Prepared Remarks: Jerome A. Cohen

CIAO DATE: 12/99

Reflections on the Chinese Constitution and its Relation to the Basic Law of the Hong Kong Administration Region

Hong Kong Room, Great Hall of the People, Beijing
September 15, 1999

The following are the prepared remarks of Jerome A. Cohen, at the September 15, 1999, seminar on the Constitution of the People’s Republic of China, “Reflections on the Chinese Constitution and its Relation to the Basic Law of the Hong Kong Administration Region”. Co-sponsored by Peking University and the One Country Two Systems Workshop.

(Partial text)

My talk today has two parts. The first will comment on the roles of the various actors in the famous decision of the Hong Kong Court of Final Appeal in the “right of abode” cases and the subsequent interpretation of the Basic Law by the Standing Committee of the National People’s Congress (“Standing Committee” or “NPCSC”). The second part will focus specifically on a fundamental and immediate constitutional question now confronting the various actors - whether an interpretation of the Basic Law by the NPCSC is binding on the courts of the Hong Kong Special Administrative Region (“HKSAR”).

I will give the first part of my talk informally, without a prepared text. But the second part, offering detailed analysis and a novel approach to the interface of the Chinese socialist civil law system and the Hong Kong formerly colonial common law system can more easily be understood if committed to writing, and it is the text of this second part that follows.

I should caution at the outset that my views are necessarily tentative, especially since, not being a Chinese national, I have not been eligible to be admitted as a lawyer in China, nor am I admitted in Hong Kong. However, I have had the opportunity of almost forty years of study and practice as an American comparative lawyer and law teacher specializing in Chinese matters.

I have posed the question of the legal effect of a NPCSC interpretation in a general, abstract context unconnected with any specific case or controversy. One can easily conjure up a range of factual permutations and combinations that ought to be considered in undertaking a detailed answer to the most controversial question arising under the Basic Law, a major constitutional document that is still new and virtually untested, complex in its arrangements and not entirely uniform in its approach. Yet, it is possible to offer a general, abstract answer that may be useful in analyzing the specific problems that have begun to arise.

Indeed, since the language of Article 158 of the Basic Law, the critical provision to be considered in responding to the question concerning the legal effect of an NPCSC interpretation, is itself in need of interpretation, it is possible to offer two answers to the question!

1. The Orthodox Answer

It is easy enough to sketch the orthodox answer. The argument runs as follows: Paragraph 1 of Article 158 vests the power of interpretation of the Basic Law in the NPCSC. This grant confirms, in the context of the Basic Law, the traditional constitutional theory and practice of the People’s Republic of China (“PRC”), which, under Article 67(4) of the PRC Constitution, vests the power to interpret PRC legislation in the NPCSC. This power of interpretation may be exercised by the NPCSC at any time. Its interpretations must be respected by all PRC courts as binding legislation, since the NPC, including its Standing Committee, constitutes the highest organ of state power in a country that rejects the separation of legislative, executive and judicial powers and subordinates both the executive and judiciary to the legislature. Although the NPCSC may authorize the PRC Supreme People’s Court to exercise this power of interpretation when adjudicating concrete cases, as it did in a 1981 “Resolution on Strengthening the Work of Interpreting the Laws", such an authorization does not divest the NPCSC of its power to issue interpretations on such matters, nor does it relieve PRC courts of the obligation to be bound by NPCSC interpretations.

Against this background, the argument continues, one can appreciate the limited significance of the arrangements in Paragraphs 2 and 3 of Article 158 authorizing the HKSAR courts to interpret the Basic Law when adjudicating cases. Under Paragraph 2, local courts may “interpret on their own, when adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region”. This merely means that in such cases there is no requirement to seek an interpretation of such provisions from the NPCSC, as there is in the circumstances set forth in Paragraph 3, which deals with cases where the local courts “need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and the Region”. Paragraph 2 does not mean that, in interpreting provisions of this Law that are within the limits of local autonomy, the HKSAR courts are free to disrespect existing interpretations of such provisions by the NPCSC. Paragraph 2, when properly understood, does not divest the NPCSC of power to issue interpretations of provisions within the limits of local autonomy but merely requires it to authorize the local courts to exercise this power concurrently with the NPCSC, and, of course, local courts are to be bound by NPCSC interpretations regarding such provisions as well as others.

At the outset of my inquiry I found the above analysis to be persuasive. Yet the more I considered the language, structure, history and purposes of the Basic Law, the less persuaded I became.

2. The Better Answer

To be sure, in most cases that can be expected to arise in practice, NPCSC interpretations of the Basic Law should be binding upon HKSAR courts. Nevertheless, the NPCSC might issue an interpretation of the Basic Law that is explicitly concerned with a matter that the NPCSC interpretation itself recognizes to be among the HKSAR’s local affairs under the Basic Law. Such an interpretation, I believe, could justifiably be deemed non-binding by the HKSAR courts, at least prior to the NPCSC’s reconsideration of the question as envisaged below. Moreover, if such an interpretation were issued by the NPCSC in anticipation of or during the course of a Hong Kong litigation relating to the local matter in question, in what might be perceived as an effort by the NPCSC to influence the outcome of a litigation in which the Central Authorities had no legal interest, the likelihood that HKSAR courts might refuse to be bound by the interpretation would be enhanced.

As noted above, although Paragraph 1 of Article 158 states that the power of interpretation of the Basic Law shall be vested in the NPCSC, Paragraph 2 requires the NPCSC to authorize the HKSAR courts “to interpret, on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region”. The language is not explicit with respect to the question whether this authorization to the HKSAR courts grants them exclusive competence to interpret the Basic Law’s local provisions or whether their competence to do so is to be exercised concurrently with that of the NPCSC. Yet the former seems the better view, for the reasons stated below.

First of all, although it is possible to endow the words “on their own” in Paragraph 2 with mere procedural importance, freeing local courts from any requirement to refer local Basic Law questions to the NPCSC, it is also possible to endow those words with substantive importance, as suggesting that in local matters the local courts are to be unfettered in their Basic Law interpretations and not concerned about heeding existing relevant interpretations by the NPCSC. This alternative reading, while perhaps startling at first blush, becomes more plausible when one contrasts the language and structure of Paragraph 2 with that of Paragraph 3, which authorizes HKSAR courts, when adjudicating cases, also to interpret other provisions of the Basic Law. According to Paragraph 3, if there is a “need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and the Region” and if the interpretation will affect the judgment in the case, before rendering a final, non-appealable judgment the HKSAR courts not only shall seek an interpretation of the relevant provision from the NPCSC (rather than interpreting the provision “on their own”) but also “shall follow the interpretation” received. Thus the Paragraph 3 interpretation power is to be concurrently exercised by the HKSAR courts and the NPCSC, but the courts are to be bound by the NPCSC’s interpretations in such cases. This is a vivid contrast with the language of Paragraph 2, where nothing is stated requiring HKSAR courts to follow NPCSC interpretations.

Still, on the face of Article 158 alone, the answer is not clear. However, the legislative history of Article 158, to the extent that it is available to the public, supports the view that the final language of this article should be understood as denying the NPCSC the power to issue binding interpretations of the Basic Law with regard to provisions that “are within the limits of the autonomy of the Region”. Article 169 of the Draft Basic Law that was made available for the solicitation of opinions in April 1988 was the predecessor of what ultimately became Article 158 of the Basic Law. Paragraph 1 of Article 169 was identical to Paragraph 1 of Article 158, vesting the power of interpretation in the NPCSC. But Paragraph 2 of the Draft Law was very different from the ultimate product. It provided in pertinent part: “When the NPCSC makes an interpretation of a provision of this Law, the courts of the HKSAR, in applying that provision, shall follow the interpretation of the Standing Committee”. In other words, under the Draft Law the HKSAR courts were to be bound by any and all interpretations of the Basic Law by the NPCSC, even those concerning provisions that “are within the limits of the autonomy of the Region”.

Thus the magnitude of the changes found in Article 158 of the Basic Law becomes apparent. The final version of Paragraph 2 states nothing about the HKSAR courts being required to follow the interpretation of the Standing Committee because Paragraph 2, as revised, only deals with local provisions of the Basic Law and requires the NPCSC to authorize the HKSAR courts to interpret such provisions “on their own”. Only final Paragraph 3, which deals exclusively with non-local provisions, provides for NPCSC interpretation in addition to interpretation by the HKSAR courts, and it requires the courts of the Region to follow the Standing Committee’s interpretation “of the provisions concerned", i.e., the non-local provisions of the Law. No similar requirement is imposed on the HKSAR courts in cases involving interpretation of local provisions, as was to be the case if Article 169 of the Draft Law had been enacted.

Other related provisions of the Basic Law fortify the understanding that not all interpretations of this Law by the NPCSC —. but only those that concern non-local matters —. will bind the HKSAR courts. Article 17, Paragraph 3, authorizes the NPCSC, if it “considers that any law enacted by the legislature of the Region is not in conformity with the provisions of this Law regarding affairs within the responsibility of the Central Authorities or regarding the relationship between the Central Authorities and the Region,” to return the law in question, resulting in its invalidation. In other words, this provision plainly denies to the NPCSC the power to reject Hong Kong laws that deal only with local matters, making more credible the inference that Article 158 should be read to deny the NPCSC the power to interpret Basic Law provisions dealing only with local matters.

Again, the legislative history is helpful, as it confirms the correctness of this view of Article 17, Paragraph 3, and helps us to detect the policy at stake. The predecessor to Article 17, Paragraph 3, in the 1988 Draft Law (Article 16, Paragraph 3) was not so circumscribed. It authorized the NPCSC to reject any law of the Region that it deemed “not in conformity with this Law or legal procedures”. The final version dropped the reference to “legal procedures” and instead injected the words underscored above, which limit the rejection power of the NPCSC to legislation involving non-local matters. The limiting language injected into Article 17, Paragraph 3, in order to achieve this result is almost identical to that injected into Article 158, Paragraph 3, further buttressing the view that the latter was meant to limit the NPCSC’s power of interpretation to non-local provisions.

Article 18, Paragraph 3, of the Basic Law offers additional support for the view that the NPCSC’s activities under the Basic Law are not to infringe upon matters within the limits of the autonomy of the Region. It prohibits the NPCSC from adding to Annex III’s list of national laws applicable to the HKSAR any laws other than “those relating to defense and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law”. Again, the final version of this provision omitted language in the 1988 Draft Law that would have allowed the NPCSC discretion to override local autonomy.

My understanding of Article 158 of the Basic Law is sustained not only by its specific language and the related provisions of Articles 17 and 18, and the legislative history of each of these articles, but also by a necessary regard for the major purposes and broad functions of this distinctive Law. The Basic Law represents a radical departure from previous PRC governmental and constitutional arrangements. The essence of the Basic Law, set forth in Article 2 and derived from the 1984 Sino-British Joint Declaration on the Question of Hong Kong, is its authorization for the HKSAR “to exercise a high degree of autonomy”. Responses to the 1988 Draft Law’s solicitation of opinion had made clear that, if the NPCSC could make binding interpretations of even local provisions of the Basic Law, reject legislation dealing solely with local matters and impose national laws to govern matters of purely local concern, no “high degree of autonomy” would in fact exist. The Basic Law strives to achieve an appropriate balance in implementing the “one country, two systems” formula. To construe this Law in a way that confers total power of binding interpretation on the NPCSC, even with respect to purely local provisions of the Basic Law, seems contrary to its spirit as well as its language, structure and history. It would therefore be neither surprising nor inappropriate for the NPCSC’s power of interpretation regarding the Basic Law to be more circumscribed than in the PRC’s usual legislative settings.

I should add that this view reflects analysis of the Chinese language text as well as the English language text of both the Basic Law and the 1988 Draft Law. I have also sought to review the available Chinese language as well as English language scholarship on the subject and the local court decisions that have begun to interpret the new constitutional framework.

3. Some Concluding Practical Reflections

Allow me to end where I began —. by emphasizing that in most cases that can be expected to arise in practice, NPCSC interpretations of the Basic Law should bind the HKSAR courts. This is because most such interpretations are likely to concern matters within the central domain or matters involving central-regional relationships. Good faith interpretations on such matters by the NPCSC, well-advised by the Basic Law Committee, will enjoy the respect and obedience of the HKSAR courts. Nevertheless, robust local judges may well refuse to be bound by an NPCSC interpretation that plainly contravenes the local autonomy prescribed by the Basic Law.

I recognize that a decision of a HKSAR court refusing to be bound by an NPCSC interpretation could and probably must be referred to the NPCSC itself for consideration of the legal effect of such refusal. Presumably the NPCSC’s response to this referral would constitute an interpretation of the Basic Law under Article 158 “concerning the relationship between the Central Authorities and the Region”. Although it is widely assumed that any request to the NPCSC for a reconsideration of a previously-issued interpretation would merely trigger an automatic reaffirmation, I do not believe this is necessarily the case. The Standing Committee and the Basic Law Committee might well conscientiously reexamine the matter in light of facts and legal arguments developed during litigation to which they had not been exposed at the time the original interpretation was issued, and I do not exclude the possibility that such reexamination might lead the NPCSC to adopt the view articulated in Part 2 above for the reasons set forth therein. Of course, whatever the NPCSC’s new interpretation in response to the referral, I assume that it would bind HKSAR courts under Article 158, Paragraph 3. If the NPCSC should adhere to its original interpretation of the local provision in question but not discuss the more fundamental issue of the proper interpretation of Article 158, this would at least implicitly establish that the Orthodox Answer given in Part I above has prevailed. Obviously, it would be preferable for the NPCSC to offer an authoritative explanation of Article 158.

As a practical matter, the legal crisis that might be provoked by the issuance of an NPCSC interpretation regarding a local provision of the Basic Law and a local court’s refusal to be bound thereby may never materialize. It is possible that, precisely because of the legal complexities and political uncertainties that would accompany such a situation and because of the outcry that greeted its interpretation in the “right of abode” cases, the NPCSC may prefer to limit its interpretations of the Basic Law to judicial referrals presented to it under Article 158, Paragraph 3, rather than to reach out to make legislative interpretations on purely local matters. The emergence of such a constitutional practice or “convention” of Standing Committee self-restraint would be most welcome and relegate the discussion in this talk to the realm of the “merely academic”.

I hope that the views stated here and the suggestion made for resolving tensions between the NPCSC and the Hong Kong courts prove useful. In any event, I look forward to our discussion.