NPCSC ‘reads in’ original intent to clarify co-location
Lawrence Ma stresses the sound basis behind this decision, explaining that the Basic Law is also a living instrument which sometimes needs to be supplemented and clarified
Over the past week, Hong Kong has engaged in a heated debate over the decision of the country’s top legislature to approve the cooperation plan between the Hong Kong Special Administrative Region Government and Guangdong provincial government on the joint-checkpoint arrangement at the West Kowloon terminus of the Guangzhou-Shenzhen-Hong Kong high-speed rail link. Whether or not the arrangement violates Article 18 of the Basic Law, which states national laws shall not apply in the SAR (except those listed in Annex III) has been hotly contested by the city’s legal professionals.
The Hong Kong Bar Association and University of Hong Kong law professor Johannes Chan Man-mun believe all national laws applied in Hong Kong must always be included in Annex III.
But such critics may have to reconsider their views once they better understand the original purpose of the law, and see examples from other countries.
Judging from their opinions, they have only taken a literal interpretation of the Basic Law and have misled the public into believing this is the only way to interpret the document. They also failed to tell the public that other common law jurisdictions have solved similar constitutional problems in the same way that the National People’s Congress Standing Committee has.
The intention of Article 18 is that national laws which can be generally implemented for everyone in Hong Kong should be listed in Annex III. The constitutional document is a living instrument; it has to be read contemporaneously and, if necessary, supplemented and clarified.
For instance, in 1789 when the United States Constitution was enacted, it did not provide for the rights of black people. Indeed, slavery was widely accepted as a social and legal norm. The people who drafted this unique document could not have imagined that a future president, Abraham Lincoln, would later amend the constitution to abolish slavery.
Similarly, in 1900 when the Australian constitution was drafted and enacted by white Australians, aboriginal inhabitants were not treated fairly. However 67 years later the constitution was amended to include aborigines as part of the population.
The NPCSC decision on Dec 27 has essentially supplemented and clarified Article 18. It should now be read as: “National laws shall not be applied in the HKSAR except for those listed in Annex III of this Law, unless they have no general application in the HKSAR.”
The case Ng Ka Ling (No 2) v Director of Immigration (1999) in the Hong Kong Court of Final Appeal confirmed the NPCSC could supplement or clarify the Basic Law through its interpretations.
The NPCSC’s joint-checkpoint decision is not an interpretation but an explanation and clarification of the law.
In the fourth paragraph, it said: “The mainland authorities stationed in the Mainland Port Area of the West Kowloon Station perform their duties in accordance with the laws of the mainland. The area of exercise is restricted to the Mainland Port Area and nowhere else. This (kind of arrangement) is different from the situation where laws listed (in Annex III) are to be generally and widely applied under Article 18 throughout the whole area of the HKSAR.”
The explanation also discusses the “reading in” principle. Under the common law, “reading in” is a well-established principle regularly applied to supplement legislation which has been omitted. This is in order to add sufficient words and phrases to reflect the true intention of legislation.
Moreover, regarding constitutional interpretations, when there is an inadvertent omission, the court can “read in” missing words to reflect true legislative intent. (Schachter v Canada (1992)).
This process was evident in Jones v Wrotham Park Estates (1980). It has been developed further in the case of Inco Europe v First Choice Distribution (2000). It notes: the intended purpose of the statute or provision in question; that those drafting it and also parliament failed to explain that purpose in the provision in question; and the substance of the provision parliament would have made, although not necessarily the precise words it would have used; and whether an error had been noticed in the bill.
In the case R v Humber Bridge Board (2004), the Humber Bridge Board was empowered by the Humber Bridge Act 1971 to manage the tolls, with varying charges for vehicle categories.
These toll charges had to be authorized by the minister responsible, who would issue a statutory order. Large buses were included in the 1979-80 and 1989 statutory orders but were left out in the 1997 statutory order. There was evidence that the responsible minister accepted a report by the traffic inspector who recommended a 9.20 pound ($12.47) toll for large buses. The English Court of Appeal held that the 1997 statutory order was ambiguous and absurd. Acceptance of the report was therefore seen as strong evidence that large buses were to be included; the 1997 statutory order was construed as including tolls for large buses.
Applying this idea, first, Article 18 aims to provide a system of registration of national laws to be generally and widely applied in Hong Kong.
Second, 20 years ago, Basic Law Drafting Committee members would not have expected that a high-speed railway would be severely undermined without a colocation arrangement.
Third, if someone “went back in time” to discuss this with the drafting committee, they would certainly have inserted these additional words.
If the NPCSC had not pre-empted a constitutional contest with its decision, it is likely the co-location arrangement would have been legally challenged. Therefore, Hong Kong courts can apply the “reading in” principle to uphold constitutionality of the co-location arrangement.