Abstract
In this chapter, I examine the admissibility and use of legislative history in the interpretation of the Basic Law. I discuss the different approaches of the Standing Committee of the National People’s Congress (NPCSC) and the Court of Final Appeal (CFA) to the use of legislative materials in their interpretations. I consider the issues of alignment and harmonization of the different approaches and discuss the possibility of the CFA applying “original intent” analysis to constitutional interpretation. I argue that by adapting established common-law doctrines, it is possible for the CFA to adopt a restricted form of original intent analysis in appropriate cases. After explaining the parameters of this approach, this chapter concludes with a discussion of possible challenges that could be made against the argument.
I acknowledge assistance from the Constitutional Law Project funded by the University of Hong Kong’s URC Strategic Research Theme initiative. I wish to thank Lison Harris, Lin Feng, and Hualing Fu for their comments on an earlier draft of this chapter.
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Notes
The Interpretation by the Standing Committee of the National People’s Congress of Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (adopted by the Standing Committee of the Ninth National People’s Congress at its Tenth Session on June 26, 1999), L.N. 167 of 1999, Legal Supp. No. 2 to the Hong Kong Gazette Extraordinary No. 10/1999; hereinafter “first Interpretation.” For analysis of the first Interpretation, see J. M. M. Chan, H. L. Fu, and Y. Ghai, eds., Hong Kong’s Constitutional Debate: Conflict Over Interpretation (Hong Kong: Hong Kong University Press, 2000).
See the discussion in Lin and Lo, Chapter 7, in this volume. Compare the common-law interpretation attempted by Robert Morris in R. J. Morris, “The ‘Replacement’ Chief Executive’s Two-Year Term: A Pure and Unambiguous Common Law Analysis,” 35 Hong Kong Law Journal (2005): 17–27.
Professor Albert Chen has argued that originalism, when applied in a particular manner, is an appropriate approach to constitutional interpretation that could be adopted by Hong Kong courts; see A. Chen, “The Interpretation of the Basic Law—Common Law and Mainland Chinese Perspectives,” Hong Kong Law Journal 30, no. 380 (2000): 421–22.
Most notably, Justices Antonin Scalia and Clarence Thomas of the U. S. Supreme Court. See, e.g., A. Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 57 (1989): 849 and his judgment in Crawford v Washington, 541 US 36 (2004). However both judges subscribe to the “original meaning” family of originalism, which looks to the objective meaning of the words of the law at the time it was enacted rather than to the actual intentions of the drafters.
J. Steyn, “Pepper v Hart: A Re-examination,” Oxford Journal of Legal Studies 21 (2001): 59.
See the cases discussed in S. Vogenauer, “A Retreat from Pepper v. Hart? A Reply to Lord Steyn,” Oxford Journal of Legal Studies 25 (2005): 629, 638–48.
Ibid. See also P. Sales, “Pepper v. Hart: A Footnote to Professor Vogenauer’s Reply to Lord Steyn,” Oxford Journal of Legal Studies 26 (2006): 585.
See The Law Reform Commission of Hong Kong, Report on Extrinsic Materials as an Aid to Statutory Interpretation (Hong Kong: Law Reform Commission of Hong Kong, March 1997).
It is also worth noting the lack of adherence to the separation of powers doctrine in the Chinese system. Professor Albert Chen writes, “under the Constitution of the PRC (1982), although there is a functional division of powers among legislative, executive, judicial and procuratorial organs, all such organs are subject to the principle of the leadership of the Communist Party,” and later, “The orthodox view expressed in most textbooks is that the doctrine of the separation of three powers is not applicable to China”; see A. H. Y. Chen, An Introduction to the Legal System of the People’s Republic of China, 3rd ed. (Hong Kong: LexisNexis, 2004), 40, 51.
For an official report of the drafting history, see Secretariat of the Consultative Committee for the Basic Law, The Draft Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (For Solicitation of Opinions) (with Introduction and Summary) (Hong Kong: Drafting Committee for the Basic Law, April 1988), 1–4. Criticisms of the drafting history can be found in
S. H. Lo, “The Politics of Cooptation in Hong Kong: A Study of the Basic Law Drafting Process,” Asian Journal of Public Administration 14 (1992): 3–24;
EWH Lau, “The Early History of the Drafting Process,” in The Basic Law and Hong Kong’s Future, ed. A. H. Y. Chen and P. Wesley-Smith (Hong Kong: Butterworths, 1988), 90.
See the similar sentiments expressed by Lord Lloyd in Adan v. Home Secretary for the Home Department [1999] 1 AC 293, 305 (HL).
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© 2007 Hualing Fu, Lison Harris, and Simon N. M. Young, eds.
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Young, S.N.M. (2007). Legislative History, Original Intent, and the Interpretation of the Basic Law. In: Fu, H., Harris, L., Young, S.N.M. (eds) Interpreting Hong Kong’s Basic Law: The Struggle for Coherence. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230610361_2
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DOI: https://doi.org/10.1057/9780230610361_2
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