23 December 2016
The taking of oaths by two members of the Legislative Council of the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China (PRC) at the first meeting of the newly elected Legislative Council on 12 October 2016 and the ruling of the President of the Legislative Council on 18 October 2016 in respect of their acts have not only led to legal proceedings launched by the Chief Executive of the HKSAR and the Secretary for Justice on 18 October 2016 for declarations and injunctions against them on the ground that their purported oath taking had disqualified them from assuming office, but also the adoption of an interpretation by the PRC’s Standing Committee of the National People’s Congress (NPCSC) of Article 104 of the Basic Law of the HKSAR of the PRC, the provision of the HKSAR’s constitutional document on oath taking by officers ranging from the Chief Executive to principal officials of the executive authorities, legislators and judges when they assume office, on 7 November 2016, while the Court of First Instance (CFI) hearing those legal proceedings was considering its judgment. Both the conduct of the litigation by the HKSAR Government and the adoption of the NPCSC Interpretation of 7 November 2016 of Article 104 of the Basic Law (2016 NPCSC Interpretation) have attracted criticisms, with some commentators labeling the NPCSC Interpretation as ‘unconstitutional’.
However, the Court of Appeal (CA), hearing appeals from the two legislators that the CFI declared to have been disqualified on 15 November 2016, considered in its judgment of 30 November 2016 that the courts of the HKSAR had no jurisdiction to determine whether an NPCSC interpretation officially promulgated as such is invalid on the ground that it is substantively not an interpretation of a provision of the Basic Law. This apparent self-effacing act on the part of the CA illustrates a stark fact in the constitutional disposition of Hong Kong under the principle of ‘One Country, Two Systems’: While the NPCSC of the Central Authorities can nullify and supersede an interpretation by the HKSAR courts of a provision of the Basic Law with its own interpretation of the same provision, the HKSAR courts believe that they cannot question the authority of the NPCSC to issue an interpretation of the Basic Law in accordance with the provision in the Basic Law on its interpretation and the procedure therein.
This Note maps this asymmetry in dealing with ‘unconstitutional’ constitutional interpretation with reference to the development of the case law of the HKSAR courts since 1999, when the HKSAR’s Court of Final Appeal (CFA) was first asked to interpret provisions of the Basic Law and considers whether and how the CFA might attempt to deal with an NPCSC interpretation and submissions asking it and thus the HKSAR courts to disregard it for substantive reasons in a future occasion... Click here to read the full post.