LC Paper No. LS191/98-99
Paper for the Special House Committee Meeting
of the Legislative Council
on 18 May 1999
Interpretation of the Basic Law by the Standing
Committee of the National People's Congress
The Legal Service Division is asked to advise whether the interpretation made of provisions of the Basic Law (BL) by the Standing Committee of the National People's Congress (SCNPC) in exercise of its power stipulated in Article 158 of BL requires legislation by HKSAR in order to have legal effect in HKSAR.
2. The power of interpretation referred to in Article 158 of BL is an instance of the power to interpret laws given to the SCNPC under Article 67(4) of the Constitution of PRC. This power has no counterpart in common law jurisdictions. Such interpretation by SCNPC in contra-distinction to judicial interpretation is not restricted to a particular case and such interpretation of legal provision has the same force and validity as the legislation that is being interpreted. Such interpretation is only required where the legislation, the object of such interpretation, itself needs clarification or supplementation.
3. There does not appear to be any express provision in any legislation, either nationally or in HKSAR, stating the relationship between such interpretation and the legislation being interpreted. Previous known instances of such interpretation have been titled and printed separately.
4. It is submitted that since what is handled here is not a common law institution but a Chinese law institution, we cannot expect to find any common law authority or its equivalent in the Chinese legal system to ground a definitive view on the question. We can only rely on the materials at hand and the general principles applicable to the SCNPC's power of interpreting laws and come to a conclusion by logical deduction.
5. Applying the above stated principle that SCNPC's interpretation has the same force and validity as the legislation being interpreted in the present case, an interpretation of BL by SCNPC's will therefore has the same force and validity as BL. BL is national law of PRC and law of HKSAR (Article 31 of the Constitution and Article 18(1) of BL). It follows that such interpretation is both national law of PRC and law of HKSAR. Being itself law of HKSAR, no further legislation in HKSAR is required to give it the force of law here. Taking into account the legal status of such interpretation in HKSAR and the local practice of promulgating all legislation, it is submitted that it would be good practice to promulgate SCNPC's interpretation of BL in the Gazette so that there can be no argument that the local practice of promulgating laws has not been followed. It is of course arguable that since BL itself has not been required to be promulgated in the Gazette, the same should apply to SCNPC's interpretation of BL and no promulgation is necessary.
Legal Service Division
Legislative Council Secretariat
17 May 1999