Introduction
After many years of colonization, the British relinquished their hold on Hong Kong in 1997. Immediately after this, the People’s Republic of China (PRC) took over the governance of Hong Kong. The PRC designed a framework through which Hong Kong would maintain its autonomy especially with regard to governance. The Hong Kong Special Administrative Region (HKSAR) was established under the ‘one country two systems principle. The HKSAR governs Hong Kong under common law in so far as this does not violate the provisions of the Basic Law.
The Basic Law is a minor/ mini-constitution of the HKSAR legal system. It provides general guidelines stipulating the PRC’s jurisdiction within Hong Kong. It also provides that the capitalist system practiced in Hong Kong would prevail. The Basic Law embodies and protects certain fundamental rights and freedoms of the people of Hong Kong. It provides that Hong Kong will maintain its autonomy as regards currency, legal system, and legislature until the year 2047.
The Standing Committee of the National People’s Congress (NPCSC) is the committee charged with the interpretation of the Basic Law. This can only take place under special circumstances, such as interpretation of contentious issues or on request. This committee has several other duties including legislative interpretation of the law in the PRC. This goes against the principles of common law upon which the legal system of Hong Kong is founded.
Approaches and Doctrines employed by the HKSAR courts
The HKSAR courts are subject to the doctrines and practices of common law. They uphold the provisions of the Basic law by interpreting legislation and common law principles which loosely translates to ‘lawmaking’. In carrying out this duty of interpretation, the courts make use of certain common law principles. The most prominent of these is the doctrine of precedents. This doctrine employs the stare decisis principle which translates to ‘let the decision stand’. This doctrine essentially ensures that like cases have similar outcomes. This ensures that the principle of legal certainty is upheld. Under this doctrine, a lower court is bound by the decisions of a higher court in the same legal system. This is referred to the as vertical binding. In the same light, a court is also bound by its previous decisions. This is referred to the as horizontal binding. This concept was significantly highlighted in Cheung Lai Wah v Director of Immigration.
All judgments referred to under the doctrine of precedents have several parts. These include the ratio decidendi and the obiter dictum. The obiter dictum refers primarily to statements made by the judge which do not necessarily impact his final decision. The ratio decidendi refers to the section of the judgment that contains the principles on which a judge based his decision. This is what other judges focus on to determine whether or not to use a case in writing their judgments.
The courts are charged with interpreting the law, and several approaches are available. These include the Literal Rule, the Golden Rule, the Mischief Rule, and the Teleological/ Purposive Rule. The most commonly used method is the theLiterall Rule. In the event of a deadlock, the judges look at the whole piece of legislation and consider the words in contention in relation to the entire statute.
The courts assess the language used in the Basic Law so as to determine the meaning behind the words used. They use extrinsic materials, which are majorly post-enactment materials. These materials are used to shed light on the intended meaning of the provisions in question.
Approaches and doctrines adopted by the NPCSC
The NPCSC is charged with interpreting the Basic Law. The basic law, which is viewed as a mini-constitution, needs to be interpreted using the standards that are used to interpret constitutions. In light of this fact, the NPCSC uses the purposive approach in interpreting the provisions of the Basic Law. It should be noted that interpretation of the law should be handled by the courts. This is mainly owing to the doctrine of separation of powers. This doctrine stipulates that all three branches of the government should be independent in the carrying out of their duties. Checks and balances should be imposed to ensure that this independence is not compromised.
The NPCSC interprets the Basic Law by clarifying its provisions or sometimes extending them. Unlike interpretations done by the courts; its interpretations are also binding on all other users of the Basic Law and cannot be challenged in any way. In the recent past, the NPCSC has refrained from using this power unless it is consulted to do so by the courts.
References
Ghai, YP, Hong Kong’s new constitutional order: the resumption of Chinese sovereignty and the Basic Law. Hong Kong University Press, Hong Kong, 1999.
Lecture IX. Interpretation of the Basic Law (I): General Introduction.
Wacks, R, Hong Kong, China, and 1997: essays in legal theory. Hong Kong University Press, Hong Kong, 1993.