(1) What is NPCSC interpretations
Art. 158 of Basic Law empower Standing Committee of National People’s Congress (NPCSC) to interpret the basic law. The standing committee’s interpretations of the BL are actually supplementary acts of legislation not adjudicative interpretation.
According to Sir Anthony Mason (2011),NPCSC’s power to interpret the Basic Law is: ‘[P]lenary’ and exercisable ‘in the absence of litigation’ (general and comprehensive, even thought there is no ongoing case, NPCSC can still issue interpretation.) and ‘[I]n the nature of supplementary legislation (of basic law)’ and ‘may extend beyond ascertaining the meaning of the legislative text’.
In the case of Ng Ka Ling v Director of Immigration (No 2) (1999) the Court of Final Appeal affirm the authority of NPCSC interpretations by saying:‘[T]he Court accepts that it cannot question the authority of the NPC or NPCSC to do any act which is in accordance with the provisions of the Basic Law and the procedure therein’.
(2), The concerns of NPCSC Interpretations of the Basic Law
Theoretically, the Standing Committee’s power to enact Interpretations is neither unprecedented in the common law tradition nor necessarily inconsistent with the rule of law. Parliament in the UK has always had power to enact “declaratory” and “supplementary” act that “either confirm and declare the existing law or add to the general stock of legal precepts”. They bind the common law courts and noting requires that they may only be prospective. The Standing Committee’s competence to enact “declaratory” and “supplementary” legislation is qualified by the BL itself: all interpretations must be consistent with the BL and the “established basic policies of PRC regarding HK”. This is “fundamentally different” from uncontrolled parliamentary sovereignty.
However, for all of the 5 NPCSC Interpretations of the Basic Law enacted so far, by redressing primarily political, not legal problems., have caused considerable anxiety and debate in HK.
The legal community in HK concerns that the NPCSC interpretation would jeopardize the rule of law of Hong Kong. Former Chief Justice Li (2013) said: while an Interpretation ‘exercised to override a court judgment in Hong Kong, especially one of the Court of Final Appeal … would be legally valid and binding … [it] would have an adverse effect on judicial independence in Hong Kong’.
Some legal scholar from mainland China tried to confuse the status and relationship between the interpretation and rule of law. In his article A New Constitutional Order in Hong Kong: Managing Conflict over the Interpretation of the Basic Law Note Wang Xuan W ei said on one hand that “overuse of the interpretative power will cause Hong Kong greater trouble, by damaging the rule of law and judicial independence in Hong Kong.” But on the other hand he also said “no matter how difficult the situation, the interpretation framework that is currently in place requires that the CFA should be the authority responsible for taking the ‘first step’. As the CFA no doubt understands, the essence of rule of law is loyalty to the law. In prescribed situations, the CFA has a legal obligation to refer to the central authority.”
(3), the Underlying logic of the legal implication of the constitutional crisis made by the interpretation of NPCSC
First, the controversy of NPCSC interpretation shows the internal inconsistency and deficiency of Basic Law.
Although the basic law provide some mechanism of restring the abuse of interpretations, For example, Art.158(3) requires NPCSC Interpretations to have no effect on ‘judgments previously rendered’. And Art.159(4) implies that NPCSC Interpretations must be consistent with the ‘established basic policies of the PRC’.
But in practice, the NPCSC has never drawn a clear line between interpretation per Article 158 and amendment per Article 159. This internal conflict lead to the second conflict. It never promulgated any methodology for arriving at its Interpretations. If there are any systematic interpretive rules, they are unknown. Vague political formulas like ‘stability and prosperity’ rather than clear legal propositions have been used to justify Interpretations. The Committee for the Basic Law (BL 158(4)), appears to play no independent and consequential advisory role.
Second: it shows the conflict between rule of law and rule by law
The highly possible result of the above internal conflict is that it would be that interpretation is that it would have the effect of adding some new requirement of the law, which would create some uncertainties of law, meaning that rule of law can be changed for political reasons. It would be adverse effect on the rule of law tradition in Hong Kong. NPCSC never abandoned the use of Interpretations to pre-empt litigation in the Hong Kong courts.There is no guarantee that the NPCSC will always use its powers so discreetly if political expediency should ever dictate otherwise.
Actually, in the total five interpretations, only the 4th interpretation of para 1, art 13 and art 19 of BL was initiated by the Court of Final Appeal under the reference mechanism provided for in BL in 2011. This interpretation is also the least controversial one among all the five interpretations.
Sometimes, some of interpretations are clearly against the principle of rule of law and even legality. According to Article 158(3) of the Basic Law, only the Court of Final Appeal is authorized to initiate this procedure. But both of the first and third interpretations are initiated by Chief Executive. In 1999, NPCSC issued the first interpretation of arts 22(4) and 24(2)(3) of the BL to curtail the right of abode of certain mainland Chinese children born to HK permanent resident to relieve the social, economic and healthcare resources in HK. In 2005, imitated again by acting Chief Executive Tsang, the third interpretation of para.2, art 53 of BL was issued to provide that, in case the Chief Executive resigns, the person elected and appointed to succeed him shall serve only the reminder of his term instead of starting afresh with a new five-year term. Ronny Tong Ka-wah describes the action of the HKSAR Government in initiating the NPCSC interpretation as “a bargain which betrays rule of law.” These two interpretations initiated by CE highly like the rule by law and would undermine the rule of law and judiciary independence in HK.
As Professor Eric Ip said :”It it the way in which art.158 has been used in practice that pose a threat to the rule of law. The unsystematic, untransparent modus operandi of Interpretations reinforces the impression in HK that the Standing Committee has a ‘my word is law’ attitude, which from a common law perspective is the ‘byword of every tyrant’.”
Third, it show the conflict between common law principle and civil law principle
The other two interpretations can show the conflict between common and civil law.
There are two interpretations which are initiated by Standing Committee sua sponte. In 2004, it issued the interpretation of art.7 of Annex I and art.III of Annex II to the BL. This second interpretation vested in the Standing Committee a more active power to vet, and virtually plenary discretion over proposals originating in HK to amend the selection methods of Chief Executive or the Legislative Council.
And in 2016, it issued the most controversial interpretation of art.104 of the BL. This most recent interpretation established a legal regime requiring officials, legislators, and judges to be effectively disqualified from office by an undefined “person administering the oath” if the latter’s judgment they took their oaths to “bear allegiance” to the Region in a way which is , ambiguously, “not sincere or not solemn” or amounts to “intentionally reading out words which do not accord with the wording of the oath prescribed by law”. The interpretation also establishes, with consideration political ramifications, that oath-takers “shall bear legal responsibility” for “engaging in conduct in breach of the oath”
In common jurisdictions, the cases law and the statutes are both two important sources of common law. But sometimes, there can be conflict between case law and statute law. The famous American judicial review case of Marbury v. Madison (1803) provides some hints t solve the issues of conflict between case law and statute law. In this case, the Supreme Court of US held that the provision of the Judiciary Act of 1789 that enabled Marbury to bring his claim to the Supreme Court was itself unconstitutional. We can see that in this case, a statute law was made invalid for in conflict with constitution, and a new case was born to bind the future case. We can say that the case law defeated the statute law in this case.
In contrast, in the two interpretations initiated by NPCSC, especially the most recent one regarding the oath of the newly elected legislature council member, we can say the statute law prevails of the case law, which lead to a constitutional crisis of HK.
Many scholars say that this is the constitutional crisis. Even thought this comment is exaggerated, but there are two points of this case inconsistent with rule of law:
First, unlike the interpretation issued in 2004, this interpretation was issued between the time Chief Executive and the Secretary for Justice commenced proceedings against the President and the time Court of First Instance made the decision. We could infer that the NPCSC deliberately to issue the interpretation before the court made their decision. This on one hand shows that the NPCSC distrusted the court so much that cannot wait to make the interpretation until the court decided the case. On the other hand, whether the interpretation is binding to the court is highly controversial and unclear.
Although, in the Article 158 of BL, the standing committee of the National People’s Congress of PRC is a higher political authority, it is not a court competent to set precedent through adjudication; its interpretations of BL, howbeit binding on the CFA, are prospective supplementary legislation and are subject to the limitation of such proceedings. It is no doubt that the NPCSC has power to issue the interpretation, but the question is that interpretation is viewed as primary legislature source of HK law. Like other statutes, it does not have the retroactive effect like case law does. The misconduct of the elected members of legislative councils was committed before the interpretation was issued. If the court decided the case adhering to the interpretation, then it would violate the common law tradition of non-retroactive of statute. Even though in the United Kingdom, ex post facto laws are technically possible, because the doctrine of parliamentary supremacy allows Parliament to pass any law it wishes. But no longer being the colony of UK, HK has no parliament and has no parliamentary supremacy, the UK tradition cannot be the reason to decide the case based on interpretation. But if the court decided the case not adhering to the interpretation, it would violate the supreme authority of the NPC or NPCSC, which is inconsistent with BL.
Secondary: even though at this time it is not the government initiating the interpretation, but it is the Chief Executive suing the President of Legislative Council, which was unprecedented. ‘By unilaterally disqualifying the lawmakers, the Hong Kong judiciary has unwittingly opened the floodgates to more (unnecessary) litigation and embroiled itself in more political controversy’. Po Jen Yap & Eric Chan, ‘Legislative Oaths and Judicial Intervention in Hong Kong’, 47 HKLJ 1 (2017). And the court decision also ignored the PMP privilege.
(4), Solutions or better proposal?
Certainly, in sometimes the interpretations are necessary to solve some emergent or potential social or political problems. For example, the first interpretation in 1999 relieved the social worry of the potential large amount of new immigrants to Hong Kong. The most recent interpretation in 2016 regarding the article 104 of Basic Law was an effective measure in deterring the rising Localist groups who advocate the Hong Kong Independence. But this positive outcome is at the bigger sacrifice of the rule of law tradition in Hong Kong and cannot help to make an effective mechanism to solve the potential new problems.
Proposal one: therefore, some mechanism of interpretation is needed in the future.
In this article of The Interpretation of the Basic Law- Common Law and Mainland Chinese Perspectives, 30 Hong Kong L.J. 380, 431 (2000)., Professor Albert Chen said:” Hong Kong’s journey in constitutional interpretation has only just begun.” And he proposed to learn from the experience from other common law jurisdiction, like Unite States.
I agree with Professor Yash Ghai, an approach that is suitable to the interpretation of the Basic Law must suggest ways to:
1. balance the sovereignty of the PRC with the autonomy of the HKSAR;
2. bring coherence to the various powers and functions of the HKSAR which appear at the moment as so many particular instances; and
3. allow for the capacity to respond to changing conditions and circumstances in Hong Kong.
(Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law (Hong Kong: Hong Kong University Press, 2nd ed 1999).)
But either Professor Chen or Professor Ghai, they only provided some instructive guides to future interpretations. The more details methods should be reached by the cooperation from central government and Hong Kong, the three branches of Hong Kong government, even the different communities in Hong Kong.
Proposal two: more judicial wisdom to protect the independent power of judicial and the rule of law of HK
Actually in the case of Chief Executive v President of the Legislative Council (2017), the court was not without better alternative options. Actually, there are at least three options for the court to decide this case:
The first option and also the best strategy: the court actively initiated the interpretation of from NPCSC. Under this option, it would be consistent with BL for judicial to look for BL interpretation and the court is also exercised its legal power under the BL. And after the interpretation been issued, the court would have strong reason to decided the case based on the interpretation because it is what the court actively asked for according to the BL. So this strategy will protect the rule of law principle in HK and meanwhile reinforce the independent power of judicial in HK. It will entice little critics to judicial power from outside.
The second option and the second best strategy is that the court made interpretations of BL Article 104 by itself and made decision on the case before the NOCSC issued its interpretation. The Court’s interpretations, as part of case law and under the principle of Stare Decisis,of the BL have both prospective and retroactive effect. So court can decided the case based on its interpretations which would not undermine the BL and also prevent the NPCSC issuing its interpretations.
It will protect the independent judicial power of court while not inconsistent with the principle of rule of law. And meanwhile by judging in favor of government, it will give NPCSC no reason to issue interpretation, and then the constitution crisis will be prevented, even thought the it will bring some critics from the outside world if it rules in favor of the government.
The third option and also the worst strategy: passively waiting for the NPCSC interpretation and then decided the cases.
Therefore, we can conclude that the judicial in HK need not only the PRC empowering it more independent power, but also actively pursue and protect its judicial power actively with more judicial wisdom. There are two ways to get power from more powerful authority. The first one is through military support, this is why parliament in UK has the power of Parliamentary Sovereignty because the parliament in UK won two wars with the King and the King has to make big compromise with parliament. But it is obviously impossible for HK judicial or legislative branch to embark a war with HK government and central government of China.
But there is another method to pursue more judicial independent and judicial power for the court. This is another lesson HK judicial can learn from the case of Marbury v. Madison (1803). In the time of the case, the supreme court of US has littler real power, compared with US government. With the overwhelming victory of Democratic-Republican party over Federalist party in the president election, the Chief justice John Marshall, also a member of the group of Federalist party and as the Secretary of State at President Adams’s, seemed very weak in face of the new Democratic-Republican Thomas Jefferson. But he did strive for more power for the Supreme Court utilizing judicial wisdom and the political balance, by sacrificing temporarily trivial party interest (deciding the Judiciary Act of 1789 making by his own party unconstitutional) for a more important judicial power. Actually the HK court in the case Chief Executive v President of the Legislative Council (2017) can be more active and initiative with similar judicial wisdom of Chief justice John Marshall by actively pursue the NPCSC interpretation or decided the case first. It may be difficult for them to win more judicial power for them, but at least they can effectively protect the rule of law and current judicial power and prevent the constitutional crisis. The fact that they just passively wait for the NPCSC interpretation and then made the decision has undermined the rule of law and the independent judicial status.