Constitutional Interpretation CHINA

1
Constitutional InterpretationCHINA
2
CHINA

• Socialist (or communist) legal system
• Power of interpretation of the Constitution
  vested in NPCSC Art 67(1) of PRC Constitution
• Approach no clear guidance
• More political and flexible than common law
  approaches

3
Constitutional Interpretation

• Power of interpretation rarely exercised
• 5 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

4
HK Basic Law

• Constitution of HKSAR
• National Law of PRC
• Political theory One country, two systems with
  high degree of autonomy
• Article 158 of Basic Law
• Power of interpretation vested in NPCSC
• Committee for Basic Law
• HK courts authorized by NPCSC to interpret
• Rules of common law or rules of Chinese law?

5
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 Laws
• Law on Legislation

6
1981 Resolution on Strengthening the Work of
Interpretation of Laws

• Purpose to improve the socialist legal system
• Confirms the highest status of the NPCSC in the
  system of interpretation of law in China
• Making of supplementary provisions falling
  within legitimate sphere of interpretation

7
Law on Legislation

• Introduces procedural rules for interpretation of
  laws by the NPCSC
• State organs which can request an interpretation
  from NPCSC specified
• Article 42(2)
• Interpretation of laws in two kinds of
  circumstances

8
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

9
Approach of NPCSC

• No indication of approach
• Relies on legislative intent fiction
• Referral mechanism article 158 of Basic Law
• Free-standing power to interpret

10
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)

11
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

12
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

13
How to Find the Purpose?

• Guidance on how to find purpose of Basic Law
  provisions
• Start with the plain meaning of the words
• 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)
• Rely on other resources to assist in giving a
  meaning to expressions e.g. travaux preparatoires

14

• Purpose of provision ascertainable from
• Its nature
• Other provisions of the Basic Law
• 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)

15
Literal / Textual Approach

• Chong Fung-Yuen and Tam Nga-Yin
• Text as main source to draw out purpose
• Political reasons