Interpretation of The Basic Law
Under Article 158, the power of final interpretation of the Basic Law is vested in the Standing Committee of the National People's Congress (NPCSC) which is a power also derived from the Constitution of the People's Republic of China.
Article 158 also authorises the Hong Kong courts to interpret on their own, in adjudicating cases, the provisions of the Basic Law which are within the limits of the autonomy of the Region.
According to Article 158, the courts may also interpret other provisions of the Basic Law. However, if those provisions concern affairs which are (i) the responsibility of the Central People's Government or (ii) concern the relationship between the Central Authorities and Hong Kong, AND if such interpretation will affect the judgments on the cases, the courts shall, before making the final judgment which is not appealable, seek an interpretation of the relevant provisions from the NPCSC through the Court of Final Appeal. The courts will be bound by the interpretation of the NPCSC.
Interpretations are not retroactive and do not affect cases that have already been adjudicated.
The NPCSC shall consult its Committee for the Basic Law of the Hong Kong Special Administrative Region before giving an interpretation.
To this date, the Hong Kong SAR government has sought the NPCSC to interpret the Basic Law twice:
- 1999: The Right of Abode issue
- 2005: The term of the new Chief Executive after the original Chief Executive resigned.
On two other occasions the NPCSC interpreted the Basic Law on its own initiative:
- February 1997: The NPCSC ruled that 24 colonial-era ordinances contravened the Basic Law
- 2004: Universal suffrage in 2007 and 2008
One other occasion the Court of Final Appeals requested an interpretation from the NPCSC
- 2011: FG Hemisphere Associates LLC v. the Democratic Republic of Congo concerning whether Hong Kong has a qualified state immunity rule or an absolute state immunity rule
In addition to interpretations of the Basic Law, the NPCSC has interpreted the nationality law to define who is considered a Chinese national in Hong Kong.
Read more about this topic: Hong Kong Basic Law
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