Legal System Assignment

University Number

Word Count : 1496

There are three main alternative courses to deal with the issue. Hereby, I shall evaluate the feasibility of them in light of their implication on (i) Hong Kong’s constitutional framework and; (ii) the survival of rule of law and separation of powers in Hong Kong. The three different courses are namely, 1. Judicial review and thus reconsideration of the Court of Final Appeal’s (CFA) ruling in Director of Immigration v. Chong Fung-yuen1, 2. National People’s Congress Standing Committee’s (NPCSC) Interpretation of relevant Basic Law Articles, 3. Amendment of relevant Basic Law Articles.

Before I deal with each of the alternative courses in-depth, I shall briefly describe the constitutional framework and the situation of separation of powers and rule of law in Hong Kong. Hong Kong has a very simple constitutional framework, the Basic Law. It is stated clearly in Article 11 of Basic Law that it will be the basis of Hong Kong. It is of utmost importance and no other law shall contradict with it. Regarding separation of powers and rule of law, both of them are not fully appreciated in Hong Kong. As a matter of fact, Hong Kong has always been criticised as “executive-led”. Many scholars2 had voiced out their views against that.

The first course is the judicial review and reconsideration of the Court of Final Appeal’s (CFA) ruling in Chong Fung Yuen. In the given text, it is mentioned that a law proposed by the government which provides that children born to Mainland Chinese women who enter Hong Kong for the purposes of giving birth would not be granted the right of abode in Hong Kong has been enacted by the Legislative Council (LegCo). In a bid to seek the enactment declared unconstitutional, a mainland prospective mother has applied judicial review. While the mother is seeking to have the enactment declared unconstitutional, the government and the LegCo are hoping that through the judicial review, CFA will reconsider its previous ruling in Chong Fung Yuen and eventually overrule it.

The right of Hong Kong residents to institute legal proceedings against acts of executive authorities is stated clearly in Article 35 of Basic Law3. Therefore this course is well within the constitutional framework of Hong Kong. However, this course has certainly violated the rule of law in Hong Kong. The spirit of rule of law is that nothing can stand above the law and therefore every citizen regardless of their state, wealth or power is subject to the same set of law. In order to bring about the reconsideration of the CFA’s ruling, it is a pre-requisite for the government to disobey the law, in this case, by proposing the law aforehand mentioned. The act of publicly disobeying the law is seriously in breach of the rule of law. Moreover, the government, which is often looked up to by citizens as role mode, should abide by the law whenever they make any decisions. If the government acts in breach of the law, this will definitely quash citizens’ faith in rule of law and eventually, citizens will not abide by the law and the society will end up in chaos.

To sum up, solving the issue by bringing up judicial review through illegitimate executive/ legislative measures is within the constitutional framework but seriously violates the rule of law.

The second course is the interpretation of relevant Basic Law Articles by the NPCSC. According to Article 158 of Basic Law4, the power of final interpretation of the Basic Law is vested in the NPCSC. In addition, the Article gives Hong Kong courts authority to interpret the laws on their own when adjudicating cases as long as the interpretation is are within the limits of the HKSAR’s autonomy.

Basically, there are two ways to bring about the NPCSC’s interpretation of Basic Law. First, when courts are adjudicating cases which involve some ambiguous Articles of the Basic Law, they may decide to seek NPCSC’s interpretation of the Articles involved if they think it is necessary to do so. The other way is when the Chief Executive (CE) thinks that there is a need for the NPCSC to interpret the Basic Law Articles, and then he/she will make a request to the NPCSC for an interpretation. Both ways will bring about the same result, an interpretation of the relevant Basic Law Articles. However, they have substantial difference in terms of implication on the constitutional framework and principles of separation of powers and rule of law in Hong Kong.

First and foremost, it is expressly stated in Basic Law that the courts are vested with the right to decide to refer to NPCSC for interpretation of Basic Law. However, the right for the CE to request the NPCSC for an interpretation is not stated in any Articles of Basic Law5. So, by doing so, the CE is risking to damage the authority of Basic Law as the only constitutional document governing Hong Kong which every citizen should abide by. Apart from this, the second way also undermines the principle of rule of law and separation of powers. Originally, the courts have the right to decide whether they need to refer to NPCSC for the interpretation or they do the interpretation on their own. But if the CE makes a request to the NPCSC for the interpretation, this deprives the courts of their vested right. This not only contradicts with the principle of separation of powers as the executive branch is now bypassing the judicial branch, intervening the judicial branch and therefore damaging the judicial independence, but also showing that the government has little respect for the rule of law. On the other hand, the principle of “one country, two systems” set out in the Article 5 of Basic Law6 is violated by the second way too. According to the principle, the system running in Hong Kong (including the common law system)7 should remain unchanged for 50 years. It is a common law principle that power of interpretation can only be exercised when adjudicating cases. So the act of the CE requesting the NPCSC to interpret is disobeying the common law, and thus the “one country, two systems” principle. Therefore the second way certainly fails to comply with Hong Kong’s constitutional framework. Actually, this applies to the first way as well. Therefore, no matter NPCSC’s interpretation is requested from the CE or from the courts, the act of NPCSC, a purely legislative body instead of a judicial one, to interpret fails already to comply with the common law approach.

Summing up the above views, it is obvious that solving the issue through the second way, that is the reference to NPCSC for interpretation by the CE doesn’t fit in Hong Kong’s constitutional framework and violates the separation of powers and rule of law as well. In contrast, the first way, the reference to NPCSC by courts is more legitimate and has fewer implications on both Hong Kong’s constitutional framework and survival of separation of powers and rule of law. Having said that, it does not mean that the first way is any better, this is because the act for NPCSC to interpret is already in breach of the common law approach, that is the power of interpretation is only exercisable in courts when adjudicating cases, which Hong Kong has always referred to.

The last course is to amend relevant Articles of Basic Law.
Although the amendment of the Basic Law has never been done since Basic Law is promulgated, Article 1598 of it has already laid down the procedures for the amendment. As a result, the amendment of Basic Law is within constitutional framework of Hong Kong provided that the procedures are strictly followed. By strictly following the procedures, the rule of law can also be embodied. This course also abides by the principles of separation of powers and rule of law. This is because while the judicial branch has nothing to do with the amendment, the other two branches are equally involved as approval of both the Legco and the CE is needed before the amendment can be submitted to the NPCSC for approval. As a result, the two branches can check and balance on each other, which is a feature of the separation of powers. Moreover, all three branches remain independent throughout the process, fulfilling the requirement for separation of powers.

To conclude, the third course, amendment of the Basic Law, complies with the constitutional framework and principles of rule of law and separation of powers.

From the above paragraphs, it is apparent that only the third course satisfies both the following two principles, 1. Stay within the constitutional framework; and 2. Do not violate the principles of rule of law and separation of powers. The other courses satisfy only either one of them. So by adopting the third course, the most suitable and legitimate resolution, we can solve the issue without compromising the rule of law and separation of powers in Hong Kong.