Basic Law interpretation a matter of diplomacy

PUBLISHED : Thursday, 09 June, 2011, 12:00am
UPDATED : Thursday, 09 June, 2011, 12:00am


Yesterday's decision to seek a Basic Law interpretation, initiated by a Hong Kong court, seems likely to provoke less hostility than on previous occasions, when the executive branch asked Beijing to re-examine rulings by the top court in light of the city's highest governing law.

Never before has the Court of Final Appeal sought an interpretation of the Basic Law's provisions from the National People's Congress Standing Committee (NPCSC), China's supreme legislature. The request for clarification in the continuing Congo-United States dispute is a first.

In contrast, the executive branch has made three such invitations in the 14 years since the handover.

That procedure is not expressly provided for in the Basic Law. According to Article 158 of the law only refers to the Court of Final Appeal making a request for an interpretation from Beijing.

The article states that local courts, when needing clarification on Basic Law provisions involving the central government's affairs or the mainland-Hong Kong relationship, should 'seek an interpretation of the relevant provisions from the [NPCSC] through the Court of Final Appeal'.

'When the NPC makes an interpretation of the provisions concerned, the courts of [Hong Kong], in applying those provisions, shall follow the interpretation of the [NPCSC],' Article 158 states.

Civic Party lawmaker and barrister Ronny Tong Ka-wah said it was 'well-grounded' to seek an interpretation from the NPC in the present case. His reasoning: it 'involves a dispute about diplomatic law', rather than a local law.

Tong's reaction to Beijing's interpretations was fiercer in 1999, when hundreds of local lawyers took part in a silent march to protest the local government's request to Beijing for an interpretation after the Court of Final Appeal's decision in the case of Ng Ka Ling v Director of Immigration.

The legal sector called the nod to Beijing 'the death of judicial independence'.

In that case, the court ruled everyone born of Hong Kong permanent residents can enjoy the right of abode, regardless of legitimacy, whether they hold one-way permits, or whether their parents had been Hong Kong permanent residents when they were born.

But it also meant that as many as 1.7 million people could be coming over from the mainland in a decade, Regina Ip Lau Suk-yee, then security minister, estimated.

In the case, the court, led by then-Chief Justice Andrew Li, ruled that it was not necessary to refer the provisions to the NPCSC. But the Executive Council, under first Chief Executive Tung Chee-hwa, still applied to Beijing for an interpretation, just two years after Hong Kong returned to Chinese rule.

In less than a month, the NPCSC ruled against right of abode for those with either of their parents being a non-permanent resident of Hong Kong when they were born.

The decision cut the number of potential newcomers to 270,000. In governmental terms, the pro-democratic bloc argued, the local court system had been stripped of judicial autonomy and independence.

In 2004, the government raised another issue for interpretation. According to Article 45, the 'ultimate aim' is that elections of the Chief Executive and Legislative Council members be in the form of universal suffrage. But the article had no concrete timetable. The NPCSC made an interpretation of the annexes of the Basic Law, adding two extra procedures to the provisions. Now any changes to the city's election policies would have to be approved by the central government, considering the current situation of Hong Kong.

Beijing also decided that universal suffrage would not apply to the two elections in 2007 and 2008.

A year later, Tung resigned mid-term from the top job, and the government, under then-Acting Chief Executive Donald Tsang Yam-kuen, sought an interpretation from the NPCSC to clarify whether the successor would serve a full five-year term or the remainder of Tung's term.

The pro-democracy camp insisted on the former. Mainland legal scholars said the latter should apply. And that's the interpretation backed by the NPCSC.