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  • Nov 21, 2014
  • Updated: 8:04am
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PUBLISHED : Wednesday, 19 December, 2012, 12:00am
UPDATED : Wednesday, 19 December, 2012, 2:38am

How should Basic Law be 'interpreted' for the times?

Frank Ching says the central government's apparent unwillingness to amend the Basic Law leaves us stuck with 'interpretations'

The Hong Kong government's request for the Court of Final Appeal to consider asking the National People's Congress Standing Committee for a clarification of the committee's 1999 interpretation of the Basic Law is, in the words of Chief Executive Leung Chun-ying, an attempt to "tidy up" legal loose ends.

But other loose ends may emerge from this exercise, if the court does decide to accept the government's suggestion.

The committee ruled 12 years ago on the right of abode of mainland-born children of Hong Kong residents. In its interpretation, it said the legislative intent of its interpretation, as well as the relevant provision in the Basic Law, Article 24(2), was reflected in the 1996 Preparatory Committee "opinions".

These "opinions" amounted to amendments to the Basic Law. For example, while the Basic Law says that "Chinese citizens born in Hong Kong" are permanent residents of Hong Kong, the "opinions" exclude babies born to "illegal immigrants, overstayers or people resident temporarily in Hong Kong".

But Hong Kong's top court did not consider what the Standing Committee said about the "opinions" to be binding and the government did not challenge this view. Now, the government wishes to revisit the issue.

The court is scheduled to hear a case in February regarding whether foreign domestic helpers can gain right of abode. The government hopes to resolve that and the mainland mothers issue at the same time with a clarification.

Secretary for Justice Rimsky Yuen Kwok-keung has explained that the government itself is not asking for an interpretation. Instead, it is suggesting that the court consider whether it should ask for one.

The exact language used by the government in addressing the court has not been disclosed. It is unclear if the Standing Committee will be invited to "clarify" its 1999 interpretation or to issue a new one.

Under the Basic Law, the Standing Committee's interpretations are binding on Hong Kong. However, the Basic Law is silent on "clarifications" of interpretations by the Standing Committee.

It is unclear what status a "clarification" alone will have. If the court simply asks for a "clarification" and not an interpretation, will the resulting "clarification" be any more binding than the words used by the Standing Committee in its 1999 interpretation?

Normally, if legislation is ambiguous, the legislature simply amends the law to make it clear. Article 159 of the Basic Law says: "The power of amendment of this law shall be vested in the National People's Congress."

However, the Chinese government has always rejected suggestions to amend the Basic Law, presumably because it does not accept that the original drafting was flawed.

That is why Hong Kong is stuck with the problem of seeking "interpretations" of the Basic Law - and now clarifications of interpretations - when in every other country they would be considered amendments.

Frank Ching is a Hong Kong-based writer and commentator. frank.ching@scmp.com. Follow him on Twitter: @FrankChing1

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pslhk
I agree with whymak’s concluding comments
But would point out Cap 4 s 16(1) which states that
“wherever there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.”
Politicians enact statutes which may become precedents from judicial misinterpretation causing legislative amendments, further misinterpretations, …
I think the theoretical order of authority is statute, equity then common law.
But common law lawyers downplay statutes
because statutes are the only law that is by, of, for and open to, the people.
Common law serves, first and most, the legal profession
They get paid no matter what.
Common law refers to the adversarial process and rule of precedents.
Otherwise, it is merely an art of professional speak
that may mean any thing lawyers claim it to be subject to the court’s ruling
It is all-important only in HK, because of the legal profession’s colonial tenacity.
Even in the UK, tiny as it actually is, common law can’t prevail because it is stuffed with three legal systems

whymak
I empathize with your sentiments derived from Hong Kong's realities. However, a dosage of suppressed cynicism goes a long way in getting us started with more intellectual cooperation with less acrimonious adversarial advocacy, the most undesirable characteric and the mainstay in judicial process execution among English speaking peoples. This is a wrenching experience to our Chinese culture.
It is a shame that after 15 years, the proclamation of one country two systems hasn't yet dawned on our legal professionals, whose special interests remain an obstacle to Hong Kong's role in the brave new world of China's ascendance.
pslhk
Good suggestion
Have been told too many times
Will be there someday, hopeully!
whymak
Basic Law is not a Bible for mindless dogmatists.
There is a role for the Standing Committee to interpret BL. If necessary, we need defined “mechanisms” to trigger this special judicial review.
Now the important question. Are we violating principles of common law and an independent judiciary?
UK’s common law is based on statutes and legal precedents (customs). What happens when conflicts arise? Presumably, a new judicial opinion resolves some conflicts and will in time become a precedent. The UK has a strong common law tradition since the Middle Ages. Thus customs often count more than new statutes.
The US had a Constitution at its inception. Legislations are not allowed to contravene the Constitution. Its judiciary has the power to nullify a statute if found in conflict with the Constitution and Bill of Rights. With 2 centuries behind it, interpretations of Constitution are based on a wealth of precedents.
Our BL is brand new. We have no legal precedents to rely on in interpreting the BL. Worse, we haven’t yet hashed out potential conflicts of BL with the mainland. It is in areas of overlapping conflicts that we must seek the opinion of the SC. Thus judiciary independence takes on a new meaning.
Lack of a judicial review trigger requires either government or CFA, or both, to initiate this process.
On this issue, many legally constipated opinions have come from HK academics and lawyers with hidden agendas. Shame on them!
pslhk
When appetite for comic is whetted by non sequitur (in City section),
go check if FC’s column is there.
A loud speaker; garbage in and garbage out with
distortions from mindless amplification of what he's heard but misunderstood
His latest spinal puzzles
waltzes around
clarification, interpretation and amendment
In the discussion of constitution, he refers to legislation, mouthing
“if legislation is ambiguous, the legislature SIMPLY amends the law to make it clear”.
But legislation is always ambiguous, otherwise
lawyers will be out of business, and
every appeal will imply a need for legislative amendment.
A higher court’s power to repeal a lower court’s statutory interpretation is based neither on moral nor literal nor intellectual correctness.
Say, Dred Scott, Roe and Wade, Korematsu v. US, … etc.
It’s political, based on NECESSITY and AUTHORITY and SOCIAL REALITY
Much more can be said
But enough amusement for today
and I’ve a lunch appointment
Suffice it to say that
Amendment is for a wrong enactment
Interpretation is for litigants arguing about the law
Clarification is for honest jurists who want a correct interpretation.
xiaoblueleaf
If there is such thing as separation and independence of the judiciary, NPC being the highest law-making body has the authority to make amendments to the Basic Law. However, it is the Court of Final Appeal that should be the authority to rule pursuant to and in accordance with the Basic Law. HKSAR government has the right to request NPC to make amendements but not passing the buck back to the Court of Final Appeal.
 
 
 
 
 

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