Constitutional Interpretation

CHINA

CHINA

Socialist (or communist) legal systemPower of interpretation of the Constitution vested in NPCSC: Art 67(1) of PRC ConstitutionApproach: no clear guidanceMore political and flexible than common law approaches

Constitutional Interpretation

Power of interpretation rarely exercised5 occasions of Constitutional interpretation

4 ‘interpretations’ between 1955-56, one in 1983

In the form of ‘decisions’ rather than ‘interpretations’In the nature of supplementary or amendment legislation

HK Basic LawConstitution of HKSARNational Law of PRCPolitical theory: ‘One country, two systems’ with high degree of autonomyArticle 158 of Basic Law:

Power of interpretation vested in NPCSCCommittee for Basic Law HK courts authorized by NPCSC to interpret

Rules of common law or rules of Chinese law?

Legislative Interpretation

PRC Constitution: Power to interpret laws vested in NPCSC (Article 67(4) )Authority to add stipulations

1981 Resolution on Strengthening the Work of Interpretation of LawsLaw on Legislation

1981 Resolution on Strengthening the Work of Interpretation of Laws

Purpose : to improve the socialist legal systemConfirms the highest status of the NPCSC in the system of interpretation of law in ChinaMaking of ‘supplementary provisions’ falling within legitimate sphere of ‘interpretation’

Law on Legislation

Introduces procedural rules for interpretation of laws by the NPCSCState organs which can request an interpretation from NPCSC specifiedArticle 42(2)

Interpretation of laws in two kinds of circumstances

Interpretations of laws

1. Implementation of Nationality Law of PRC in HKSAR

2. Implementation of Nationality Law of PRC in Macau SAR

3. Article 22(4) and 24(2)(iii) of Basic Law of HKSAR

Approach of NPCSC

No indication of approach Relies on legislative intent: fictionReferral mechanism: article 158 of Basic LawFree-standing power to interpret

HK Approach

Generous and Purposive Approach(Ng Ka-Ling and others v Director of Immigration)

Chong and Tam: adopted a more limited approach (literal approach)

Generous Approach

‘should be adopted to the interpretation of the rights and freedom’ (Gurung Kesh Bahadur v Director of Immigration)Depends less on the intention of the legislature Focuses on protecting rights as the constitutional duty of court

Purposive Approach

To avoid ‘a literal, technical, narrow or rigid approach’ (Ng Ka Ling)

Application: to read the particular article or provision in its context

How to Find the Purpose?Guidance on how to find purpose of Basic Law provisions:1.Start with the plain meaning of the words2.Assistance as to the meaning of an

expression can be gained from ‘any traditions and usages’ that may have given to the language used (CFA in Ng Ka Ling)

3.Rely on other resources to assist in giving a meaning to expressions e.g. travaux preparatoires

Purpose of provision ascertainable from: 1. Its nature2.Other provisions of the Basic Law3.Relevant extrinsic materials :

- Joint Declaration (Ng Ka Ling)- Explanations on the Basic Law (draft)

given at the NPC on 28 March 1990 (Chong Fung Yuen)

- Domestic Legislation at the time of the adoption of the Basic Law and the Joint Declaration (Chong Fung Yuen)

Literal / Textual Approach

Chong Fung-Yuen and Tam Nga-YinText as main source to draw out purposePolitical reasons