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Tutorial 3:

Constitutional Jurisdiction and Interpretation

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?

Preliminary question -> whether there is an interpretation


o Yes, then -> courts are bound to follow it under BL158
o No, then -> how to deal with the situation
Resolution (not interpretation)
o Nature of resolution
Resolution not issued in pursuant to interpreting the BL
Unlikely that it will be treated as extrinsic material
Has legal effect as national law?
-> only those laws listed in the Annex would have direct
application in HK; but here the resolution purports to shed
light on the meaning of BL, has to deal with it
Argument: the resolution should be binding by art 158?
o Can it be challenged?
1999 interpretation only overrode part of the ratio of Ng Ka Ling
(only art 24 and art 22) but not all i.e. the power to invalidate
NPSCS laws -> technically still stands
158: power of final interpretation is vested in NPCSC: just a starting
point -> doesnt mean the court of HK has no such power of
invalidation

Decision by the NPCSC: can be challenged by local court?


o Possible argument: 158 says interpretation has to be followed by the local
court; if not interpretation, 158 not applicable
o Counter argument substantively still an interpretation by purposive
approach
o Unclear no case law, Yvonne Leung: no power to challenge the decision

BL sets out the relationship between local court and NPCSC


o Unlikely that it will be adopted

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

Unclear e.g. Join another country to invade China, hold enemy


propaganda?
Could we rely on international norms?
Adopt common law approach interpretation
Interpreting a word in light of previous cases i.e. treason: clear
meaning
Clear if treason paired with secession, sedition, subversion -> an act which
is very serious, very high level act
if it is unclear, the opinion would be admitted to shed light

d) Is the court obliged to seek judicial reference on the meaning of treason


in article 23?
Art 158(3)
Classification condition: question is whether the provision deal with something related
to the relationship between China and HK or affairs of China -> excluded provision
o Is art 23 an excluded provision?
Treason against China -> perfectly sound to satisfy classification
condition
X -> HK government shall enact laws on its own -> vest the power in
HK
Necessity condition (Added arguability requirement)
o Necessary for rendering the judgment
Uncontroversial: yes in this case
o Arguability
Congo said satisfied if there is interpretative doubt -> the provision can
reasonably bear more than one meaning
The second interpretation cannot be plainly bad
Predominant test
o If Articles 27 or 39 are predominant provisions ( but they are not excluded
provisions) -> no need to seek reference
The meaning of treason triggers off the debate -> art 23 is the
arguable the predominant provision
Violation of 27 and 39 brings out the case -> they are predominant
o Court will revisit this test since it is difficult to apply in practice
For:
Safeguard HK judicial autonomy -> not easy to bring in excluded
provisions;
The court doing its job
Against:
goes against 158(3)
Mwan -> 3 steps analysis clearer
Question 2
Professor Albert Chen argued that the NPCSCs 1999 Interpretation and the 1996
Preparatory Committee Opinion deserve to be taken seriously by the court in the FDH
case. What is his reasoning and do you agree with him?

most prolonged discussion -> duplication phenomenon


o art 24(2) only intends to lay down the restriction to right of abode
o art 24(2) duplicates with provision in Joint Declaration -> there is a
consensus between Chinese and British govt about the relevant provision
in light of that historical understanding, the laws passed should not
be deemed unconstitutional
counter-argument: the jointly liaison group met, afterwards, Legco
passed this law restricting certain ppl having ROA in HK although

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

Arguability condition when provisions capable of bearing 2 meanings


o mechanism in Europe -> when it decides on the question, 2 stages:
(1) whether it is necessary to interpret the provision;
(2) if necessary, how many interpretations can it accommodate?
o Cora: we should borrow stage 1 but not stage 2
The court in HK will decide whether it is necessary, once decided it
is necessary, the actual interpretation should be done by the NPCSC
this preserves the model One Country Two Systems: HK
determines whether it is needed, China determines the
actual interpretation
balance between HK autonomy and Chinese sovereignty?
Initial question of what to be interpreted is a significant
power

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

Advance an argument based on the cases in the exam


No right or wrong answer

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