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Behind the Text of the Basic Law
203
7.2.2. Interpreting the Interpretation: Reasserting
the Primacy of the Common Law
The NPCSC interpretation has cast considerable doubt over the independ-
ence of the judiciary and the integrity of the Hong Kong legal system. The
interpretation is primarily a political decision made without any transparency.
There were concerns whether the judiciary could remain independent if its
final judgments could be reversed by a political organ across the border, and
how independence of the judiciary could reconcile with the NPCSC interpre-
tation, which is constitutional within the Mainland legal system. This ques-
tion was addressed in Chong Fung Yuen v. Director of Immigration.
23
The issue
in that case was whether a child born in Hong Kong to parents, neither of
whom was a Hong Kong Permanent Resident, would acquire a right of abode
in Hong Kong. In no uncertain terms the Court of Final Appeal dispelled any
concern that a judge would have to look over his shoulder to take into account
possible responses from the NPCSC in discharging his judicial duty. It held
that the courts in Hong Kong are bound to apply the common law and not the
principles in the Mainland system, in interpreting the Basic Law. Under the
common law, the courts’ role is ‘to construe the legislative intent of the Basic
Law as expressed in the language. Their task is not to ascertain the intent of
the lawmaker on its own. Their duty is to ascertain what was meant by the
language used and to give effect to the legislative intent as expressed in the
language’.
24
The language was not looked at in isolation, but in light of its con-
text or purpose and the courts must avoid a literal, technical, narrow or rigid
approach. At the same time, the courts could not give the language a meaning
which it could not bear. In interpreting the Basic Law, while the courts may
resort to extrinsic materials such as the Joint Declaration and the Explanations
on the draft Basic Law before its enactment, that throw light on the context or
purpose of the Basic Law, the courts have to be cautious and should adopt a
particularly prudent approach in considering post-enactment materials.
25
This
point is of particular significance as the NPCSC in its interpretation reversing
Ng Ka Ling stated that the intent of the Basic Law could be found in a report
of the Preparatory Committee, which was set up six years after the enactment
of the Basic Law for the purpose of preparing for the establishment of the
HKSAR. The Court in Chong Fung Yuen held that this report could not affect
the interpretation of a provision when the meaning of its language is clear,
23
(2001) 4 HKCFAR 211.
24
Ibid.
, 223.
25
Ibid.
, 224–5.
204
Johannes M. M. Chan
alongside an expression of doubts of the relevance and the appropriateness of
considering such extrinsic pre-enactment materials in any event.
With regard to the NPCSC interpretation, the Court respected the power
of the NPCSC to interpret the Basic Law under Article 67(4) of the PRC
Constitution and Article 158 of the Basic Law, but held that this power oper-
ated in a different system and was legislative, not judicial, in nature. Once
an interpretation has been made, it is binding on the Hong Kong courts and
forms part of the system in the HKSAR. Yet before an interpretation has been
made, the courts need only refer to the common law in interpreting the Basic
Law. Even after an interpretation has been made, the courts will still have to
ascertain the scope of the interpretation. Accordingly, the Court found that
some remarks on the nature of Article 24 in the previous NPCSC interpreta-
tion were confined to the context of that interpretation and were not binding
on the Court in interpreting a different subsection of the same provision in a
different context. Having held that the provision before the Court was not an
excluded provision, the Court rejected the Director’s application for making
a judicial reference to the NPCSC.
26
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