The Political Economy of Interpretation

  • Yash Ghai


Decisions on the structure of the state and the allocations of powers are seldom made in accordance with principle or doctrine (whatever the invocations of Locke, Montesquieu, Marx, the Koran, or the Gita). Without wanting to discount the influence of legal and constitutional traditions, key decisions are made primarily in the interests of the decision makers, whether directly or through proxies. This applies as much to procedural issues as to matters of substance. In this chapter, I argue that, despite the explanation of conflict over the interpretation of the Basic Law of the Hong Kong Special Administrative Region (HKSAR) in terms of the differing traditions of the common law and the civil law, Article 158 (and its uses) is more realistically analyzed in terms of strategies of control.


Chief Executive Judicial Review Constitutional Court Legislative Council Judicial Power 
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    The committee has also to be consulted when the NPCSC declares a Hong Kong law invalid, a Mainland law (except an emergency law) is extended to Hong Kong, and an amendment to the Basic Law is introduced. Its precise consultative role has not been defined. It is possible that at first a larger role for it was intended, as it was said to be based on the Nordic autonomous model; see Yash Ghai, “Resolution of Disputes between the Central and Regional Governments: Models in Autonomous Regions” Journal of Chinese and Comparative Law 5 (2001): 1–20. Albert Chen, an original member of the committee, thinks that it was “intended to be a mediating and arbitral organ for resolving differences of opinion between the central authority and the SAR.” He also proposed vesting the Basic Law Committee with the authority to mediate in conflicts between the State Council and SAR after the SAR has made a complaint to the NPCSC; see Albert Chen, “The Relationship between the Central Government and the SAR,” in The Basic Law and Hong Kong’s Future, 138–39.Google Scholar
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© Hualing Fu, Lison Harris, and Simon N. M. Young, eds. 2007

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  • Yash Ghai

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