Wrong to see interpretation of Basic Law as interference

PUBLISHED : Friday, 02 September, 2011, 12:00am
UPDATED : Friday, 02 September, 2011, 12:00am


I have been a member of the National People's Congress Standing Committee Basic Law Committee since 2006, and the recent interpretation of the Basic Law in the Congo 'state immunity' case was my first experience of participating in this important task.

The committee followed the case from the beginning because it directly relates to foreign affairs, which is outside the jurisdiction of the Hong Kong courts, according to the Basic Law. One way or another, the courts had to refer it to the central government.

Yet, even after the Ministry of Foreign Affairs issued three letters through the justice secretary asserting the position of the central government on the issue, the courts sought an interpretation only just before the Court of Final Appeal made its ruling.

Most people were on the whole quite receptive to the idea of an interpretation. Still, there were the routine objections that it might jeopardise the independence of the special administrative region's courts, that state-owned enterprises would hide behind the immunity waiver to escape their liabilities, and that it amounted to interference from the central government.

This is nonsense. The stipulations are simple and clear, and the application for an interpretation was appropriately worded.

Fourteen years after the handover, this was the first time that the city's courts had acknowledged that something was outside their jurisdiction and that there is a higher constitutional body which acts as the ultimate authority in certain areas. The Court of Final Appeal had to act this way; otherwise, the whole judicial system would collapse. Its verdict would either be based on contradictory grounds or simply unenforceable. Whether our dissidents like it or not, this was the only way out.

There are arguably some conflicts between the common law system and the constitutional reality, and that is the rationale behind providing the Standing Committee interpretation as stipulated in the Basic Law - to provide a mechanism whereby such conflicts can be resolved satisfactorily.

This solution was borrowed from the European Union system, where there are many different legal sub-systems of different origins. Certain EU laws are directly applicable in all member countries and, when conflicts arise, they are referred to the EU court for interpretation. The EU experience amply demonstrates that such a mechanism does not hamper an independent judiciary in member countries. There is no reason to expect otherwise in our system of interpretation.

There is another common misconception about Article 158 of the Basic Law; that only the Court of Final Appeal can apply for an interpretation of the Basic Law. According to this very narrow understanding, the issue of whether foreign domestic helpers can become permanent residents, for example, can only be resolved through the decisions of judges. Even when the consequences would lead to threats to our way of life, the SAR and central governments are not supposed to intervene.

Common sense dictates that, after delegating specific powers to subordinates, the original source of that power can still exercise it. As the country's supreme authority, the NPC Standing Committee always has absolute discretion on what clauses of the Basic Law to interpret and when. It should not, and will not knowingly and wilfully, let Hong Kong fall into a crisis without lending a helping hand.

It is the constitutional power of the Standing Committee to interpret the Basic Law whenever the need arises; there is nothing wrong or unlawful in performing this function in accordance with the constitution and the Basic Law, and nobody can stop it from doing so.

In my view, any attempt to make it a routine practice is not an excuse to intervene in the internal governance of the city, because this is contrary to the original intention of 'one country, two systems'.

Lau Nai-keung is a member of the Basic Law Committee of the NPC Standing Committee, and also a member of the Commission on Strategic Development