How to Interpret, and Not Interpret, the Basic Law of Hong Kong
March 26, 2012
Some standards of interpretation used by the Court of Final Appeal, for interpretation of the Hong Kong Basic Law, are undesirable, because they are variable standards. In order for a court to be a judicial body, it must use fixed standards. A political body, in contrast, uses variable standards.
Example 1: An interpretive standard of the Court of Final Appeal is not correcting a drafting deficiency in an ordinance. The related interpretive standard is not reading an ordinance literally, to forestall an absurd result. Choosing not to correct a drafting deficiency yields a different outcome than does choosing to forestall an absurd result.
Example 2: Another interpretive standard, used for finding whether there is an unlawful legislative derogation from a right guaranteed by the Bill of Rights, is the proportionality test. A legitimate proportion between a domiciliary of Hong Kong and the government of Hong Kong is variable, depending on whether liberal judges or conservative judges are on this Court of Final Appeal panel or that panel.
Example 3: A third interpretative standard is whether “a fair balance has been struck” in disputed legislation. Fairness is in the eye of the beholder.
Case law of the Court of Final Appeal notwithstanding, the Basic Law of Hong Kong has a fixed meaning: the legislative intent of the Drafting Committee for the Basic Law of the Hong Kong Special Administrative Region, the drafter of the Basic Law. If a deficiency in the Basic Law is revealed, the remedy is amendment of the Basic Law in accordance with the amendment procedure prescribed in it. Amendment of the Basic Law by the Court of Final Appeal, in the guise of interpreting it, is impermissible.
See also "Police Demands for Hong Kong Identity Cards,” posted on the SSRN.
Number of Pages in PDF File: 16
Keywords: constitution, construction, intent, interpretation, judicial legislation, plain meaning, Standing Committee
JEL Classification: K19, K40working papers series
Date posted: August 15, 2009 ; Last revised: September 4, 2013
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