The NPCSC enjoys free-standing power to interpret the Basic Law

Wong Kwok-keung explains why Justice Kemal Bokhary is wrong when he claims the NPCSC undermines the city’s rule of law in exercising its power to interpret the Basic Law

Justice Kemal Bokhary, a nonpermanent judge of Hong Kong’s Court of Final Appeal, suggested in a forum a few days ago that the Standing Committee of the National People’s Congress does not have the power to interpret the Basic Law on its own initiative, and it can do so only upon Hong Kong’s request. He claimed NPCSC’s move to interpret the Basic Law could cause long-term harm to the city’s rule of law. He also claimed that democratic development had ground to a halt in Hong Kong and an urgent reboot was needed. Bokhary’s comments are far from the facts. Article 67 (4) of the national Constitution provides that the NPCSC has the power and function to interpret laws, including the Basic Law, which is a national law. Article 158 (1) of the Basic Law also provides that “The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress”. Under these provisions, the NPCSC undoubtedly has the free-standing power to interpret the Basic Law without any reference by the Court of Final Appeal of the Hong Kong SAR. It has shocked many people that a judge of the Court of Final Appeal made comments tainted with factual mistakes.

Bokahry suggests that the NPCSC does not have the power to interpret the Basic Law on its own initiative. By implication, the Basic Law can only be interpreted by the NPCSC upon the request of the Court of Final Appeal. Such an argument either stems from a lack of understanding of the national Constitution and the Basic Law or is purposefully misleading.

Firstly, both Article 67 (4) of the Constitution and Article 158 (1) of the Basic Law of the HKSAR clearly state that the power of interpretation of the Basic Law is vested in the NPCSC. Article 67 (4) of the Constitution stipulates that the functions exercised by the NPCSC include the interpretation of laws. This clearly indicates that interpretation of the laws is a fundamental power of the NPCSC.

Secondly, Article 158 (3) of the Basic Law requires the Court of Final Appeal to seek an NPCSC interpretation of certain excluded provisions of the Basic Law when the case warrants. This is just an option instead of a mandatory clause, and such a requirement is intended to limit the power of the Court of Final Appeal, rather than allowing it to decide when or whether a NPCSC interpretation is needed. It would be wishful thinking to suggest that the NPCSC needs a request from the Court of Final Appeal before it can interpret the Basic Law.

The NPCSC can not only interpret the law upon the request of the Court of Final Appeal, but also, when necessary, interpret the Basic Law on its own accord. The power to decide when an interpretation is needed is vested in the NPCSC, not in the Court of Final Appeal. The relationship between the former and the latter is similar to the “authorizer” and the “authorized body”. If the NPCSC can only interpret the law upon the request of the Court of Final Appeal, it would mean that the Court of Final Appeal reigns supreme over the NPCSC!

It is also completely groundless to say that the NPCSC’s interpretation of the Basic Law will undermine the city’s rule of law. It is commonplace that congresses around the world interpret their laws frequently. How does the NPCSC undermine the city’s rule of law by exercising its power to interpret the Basic Law?

While judges do enjoy freedom of speech as others do, they must strictly adhere to political neutrality. It is a common practice for judges around the world to refrain from commenting on political issues. Otherwise, the public’s confidence in the neutrality and impartiality of the court will be compromised.

From the public perspective, judges should be cautious when making comments so as to maintain public confidence in the court as well as judicial credibility. The credibility of law courts not only depends on the impartiality of their performance during trials, the rationality of the judicial system and the appropriateness of the trial process, but also hinges on the professionalism and the impartiality of judges.

If judges are fond of making political comments and expressing views about certain political parties, will the public still have faith in their impartiality? Can law courts in Hong Kong continue to maintain their credibility?

The author is vice-chairman of the Committee of Culture, History and Study of the CPPCC; he is also honorary president of the Federation of Hong Kong Guangdong Community Organizations. This is an excerpt translation of the author’s Chinese article published in Wen Wei Po on Dec 10.

The NPCSC not only can interpret the law upon the request of the Court of Final Appeal, but also can, when it is necessary, interpret the Basic Law on its own accord. The power to decide when an interpretation is needed is vested in the NPCSC, not in the Court of Final Appeal.