Impact of Legislation Law on Interpretation of Hong Kong Basic Law by NPCSC and Hong Kong Courts

Feng Lin

Abstract

After the 2000 Legislation Law came into effect, the 1981 Resolution of the Standing Committee of the National People’s Congress (NPCSC) on Strengthening Legislative Interpretation Work was not repealed. A legal issue was raised accordingly, i.e. whether the authority granted by the Resolution to the NPCSC to supplement relevant national laws through the exercise of the authorised legislative interpretation authority was restricted by the Legislation Law. The Court of Final Appeal in the Hong Kong Special Administrative Region (HKSAR) reaffirmed its previous position in a 2017 judgment. Through discussion of the evolution of the legislative interpretation authority of the NPCSC and the analysis of the original legislative intention of the Legislation Law, this study argues that the Legislation Law has restricted the authority of the NPCSC to exercise its legislative interpretative authority to supplement any national laws, including the Basic Law. The related issue that this study examines is whether the Legislation Law, which is outside the framework of the Basic Law of the HKSAR, will affect the interpretation of the Basic Law. The final interpretation authority of the Basic Law is vested in the NPCSC. In addition, the NPCSC interprets such law according to Chinese law. Hence, the Basic Law should not only be studied under the framework of the common law system but also under the constitutional structure of mainland China. We should examine how other mainland Chinese laws may influence the interpretation of the Basic Law.

 

 

Keywords:   Basic Law Interpretation, Hong Kong Basic Law, Legislation Law, Legislative Interpretation


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