The Interpretation of the Hong Kong Basic Law by the National People’s Congress Standing Committee (NPCSC): Will it weaken the judicial independence of the Courts of the Hong Kong Special Administrative Region?

Abstract

Hong Kong’s retrocession to the People’s Republic of China (PRC) in 1997 necessitated the establishment of a new constitutional order. It promised Hong Kong a high degree of autonomy under the model of ‘One Country Two Systems’. This meant that the HKSAR would enjoy executive, legislative and independent judicial power. Since 1997, Hong Kong’s legal system has comprised a mix of its ‘mini-constitution, the Basic Law, and the English common law system. The new constitutional order under the Basic Law has become the subject of heated debate. Since 1997, the NPCSC has on four occasions interpreted various articles of the Basic Law, sometimes with significant consequences for the local legal system. There have been arguments between legal professionals from Mainland China and Hong Kong over the NPCSC’s interpretative power and authority to interpret the Basic Law. Their differences of opinion are partly due to their two different legal systems and the vague wording of the Basic Law itself. Under the PRC’s constitution, the NPCSC has the constitutional authority to modify or interpret the law. However, under Hong Kong’s common law tradition, judges make interpretations of legislation, which then become part of the common law. The interpretive power vests in the court. Problematically, the vaguely worded Basic Law vests interpretative power in both the NPCSC and the HKSAR courts. When a constitutional dispute occurs as to their power to interpret, there is moreover no effective dispute resolving mechanism. The disputes between the NPCSC and the Hong Kong Courts since 1997 means that there is a risk that rule of law and judicial independence have undermined. There is a clear lack of mutual trust between the two systems, and the model of ‘One Country Two Systems’ has become more difficult to manage and implement.