Written Submission of Professor Michael C. Davis for the
Legislative Council on the Question of Mechanisms for
Seeking NPC Standing Committee Interpretation.
(submitted in lieu of attendance due to travel out of Hong Kong)

I confine my comments to three points:

  1. When a matter of Basic Law interpretation has already been submitted or decided in an actual court case, the Government should not be allowed the right to directly seek NPC SC re-interpretation.
  2. Article 158 of the Basic Law does not provide for the HK government to make referrals to the NPC SC for interpretation. Such referral therefore appears inappropriate. Even if such referral is to be allowed it should not intrude upon the processes and requirements already provided in the Basic Law. Article 158 of the Basic Law is explicit on the question of interpretation of the Basic Law by the Hong Kong courts and ultimately the Court of Final Appeal (CFA). In this regard it is for the CFA to make any necessary referrals in to the NPC SC in appropriate cases before the CFA. Under such circumstances, the government, as a party to such case or as an amicus to the court, can request that the CFA make such referral. It is for the CFA to determine whether to grant such request or even to make such referral on its own initiative. Both the language of article 158 and Basic Law requirements concerning the independence and finality of the local courts clearly do not anticipate government referral to the NPC SC as a method to overturn the results of a final judgement. In this regard, the recent referral in the right of abode case clearly violates these Basic Law requirements. Beyond that, it threatens the very foundation of the rule of law in Hong Kong. Any guidelines on seeking referral should clearly not allow a referral seeking to effectively overturn a final judgement. At the same time it should not invite NPC SC intrusion into areas of local autonomy. After a final judgement interpreting a Basic Law provision or reviewing the constitutionality of any ordinance, the options available to the government, within the requirements of the Basic Law and the rule of law, are to either amend and propose new legislation relating to the specific ordinance in question or to seek a formal amendment of the Basic Law within the guidelines of the Basic Law.

  3. If it is to be the case that the government is to be afforded an avenue to seek interpretations then the avenue should require the same approval process as is applied to Basic Law amendments.
  4. As a practical matter, the NPC SC has no tradition of merely interpreting the language of statutes in the manner usually carried out by courts. The NPC is expected to carry out the Chinese Constitution through the enactment of laws. The Standing Committee takes up this legislative role when the NPC is not in session. Its function, accordingly, is essentially a legislative one to enact or amend laws. Its acts of "interpretation" are therefore usually in the nature of minor amendments. The Basic Law is therefore very careful to restrain the use of this interpretation function to referrals from the CFA. Such would offer the more likely case for interpretation of language and would engage proper legal institutions (courts) in defining the issue and the language to be interpreted. Under the common law system, once common law courts have given meaning, through interpretation of language then it is for the government to carry out such judgement. Alternatively the government can seek amendment of the Basic Law. Since legislative amendment is what the Standing Committee is more prepared by tradition to do and this is what the government is bound to do, then any action by the government to seek "interpretation" should be treated as a form of minor amendment. Accordingly, to fully conform to the Basic Law the procedures for amendment articulated in article 159 would be implicated. If, however, the government insist on having available the interpretation avenue to address its concerns (which I recommend against, as discussed above) then the strictest guidelines should be applied. As with amendment, any approval for the government to seek interpretation from the NPC SC should require a supermajority approval in the Legislative Council and from the members of other bodies, as normally required for amendment-that is, there should be a two-thirds approval requirement. Again, I must say that an article 159 amendment procedure would be the appropriate course. This recommendation is only in response to the reality of lack of restraint on the part of the government regarding this approval and the lack of popular power among the people to resist this new "interpretation" approach to amendment.

  5. Any interpretation requests sent to the NPC SC should not be on the basis of seeking the original or true legislative intent from the NPC SC.
  6. In the recent request for re-interpretation in the right of abode cases the government claimed it was seeking to "confirm the true legislative intent" of the Basic Law. This assumes that the CFA was incapable of discerning the "true legislative intent." Contrary to this view, the common law vest the final authority to interpret legislation in the courts. The point here is not that legislative intent is irrelevant, but rather that such intent not override all other cannons of interpretation. Furthermore, it demeans the HK CFA to presume that the NPC SC has a superior claim to interpret the true legislative intent. Under the Basic Law, the basis for referring a matter to the NPC SC is not its superior ability to interpret or its superior knowledge, but rather concern that the central government be involved in interpreting matters involving central authority or local/central relations. Beyond this affront to the courts' dignity, the government's position also misunderstands the role of constitutional interpretation. Though the government denies this, it seems to imply the goal is discovery of the original intent of the constitution drafters. In the peculiar way applied by the government, as revealed by its referral in the right of abode cases, this approach seems to privilege those who participated in the drafting process, either NPC members or Basic Law drafters. Since the government, in the right of abode cases, gave special status to a report of the Preparatory Committee, a report which came into existence long after the Basic Law was promulgated, it seems to privilege the interpretations of other mainland appointed bodies, as well. The shadow of such privilege and the forced application of such original intent doctrine could do serious damage to judicial interpretation in Hong Kong and should not be incorporated as a basis for referral to the NPC SC for interpretation.

    Does the government's extraordinary emphasis on "true legislative intent" offer a sensible way for courts to proceed in applying the Basic Law? How does this square with normal legal practices of constitutional interpretation? It is true that a theory of constitutional interpretation called the "original intent doctrine" has been at the center of debate over constitutional theory. But this doctrine has long been discredited in the mainstream and now reflects a conservative minority position. There have been problems both with the discovery of original intent and with its application to new circumstances. In the now famous 1954 case of Brown v. Board of Education, the United States Supreme Court confronted these problems head on. Before this case, a doctrine was applied in the US that allowed black children to be educated in what was characterized as "separate but equal schools." This system of segregated schooling was challenged as denying them equality before the law. It is now generally known that, in deciding this case, the US Supreme Court conducted research concerning the intent of the drafters of the relevant constitutional amendments, which were added to the US Constitution after the Civil War in the 1860s. Such Civil War amendments had freed the slaves and guaranteed equal protection of the laws. While the original intent of the drafters could not be clearly determined, it was believed that even those who had freed the slaves may not have imagined that blacks would be educated in the same schools as whites. But the society's standard of racial equality had significantly marched forward in the intervening century. Recognizing that principles of equality had to be applied in a way appropriate to the times, the court ordered the desegregation of American schools. Similar concerns have come up around the world with such intractable problems as the death penalty and abortion rights. The US courts have found that constitutional prohibitions on "cruel and unusual punishment" do not absolutely prohibit the death penalty but they have used such clause to severely restrict its use. It is doubtful that constitution drafters over 200 years ago in the US anticipated this. Current abortion rights are even less likely to have been anticipated, but they were clearly discovered in the current age.

    These realizations concerning the difficulty of discovering original intent and the disjuncture between alleged intent and subsequent conditions have led to an erosion of the original intent doctrine and its reduction to a minority position. During the Reagan administration, even a nominee for the US Supreme Court was reportedly rejected by the US Congress because of his support of the original intent doctrine. Constitutions are designed to be living documents. On the one hand they are meant to be binding on future generations, so they will usually have built-in mechanisms making amendment difficult. At the same time, constitutions are designed to facilitate future actions, so the founding generation should not be allowed to act as dictators over future generations. In Hong Kong the Basic Law drafters set us on our course. After doing so they should step back and allow citizens, lawyers, legislators, judges and others, guided by processes that conform to common law tradition, to handle the problems that arise over time. Even for interpretation of ordinary legislation the sensibility of this position has prevailed. Lawyers are usually admonished to look to the face of the ordinance in question. Legislative intent revealed in legislative history might be considered but it would certainly not be binding on the court. The long recognized fact is that legislators support legislation with many different and conflicting motives. Their unspoken legislative intent can often not be reliably determined. Whatever their supposed intent, it is for the court to interpret the requirements of the Basic Law on matters within the scope of autonomy. It is demeaning and damaging to our legal system to presume our judges to be incapable of such determination.

    Those who have advanced this legislative intent doctrine and urge the NPC SC's intervention sometimes argue that the Basic Law is mainland legislation and that its interpretation should be governed by mainland practice. There is scant regard for the implications of such position. There is, of course, much more room for political interference with judicial processes on the mainland. The NPC and people's congresses at various levels are given formal responsibility for supervision of their courts. As part of the supervision and monitoring process, legal officers serving the NPC may even informally contact the judiciary to head off expected problems. Actions which are considered interference with judicial independence in Hong Kong are routine practices in the mainland system. Clearly, the advocates of the empowering of the government to seek interpretation would not want to invite such interference. They will certainly have difficulty, under established and well recognized constitutional practices, justifying a process that gives special privilege in this regard to mainland legislators or appointed committee members not schooled in the traditions of interpretation, nor constrained by normal constitutional practices.