Interpreting the Basic Law is not what it seems

Yash Ghai
Apple Daily
April 26, 2004

It was already clear when the Basic Law was being drafted that the
provisions for its interpretation would cause problems. Some modifications
were indeed made to these  provisions but they were not sufficient to remove
the fundamental contradiction of the Basic Law. There are those who argue
that Hong Kong should not make any fuss about the recent interpretation on
constitutional reform by the NPCSC. Instead people should accept political
realities under which the will of the Central People’s Government must
prevail. It is better to get half a loaf, for the alternative is no load at
all, they counsel us. Others make a virtue of the interpretation because
when they say that it ‘clarifies’ the law and the reform debate can now
continue on the basis of the clarification (regardless of the fact that the
relevant provisions were in fact clear and that the clarification has put a
gloss on them that seems inconsistent with their plain meaning). Those who
take these approaches, placing ‘realities’ (for which read ‘might’)
above the law, put in great jeopardy Hong Kong’s autonomy. Autonomy is
impossible without a strong regime of law. That brings us to the
contradiction underlying the Basic Law.

The contradiction is that by the giving of power of interpretation to the
NPCSC, the Basic Law destroys its capacity to act as the guardian of Hong
Kong’s autonomy. Under Chinese law, NPCSC’s power of legislative
interpretation is also the means to amend the law. So if the NPCSC can amend
the Basic Law unilaterally by the device of interpretation, any autonomy or
democracy that Hong Kong enjoys is transformed from being a right to a
matter of grace, dependent on the Central People’s Government. Those who
take issue with the critics of the exercise of this power by the Standing
Committee appear not to appreciate its significance, or, more probably, not
to care.

The interpretation of the Basic Law is important also because several of its
provisions are general, vague or ambiguous. These include the scope of the
application of the Chinese Constitution in Hong Kong, the status of the
Basic Law, the relationship between the Central Authorities and the HKSAR,
and the effect of the economic provisions. These go to the heart of Hong
Kong’s autonomy. In a common law system these would fall to be determined
by the courts. In Hong Kong, which follows the common law as stipulated in
the Basic Law, the courts do indeed interpret these provisions when
necessary in the course of litigation, applying well established rules. But
these may also be interpreted by the NPCSC, whose interpretations are
superior to those of the Hong Kong courts (as was demonstrated when it
overruled the Court of Final Appeal on the right of abode issue). Contrary
to what Solicitor General Robert Allcock has recently claimed, there are
fundamental differences between the approach of the Hong Kong courts and
that of the NPCSC. The fact that the view taken in Hong Kong of the
provisions of the Basic Law can be so different from those in the Mainland
is problematic. Since in case of conflict it is the Mainland views that
prevail, it means that Hong Kong is essentially subordinated to it. And it
also means that the proper development of the case law on the Basic Law is
difficult, and threatens the coherence of the common law-as is obvious from
some decisions of the Hong Kong following the NPCSC ruling on the right of
abode (what some commentators call the chill effect of the ruling).

A constitutional system is supposed to provide clear rules and thus to
ensure predictability of state action. Regretably, the way the Standing
Committee goes about interpretation provides little basis for
predictability. Several factors facilitate predictability of
interpretation-by the court listening to people’s or lawyers’
understanding and expectations of the law, stabilising the meaning of words
and phrases, applying the plain meaning of the text when that is possible,
looking to the intentions of legislators, employing well established rules
of interpretation, and giving ample reasons for its interpretation. The
Standing Committee takes up issues on its own accord rather than at the
request of those who are in need of clarification (thus creating ‘doubts’
about the meaning of a word or phrase), does not give people opportunity to
present their understanding of the law, and gives no reasons for its
decision. It is pertinent to recall that the Standing Committee overturned a
90 page, closely reasoned decision of the Court of Final Appeal in the right
of abode case in a one paragraph ruling! And it takes no cognizance of the
common law that is the basis of Hong Kong’s legal system. Obviously the
predictability of Standing Committee’s rulings does not seem to be valued.
Nor can it be if the purpose is to give maximum flexibility to the Standing
Committee for future occasions.  

It was partly to make up for some of these deficiencies that the Basic Law
provides for the Committee on the Basic Law consisting of 6 Hong Kong
members and 6 Mainlanders, which must be consulted by the Standing Committee
before it makes an interpretation. In the case of Mainland members, they are
either state officials or others who are close to the CPG. Likewise, most
Hong Kong members are known to be ‘pro-China’. Its composition means that
it is unlikely to give independent advice to the Standing Committee. In any
case, its work and proceedings are confidential. It seems that the general
practice is for the NPC secretariat to prepare the draft submission to the
Standing Committee before the meeting of the Basic Law Committee. Under the
circumstances, Hong Kong members must be under extreme pressure to endorse a
pre-determined submission.

The failure to establish a proper basis for the interpretation of the Basic
Law is thus perhaps, in the long term, the most dangerous threat to the
autonomy of Hong Kong and to the progress towards democracy and the
accountability of its administration. The Hong Kong government should not
diminish the negative consequences of the interpretation on constitutional
reform as lightly as it has.

The writer is Sir YK Pao Professor of Public Law, University of Hong Kong