A dubious tradition of interpretation

PUBLISHED : Thursday, 22 April, 2004, 12:00am
UPDATED : Thursday, 22 April, 2004, 12:00am

Beijing and even some Hong Kong officials like to say that residents of the special administrative region lack understanding of the mainland's civil law system and that it is entirely within that legal tradition for the Standing Committee of the National People's Congress to interpret provisions of the Basic Law.

Thus, a Chinese scholar wrote recently in the China Daily: 'In some countries and regions, the legislature is only responsible for stipulating laws, while the duty to make interpretations on laws belongs to the courts. China has a different constitutional system. The NPC Standing Committee's interpretations of the constitution and laws are a way for the supreme legislative body to implement the constitution to exercise the country's sovereignty.'

This is true as far as it goes - but it does not go very far. Each Chinese constitution, beginning with the one in 1954, then 1978 and finally 1982, specified that it was up to the Standing Committee to interpret laws. However, the Standing Committee has never interpreted the country's constitution and has interpreted only a handful of laws - mostly for the benefit of Hong Kong. Most legal interpretation has been done by the Supreme People's Court.

The first time the Standing Committee issued a formal interpretation of any law, after the founding in 1949 of the People's Republic, was in 1996, on the nationality law, so that its provisions mean one thing on the mainland and another in Hong Kong. Prior to that, there was no 'tradition' of legal interpretations by the Standing Committee. Hong Kong was the origin of this tradition. Largely because about half of Hong Kong's population was British subjects, the Standing Committee decided for political - not legal - reasons not to recognise their foreign nationality.

According to the nationality law, any Chinese 'who has been naturalised as a foreign national or has acquired foreign nationality of his own free will shall automatically lose Chinese nationality'. Since that would mean half the Hong Kong population would be foreigners, the Standing Committee 'interpreted' the law in such a way that these British nationals all became Chinese nationals. The same interpretation was also applied to Macau, before the handover from Portugal in 1999.

The Standing Committee then issued an interpretation in 1999, during the right of abode controversy. Once again, Hong Kong helped in building up this mainland 'tradition'.

Thus, in the first 50 years of the People's Republic, it had interpreted the law three times. Now, mainland legal scholars say it has issued other interpretations, only they were 'decisions', 'decrees' and 'regulations'.

Be that as it may, it is only after the National People's Congress passed the Law on Legislation in 2000 that its Standing Committee issued its first interpretation of a mainland law. This was on August 31, 2001, when it expanded the criminal law definition of 'land' relating to improper sale or transfer of ownership over agricultural land.

As far as can be determined, that seems to be the one instance when it interpreted mainland law. And now, it has interpreted the Basic Law one more time, again to achieve a political motive in Hong Kong.

This SAR is providing most of the building blocks in the construction of the mainland's 'tradition' of legislative interpretation. No doubt, since the NPC - unlike the courts - is a political body, it is much easier to use it to achieve Beijing's political ends, while dressing it up as an act of interpretation of the law.

Frank Ching is a Hong Kong-based journalist and commentator