Journal Article

Interpreting the Basic Law and the Adjudication of Politically Sensitive Questions

Po Jen Yap

in Chinese Journal of International Law

Volume 6, issue 3, pages 543-564
Published in print November 2007 | ISSN: 1540-1650
Published online September 2007 | e-ISSN: 1746-9937 | DOI: https://dx.doi.org/10.1093/chinesejil/jmm030
Interpreting the Basic Law and the Adjudication of Politically Sensitive Questions

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Abstract

In this paper, I shall essentially lay out five interpretive principles that the Hong Kong judiciary should observe. First, the Hong Kong judiciary can disable themselves from giving effect to National People's Congress (NPC) Acts that are inconsistent with the Basic Law. Second, the Court of Final Appeal has a duty to make a reference to the NPC's Standing Committee (NPCSC) when it needs to adjudicate over two conflicting Basic Law provisions, one whose affairs fall within the Central Government's concerns and the other which falls within the limits of Hong Kong's autonomy. Third, in reading the text of the NPCSC Interpretation narrowly while observing its central tenor, the Court would be respecting the plenary interpretive mandate conferred on the NPCSC while retaining its role as the primary interpreter of the Basic Law. Fourth, so far as a Mainland National Law has been formally incorporated into the Basic Law, it cannot be deemed in violation of another constitutional clause. Finally, I would argue that not all constitutional affairs falling within the limits of Hong Kong's autonomy are automatically justiciable; where there is a textual commitment to a coordinate branch of government, the Court may only interfere with the decisions made by the political branches on traditional grounds of judicial review, i.e. illegality, irrationality or procedural impropriety.

Journal Article.  10898 words. 

Subjects: International Law

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