4. CONSTITUTIONAL INTERPRETATION (I)
1. CONSTITUTIONAL STATUS OF BASIC LAW
v Preamble of the Basic Law states that it “prescribes the systems to be practiced in HKSAR, in order to ensure the
implementation of the basic policies of the PRC regarding Hong Kong”
v Article 11 gives the Basic Law a constitutional status as it states that “No law enacted by the legislature of the Hong
Kong Special Administrative Region shall contravene this Law.” This makes the Basic Law a “higher law”.
v CA in HKSAR v Ma Wai Kwan David (1997)
Ø Chan CJHC: “a national law of the PRC and the constitution of the HKSAR”
Ø Mortimer V-P: “semi-constitutional"
v Nature of the constitution
Ø Ng Ka Ling v Director of Immigration (1999) : “… a constitution states general principles and expresses purposes
without condescending to particularity and definition of terms. Gaps and ambiguities are bound to arise…”
v Content of the constitution
Ø Yash Ghai: “interpretation of the Basic Law is critical to defining the scope of autonomy and the relationship
with China. It is therefore not surprising that… the mechanism and politics of interpretation have become so
fraught and controversial.”
2. POWER OF INTERPRETATION
A. Basic Law
Article 8: “The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate
legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any
amendment by the legislature of the Hong Kong Special Administrative Region.”
v Ma Wai Kwan David (p. 744): Chan CJ says “the intention of the Basic Law is clear. There is to be no change in our
laws and legal system (except those which contravene the Basic Law). These are the very fabric of our society.
Continuity is the key to stability. Any disruption will be disastrous.
Article 19(1): “The Hong Kong Special Administrative Region shall be vested with independent judicial power, including
that of final adjudication.”
v Ma Wai Kwan David (p. 773-74): CJ Chan refers to Articles 18, 19, 81, 87, 160 – all these provisions show how the
laws, principles and judicial system of Hong Kong “shall continue” or “shall be maintained” after the Handover.
Article 158(1): “The power of interpretation of this Law shall be vested in the Standing Committee of the National
People's Congress.”
Article 158(2): “The Standing Committee of the National People's Congress shall authorize the courts of the Hong Kong
Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within
the limits of the autonomy of the Region.”
Article 158(3): “The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this
Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions
of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the
relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the
cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an
interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the
Court of Final Appeal of the Region. When the Standing Committee makes an interpretation of the provisions concerned,
the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee.
However, judgments previously rendered shall not be affected.”
Article 158(4): “The Standing Committee of the National People's Congress shall consult its Committee for the Basic Law
of the Hong Kong Special Administrative Region before giving an interpretation of this Law.”
B. PRC Constitution
Article 67(1) and (4) of the PRC Constitution grant the NPCSC the power to interpret the Constitution and supervise its
enforcement and to interpret statutes.
“The Standing Committee of the National People’s Congress exercise the following functions and powers:
(1) to interpret the Constitution and supervise its enforcement;
(4) to interpret laws;”
Chloe T 16
1. CONSTITUTIONAL STATUS OF BASIC LAW
v Preamble of the Basic Law states that it “prescribes the systems to be practiced in HKSAR, in order to ensure the
implementation of the basic policies of the PRC regarding Hong Kong”
v Article 11 gives the Basic Law a constitutional status as it states that “No law enacted by the legislature of the Hong
Kong Special Administrative Region shall contravene this Law.” This makes the Basic Law a “higher law”.
v CA in HKSAR v Ma Wai Kwan David (1997)
Ø Chan CJHC: “a national law of the PRC and the constitution of the HKSAR”
Ø Mortimer V-P: “semi-constitutional"
v Nature of the constitution
Ø Ng Ka Ling v Director of Immigration (1999) : “… a constitution states general principles and expresses purposes
without condescending to particularity and definition of terms. Gaps and ambiguities are bound to arise…”
v Content of the constitution
Ø Yash Ghai: “interpretation of the Basic Law is critical to defining the scope of autonomy and the relationship
with China. It is therefore not surprising that… the mechanism and politics of interpretation have become so
fraught and controversial.”
2. POWER OF INTERPRETATION
A. Basic Law
Article 8: “The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate
legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any
amendment by the legislature of the Hong Kong Special Administrative Region.”
v Ma Wai Kwan David (p. 744): Chan CJ says “the intention of the Basic Law is clear. There is to be no change in our
laws and legal system (except those which contravene the Basic Law). These are the very fabric of our society.
Continuity is the key to stability. Any disruption will be disastrous.
Article 19(1): “The Hong Kong Special Administrative Region shall be vested with independent judicial power, including
that of final adjudication.”
v Ma Wai Kwan David (p. 773-74): CJ Chan refers to Articles 18, 19, 81, 87, 160 – all these provisions show how the
laws, principles and judicial system of Hong Kong “shall continue” or “shall be maintained” after the Handover.
Article 158(1): “The power of interpretation of this Law shall be vested in the Standing Committee of the National
People's Congress.”
Article 158(2): “The Standing Committee of the National People's Congress shall authorize the courts of the Hong Kong
Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within
the limits of the autonomy of the Region.”
Article 158(3): “The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this
Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions
of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the
relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the
cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an
interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the
Court of Final Appeal of the Region. When the Standing Committee makes an interpretation of the provisions concerned,
the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee.
However, judgments previously rendered shall not be affected.”
Article 158(4): “The Standing Committee of the National People's Congress shall consult its Committee for the Basic Law
of the Hong Kong Special Administrative Region before giving an interpretation of this Law.”
B. PRC Constitution
Article 67(1) and (4) of the PRC Constitution grant the NPCSC the power to interpret the Constitution and supervise its
enforcement and to interpret statutes.
“The Standing Committee of the National People’s Congress exercise the following functions and powers:
(1) to interpret the Constitution and supervise its enforcement;
(4) to interpret laws;”
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