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Basic Law

How Hong Kong’s courts interpret Beijing’s interpretation of the Basic Law may yet surprise

Cora Chan says the city’s judiciary is mandated to use common law reasoning to apply the NPC’s fifth interpretation, and the creativity and resilience of the common law system will become clear

PUBLISHED : Wednesday, 09 November, 2016, 4:03pm
UPDATED : Thursday, 10 November, 2016, 9:18am

The true force of Beijing’s fifth interpretation of Hong Kong’s Basic Law will at some point be determined by Hong Kong courts in adjudication. The irony is that, as common law courts, Hong Kong courts will be using common law principles to interpret an interpretation issued from a Leninist legal system. Given how different the underlying values of the two legal traditions are – the common law cherishes the rule of law and civil liberties, emphasises incremental judicial development of the law, and tailoring principles to the facts of the case – Hong Kong courts’ understanding of a Chinese interpretation might take Beijing by surprise.

Subject to interpretation: charting the history of Hong Kong’s Basic Law

Anyone who has had common law training will know how sophisticated common law reasoning is. Judges draw fine distinctions. It is worth recalling that in the decision of the “Director of Immigration vs Chong Fung-yuen” case, Hong Kong courts, creatively drawing on a common law distinction, ruled that a certain part of Beijing’s first interpretation of the Basic Law does not bind Hong Kong because it does not relate to the articles that formed the subject of the first interpretation.

Anyone who has had common law training will know how sophisticated common law reasoning is

Beijing’s fifth interpretation purports to be an interpretation of Article 104 of Hong Kong’s Basic Law. Anything that is said that might impact upon the right to stand for election under Article 26 could, according to the logic in the Chong Fung-yuen case, be said to be non-binding.

The 1999 decision of the “Lau Kong-yung v Director of Immigration” case established that interpretations from Beijing have retroactive effect, based on the common law “declaratory theory of law”. Common law courts, nevertheless, handle cases differently if they are of the view that the facts are not similar enough to apply previous principles. The situation in the Lau Kong-yung case was different: there, Beijing’s interpretation could arguably be considered an interpretation of law; in contrast, the fifth interpretation has clearly added new content to the law. The logic behind the declaratory theory of law is simply inapplicable to the fifth interpretation – such theory assumes that interpretations do not drastically change the law, hence retroactivity does not seriously compromise legal certainty.

Hong Kong needs a clear-eyed view of Beijing’s powers under the Basic Law

It is now clear that there can be two types of “interpretations” under Article 158: one being a normal interpretation, the other being an amendment that wears the cloak of an “interpretation”. The rationale behind allowing retroactivity of an interpretation only applies to the former, not the latter.

Other common law principles of interpretation include:

A legal provision has to be read in light of its context, which includes other provisions in the same law. The Basic Law should be treated as a coherent whole as far as possible. The true scope of the fifth interpretation will therefore have to be determined in light of other provisions of the Basic Law, including, crucially, those providing for fundamental rights (such as freedom of expression, right to equality and right to political participation), democracy, and the checks and balances between the three branches of the government.

A lot of creativity is needed to maintain the integrity of the common law system while respecting the Chinese system

A generous approach to interpreting human rights – any doubt over statutory interpretation should be resolved in favour of rights protection; any limitation on rights has to be sufficiently clear and proportionate.

The list of relevant well-established common law principles could go on and on.

It is worth emphasising that it is the inherent logic of the common law, not the political disposition of particular judges, that might yield a narrower understanding of Beijing’s interpretation than expected. An analogy would be an oil spill: oil – an interpretation coming from Leninist tradition – poured into and ultimately diluted by the sea – the sea of well-established common law rules.

Of course, Hong Kong courts’ understanding of an interpretation handed down by Beijing could trigger and be reversed by yet another interpretation issued by Beijing. However, Beijing calculates the political costs before issuing another interpretation. It did not issue an interpretation to reverse the creative distinction drawn in the Chong Fung-yuen case (see above). In any case, Hong Kong courts have no choice but to interpret Beijing’s interpretations using common law methods: they are constitutionally mandated to apply common law methods.

Beijing’s review of Hong Kong Basic Law necessary to restore order

In addition, in political terms, there is nothing to lose by testing Beijing’s limits through adopting a common law reading of the interpretation – there’s always a chance that Beijing will hold off from intervening further. It happened in the aftermath of the court’s clarification of its ruling on the Ng Ka-ling case (Ng Ka-ling No 2), and its ruling on the Chong Fung-yuen case; it could happen again.

Such is the inherent tension of having two highly contrasting legal systems within one country. The divergence of the two systems is magnified when the two systems intersect – Hong Kong courts handling an interpretation from Beijing is one such instance. But such tension is precisely the beauty of “one country, two systems”. The crux of this governing framework is tension, not harmony. It is through the solemn ping-ponging between institutions in the two systems that such divergent systems continue to survive side by side.

A lot of creativity is needed to maintain the integrity of the common law system while respecting the Chinese system. As the only jurisdiction in the world that practises a common law legal system within a socialist dictatorship, the jurisprudence developed here in Hong Kong epitomises the versatility and resilience of the common law.

Cora Chan is an associate professor of law at the University of Hong Kong