Interpreting the Basic Law in Hong Kong
Added on 2020-05-16
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Running Head: Law1Law
Law2Introduction:Basic law is considered as national law and this law is defined by the constitution of the PRC,and this law is based on the factors of “one country” and “two systems”. It must be noted thatbasic law is considered as most important part of the Hong Kong’s fundamental structure. It isnecessary for the government to practically imply this law for the purpose of its legalization. Almost after ten years of legalization of this law, experts in China and Hong Kong start workingon the area of interpretation on this law. Experts work on this area on the basis of the principle of“One Country, Two Systems”. For the purpose of interpreting this law, two factors areconsidered by the legislatures. First factor states that interpretation is made by the SCNPC andsecond states the interpretation of basic law through judicial point of view by the Hong KongCourts. In other words, interpretation in context of basic law is made by the two bodies that isSCNPC and Courts of Final Appeal12. This paper discusses the power of the National People's Congress Standing Committee tointerpret the Hong Kong Basic Law before, during and after court cases. Lastly, paper isconcluded with brief conclusion. Constitution Law & NPCSC:Constitution of the mainland states that China is a state which follows social principles, and in this country working class holds the democratic dictatorship of people. Provisions of constitutionsupport the separation of powers because China is a socialist state which adopts the standards of equal society. . China is also a unitary state under which limitations are not imposed on the Central Government by the federalism or a checklist of enumerated powers. 1 Xinhua, Full text: Explanations on draft interpretation of Article 104 of Basic Law of Hong Kong SAR, (2016), < http://www.xinhuanet.com/english/2016-11/08/c_135812367.htm>, Accessed on 31st January 2018. 2 Basic Law, the basic law of the hong kong special administrative region of the people’s republic of china, < http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf>, accessed on 31st January 2018.
Law3Constitution recognized the NPC as the uppermost body of the state, and this body exercises thepowers at legislative and executive level, and these powers also include the ability of NPC toappoint the heads of the executives and judicial institutions. NPC also exercise power to elect theNPCSC members. NPC is a large institution and it meets only for two weeks annually andbecause of this reason main purpose of this committee is to approve the bills proposed by theother bodies of the state3.Interpretation of Basic law:Mainland legal system adopts the interpretation in legal manner under the constitution of PRC.Power related to the interpretation is imposed in the legislature. On the other hand, Hong Kongadopted common law system because of the judicial interpretation, and this interpretation ismade by the judges. SCNPC and Courts use their power of interpretation for the purpose ofestablishing the basic law. 4Section 158 of the Constitution defines that power in context ofinterpretation is imposed in the SCNPC, and this section further stated that Courts are alsoauthorized to interpret the basic law in adjudicating cases. This section defines some particularcircumstances in which Courts pursue help from SCNPC for interpretation before final decisionof the cases which are not appealable5. Four situations are described below in which SCNPCexercise its constitutional power for the interpretation of the basic law and this done to clarifysome specific fundamental legal issues and for facilitating the smooth implementation of theBasic Law6:3 Todd Schneider, David v. Goliath: The Hong Kong Courts and China 's National People's Congress Standing Committee, (2002), BJIL, Volume 20 (3). 4 The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China- Section 158. 5 Basic Law. chapter VIII : Interpretation and Amendment of the Basic Law, < http://www.basiclaw.gov.hk/en/basiclawtext/chapter_8.html>, accessed on 31st January 2018. 6 Lin Feng, The Constitutional Crisis in Hong Kong-Is It Over?, 9 PAC. RIM L. & POL'Y J. 281 (2000).
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