Ng Ka Ling Forum

The following is a compilation of contributions, edited for ease of reading, to the discussion of the Ng Ka Ling (right of abode) case recently conducted on the Chinese Law Net. The contributions are provided primarily in chronological order, with the earliest first. Quotations from previous posts are signaled (usually) by the marker ">" and in italics.

March 3, 1999

From: Xi Zhang <xzhang@Mail.Sparkice.COM.CN>
Subject: Re: Hong Kong Court of Final Appeal
Date: Sun, 07 Feb 1999 21:51:06 +0800

I consider this case has great impact on Chinese constitutional theory. Today's CCTV news reported that some mainland legal scholars "severely criticize" the judgement of Final Appeal Court, said it infringed upon the supreme power and authority of NPC & its Standing Committee. I have noticed that the judgement mentioned a judgement delivered by the Court of Appeal, HKSAR v Ma Wai Kwan David [1997] HKLRD 761, [1997] 2 HKC 315 (July 1997), which stated "that the Region's courts have no jurisdiction to query the validity of any acts of the National People's Congress since they are acts of the Sovereign."

Xi Zhang

Dept.of Law, Peking University

From: "Donald Clarke" <dclarke@u.washington.edu>
Subject: Re: Hong Kong Court of Final Appeal
Date: Sun, 7 Feb 1999 15:32:11 -0800

A couple of comments on the above proposition:

1. According to the CFA opinion in the right of abode cases (the "ROA Cases"), the Chief Judge of the Court of Appeals stated, when the case came before him, that his view in Ma Wai Kwan as expressed above was too broadly stated, and that it could not be understood to mean that NPC laws and acts would prevail over the Basic Law; that in appropriate cases the SAR courts do have jurisdiction to examine NPC laws and acts that affect the region. Thus, this view is not maintained in the form stated by the person who stated it.

2. In the ROA Cases themselves, according to the CFA opinion, counsel for the HK government did not maintain the above position, and accepted that the SAR courts have the jurisdiction to examine acts of the NPC and the NPC Standing Committee for inconsistency with the Basic Law, and that Ma Wai Kwan was wrong to the extent it held otherwise.

3. The CFA in its opinion on the ROA Cases specifically and unequivocally renounced the above proposition as "wrong".

Thus, the above proposition simply has no standing any more as a statement of Hong Kong law. (Spoken confidently but ignorantly as a non-specialist in HK law; someone please correct me if I'm wrong.)

Don Clarke

University of Washington School of Law

From: Graham Brown <austlaw@eastnet.com.cn>
Subject: Re: Hong Kong Court of Final Appeal
Date: Mon, 08 Feb 1999 12:24:22 +0800

The decision of the FCA, as has been suggested, is a hot topic in China, with official media referring to parts of it as a "challenge" to the central government. It is impossible to predict the future impact of this particular decision, but it has highlighted some legal difficulties inherent in the "one country two systems approach". The Chinese government, and legal scholars, perhaps for the first time, have been confronted with an independent "domestic" judiciary that clearly states that it has the power to review government instruments and actions according to the constitution. (In this case the Basic Law).

It is not surprising that there is a level of discomfort about the FCA decision in some Chinese and Hong Kong circles because this judgement clearly contrasts the position of the Chinese constitution which cannot be pleaded (as I understand it) in any Chinese court. In that sense, the decision raises issues that the central government, and its drafting committee, may not have foreseen.

The idea that the body that drafted a law is more likely to know its intent than an outsider only looks strange to a common lawyer. Our particular system has cast a particular and special role upon the judiciary: the interpretation of statute law, and when necessary striking down instruments of government to the extent that they contravene the law. It happens at the federal constitutional level and the state level (in a federation) and it also happens at the level of individual laws that conflict with one another. It is a procedure that we are familiar and comfortable with.

But it is not the case in China. Frequently it is the body charged with administering the law that is given the day to day responsibility for interpretation. Some of these interpretations can be subject to administrative review. There is no mechanism to test any Chinese law for constitutional validity in the Chinese courts.

So far, the official response appears to be cautionary, sending a message of discomfort and disapproval to Hong Kong and for domestic consumption. On this occasion it may not go any further than that. Official action will be the true measure of the discomfort felt at higher levels.

Governments around the world are lending support to China's stated aim of improving and strengthening its legal system. The official response to the FCA case will be an insight into the likely scope for the success of these initiatives.

Graham Brown

Faculty of Law

University of Newcastle

Australia

austlaw@eastnet.com.cn

From: "Donald Clarke" <dclarke@u.washington.edu>

Subject: Re: Hong Kong Court of Final Appeal

Date: Sun, 7 Feb 1999 22:51:05 -0800

Exactly -- and the interesting thing is that the controversy arises from the fact that the HK courts have taken the NPC and its institutional role _seriously_ in a way that perhaps nobody in the Chinese leadership foresaw or intended. Far from infringing on the powers of the NPC, the CFA decision _upholds_ the institutional supremacy of the NPC. It was the NPC that passed the Basic Law; it was the NPC, not anybody in Hong Kong, that chose to insert the provision stating that children of HK permanent residents had a "right of abode" in Hong Kong. The HK government's position was that "right of abode" didn't really mean right of abode; it meant nothing more than what the HK government might want it to mean (the relevant Provisional Legislative Council legislation says that people who don't qualify under HK regulations "shall be regarded as not enjoying the right of abode in Hong Kong"). The CFA said, in effect: let's assume the NPC really meant what it said and that statutorily-granted rights in Chinese law aren't just meaningless window dressing intended to dupe the credulous. If the NPC tells us to give these people a right of abode, we'll give it to them, and the HK government can't take away rights granted by the NPC. This seems to me to be completely in accord with the most orthodox of PRC interpretations of the status of NPC legislation. I don't think you will find PRC legal scholars who will say that the State Council, much less the HKSAR government, has the power to nullify NPC legislation such as the Basic Law, and that's what the HK government was doing, in the CFA's view.

Don Clarke

University of Washington School of Law

From: "MC Davis" <mcdavis@cuhk.edu.hk>
Subject: Re: Hong Kong Court of Final Appeal
Date: Mon, 08 Feb 1999 08:49:20 +0800

I would say the reasoning offered by Donald … pretty much captures it.

There has been lurking behind this reported "mainland legal scholars" criticism a view that has more than once raised its ugly head; this is the view of some former Basic Law drafters that their opinion on what the Basic Law requires should carry special weight. Certain key mainland drafters and several in Hong Kong who have been especially close to the mainland position on historical conflicts have been known to come forth with their "inside" view at critical moments. This runs contrary to the Hong Kong view that it is for the courts to interpret the law.

This problem is now compounded by the fact that several of the commentators expressing such contrarian views in Hong Kong are also on the Basic Law Committee. This is the committee which would be called upon to advise the NPC if a matter is ever referred for interpretation. Reading the views of Basic Law Committee members in the newspapers hardly aims to instill confidence in a judicious approach by that committee.

mike davis

From: Xi Zhang <xzhang@Mail.Sparkice.COM.CN>
Subject: Re: Hong Kong Court of Final Appeal
Date: Tue, 09 Feb 1999 02:49:39 +0800

In my opinion, what causes Central Government angry is not either there'll be more population flowing towards Hong Kong or FAR strikes down several clauses of the ordinances passed by Provisional Legislative Council, but that FAR acclaims that it has judicial power to declare a statute passed by NPC or Standing Committee "unconstitutional" if the court, not NPC or Standing Committee, finds it has "violated" the Basic Law.

In Central Government's view, no doubt HK courts can interpret Basic Law and it may interpret in any tone as it likes, provided on that the "sovereignty issues" the Standing Committee and Basic Law Committee should be first consulted. But it never should go out to reach so far as to let HK courts declare unconstitutionality of NPC's legislative product. "Your honorable justices may rectify your adobe policy, may neglect Mainland Public Security Bureau's procedural rules by granting adobe rights to illegal sneakers, may (and should) safeguard the supreme authority of Basic Law in HKSAR. But, your honorable, do not touch the Supreme Sovereignty of National People's Congress and do not forget who that preserve an Art.31 in PRC Constitution which is the legal source of HKSAR. " I guess this is what the Mainland scholars keep in mind.

Obviously, the Interpretation Power has become an uncontrolled weapon in FAR's hands, this is what NPC doesn't expect when drafting Basic Law. To say that FAR just carries out what NPC intended it to be, I consider that "the thing" that to be carried out is not the terms of "adobe" or any word else in this Basic Law, but an answer to the underlying principle of Basic Law: who has power to reconcile a legal conflict between Basic Law and other National level law?

I agree with LING Bing that maybe it's not appropriate occasion for FAR "unequivocally" declared that it could challenge the validity of statutes of NPC. This is unnecessary in this Adobe case. What the court really needs to do is just nullify some ordinance clauses promulgated by HKSAR Provisional Legislative Council and Immigrant Director. I think the court chooses a wrong chance to speak out this "should be" vested judicial power because Adobe Rights case will make many HK people feel uneasy. People are fear of hosting too many persons within a small island. Central Government may utilize HK people's feelings to denounce FAR.

Xi Zhang

Dept.of Law, Peking University

From: "Frank S. Hong" <fh8335@law.miami.edu>

Subject: HK FCA case--a larger picture

Date: Mon, 8 Feb 1999 16:46:55 -0800

Friends:

Take a step back and put aside technical opinions on the merit of the HK FAC case, here is the larger picture we should consider: in the LONG run, how can an institution of constitutional judicial review survive in China?

Obviously, I have no answer. But here are some points. In 1950's, the highly competent South Africa courts struck down laws passed by the parliament, but it did not take too long for the Courts to keep quite.

See C. F. Forsyth, Danger for their talents: A study of the Appellate Division of the Supreme Court of South Africa from 1950-1980. (1985)

In post-communist Hungary, the newly installed Constitutional Court attempted to stand up against small landholders-backed land compensation law on constitutional grounds, but after initial (modest) success, the Court backed off, in spite of that the majority of the public at large support the Court's opinion.

See e.g. E. Klingsberg, Contextualizing the Calculus of Consent: Judicial Review of Legislative Wealth Transfers in a transition to Democracy and Beyond, 27 Cornell Int'l L. Journal. 303, (1994).

I myself argued in an unpublished paper that the viability of constitutional judicial review lies in a robust civil society.

Regardless the fate of this right-to-abode case, be prepared that having a constitutional review in China, assuming it is desirable, may take several rounds of "fight". More generally, I won't be discouraged by any immediate down turn of the constitutional "movement" in China. BTW, somewhere I read that the Legislative Affairs Committee once considered to devise a mechanism so that the NPC Standing Committee can review the constitutionality of laws. This kind of arrangement is adopted in some European countries.

Thanks for reading.

Frank Hong

Univ. of Miami School of Law

From: "MC Davis" <mcdavis@cuhk.edu.hk>
Subject: Re: Hong Kong Court of Final Appeal
Date: Tue, 09 Feb 1999 09:16:16 +0800

The problem with the criticism coming from China is that the CFA, in declaring its power to review acts of the NPC for consistency with the Basic Law, is doing precisely what the NPC has instructed. The NPC has provided that the Basic Law can only be amended by the processes specified in the Basic Law. Further, as noted by the CFA, the Basic Law cannot be amended in a way that would bring it into conflict with the basic policies articulated in the Joint Declaration. This latter requirement is actually specified in Article 159 (4) of the Basic Law and stipulated by Article 3(12) of the Joint Declaration. Unless these mainland scholars and now officials are arguing that China can unilaterally ignore the Joint Declaration or that they can amend the Basic Law without regard to its procedures then they would have to agree that the Court must uphold the Basic Law even in the face of contrary NPC legislation (other than a proper amendment of the Joint Declaration). The CFA properly reached the conclusion that the act of the Sovereign, embodied in the NPC legislation we call the Basic Law required this much of it. In the actual right of abode case the only NPC act which it consider was the act creating the Provisional Legislature. It upheld the legality of the Provisional Legislature. (The mainland regulatory regime for exit permits was not, on my reading, before the court, as the CFA was only considering whether the HK legislation requiring such permits was constitutional). So the court only acted to uphold a mainland act, only overturning local HK legislation. Unless the mainland government is prepared to argue that it can amend the Basic Law without regard to its stated requirements and its treaty obligations then they have nothing to complain about vis a vis the CFA and the NPC. This hardly warrants the extreme response to "change" the courts opinion that would flow from mainland interference. Such interference would undermined confidence in the rule of law in HK.

From: lin feng <LWLIN@cityu.edu.hk>
Subject: Re: Hong Kong Court of Final Appeal
Date: Tue, 09 Feb 1999 10:03:14 +0800

At the center of legal argument is not about right of abode. I don't think that any serious scholars, including Chinese scholars from mainland, are arguing that they don't have the right of abode. What is controversial is whether the Court of Final Appeal has the authority to decide whether any other legislation made by the NPC or its Standing Committee is in contradiction with the Basic Law. It is a constitutional issue, which shows the contrast and difference in common law system and Chinese legal system about the authority of statutory interpretation. That is an issue worthy of further study.

From: "Donald Clarke" <dclarke@u.washington.edu>
Subject: Right of Abode Cases
Date: Tue, 9 Feb 1999 08:14:23 -0800

Daniel Fung (former Solicitor-General of Hong Kong and a future Chinese Law Net subscriber) has kindly permitted me to pass on his comments to the list:

Of the many interesting academic comments on the case - understandably a source of fascination, since how often does a Chinese court undergo a Marbury v. Madison epiphany? - by far the most perspicacious, to my mind, is Bing Ling's (City U) which I endorse and expand on as follows:-

1. The HKSAR Government allowed the question of the ability of the SAR courts to review national legislation to be determined by default since it never attempted to defend (see counsel's concession) the position already secured in HKSAR v. David Ma, viz. that HKSAR courts, whilst undoubtedly competent to review the vires of Hong Kong legislation for compatibility with the Basic Law, are in no position to determine the constitutionality of national legislation by reason of at least two structural constraints, namely:-

(a) Whichever be the organs vested with authority under Chinese law (NPC,NPCSC?) to determine the constitutionality of national legislation vis-a-vis the Chinese Constitution, it is clearly not the HKSAR courts, given the latter's status as special regional courts.

(b) Accepting the primacy of the Chinese Constitution (to which the Basic Law is subordinate) as the grundnorm of the sovereign state of the PRC of which the HKSAR forms an integral part, it is difficult to see how the Basic Law which is, after all, national legislation promulgated by the NPC on April 4th 1990 could be elevated into a general yardstick by which to measure the legality of other national legislation which is, under Chinese constitutional theory, co-equal in status.

2. Put another way, the issue of the supremacy of the Chinese Constitution over the Hong Kong Basic Law was never fully ventilated in argument by counsel before the CFA wherefore that part of the decision of the CFA was arrived at, arguably, per incuriam.

3. In any event, the issue of the power, if any, of the HKSAR courts to determine the constitutionality of national legislation is at best tangential but, more realistically, irrelevant to a proper determination of the primary issue in the case, namely, whether the applicants have a right of abode in Hong Kong and whether the provisions of Hong Kong Immigration Ordinance conflict with BL 24. Accordingly, that part of the CFA decision was obiter dictum.

4. Given the above, the decision was correctly characterized by Bing Ling as "overly ambitious" and compounded by the stridency of the language used by the CFA which is clearly not intended to smooth over anticipated ruffled feathers.

5. The net result is a 'queering' of the Chinese constitutional pitch (to borrow a English cricketing metaphor) with the real drama yet to unfold - apart from academic, political and media noises, one can expect a reaction from the usual pantheon of Mainland legal authorities involved in the drafting of the Basic Law - Xiao Weiyun, Shao Tianren, Wu Jianfan and Xu Chongde as well as, more significantly, a possible exercise in interpretation by the NPCSC after consultation with the Basic Law Committee.

From: "MC Davis" <mcdavis@cuhk.edu.hk>
Subject: FW: Hong Kong Court of Final Appeal
Date: Wed, 10 Feb 1999 09:19:38 +0800

The mainland criticism articulated in this case seems to be that the CFA is putting itself above the NPC. There is a worrying implication that the NPC might do what it likes without regard to the Basic Law. The problem with this criticism is that the CFA, in declaring its power to review acts of the NPC for consistency with the Basic Law, is doing precisely what the NPC has instructed. It is essentially just applying the law as required by the Basic Law. The NPC has provided that the Basic Law can only be amended by the processes specified in the Basic Law (and not by ordinary acts of the NPC). Further, as noted by the CFA, the Basic Law cannot be amended in a way that would bring it into conflict with the basic policies articulated in the Joint Declaration. This latter requirement is actually specified in Article 159 (4) of the Basic Law and stipulated by Article 3(12) of the Joint Declaration.

Unless these mainland scholars, and now officials, are arguing that China can unilaterally ignore the Joint Declaration or that they can amend the Basic Law without regard to its procedures then they would have to agree that the Court must uphold the Basic Law even in the face of contrary NPC legislation (other than a proper amendment of the Basic Law). The CFA properly reached the conclusion that the act of the sovereign, embodied in the NPC legislation we call the Basic Law required this much of it. It did not claim the power to overturn NPC legislation but merely indicated the proper path for applying any NPC acts which purport to effect the HKSAR and only with regard to the HKSAR.

In the actual right of abode case the only NPC action which it considered (and seemingly not of necessity) was the act creating the Provisional Legislature. It upheld the legality of the Provisional Legislature. (The mainland regulatory regime for exit permits was not, on my reading, before the court, as the CFA was only considering whether the HK legislation requiring such permits was constitutional). So the court only acted to uphold an NPC act and only overturned local HK legislation. In the latter regard, it should be remembered that it was the NPC, supported by the Basic Law Committee, which enacted the right of abode provision which the court upheld. Article 24 (3) rather unambiguously says children of HK residence, as specified in Article 24 (1) and (2), are HK residence. Unless the mainland government is prepared to argue that it can amend the Basic Law without regard to its stated requirements and its treaty obligations then they have nothing to complain about vis a vis the CFA and the NPC.

This hardly warrants the extreme response for the NPC or the central government to "change the courts opinion". There is no legal mechanism for the NPC to overrule the CFA since there has been no referral as required in the Basic Law. Any unilateral NPC action to do so would undermine confidence in the rule of law in HK and the promised independence and finality of the courts. The right of abode case has firmly secured a judicial commitment to the rule of law in HK. Unilateral action in Beijing to undermine the courts further ability to uphold the Basic Law would be a disaster for HK. The very narrow gap the court raises in orbiter dicta in this case for considering the legal effect of NPC acts outside the Basic Law clearly does not warrant such a reckless response. The wiser course would be for the NPC to take note of the opinion and then insure the proper Basic Law procedures, that flow from it, are followed in regard to any future enactments regarding HK. It is clearly in the NPC's interest to follow the proper procedures it has outlined in the Basic Law.

From: perry keller <perry.keller@kcl.ac.uk>
Subject: Re: FW: Hong Kong Court of Final Appeal
Date: Wed, 10 Feb 1999 12:52:55 +0000 ()

Apologies for wading into this rather long running discussion. However, I think it ought to be said that the 'Hong Kong' argument that the Court is merely following the letter of the Hong Kong Basic Law, while plausible in a formal legal way, deliberately ignores the radical differences in legal culture and practices that exist between the rest of China and the S.A.R.

Most laws adopted by the full NPC are basic laws (jiben falu) and, from the perspective of many in the NPC, the Hong Kong Basic Law is not constitutionally different from any other NPC basic law. Why should it be exempted from the legislative practices which prevail in China, such as the informal re-interpretation or even amendment of NPC law through the issue of State Council administrative regulations (or other methods used to set aside the provisions of NPC laws which are no longer thought to be appropriate)?

The CFA has stumbled rather deeply into the political and legislative uncertainties at the heart of China's legal order. They have necessarily attempted to find a legal explanation for what is essentially a politically directed constitutional and legislative system. The Court's decision could not encompass the fact that regardless of what the Constitution and the laws of the NPC may appear say it is, at the end of the day, the Party leadership which decides what the laws mean and how they are to be implemented. They, a mere judicial body, have presumed to take on the power to tell China's leaders what the most fundamental laws of the country mean and this will be intolerable for many in Beijing.

Clearly the authorities in Hong Kong must fight their corner, but they will have the fight of their lives if they hope to sustain the argument that the laws of the NPC (other than perhaps the Hong Kong Basic Law) are to be taken at face value.

Perry Keller

Lecturer in Law

School of Law

King's College, London

From: "MC Davis" <mcdavis@cuhk.edu.hk>
Subject: Re: Hong Kong Court of Final Appeal
Date: Thu, 11 Feb 1999 09:09:29 +0800

One must acknowledge that these differences in what we may call the habits of legality do mark the two systems. But one should question whether they are as insurmountable as this account suggest. Even Chinese Basic Law drafters/legal scholars have usually not taken the argument this far. I would think that the mainland drafters who made the recent comments would acknowledge that there are two very different systems and that the Basic Law aims to protect the separate one in HK--one country, two systems. The same people would also acknowledge that the Basic Law requires that the common law and its methods of legal interpretation prevail in HK. It would be difficult for HK judges who are not trained in the mainland legal system to carry out their interpretation duties otherwise. The Basic Law's status as a constitution for HK is also not contested. Xiao Weiyun has made this point before.

I would doubt that mainland officials or these drafters would argue that they could amend the Basic Law without regard to its specifications in this regard. Of course, the basic policies in Joint Declaration would be problematic for anyone aiming to simply ignore these aspects. One suspects Chinese officials would also take exception to the view that party leaders can simply do whatever they please in HK. They have invested far too much of their political capital and several years of effort toward convincing the world that the rule of law will prevail in HK and that the integrity of the HK system, as spelled out in the Basic Law, will be maintained. But the discussion below does highlight that these are the distinct differences in habits of legality in HK and China. One should take the point that such differences will be the source of conflict and different perceptions. On this point I once titled a book "Constitutional Confrontation in HK." As the last paragraph rightly suggests however, HK legal actors have to defend their corner. In the context of the above noted project and the noted tensions it would inexcusable for any judge or lawyer, much less the CFA, to fail to carry out what the Basic Law provides. In this context the only sensible course is to treat it as a legal/constitutional document which clearly requires what it says. If at the end of the day, China does not uphold it on such terms (choosing instead the mainland approach noted in the comment) then the HK version of the rule of law would be undermined, to the detriment of both sides. So far this has not happened and the HK actors involved will likely remained committed to the project. For those involved here failing to take these various commitments seriously and surrendering to a mainland conception of legality is really not a option.

mike davis

From: "Frank S. Hong" <fh8335@law.miami.edu>
Subject: HK Case: flawed reasoning
Date: Thu, 11 Feb 1999 19:50:14 -0500 (EST)

Friends:

I would like to argue (tentatively) that the court's reasoning on "constitutional jurisdiction of the courts" (page18/43) is flawed.

Notice that the Court discussed Constitutional jurisdiction before discussing "approach to interpretations of basic Law". This indicates that the Court finds its constitutional jurisdiction on some extra-basic law grounds. In fact, that is what the Court did. Basic law, if my reading is correct, does not provide constitutional review power to any court. Basic law and Chinese constitution provide which body interpret laws; but the Court failed to appreciate that power to interpret law is DIFFERENT from constitutional judicial review power, which seems to be a concept nowhere to be found in Chinese system. Any legal system needs interpretation of laws, but striking down a law on the ground of inconsistency with constitution is quite an extraordinary measure; in fact, even in the States judicial review is still subject to critique under the rubric of "anti-majoritarian difficulty".

The Court failed to reason why the silence of constitutional review power necessarily mean the Court has to have such power. The Court was aware of that in pre 1997 HK, there was no such judicial review power. But it merely brush aside the issue by saying: true, no such power in old colonial days; now it is new order, we'll have the power. This reasoning is flawed. The converse may be right, given the Art 19(2) mandated retaining of old judicial system. That is to say, if in pre-1997 HK, there was such constitutional review power, the NPC or the HK government bears the burden to argue that given art. 19(2) and the silence on constitutional review power in the Basic law, the review power shall not be retained.

The Court, in my opinion, declared but not reasoned the existence of such power out of silence in Basic law.

Once again, this is just some tentative observation.

Frank Hong

From: "MC Davis" <mcdavis@cuhk.edu.hk>
Subject: Re: HK Case: flawed erasing, Ng Ka Ling Forum
Date: Fri, 12 Feb 1999 11:35:15 +0800

This argument is an old one that might be taken up with John Marshall (if he were still around to handle it). The US constitution was similarly lacking such express power when Marbury was decided. While constitutional judicial review (CJR) has become fairly commonplace now, it was certainly more extraordinary when John Marshall found it. The logic of a common law court confronting a statute in conflict with a higher constitutional requirement (or other higher law, as was the case in various colonies when local law confronted acts of Parliament in London) is now familiar and need not be rehearsed.

On the specifics of HK, it is true that HK had practically not had any cases of CJR before 1991, the bill of rights enactment (and its incorporation in the then constitution the Letters Patent) changed all of that. Numerous review cases arose under the Bill of Rights. The now stricken Bill of rights provisions on priority were not really necessary to this outcome, again because of the priority of laws problem confronted long ago by Marshall. Prior to the enactment of a Bill of Rights or later rights guarantees in a Basic Law one would not expect much incentive to attack laws for constitutional deficiency. While mainland officials have not been involved in local HK litigation since the handover (nor should they), both the government and human rights advocates, as well as judges at all levels, have accepted that the courts have the power to review local legislation. This brought us to the recent concern whether it might extend in some peculiar ways to NPC acts, now already much debated here.

From: "Frank S. Hong" <fh8335@law.miami.edu>
Subject: HK case: CJR as political choice
Date: Fri, 12 Feb 1999 00:58:02 -0500 (EST)

Friends:

I'd like to address some points raised by Davis.

> While constitutional judicial review (CJR) has become fairly commonplace now, it was certainly more extraordinary when John Marshall found it.

Basically I agree with this point. Since John Marshall is mentioned, let me just add: In Marbury, the political struggle at the time contributed to the finding of CJR (constitutional judicial review) more than whatever logic inherent in law. For an non-traditional interpretation of Marshall's role in Marbury, see J. O'Fallor, Marbury, 44 Stan. L. Rev. 219 (1992). This political view of CJR is clearly instructive in the right to abode case.

> The logic of a common law court confronting a statute in conflict with a higher constitutional requirement (or other higher law, as was the case in various colonies when local law confronted acts of Parliament in London) is now familiar and need not be rehearsed.

I am not sure what logic you refer to. I am sure justifications for CJR can always be found; but any talk of inherent logic or necessity of CJR cries for arguments.

> While mainland officials have not been involved in local HK litigation since the handover (nor should they), both the government and human rights advocates, as well as judges at all levels, have accepted that the courts have the power to review local legislation. This brought us to the recent concern whether it might extend in some peculiar ways to NPC acts, now already much debated here.

I'd like to argue that adopting CJR normally is a deliberative political choice which typically occurs in a homogeneous political community. What makes the current case unique and intriguing is that it cross the line between two separate political communities. One friend commented earlier in the clnet that the opinion cut into the heart of the legal/political order of China. That is exactly right observation. Moreover, the cut was from without (take mainland-centric view) and from below(consider traditional Chinese conception of rank, hierarchy, and Confucian "correction of names" etc.) Who would expect CJR visit China this way?

So much for now. Thanks.

Frank Hong

Univ. of Miami School of Law

From: Graham Brown <austlaw@eastnet.com.cn>
Subject: CJR as political choice
Date: Fri, 12 Feb 1999 15:28:08 +0800

While our debate continues, it seems that the Chinese central government has decided to adopt more moderate language in its statements about this case. Whether this can be attributed to legal advice, political necessity, or both is not clear.

It seems to me that the validity of any law is a prerequisite to its interpretation. Where we are considering a potential conflict of laws, the validity of each is a prerequisite to determining if a conflict exists. What follows the finding of conflict depends upon the particular legal system, but frequently the "inferior" law is found to be invalid to the extent of the inconsistency.

The cultural matters referred to are very real from the Chinese perspective, but they must be looked at in the light of the repeated statements from government leaders and lawyers about the rule of law (rule by law?) and strengthening the legal system. China itself is talking about moving from its traditional position. Not yet at the constitutional level, but it must follow if rule of law (or a reasonable facsimile) is to eventuate.

Another factor that has not been mentioned at all is the acknowledgement by many Chinese legal scholars that there is a need for a "Constitutional Court" to take on the role undertaken by the superior courts in many countries. As I understand it the review body has to be created outside the court system to avoid conflict with the original decision that excluded pleading the constitution as a defence in court matters. The fact that there has been discussion about this at scholarly meetings and committees supports the view that while change may not be imminent, it cannot be ruled out.

In the long run, the Chinese government and legal scholars may welcome the current case as proof that one country two systems can work, despite the clash of culture that is the underlying cause of the present controversy. If the Chinese government is to take action, I would expect it to do so in the face of a clear cut legal challenge to its authority. The present ruling is from a senior court, but is obiter dicta - to that extent the challenge is apparent not real.

That may explain the more moderate language now being used.

Graham Brown

Faculty of Law

University of Newcastle

Australia

austlaw@eastnet.com.cn

From: michael dardzinski <michael.dardzinski@yale.edu>
Subject: Re: HK case: CJR as political choice
Date: Thu, 11 Feb 1999 02:54:47 -0500

I am responding to the following two points of Frank Hong's response to Mike Davis.

1. (Mike Davis) in local HK litigation since the handover (nor should they), both the government and human rights advocates, as well as judges at all levels, have accepted that the courts have the power to review local legislation. This brought us to the recent concern whether it might extend in some peculiar ways to NPC acts, now already much debated here.

>

(Frank Hong) I'd like to argue that adopting CJR normally is a deliberative political choice which typically occurs in a homogeneous political community. What makes the current case unique and intriguing is that it cross the line between two separate political communities. One friend commented earlier in the clnet that the opinion cut into the heart of the legal/political order of China. That is exactly right observation. Moreover, the cut was from without (take mainland-centric view) and from below(consider traditional Chinese conception of rank, hierarchy, and Confucian "correction of names" etc.) Who would expect CJR visit China this way?

First, I doubt that many of the countries or legal regimes that have adopted or transplanted CJR into their post-WWII legal orders have been either as deliberative as one would expect or as homogenous as late 18th century America. This is a complicated issue and probably admits to no easy resolution when the variety of contexts and regimes are taken into account. Second, while the context of this case is interesting for the reasons Frank suggests, in fact, many people, both on the mainland and abroad, have been anticipating that these types of questions would naturally begin to develop during the post-transition period in HK. [ I would suggest that Taiwan's experience with CJR can be and probably is relevant to this discussion.] I would also argue that regardless of how this or other similar questions are ultimately resolved, the dynamic that is put into play (as evidenced in the very least by what I must say has been the best discussion of Chinese legal developments I have seen on CLNET since I subscribed) is a positive force advancing legal reform, development and sophistication in China.

2. (Mike Davis)The logic of a common law court confronting a statute in conflict with a higher constitutional requirement (or other higher law, as was the case in various colonies when local law confronted acts of Parliament in London) is now familiar and need not be rehearsed.

> (Frank Hong) I am not sure what logic you refer to. I am sure justifications for CJR can always be found; but any talk of inherent logic or necessity of CJR cries for arguments.

>

I agree with Frank's focus on the need to develop justifiable arguments for CJR in the Chinese context. I also hope that we do not limit this discussion of CJR in China in a way that prevents discussion of potential hybrid-CJR regimes. ( I for one hope to see some new sort of CJR-hybrid development in China.) I find that we too often assume China must have "our" system or some "other" already identified system. The Chinese are constructing a system that is unique to their country and situation and it is interesting too many. I would hope we would expect that construction of a legal system with "Chinese characteristics" will continue to be unique and that we should help not to pigeonhole its development or our discussion of its development into pre-set categories.

It seems to me that some arguments for CJR are more compelling in the late 20th century Chinese context than they were in the late 18th century American context or in post-WWII Europe, Japan, S. America etc. One quick justification could be the heightened need to have a secure sense that the current government is limited in its power (the demand for this in HK is obvious and well-documented). Thus, the courts, as they are functionally more separated from the other active and operational arms of the government, become one, not the only, effective means of guarding against constitutional incursions. Another justification might be a desire to create a more dynamic arena for the divergent interests within Chinese society to voice their concerns. The development of CJR would expand the arenas of crucial public debate in China, which might, in and of itself, add some measure of support for a government that is in constant search of legitimacy, both abroad and at home. [Again, I would suggest that the example of Taiwan might be useful on this point.]

From: "Frank S. Hong" <fh8335@law.miami.edu>
Subject: Re: political choice (II)
Date: Fri, 12 Feb 1999 09:01:58 -0500 (EST)

Friends:

I did not make the following point more explicit in my previous message. That is, when Davis said Marshall "found" CJR in Marbury case, I want to point out that very "found" implies there is an inherent logic of CJR for any constitutional system. I am not ready to accept that notion. That is why I argue CJR as political choice. The empirical data on CJR suggests the "deliberative political choice" view. But my empirical observation limits to post-W.W.II (in light of Nazi positivism) Europe and Post-1990 Eastern Europe such as Poland, Hungary and Russia. Most telling is that Yeltsin disbanded Russian Constitutional Court, which took wrong side in the coupe (do not quote me on this; just some memory) but kept the Constitutional Court institution. (i.e. changed personnel). That is a political conviction on the need of CJR.

For China's possible Constitutional Court, I am worried about the difficulty for the whole social/political order to adjust with the mandate of constitution. Because, as the current case demonstrated, constitutional mandate is often at odds with utilitarian calculation (e.g. 5% population increase overnight argument) and popular will (plenty American examples). In the current stage of reform, a lot of utilitarian policy may have to prevail whatever rights argument or equal protection argument. Again, this is political choice.

Why did I emphasize the premise of homogenous political body for CJR? The argument is inspired by the observation that International Court of Justice (ICJ) does not have power to review Security Council's decision on the ground of the UN Charter. (Of course, Security Council is no legislative body; and the structure of UN is not exactly an analogue of constitutional system).But the very inappropriateness of ICJ Charter-based review suggests that some premise is needed for CJR. That is a democracy and a conviction that popular-will based legislation needs to checked by higher norm. Whatever democracy China and HK has respectively, there is no homogeneity shared by the two; that is what I meant by "cross the line" by the current case. The conviction to have CJR has to come from the within of a discrete political community. This does not rule out that the HK case ignites internal debate within mainland on CJR, which may turn into some political conviction on CJR either way. Thanks.

Frank

From: LING Bing <LWBING@cityu.edu.hk>
Subject: Re: Hong Kong Court of Final Appeal
Date: Fri, 12 Feb 1999 22:46:39 +0800

A speculative observation on the possible impact of the CFA judgment on the evolution of a constitutional review/supersion mechanism in PRC. I doubt very much that it is not totally wishful thinking to say the Ng Ka Ling will turn out to be a positive contribution in the short- and medium- term to China's evolution of that mechanism. A constitutional implementation mechanism (judicial or quasi-judicial review) has been discussed by Chinese scholars for a long time. The four scholars who attacked the CFA judgment (or at least some of them) are certainly familiar with that debate in China. I, for one, would be very much intrigued to see the reaction of mainland scholars if the CFA should assert jurisdiction to review the compatibility between NPC acts and the national Constitution (rather than the Basic Law) Now that the CFA declared that NPC acts incompatible with the Basic Law are null and void (frankly I am having lots of difficulty in understanding why so many people seem to have no difficulty in accepting the Court's assertion that national laws, perfectly constitutional otherwise, that contradict the Basic Law are null and void), I can imagine that a possible (if not probable) reaction from the mainland leaders (if not scholars) would be: So judicial review means that three Hong Kong judges (CFA uses a panel of 5 judges), who may all be foreigners, can strike down our NPC laws. Now when I re-read Professor Xu Chongde (who, for those of you who do not know him, is in fact a liberal-minded person of his generation)'s statement, to the effect that CFA must bear "historical responsibility" for the judgment, I am not sure if he was not referring to the probable backlash Ng Ka Ling will deliver to the efforts by Chinese scholars to push for the creation for a constitutional implementation system in China.

Just some speculative observations.

Bing LING

School of Law Telephone: (852)2788-7670

City University of Hong Kong FAX: (852)2788-7847

83 Tat Chee Avenue E-mail: lwbing@cityu.edu.hk

Kowloon, Hong Kong

From: "Frank S. Hong" <fh8335@law.miami.edu>
Subject: CJR-Structural view. Ng Ka Ling Forum
Date: Sat, 13 Feb 1999 13:18:28 -0500 (EST)

Friends:

I am responding to Michael's following point:

> I also hope that we do not limit this discussion of CJR in China in a way that prevents discussion of potential hybrid-CJR regimes. ( I for one hope to see some new sort of CJR-hybrid development in China.) The Chinese are constructing a system that is unique to their country and situation and it is interesting too many. I would hope we would expect that construction of a legal system with "Chinese characteristics" will continue to be unique and that we should

This reminds me that in my opinion, we need consider the "correlation" between the easiness of Constitutional Amendment and the value of CJR. CJR is just to bend the contemporary popular will in order to conform with higher norm. (Oversimplification conceded) The harder the higher norm( here Constitution) is to be changed, the more significant CJR is. Because, if Constitution can be easily modified, why bother CJR to frustrate popular will? In other words, CJR can be canceled out by constitutional amendment. In US, CJR is so significant is because even a ordinary legislation can not be easily passed by Congress, Consensus for Con amendment is clearly much more difficult. Thus, CJR can end the dispute, for most of cases, hence CJR matters. Again, this point reminds that CJR has no inherent contextless value. It should be viewed in structure/context. This echoes Michael's point on Chinese characteristic CJR, if any. The larger point is how the legal transplant to China works while the overall legal/political structure is/will be/should be very Chinese. [the point indebted to a Yale trained Chinese legal scholar's (Feng Xiang? in HK?) comments on the Chinese movie "Qiu Ju Da Guan Si" (Qiu Ju's suit) from the perspective of the conflict of Chinese notion of justice vs. modern legality.]

For friends familiar with US CJR, I'd like to know if a State Court can strike down a Fed law on the ground of violating state Constitution. I do not recall examples. On the one hand, it is conceivable that a fed law violates state Constitution; On the other hand, if state Court can kill Fed law, how a patchwork of Fed law accomplish its national mission? There must be mechanism on this matter. Some one please educate me on this.

Frank Hong

Univ. of Miami

School of Law

From: "Donald Clarke" <dclarke@u.washington.edu>
Subject: Re: CJR-Structural view. Ng Ka Ling Forum
Date: Sat, 13 Feb 1999 12:10:31 -0800

>For friends familiar with US CJR, I'd like to know if a State Court can strike down a Fed law on the ground of violating state Constitution.

The answer to this question is a legitimate part of this discussion, I think, because it bears on a misstatement of the CFA. The CFA said that because the Basic Law was a constitution, therefore all conflicting laws must be invalid to the extent of the conflict. This is inaccurate for a few reasons, but for our purposes I will raise only one: at most, only conflicting laws PROMULGATED UNDER THE AUTHORITY of that constitution are invalid. Obviously laws whose authority comes from elsewhere need not be, and therefore conflicting NPC laws are not, by this reasoning, demonstrated to be invalid. (Let us put to one side whether they might be invalid for another reason.)

The answer to the above question is No -- given the nature of constitutions at least in the US (i.e., laws _constituting_ a particular government, properly translated into Chinese perhaps as "goucheng fa" or "zuzhi fa"), it is not possible for a federal law to "violate" a state constitution. The state constitution sets forth what the state government can and cannot do. It is not a touchstone for judging the validity of laws whose authority stems from another source. Federal laws are justified (or not) in terms of the federal constitution. Congress either has the constitutional power to do what it's trying to do or it doesn't. State constitutions simply don't enter into the question.

Please note that this post addresses the issue only of what laws count. It doesn't address the issue of who gets to decide the meaning of those laws.

Don Clarke

From: "MC Davis" <mcdavis@cuhk.edu.hk>
Subject: Re: CJR-Structural view. Ng Ka Ling Forum
Date: Sun, 14 Feb 1999 09:30:52 +0800

This point appended below goes to why the local HK Bar and virtually all local constitutional scholars in HK have claimed that the central government has misunderstood the courts dicta on this point. While, as Donald points out below, it could have said it better, the court is essentially trying to decipher the relative importance of higher sources of law. China at the moment is not a federal system and therefore the relative status of US states vis a vis the national government is not sufficiently instructive. Rather than exercising constitutional review of NPC legislation under the Basic Law the court is essentially trying to prioritize NPC acts in light of the NPC's instructions in HK's fundamental constitutional document, the Basic Law. The Basic Law sets forth in some detail the various courses of action the NPC might follow in respect of HK. The local Bar and others are essentially taking the point that the court has declared in this dicta that it will use the Basic Law as its guide in interpreting the effects of any other NPC acts that purport to apply to HK. Essentially, the view is that in the Joint Declaration and the Basic Law the NPC has bound itself to follow this formula. The court imagines that it has to take these commitments seriously.

The big question to be considered now is what the NPC should do about this. The Secretary of Justice just returned from Beijing last night and claims that China has narrowed its concerns to the NPC point. Viewed even from China's own subjective concerns, I would suggest they do nothing further. The case is dicta on this point and therefore not binding law. Since the NPC is unlikely to completely ignore the JD/Basic Law formula in regard to HK it is questionable whether an actual case where the court would question the application of NPC's acts vis a vis HK will ever arise. The extraordinary acts taken at the handover were the only ones where such risk was high. Clearly, after all this furor, HK courts will tread very softly in this area. Given the damage to the promised independence and finality of the HK courts that would flow from any affirmative act to attack this opinion by the NPC, the cost of action clearly outweighs any subjective benefit the Central government may seek to advance.

mike davis

From: Graham Brown <austlaw@eastnet.com.cn>
Subject: Federalism has limited relevance
Date: Sun, 14 Feb 1999 17:03:41 +0800

I agree with Mike Davis' recent post. At the risk of oversimplification bordering on the trite, but also in an attempt to respond to Ling Bing's post I would like to make the following observations.

Federal constitutional jurisprudence can only be helpful to a point, and from the comments made by some contributors, is clearly misleading in the case under discussion. One view of a federation is a structure when sovereign states come together in a permanent union, but retaining some of their independent sovereignty. The power that the federal legislature has is typically granted to it by the agreement of the states. The constitution is largely directed to laying out the balance of legislative power between the federation and its constituent states.

I can speak most comfortably of the Australian constitution, but it has resonance's with the US constitution and other federal constitutions.

A typical state constitution gives the state legislature powers to "make laws for the peace order and good government of in all cases whatsoever".

The federal constitution provided that the federal legislature has powers to "make laws for the peace order and good government of with respect to:(list of specific heads of power).

All powers not expressly or impliedly given to the federal legislature remain with the individual states. There is no parallel in the relationship between Hong Kong and the NPC.

The relationship between Hong Kong and the NPC is more a case of delegated legislative authority within a unitary system of government. Hong Kong has only the powers granted to it by the NPC - it is not a "state". In that sense, the rules of statutory interpretation related to delegated legislation, together with constitutional principles, such as broad, rather than narrow construction are, I suggest a more appropriate framework for consideration.

The first point is, of course, that the delegating authority in the ordinary course is superior to the delegate. The NPC has superior legislative power and any attempt by the delegate to legislate beyond the granted power will be found to be of no effect.

In the ordinary course of events, the delegating authority can amend or repeal the enabling act at any time using the ordinary processes of the particular legislature. In our case the NPC. This is where the departure from the norm really is: the Basic Law is clearly constitutional in nature and has been entrenched with its own particular amendment mechanism. But it was enacted and entrenched with the full (and undisputed) legislative authority of the NPC and its constitutional nature must be regarded as expressing the will of the NPC.

To turn to the approach of the FCA

It is a common law court and should (and did) bring a common law perspective in its approach to the task before it. Anything less would not serve justice.

At the risk of being trite, interpretation of a statute is only necessary in case of ambiguity and the common law traditionally permits very few outside references in interpreting a statute (nothing to be gained by enumeration here). The obligation of the court is to determine the intention of the legislating body from the words of the statute. It is not to legislate, hence the "flood of immigrants" type of approach is inappropriate.

The drafters of a particular piece of legislation are not regarded as authorities on its intended meaning because the piece of legislation that emerges from the legislating body may be very different from that submitted by to it the drafters - it will have been subject to amendments at various stages. (I concede that this is not necessarily the case in the NPC, or in fact other legislatures). In many jurisdictions the drafter's opinion is one factor that can be taken into account by a court, but it is not conclusive.

It seems to me that when examining the basic law the FCA would be totally justified in coming to the following view: The basic law is a valid enactment of the NPC and it was made with all then existing NPC laws in mind. It follows that any pre-existing Chinese law in conflict with the basic law must be invalid in its effect on Hong Kong to the extent of the inconsistency because that is the manifest intention of the NPC. (In terms of common Law interpretation and as a matter of ordinary construction).

The NPC laid down, in the Basic Law, the process for its amendment. It follows that any subsequent enactment of the NPC that has the effect of amending the Basic Law by other means must be contrary to the express will of the NPC as manifest in the Basic Law (including that it could only be amended by following a certain procedure). To that extent, any subsequent enactment having the effect of amending the basic law could be regarded as invalid.

A really nice point would be raised if the subsequent NPC enactment was expressly stated to apply to Hong Kong :). In its obiter dicta, the FCA was not being disrespectful of the NPC - it was being particularly careful to pay it every respect in its interpretation of the Basic Law. That its interpretation was not popular will not come as a surprise to the bench - it is part of being an independent judiciary.

The comments regarding foreign judges are otiose. It is true a foreign majority may adopt a particular view in future cases - in the present case the judgement was unanimous.

Common law statutory interpretation is carried out with the full understanding that a legislature that disagrees with the interpretation of the court can amend the legislation to more explicitly reflect the legislature's intended meaning. This, rather than political pressure on the courts or individual judges is the appropriate response. It is, of course, entirely proper that the issues raised by a judgement should be a matter of public, preferably informed, discussion prior to any further legislative action.

I respectfully suggest that the cultural differences and misunderstandings were an important factor in the existence and growth of the controversy surrounding this case. It highlights the need for greater effort in imparting an understanding of the Chinese legal culture and common law principles to all those charged with making "one country two systems" work.

Graham Brown

Faculty of Law

University of Newcastle

Australia

austlaw@eastnet.com.cn

From: perry keller <perry.keller@kcl.ac.uk>
Subject: FCA Discussion: intersecting legal systems
Date: Sun, 14 Feb 1999 11:28:47 +0000 ()

I think we all appreciate the difficulties faced by the Court and the wider legal community in Hong Kong in attempting to preserve an autonomous legal system within the confines of the greater Chinese legal and political order. Faced with the significant ambiguities that surround the NPC legislative process (e.g. the interpretation of NPC law), it may seem sensible to fix one's focus on the HK Basic Law and try to resolve questions about the relationship of the two legal systems exclusively through a common law based interpretation of that instrument.

There are, however, some difficulties in taking an overly rigid or hermetic view of the central government's constitutional and legislative practices. To argue, for example, that the NPC has bound itself to the amendment procedures set out in the Hong Kong Basic Law is to impose a 'manner and form' doctrine of constitutional interpretation (as it has sometimes been called in Canada) on the NPC. But there is no evidence that the NPC has ever formally claimed to be limited by such a doctrine. Moreover, the manner in which NPC legislation is produced and progressively evolves would also not seem to support such a view. Of course, the central leadership may well come to be persuaded that such a principle should be applied to the HK Basic Law, contrary to usual practices.

It seems to me, as this example indicates, a hermetic common law approach to these issues is a high risk long term strategy. (But, of course, one may object that Hong Kong only has high risk strategies.) At any rate, it is not true that judges can only operate in a single legal system. The experience of the European Union shows precisely that English common law judges can shift to accommodate the principles of a different legal system when the issue at hand demands that they do so. The deliberate intrusion of European Union law into the English legal system is certainly different from the deliberate exclusion of general Chinese law from the Hong Kong S.A.R. But there is an interface and inevitable overlap between the two legal systems which needs to be judicially accommodated. To attempt to do so purely by application of common law principles of statutory interpretation would be to pretend an ignorance of central government law and politics which in the end will wear very thin.

Ideally, jurists and legal institutions in Beijing and Hong Kong would work to develop a set of principles to bridge the overlap between the two systems. Hong Kong judges could thereby safely 'shift legal gears' when dealing with non HK Basic Law aspects of NPC authority. The problem of course is that the nature of ultimate legal authority in China is still being worked out. There are many troubling lacunae concerning the role of the Constitution and the authority of NPC legislation. And many of these are likely to remain unresolved for some time to come, as these basic gaps in the legal order provide the Party and its leadership with essential openings for intervention. How will it be possible for common principles to emerge in relation to the NPC's legislative authority over Hong Kong, if the authority of the NPC itself remains so contingent on the political order?

Perhaps controversies such as this one will help to prompt the central leadership to push the Chinese constitutional project forward. As several participants in this discussion have indicated, Hong Kong may well have a role to play in that effort. In the meantime, appearing to stay entirely within Hong Kong's common law structure whilst covertly gauging the winds coming from Beijing would appear to be only a medium term solution.

Perry Keller

From: Bing Ling <lwbing@cityu.edu.hk>
Subject: Re: Federalism has limited relevance -- Amendment Argument
Date: Sun, 14 Feb 1999 08:15:33 +0800

The constitutionality of the Basic Law is an issue which, I suspect, mainland scholars are not daring to challenge and HK scholars are not willing to challenge. How can the limited meaning of Art. 31 of Chinese Constitution justify so significant a deviation from the fundamental canons (socialism, Party rule, etc.) of the Constitution and so pervasive a limitation of the NPC power, is a problem many NPC legislators seemed to fret about when they cast their votes for the Basic Law back in 1990. So much so that they felt it necessary to pass a collateral resolution declaring that the Basic Law is constitutional. The issue was then settled, or so they thought.

I have had objections to the notion that Basic Law is a priori superior to all other national laws from the very beginning of the debate. I have recently finished a comment for a law journal in which I tried to refute all the grounds CFA relied on for that assertion. The following analysis is taken from that comment. The most plausible argument in favour of this assertion, in my view, is the argument based on Art. 159 of Basic Law concerning amendment, which, to borrow CFA's parlance, I will call "Amendment Argument". The CFA touched on it in passing, but it was more eloquently developed by Michael Davis and, lately, Graham Brown in this forum.

I copy the text of Art. 159 below:

[1] The power of amendment of this Law shall be vested in the National People's Congress.

[2] The power to propose bills for amendments to this Law shall be vested in the Standing Committee of the National People's Congress, the State Council and the Hong Kong Special Administrative Region. Amendment bills from the Hong Kong Special Administrative Region shall be submitted to the National People's Congress by the delegation of the Region to the National People's Congress after obtaining the consent of two-thirds of the deputies of the Region to the National People's Congress, two-thirds of all the members of the Legislative Council of the Region, and the Chief Executive of the Region.

[3] Before a bill for amendment to this Law is put on the agenda of the National People's Congress, the Committee for the Basic Law of the Hong Kong Special Administrative Region shall study it and submit its views.

[4] No amendment to this Law shall contravene the established basic policies of the People's Republic of China regarding Hong Kong.

The amendment argument is, in effect, the following The Basic Law can only be amended in accordance with Art. 159. Amendments that are effected otherwise are therefore null and void. If an act of the NPC is inconsistent with the Basic Law, it constitutes an amendment of the Basic Law effected not in conformity with Art 159, and is thus null and void.

The effect of a Chinese law made by the NPC can be varied in two ways: (1) by amendment of the text of the law; (2) by enacting new legislation containing provisions that contradict the law. (In practice, the effect of laws is often varied also by administrative rules and judicial pronouncements, which, strictly speaking, is not permitted under the Constitution. Let's be a little bit legalistic here since we are talking of the Basic Law). I am not sure if category (2) should also be called "amendment" for the purpose of Art. 159 of the Basic Law. If it is not, the issue is ended: Art. 159 only applies to NPC's changing of Basic Law text, but not enactment of laws contradicting the Basic Law. For the present discussion, I will accept that amendment as governed by Art. 159 covers both category (1) (which I will call "amendment stricto sensu") and (2). I find it important to further divide category (2) into (2a) acts of the NPC for the sole (or predominant) purpose of amending the Basic Law and consisting solely (or predominantly) of provisions at variance with the Basic Law (which I will call "disguised amendment") and (2b) acts of the NPC not for such purpose and whose provisions only incidentally contain those contradicting the Basic Law (which I will call "incidental amendment").

Now Art. 159 is generally recognised as a self-limitation on its legislative powers accepted by the NPC. But exactly what is the extent of this self-limitation?

Art. 159(1) says the power of amendment belongs to the NPC. This in effect deprives the power of amending national laws that the NPCSC otherwise enjoys under Art. 67(3) of the Constitution. The provision, in itself, does not limit the power of the NPC in any of the three amendments mentioned before.

Art. 159(4), in contrast, limits NPC's power in all three amendments. No amendment

may contravene China's basic policies on Hong Kong.

But Arts. 159(2) and (3), I submit, only apply to amendment stricto sensu and disguised amendment, but not to incidental amendment. The reason is plain: Art. 159(2) and (3) govern not "amendment" but "bills for amendment". Bill for a law that contain "incidental amendment" simply is not a "bill for amendment". Such a bill, ex hypothesi, is a bill for something else. To hold otherwise would entail an advance scrutiny of every NPC bill to check its consistency with the Basic Law before the power to propose the bill can be determined and before the bill can be put on the NPC agenda, which is demonstrably unacceptable and impracticable.

It follows from the above analysis, that an incidental amendment is not governed by arts. 159(2) and (3). As long as it does not contravene China's basic policies on HK, a national law containing incidental amendment that is made not through the procedure of Art. 159(2,3) but through ordinary legislative procedure is not invalid for violation of Art. 159.

Bing LING

City University of Hong Kong

From: Donald Clarke <dclarke@u.washington.edu>
Subject: Re: Federalism has limited relevance -- Amendment Argument
Date: Sun, 14 Feb 1999 17:03:17 -0800 (PST)

Bing Ling's careful analysis is very helpful to further discussion, and is persuasive to me except on one point:

> But Arts. 159(2) and (3), I submit, only apply to amendment stricto sensu and disguised amendment, but not to incidental amendment. The reason is plain: Art. 159(2) and (3) govern not "amendment" but "bills for amendment". Bill for a law that contain "incidental amendment" simply is not a "bill for amendment". Such a bill, ex hypothesi, is a bill for something else. To hold otherwise would entail an advance scrutiny of every NPC bill to check its consistency with the Basic Law before the power to propose the bill can be determined and before the bill can be put on the NPC agenda, which is demonstrably unacceptable and impracticable. It follows from the above analysis, that an incidental amendment is not governed by arts. 159(2) and (3). As long as it does not contravene China's basic policies on HK, a national law containing incidental amendment that is made not through the procedure of Art. 159(2,3) but through ordinary legislative procedure is not invalid for violation of Art. 159.

The "Amendment Argument" doesn't need to hold that ordinary legislation containing incidental amendments is _invalid_, and therefore there is no need to conduct the unacceptable and impracticable scrutiny of all bills for conflict. All the "Amendment Argument" needs to say is the incidental amendment, _to the extent_ it conflicts with the Basic Law, should not be given effect _by Hong Kong courts_. (Of course, HK courts ought to do their utmost to avoid finding a conflict.) This is different, it seems to me, from saying that they are "invalid" in some sense.

Note also that the scrutiny argument cuts two ways: if we accept Ling Bing's argument, then surely every bill before the NPC would still have to be scrutinized to make sure that it did _not_ have unintended consequences in HK through incidental amendment.

This brings me to a more broad-brush argument AGAINST (followed by one FOR) the Amendment Argument.

AGAINST: Whatever the NPC said in the Basic Law, the basic fact is that the NPC can't bind subsequent NPCs. Only the Chinese constitution can do that. Suppose a prior NPC had passed a law with a provision saying "This law can never be amended." Surely a subsequent NPC could pass a law, through its ordinary procedures, revoking the prior law. (At least I think it ought to be able to.) The Chinese constitution simply has no room for the entrenching arguably intended in the Basic Law. Even if the NPC that passed it intended it to be superior to all other NPC laws, you can't (as Mick Jagger tells us) always get what you want.

FOR: Even if we agree that any NPC has the power to amend the Basic Law through procedures other than those spelled out in the Basic Law, this doesn't solve all the problems. Absent a clear expression of intent by the NPC to overrule provisions in the Basic Law, doesn't it make more sense, given the special position of HK, to presume it didn't intend to do so? This theory would accept what Ling Bing calls "disguised amendments" as genuine amendments since we would know that the NPC really intended them to amend (and hence there would be no need to disguise them any more), but would still give second place to incidental amendments -- but in doing so would more likely than not be giving effect to what the NPC intended anyway. (As we know, the CFA did not subscribe to such a limited position.)

Don Clarke

University of Washington School of Law

From: "MC Davis" <mcdavis@cuhk.edu.hk>
Subject: Re: Federalism has limited relevance -- Amendment Argument
Date: Mon, 15 Feb 1999 09:33:39 +0800

I found Bing Ling's textual analysis interesting. I am sure he would be the first to acknowledge that his distinction between intended amendment and incidental amendment based on the words "bills for amendment" may carry more of a load than these words can bare. One suspects a court could go any way on this and, based on the fact that this is a constitution, would probable lean toward sustaining the conceived overriding purpose, or as the CFA put it, a purposive interpretation. But even if, on a textual analysis, one allowed for the sake of argument this "incidental" exception (something I question), you would still be left with at least two problems. Bing Ling correctly notes one of these, the basic policies articulated in the Joint Declaration. The other is Article 18 of the BL. Any national law which arguably might have incidentally amended the Basic Law would not apply to HK unless it went through the procedures articulated in Article 18 of being added to the list (in Annex III) of national law that apply to HK. Article 18 expressly provides that, "National laws shall not be applied in the HK SAR except for those listed in Annex III to this Law." Art. 18 further provides that laws can only be added to the list if the Standing Committee consults the BL Committee and the HKSAR government, and then only if they relate to defense and foreign affairs. There is some exception for certain emergencies.

On the non-textual front Perry Keller raises a more telling argument. It would essentially raise the question whether the sovereign can limit its sovereign discretion in a way that it cannot override. Constitutions inherently do this for the unit they cover (subject to amendment) and Article 31 of the Chinese constitution seems to allow for but not require this. So on a textual analysis you could say the Basic Law implements this constitutional design, though the Chinese constitution does not seem to accomplish this constraint on its own. The noted "manner and form" example from Canada seems to stand out as on example, as well. Keller questions whether China has embraced such limitations. While there is no constitutional indications of this, there is plenty of evidence that China has staked its reputation on the international commitments in the Joint Declaration. Unilaterally overriding the constraints it has articulated in the Basic Law (some of which are noted above and others discussed previously) would clearly come at great political cost to China and HK. But this latter question is really not a problem for the CFA since that court can simply, as revealed in the excellent and precise analysis of Graham Brown, apply those mainland acts that it has been instructed to apply in the Basic Law, the law which created it and established the constitutional jurisdiction for which it is responsible. This obligation includes the duty to apply whatever NPC laws are properly appended to Annex III and local laws that conform to the Basic Law. I question whether this is really sealing off the HK system. The system is governed by mainland laws when they are appended, by persuasive precedent from the common law world, by applicable treaty obligations (as determined by appropriate doctrine) and by local laws that do not violate the Basic Law. At the same time, I would concede that it might be wise someday, especially with Taiwan questions on the horizon, to better rationalize the broader system and applicable umbrella laws. (toward this end, I will have an article with some suggestions in the next (April,1999) issue of the Journal of Democracy).

michael davis

From: Bing Ling <lwbing@cityu.edu.hk>
Subject: Fallacy of the Amendment Argument
Date: Mon, 15 Feb 1999 02:04:23 +0800

I wish to comment on the following observations by Donald Clarke and Michael Davis and thereby expand on what I see as the fallacy of the amendment argument.

Donald Clarke: 'All the "Amendment Argument" needs to say is the incidental amendment, _to the extent_ it conflicts with the Basic Law, should not be given effect _by Hong Kong courts_.'

That is a more benign conclusion (as opposed to the conclusion that such incidental amendment must be invalid) reached by the Amendment Argument. The real question is why. Why should an incidental amendment not given effect by Hong Kong courts? Is it because such amendment fails to follow procedures spelt out in Art. 159(2,3)? Because it contravenes China's basic policies on HK? Or other reasons? My very confined observation in the last post only tries to show that not following the procedures in Art. 159(2,3) is not a valid reason that incidental amendment should not be given effect by HK courts.

Donald Clarke: 'Note also that the scrutiny argument cuts two ways: if we accept Ling Bing's argument, then surely every bill before the NPC would still have to be scrutinized to make sure that it did _not_ have unintended consequences in HK through incidental amendment.'

Scrutiny of an NPC bill is carried out by the NPC presidium before it is placed on agenda, as per NPC Rules of Proceedings. The question is what kind of scrutiny would be required. I suggest that Arts. 159(2,3) only apply to amendment stricto sensu and disguised amendment, both of which are relatively easy to recognise (as one probably only needs to look at the apparent legislative intent and principal subject matter of the bill). Incidental amendment is much harder to detect, and one has to check every single provision of the bill to find it or rule it out. So if Arts. 159(2,3) should apply to incidental amendment, the presidium would need to check every clause of every bill before it can decide whether the power to propose the bill is limited to the three bodies mentioned in Art. 159(2), or whether referral to the Basic Law Committee is required under Art. 159(3). That is unacceptable and impracticable.

Donald Clarke: 'Absent a clear expression of intent by the NPC to overrule provisions in the Basic Law, doesn't it make more sense, given the special position of HK, to presume it didn't intend to do so?'

Absolutely. One needs also to recognise that many apparent conflicts between Chinese laws (not necessarily involving BL) are unreal -- they are merely a result of poor law drafting rather than shift in underlying policies. Adopting this approach, it follows that by proper construction a Hong Kong, more likely than not, will find that the Basic Law and a "conflicting" NPC act are in fact reconcilable with each other, and there would be no need to invoke the constitutional jurisdiction asserted in NG KA LING.

Michael Davis: 'One suspects a court could go any way on this and, based on the fact that this is a constitution, would probable lean toward sustaining the conceived overriding purpose, or as the CFA put it, a purposive interpretation.'

I wouldn't expect the current CFA to adopt many, if any, of my arguments. One may note that the interpretation of Art. 159 (affairs within central government's responsibility) most probably is something the CFA must refer to the NPCSC according to Art. 158(3).

Michael Davis: 'But even if, on a textual analysis, one allowed for the sake of argument this "incidental" exception (something I question), you would still be left with at least two problems. Bing Ling correctly notes one of these, the basic policies articulated in the Joint Declaration.'

Note that when one looks at the English version of BL, Art. 159(1) refers to "amendment of" BL but Art. 159(2-4) all talk of "amendment to" BL. It could be argued (though I do not embrace it too warmly) that whilst "amendment of" BL covers all three types of amendment, "amendment to" BL refers to amendment stricto sensu (and maybe also disguised amendment) only. It follows then that incidental amendment is not limited by "basic policies".

Michael Davis: 'The other is Article 18 of the BL. Any national law which arguably might have incidentally amended the Basic Law would not apply to HK unless it went through the procedures articulated in Article 18 of being added to the list (in Annex III) of national law that apply to HK.'

Art. 18 does not serve, in my view, to resolve a conflict of laws one way or the other; it only serves to avoid conflict of laws in the first place. For under Art. 18 most national laws are not applied in HK, and therefore actual cases involving conflict between a national law and Basic Law are not likely to occur too frequently. Conflict between BL and a national law not included in Annex III (and therefore not applied in HK) is not entirely inconceivable, although I have yet to come up with a perfect hypothetical.

But if the conflict is between Art. 18 itself and an NPC act, then the issue is different. Unlike "basic policies", Art. 18 is not consecrated by BL and, like other BL provisions, enjoys no a priori superiority over other national laws.

Michael Davis: 'I found Bing Ling's textual analysis interesting. I am sure he would be the first to acknowledge that his distinction between intended amendment and incidental amendment based on the words "bills for amendment" may carry more of a load than these words can bare.'

To conclude my comment, my position does not hang on a technical reading of "bills for amendment", but arises from a deep suspicion that Art. 159 is only about amendment stricto sensu (and perhaps also disguised amendment) but has nothing to do with incidental amendment, which, to set the name right (in Confucius' words), is not really amendment at all. The references to "bills for amendment" and the distinction between "amendment of" and "amendment to" only attest to my belief, though I have not been able to check out relevant drafting history of the BL.

That leads me to what I think is the fundamental fallacy of the amendment argument. Art. 159 is simply irrelevant to the conflict of laws issue which is in fact what this debate (on law, not on social sciences) is all about. Let's take a hypothetical: NPC enacts a PRC Contract Law, with a provision that says, "This Law applies to the whole territory of the PRC, including HKSAR." Clearly it is inconsistent with Art. 18 of BL. You may call it a "violation" of Art. 18 or a "conflict" with Art. 18. But it is far-fetched to call it an "amendment" of Art. 18. The hypothetical Contract Law provision contravenes Art. 18, but, unless one presumes its superiority over Art. 18, does not "amend" it.

In sum, for Art. 18 to prevail over such a provision, it must come as a result of a sophisticated conflict of laws analysis, but not a priori, which is what the CFA intimated in NG KA LING. I have suggested in my article several ways of resolving such conflict of laws whereby the BL

will prevail. But that approach, obviously, has nothing to do with and in effect negates the constitutional jurisdiction that CFA asserted in NG KA LING.

From: "MC Davis" <mcdavis@cuhk.edu.hk>
Subject: Re: Fallacy of the Amendment Argument
Date: Tue, 16 Feb 1999 10:23:08 +0800

Because it may be helpful to Bing Ling in developing this analysis I will endeavor a brief response on what appears to me to be the essence of this argument. If I understand the argument, it would seem that Bing Ling is proceeding on two levels: one is a textual analysis of the BL itself; the other is the deeper sovereignty point also raised by Perry Keller. On a textual argument alone, it would seem that article 18 offers a nearly insurmountable obstacle to his incidental amendment argument. This gets us to the argument that, as the sovereign, the NPC can do practically what it wants, even act to abolish the Basic Law or to unilaterally amend it through another act. Though a sovereign act, this would, of course, bring the NPC into conflict with its commitments in the Joint Declaration and the Basic Law. One doubts that China would intentionally embrace the view that in chooses to violate these commitments and we are not at present confronted with such a bold Central Government position. Much of this debate and the Basic Law itself would be of little use if China takes such bold steps to undermine the Basic Law.

But this does not get one around the question what the court should do in the normal course of affairs. Of course, if the court were confronted with a frontal attack on the Basic Law from China, as suggested by Bing Ling in his contract example, it would be put to decide whether to give effect to this, likely at its peril. If, on the other hand, the court is confronted in the normal course of things with only the conceivable incidental effect of some mainland law with questionable application to HK it would be bound to look to article 18. Is it on the list? If not the other option would be the case of amendment. Has a proper amendment occurred? In the absence of either, a common law court in HK would simply apply the Basic Law and other local law. This is essentially why the orbiter dicta raised in this case raises a problem that seems unlikely to happen in the normal course of affairs where all parties are endeavoring to follow the procedures outlined in the Basic Law.

mike davis

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