try to adjudicate the case without reaching for the need of interpretation.

In Ng Kung Siu, the question before the CFA was whether the statutory provisions of the National Flag Ordinance and the Regional Flag Ordinance, which criminalize the desecration of the national and regional flag, are inconsistent with the guarantee of freedom of expression under Basic Law article 39. The CFA adopted a generous approach when concerning the human rights issue, by relying upon article 19 of International Covenant on Economic, Social and Cultural Rights (ICCPR) which is entrenched in the Basic Law. The court found that article 19(3) imposes restrictions on the exercise of the right to freedom of expression and one restriction concerned is the ‘protection of public order’. The court expressed its determination to protect freedom of expression and hence would interpret any restriction on such narrowly. Despite doing so, it found that ‘it is natural for a society to wish to protect its symbols’ and recognized that the Ordinances only restrict on the mode of expression, which is justified on the legitimate societal interest of the community. It answered affirmatively that the Ordinances are reconcilable with the freedom of expression guaranteed by article 39 of the Basic Law. Here, the CFA circumvented the debate of validity of Ordinances enacted locally to implement a national law included in Annex III of the Basic Law by the NPCSC. It did not make any determination on judicial reference and based its judgment solely on the less controversial issue of compatibility of local legislation with the guaranteed freedom of expression. This shows that courts are generally reluctant to refer matters to NPCSC and question of the constitutionality of national law will only be considered when such decision is strictly necessary for the adjudication. In a bigger sense, the court avoided to dig into the sensitive issue of whether HKSAR courts could review and refuse to apply mainland legislation if inconsistent with the Basic Law.

Interpretive Approaches Adopted by the HKSAR Courts

As identified in Ma, the Basic Law is a complex document involving three dimensions – its international provenance as implementing the Joint Declaration; being the constitution of HKSAR; and its character as national Chinese Law. Consequently no single approach would be justified to interpret every provision of the Basic Law. Nevertheless, the judges in Ma adopted the orthodox generous and purposive approach, a common-law principle, to interpret the relevant provisions of the Basic Law. The essence of the purposive approach is to give effect to the intention of the drafters of the Basic Law, even if this is achieved by disregarding the literal meaning of the terms. In contrast, the generous approach seems to depend less on the legislative intent than on the desirability of protecting rights by the HKSAR courts. The CFA in Cheung Lai Wah clarified that a generous approach should be used for provisions that give rights but merely a purposive approach for others. Its emphasis on the ICCPR and article 39 of the Basic Law, as already seen in Ng Kung Siu, illustrates its view. The approach has been endorsed in all subsequent decisions on the Basic Law and has received praises for its appropriateness in area concerning human right issues.

HKSAR courts adopts the common-law principle of interpretation, ignoring the fact the Basic Law is PRC law. The rationale for such adoption is because there is a growing convergence between the common law and Chinese law approach to interpretation. The NPCSC alludes to two methodologies for identifying original legislative intent – a contextual approach and the use of travaux préparatoire (ie. documents and records of drafts of the Basic Law). These two methodologies are also widely used in common law jurisdiction. For instance, in Chong Fung Yuen, the CFA sates that a literal meaning should always be adopted without digging into legislative intent if the provision concerned is unambiguous and its meaning clear. This contextual approach encounters difficulty because judges occasionally reached opposite conclusions by relying on their own interpretation of what the plain meaning is. Other reliable guidance to the intentions of the drafters is necessary. Unfortunately, the problem for HKSAR courts is that the primary background materials, the records of drafts from the Basic Law Drafting Committee, are confidential. As a result, courts have relied heavily on the Joint Declaration to give meaning and establish purpose. But the disadvantage of the Joint Declaration is that it often reproduces the language of the Basic Law, providing no guidance.

The conflict between HKSAR courts and NPCSC lies very much in the fact that the primary source of Basic Law is not public information. The NPCSC indicated in its Interpretation regarding article 24(2) that the legislative intent was reflected in an Opinion of the Preparatory Committee for the HKSAR. Such opinion has never been publicly scrutinized and it is very natural that HKSAR courts are not convinced by its validity. The conflict may be resolved if the complete draft of Basic Law becomes available to courts, because only by putting both parties on a level-playing field will the courts put confidence on NPCSC’s interpretation. In addition, courts will do a better job in interpreting Basic Law provision by having access to the true legislative intent information. The occasion of ‘wrong interpretation’ made by them will greatly minimize and NPCSC may be unnecessary to give interpretation.

Conclusion

The power to interpret the Basic Law defines and shapes the relationship between the HKSAR and the Central Authorities. Unless information revealing original intent of Basic Law is available to HKSAR courts, difference in ideological setting of the NPCSC and the CFA means conflicts over interpretation will inevitably ensue.  From all the controversial matters raised by Basic Law interpretation, one may observe that HKSAR courts have tried hard to defend their constitutional responsibilities in issue involving political matters. This can be explained by the fact that the judiciary is the only independent and legitimate institution that can safeguard the Hong Kong’s capitalist-market policies, civil liberties, rule of law and most importantly, its autonomy.

Following the NPCSC Interpretation on the right of abode issue, the CFA has not re-examined its methodology of judicial reference but it has become more cautious when dealing with such issue. Knowing the NPCSC is a political body taking instructions from the CPG, the CFA has tried to downplay NPCSC’s significance in resolving any Central-HKSAR political dispute through interpreting relevant provisions of the Basic Law, because conniving such act will hinder the region’s democratic development and ultimately derogate its autonomous limits. This is indeed one possible reason why it denied using the ‘conventional-literal’ test in article 158(3) but adopted its own ‘predominant provision’ test in Ng Ka Ling. In the Flag Desecration case, the CFA avoided dealing with the controversial issue of assessing the locally implemented national law. Instead, it strategically resolved the matters by interpreting the ‘non-excluded’ provisions to prevent NPCSC from stepping in. In Ng Siu Tung, the court even declined to make a judicial reference on the basis that the excluded provision in question was clear and free from doubt.

No doubt, the failure of the CFA to make a judicial reference when the NPCSC believes it should have will be met by a NPCSC interpretation displacing the CFA’s one. It may at first seem futile for any CFA’s effort to abstain NPCSC from any involvement in the interpretation of the Basic Law. In reality, the court still has some significant moves to make. Don’t forget, it is still CFA’s own deliberation that determines the outcome of the request for reference. Even if it happens that request for interpretation is inevitable, the CFA may phrase the query in such a way so that the NPCSC would give a general answer, allowing CFA to retain some leeway in its application. Moreover, the CFA can attempt to transmit to the NPCSC its own views on meaning and effect of the questioned provision, so as to persuade the NPCSC to make an interpretation reconcilable with CFA’s intention.

(Word count: 2497)        

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Bibliography

Textbooks/journal articles/government publications

Chen, Albert HY ‘The Court of Final Appeal’s Ruling in the ‘Illegal Migrant’ Children Case: A Critical Commentary on the Application of Article 158 of the Basic Law’ Chan, Johannes, Fu HL and Ghai, Yash (eds) Hong Kong’s Constitutional Debate: Conflict Over Interpretation, Hong Kong University Press 2000, 113-141

Feng, Lin and Lo, PY ‘One Term, Two Interpretations: The Justifications and the Future of Basic Law Interpretation’ in Fu, Hualing, Harris, Lison and Young, Simon (eds) Interpreting Hong Kong’s Basic Law, Palgrave, 2007, 143-156

Fu, Hualing, Harris, Lison and Young, Simon (eds) Interpreting Hong Kong’s Basic Law: The Struggle for Coherence, Palgrave, 2007

Ghai, Yash ‘Interpretation of the Basic Law’ in Ghai, Yash Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law (2nd ed) Hong Kong University Press 1999, Ch 5

Ghai, Yash ‘Litigating the Basic Law: Jurisdiction, Interpretation and Procedure’ in Chan, Johannes, Fu HL and Ghai, Yash (eds) Hong Kong’s Constitutional Debate: Conflict Over Interpretation, Hong Kong University Press 2000, 3-52

Lo, PY ‘Rethinking Judicial Reference: Barricades at the Gateway?’ in Fu, Hualing, Harris, Lison and Young, Simon (eds) Interpreting Hong Kong’s Basic Law, Palgrave, 2007, 157-182

Young, Simon NM ‘Legislative History, Original Intent, and the Interpretation of the Basic Law’ in Fu, Hualing, Harris, Lison and Young, Simon (eds) Interpreting Hong Kong’s Basic Law, Palgrave, 2007, 15-32

Cases

HKSAR v Ma Wai Kwan, David and Others (1997) HKLRD 761

HKSAR v Ng Kung Siu & Ors [2000] 1 HKC 117

Lau Kong Yung & Ors v The Director of Immigration [1999] 4 HKC 731

Ng Ka Ling v Director of Immigration (1999) 1 HKLRD 315

Tam Nga Yin & Chan Wai Wah v The Director of Immigration & Ors [2001] HKCU 661

The Director of Immigration v Master Chong Fung Yuen [2001] HKCU 660

Legislation

Immigration (Amendment) No 2 Ordinance (Cap 115)

Immigration (Amendment) No 3 Ordinance (Cap 115)

National Flag and National Emblem Ordinance (Cap 2401)

Regional Flag and Regional Emblem Ordinance (Cap 2602)

Treaties or international documents

Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, signed 19 December 1984 (Sino-British Joint Declaration 1984)

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