Law 6: Analysis of NPCSC's Interpretation of Hong Kong Basic Law

This report delves into the interpretation of the Hong Kong Basic Law, focusing on the power of the National People's Congress Standing Committee (NPCSC). It examines the constitutional framework, particularly Section 158, which grants the NPCSC the authority to interpret the Basic Law. The report discusses four key situations where the NPCSC has exercised this power, including the right of abode, constitutional development, the Chief Executive's term of office, and state immunity. It analyzes the interplay between the NPCSC and the Hong Kong courts, specifically the Court of Final Appeal, highlighting the binding nature of the NPCSC's interpretations. The report concludes by emphasizing the NPCSC's influence on the legal landscape of Hong Kong, impacting court decisions and shaping the application of the Basic Law. The report also provides details of the case laws and other important legal documents related to the topic.

Running Head: Law 1
Law

Law 2
Introduction:
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 that
basic law is considered as most important part of the Hong Kong’s fundamental structure. It is
necessary 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 working
on 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 are
considered by the legislatures. First factor states that interpretation is made by the SCNPC and
second states the interpretation of basic law through judicial point of view by the Hong Kong
Courts. In other words, interpretation in context of basic law is made by the two bodies that is
SCNPC and Courts of Final Appeal12.
This paper discusses the power of the National People's Congress Standing Committee to
interpret the Hong Kong Basic Law before, during and after court cases. Lastly, paper is
concluded 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 constitution
support 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.

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Constitution recognized the NPC as the uppermost body of the state, and this body exercises the
powers at legislative and executive level, and these powers also include the ability of NPC to
appoint the heads of the executives and judicial institutions. NPC also exercise power to elect the
NPCSC members. NPC is a large institution and it meets only for two weeks annually and
because of this reason main purpose of this committee is to approve the bills proposed by the
other 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 Kong
adopted common law system because of the judicial interpretation, and this interpretation is
made by the judges. SCNPC and Courts use their power of interpretation for the purpose of
establishing the basic law. 4Section 158 of the Constitution defines that power in context of
interpretation is imposed in the SCNPC, and this section further stated that Courts are also
authorized to interpret the basic law in adjudicating cases. This section defines some particular
circumstances in which Courts pursue help from SCNPC for interpretation before final decision
of the cases which are not appealable5. Four situations are described below in which SCNPC
exercise its constitutional power for the interpretation of the basic law and this done to clarify
some specific fundamental legal issues and for facilitating the smooth implementation of the
Basic 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).

Law 4
The first matter deals with the issue related to right of abode. Article 247 defines the provisions
related to right of abode for specific classes of person. This article provides this right to those
people of Chinese nationality who took birth as permanent citizens of Hong Kong but rose on the
land of China because of which they fails to enjoy this right. This matter involves the question,
whether all these children’s of mainland reached at the similar time, and it also deals with the
questions whether impact of this article on services related to society would have been extremely
difficult to handle. Therefore, on 10th July 1997, amendments related to the Immigration
Ordinance is introduced by the government of Hong Kong and these amendments caused
implementation of Certificate of Entitlement Scheme for the purpose of addressing the issues
related to these Mainland Children’s. As per the legislation, such persons must enjoy their right
and they must hold the accurate documents related to travel such as authentic permit related to
one way and this permit is issues by the authorities of Mainland. It must be noted that these
permits must be stamped with the accurate Certificate of Entitlement issued by a department of
Immigration.
For the purpose of obtaining the certificate of entitlement, person must prove for the satisfaction
of director that one of their parents holds the right of abode in Hong Kong. This scheme is
challenged before the Court of Hong Kong on the basis of discrepancy with the basic law. on 29th
January 1999, judgment is delivered by the Court of Final Appeal in cases Ng Ka Ling & Others
v Director of Immigration (1999) 2 HKCFAR 4 8and Chan Kam Nga & Others v Director of
Immigration (1999) 2 HKCFAR 829. Both the cases are related to the nationals of China who
were not born in Hong Kong but claimed for obtaining the right of abode. Appeal was allowed
by the Court of final appeal and stated that according to this article those children’s whose
7 The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China- Article 24.
8 Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4.
9 Chan Kam Nga & Others v Director of Immigration (1999) 2 HKCFAR 82.

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parents exercise the right of abode in Hong Kong also has this right, even though they are not
able to get the right from mainland authority.
Because of this big issue, the Chief Executive seeks interpretation from the NPC in context of
important provisions of Articles 22 and 24. Confirmation was given by SCNPC in 1999 related
to the basic law provisions. SCNPC interpreted the provisions related to right of abode, and as
per that interpretation only those children’s can enjoy this right whose parents hold the Hong
Kong’s permanent citizenship at the time of the birth of that children. However, it was also
necessary that they apply to the authorized institutions of mainland for approval to enter into
Hong Kong.
In case of Lau Kong Yung & Others v Director of Immigration (1992) 2 HKCFAR 30010, Court
of final Appeal stated that power of SCNPC for interpreting the law is general in nature and
based on unqualified terms, which means any such interpretation made by SCNPC also binds the
Courts. Court’s decision was also applied without any legality doubt in context of interpretations
made by SCNPC. Later, decision of the Court of Final appeal in Director of Immigration v
Chong Fung Yuen (2001) 4 HKCFAR 234,11 further stated the power related to the
interpretation of SCNPC generates from the constitution of PRC and this interpretation is
binding on the Courts of Hong Kong.
Second matter deals with the development of constitution in Hong Kong, and it particularly deals
with the basic law provisions in context of the Chief Executive. It also considers the procedure
related to the Legislative Council formation after the year 2007. However, no clear provision is
provided by the law for amending relative provisions. On 6th April 2004, SCNPC provides its
10 Lau Kong Yung & Others v Director of Immigration (1992) 2 HKCFAR 300.
11 Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 234.

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interpretation related to Article 7 of Annex I and Article III of Annex II of the Basic Law, and in
this they provide the framework for making amendments in the appointment of the Chief
Executive from electoral method and also for the Legislative Council formation.
Third matter deals with the length of office of the Chief Executive of Hong Kong. During the
period of March 2005, Chief Executive provides resignation in between of his five-year term and
this resignation is accepted by the state Council. In this context, interpretation is provided by the
SCNPC by considering the necessary provisions of the Basic Law and as per this interpretation,
the term of office for new chief executive must be the remainder of the original five-year term.
Fourth matter deals with the application of doctrine of state immunity, and in this case
considered is the proceedings launched by the American company against the Democratic
Republic of the Congo (DR Congo) for the purpose of seeking enforcement of two arbitral
awards in Hong Kong. In this, appeal is overturned by the Court in favor of Dr. Congo, and after
that in the Court of Final Appeal argument is stated that Mainland policy related to state
immunity must be followed by Hong Kong and must issue them absolute state immunity against
the legal actions. On 30th June 2011, Court of Final Appeal seek interpretation from SCNPC in
context of Articles 13(1) and 19 of the Basic Law for the purpose of determining the question
whether Courts of Hong Kong are bound to implement the rule on state immunity stated by the
CPG and they also seek the effect of these stated articles.
Therefore, it can be said that SCNPC holds the power to interpret the Hong Kong Basic Law
before, during and after court cases.

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Conclusion:
After considering the above facts, it can be said that section 158 of the basic law impose power
in SCNPC to interpret the basic law, but committee must consult with the Hong Kong Special
Administrative Region before giving an interpretation of this Law.

Law 8
BIBLIOGRAPHY
Website
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.
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.
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.
Journal
Todd Schneider, David v. Goliath: The Hong Kong Courts and China 's National People's
Congress Standing Committee, (2002), BJIL, Volume 20 (3).
The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of
China- Section 158.
Lin Feng, The Constitutional Crisis in Hong Kong-Is It Over?, 9 PAC. RIM L. & POL'Y J. 281
(2000).
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of
China- Article 24.
Case laws
Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4.
Chan Kam Nga & Others v Director of Immigration (1999) 2 HKCFAR 82.
Lau Kong Yung & Others v Director of Immigration (1992) 2 HKCFAR 300.
Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 234.