Question 1
These facts are hypothetical.
On 15 July 2013, the Hong Kong Legislative Council (Legco) passed the Anti-Treason
Ordinance (ATO) to implement the requirements of article 23 of the Basic Law. Section
2 of the ATO states: Anyone who supports by any means foreign parties in doing any act
that is detrimental to the PRC shall be guilty of treason and be sentenced to a fixed term
imprisonment of no less than five years.
On 20 July 2013, the State Council issued a decision that states: The ATO is consistent
with the Basic Law. It reflects the legislative intent behind article 23 of the Basic Law.
Such intent is reflected in the Opinion issued by the Preparatory Committee in 1996
(1996 PC opinion) concerning the legislative intent behind article 23. On 21 July 2013,
the NPCSC issued a resolution endorsing the State Councils decision. The resolution was
NOT stated to be issued pursuant to the NPCSCs plenary powers of
interpreting the BL under article 67 of the PRC Constitution and article 158(1) of the
Basic Law.
The third paragraph of 1996 PC opinion states: Treason is supporting by any means
foreign parties in doing any act that is detrimental to the PRC. It is a serious offence that
should attract a fixed term imprisonment of no less than five years. This is in line with the
corresponding offence of treason in Mainland China.
Short-hair, a Legco member, initiated action to challenge the ATO for violating various
provisions of the Basic Law, including articles 27 and 39.
Assume that the case has reached the CFA. The court has to determine a number of
issues on jurisdiction and the approach to interpreting the Basic Law.
a) Does the court have jurisdiction to review and strike down legislation
passed by the Legco?
BL19
o
independent judicial power, final adjudicative power -> can review and
strike down law passed by Legco
BL11
o no law enacted by Legco shall contravene Basic law
Court: interpreter of BL -> determine whether contravene or not
b) Does the court have jurisdiction to challenge the resolution passed by the
NPCSC?
Starting point: Ng Ka Ling No.1: power to declare the laws enacted by NPCSC
invalid if found to be inconsistent with the BL
c) Would the court admit the 1996 PC Opinion to shed light on the meaning of
article 23?
PC opinion is extrinsic post-enactment materials
Chong Fung Yuen
Extrinsic material -> if the meaning of the words is clear -> the court will not have
to refer to these materials
Treason?
o
o
o
o
o
they lived for 7 years -> gap in between, may not be consensus ->
may be distinctive ends
not arguing as a general approach, only in light of the current case
Question 3
According to Ms Cora Chan, what doctrines can the CFA borrow from the European Court
of Justice in applying the reference procedure, and what not? What is her reasoning and
do you agree with her?
art 158 is modelled on the art 267 of EU -> we might refer to that provision to
shed light on how we should approach art 158
o it sets up similar referencing system
o it makes sense historically to make reference of European Jurisprudence
Necessity condition is satisfied if the interpretation will affect the judgment of the
case -> what does that affect the judgment means?
o Cora: re-read the FDH case, the court did not seek reference: the court
interpreted on its own and decided that FDH would not have right of abode
-> the NPCSC would have exactly the same outcome
o -> no effect on the outcome of the case: the reason why not obliged to
seek reference
Classification requirement
o Limited scope of borrowing from EU law
o Immigration control (not like educative ground)
o article 158(1) is a starting point not an end point
the interpretation is made and the question then becomes what the
courts do with the interpretation
determine which bits of the interpretation need to be followed
reading in common law way is what the courts have been doing
Scope of art 158 (3) -> how do we deal with the various things coming from
NPCSC
o NPCSC is an important body within Chinese constitutional framework
o Relationship between interpretation and other statements coming from
NPCSC has to be looked at on a case by case basis