25/2/99 - The Bar's views on Constitutional Jurisdiction of the Court of Final Appeal

The Bar's Views on the Right of Abode Case

Press Release

25 February 1999

THE BAR'S VIEWS ON CONSTITUTIONAL JURISDICTION OF THE COURT OF FINAL APPEAL

1. In view of the considerable debate concerning the jurisdiction and the decision of the Hong Kong Court of Final Appeal ("CFA"), and in view of the fundamental principle of our legal system that the judiciary will not, except in the course of adjudicating cases, comment in the public arena on criticisms directed against its judgment, the Bar feels it necessary to express its understanding of the approach of the decision of the CFA.

Role of the Judiciary

2. The common law system practised in Hong Kong and preserved by the Basic Law is built on the premise that it is for the Legislature to legislate and the Judiciary to interpret and apply the law. In this respect, it is important to note that the only institution under our system to interpret the law is the Judiciary and not the Legislature. The position in the rest of China is different in that the ultimate power of interpretation rests with the NPC which is both the Executive and the Legislature.

3. In resolving disputes which come before it, the Hong Kong Judiciary interprets and applies the law faithfully without fear or favour. In so doing, the Judiciary is merely performing its function and is not seeking to "override" or "usurp" the function of either the Executive or the Legislature.

The Rule of Law

4. It is a fundamental principle of the Rule of Law in Hong Kong that everyone is equal under the law. The Executive is as bound by law as the Legislature. Under our common law system, it falls upon the Judiciary to ensure that this is so. As a matter of fact, the examination of the legality of the acts of the Hong Kong Government is a regular occurrence in Hong Kong. This can take various forms of proceedings, the most notable example being an individual's right to seek judicial review of an act of the Hong Kong Government.

The Constitution

5. The position in the rest of China is slightly but not fundamentally different. The last paragraph of the Preamble to the Constitution of the People's Republic of China ("the Constitution") confirms that the Constitution "is the fundamental law of the state and has supreme legal authority". This is further amplified in Articles 2 and 5:-

"Article 2 All power in the People's Republic of China belongs to the people. The National People's Congress and the local people's congresses at various levels are the organs through which the people exercise state power.

The people administer state affairs ............ in accordance with the law.

..................

Article 5 ..................

No laws ................ may contravene the Constitution.

All state organs ...... and institutions must abide by the Constitution and the law. All acts in violation of the Constitution or the law must be investigated.

No organization or individual is privileged to be beyond the Constitution or the law."

6. Article 31 further provides that the state may establish special administrative regions to be prescribed by law enacted by the NPC. This the NPC did under Article 2 of the Basic Law by authorizing the HKSAR to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the Basic Law.

7. The NPC, of course, is the highest organ of state power while the NPC and its Standing Committee exercise the legislative power of the state (see Articles 57 and 58 of the Constitution). However, under the Constitution, they are equally bound by the Constitution and the law unless and until the Constitution and the law are amended in the prescribed way. In particular, we see that under Article 5 of the Constitution all acts in violation of the Constitution or the law in the rest of China must be investigated by the relevant body, in this case, the NPC.

CFA's Jurisdiction

8. The CFA's approach is thus not radically different from that enshrined in the Constitution. Far from acting contrary to the Constitution, the CFA will be failing in its function and duty if it fails to investigate any act directly concerning the internal affairs of Hong Kong which may be in contravention of the Basic Law, which of course, assumes its legal dominance and importance from both the Constitution and the NPC.

9. The Basic law, by which the NPC and its Standing Committee have accepted to be bound, is undoubtedly a mini-constitution of the Hong Kong SAR. It binds the Legislature, as no law enacted by the legislature of the HKSAR shall contravene the Basic Law (see Art. 11 of the Basic Law). It binds the Executive, who "shall conduct the administrative affairs of the HKSAR in accordance with the relevant provisions of the Basic Law" (Art. 16). The jurisdiction of the Judiciary is defined by the Basic Law (Art. 19). Thus, the Basic Law is a superior law which the Executive, the Legislature and the Judiciary in Hong Kong must observe. The Judiciary is vested with the jurisdiction to interpret those parts of the Basic Law which concerns the internal affairs of Hong Kong (Art. 158).

10. In the unlikely event the Executive fails to observe the Basic Law, it is the duty of the Judiciary to declare the breach within the confines of Hong Kong. This is a matter of obligation, and not discretion. In exercising this jurisdiction, the court is merely performing its constitutional role of upholding the Basic Law under the legal system preserved in Hong Kong.

11. This duty to examine the act of the Executive is not an exercise of a power to "control" or "override" the Executive. Where the act of the Executive relevant to a dispute before the Court is a valid act under the Basic Law, the Judiciary must give effect to such an act. This is the situation in the children's case itself where the CFA, having examined the decision of the NPC, declared the Provisional Legislative Council to be valid and within the law.

Jurisdiction over any Legislative acts of the NPC or its Standing Committee

12. Unlike a statute where every single provision is a statement of law, the principle of law contained in a judgment can only be derived from reading the judgment as a whole. Under the common law system, it is not permissible to read any single sentence in a judgment in isolation as if it were a definitive and exhaustive pronouncement of a statutory provision without reading the sentence in the proper context and the judgment as a whole. This is because a judgment is only delivered in order to resolve the dispute before the Court and not for any other reason.

13. The passage which attracts the present controversy reads as follows:-

"What has been controversial is the jurisdiction of the courts of the Region to examine whether any legislative acts of the National People's Congress or its Standing Committee (which we shall refer to simply as "acts") are consistent with the Basic Law and to declare them to be invalid if found to be inconsistent. In our view, the courts of the Region do have this jurisdiction and indeed the duty to declare invalidity if inconsistency is found. It is right that we should take this opportunity of stating so unequivocally." (At p.34)

14. This passage was made in the context of an argument of the constitutionality of the Provisional Legislative Council. The Provisional Legislative Council was formed by the Preparatory Committee pursuant to various NPCSC decisions. In order to examine whether the Provisional Legislative Council is within the confines of the Basic Law, the court has no choice but to examine the NPCSC decisions. Otherwise the court will be failing to discharge its duty to uphold the Basic Law.

15. At the same time, the CFA unequivocally accepted that its jurisdiction is limited by the Basic Law (at p.38). It refers to Articles 19(2) & (3) and 158, all of which impose restrictions on the jurisdiction of the courts. The power to review the legislative acts of the NPC or its Standing Committee set out at p.34 of the judgment can only be exercised if the CFA has jurisdiction in the matters concerned in the first place, and the jurisdiction of the SAR courts is limited to matters within the autonomy of the courts of the HKSAR. In other words, it is only when the legislative acts of the NPC or its Standing Committee touch on matter within the limits of autonomy can the CFA exercise its power of investigation, and the purpose of this investigation is nothing but to uphold the Basic Law. Nowhere did the CFA say or imply that it assumes a general or overriding power to review any decision of the NPC or its Standing Committee outside the context of the internal affairs of Hong Kong.

16. To put the matter in a different way, the Basic Law was enacted by the NPC. It cannot be the intention of the NPC to act contrary to the Basic Law unless the procedure of amending the Basic Law has been followed. Thus, if the legislative act of the NPC or its Standing Committee is inadvertently inconsistent with the Basic Law, then it must be right for the SAR courts to investigate the acts of the NPC or its Standing Committee insofar as they purport to have effect in the SAR on matters within the limits of autonomy of the SAR.

17. We firmly believe this is the effect of the judgment of the CFA. It does not intend to usurp the function of the NPC or its Standing Committee or to act contrary to the Constitution; nor does it have any such effect. Properly understood, the judgment is entirely consistent with the Constitution and the Basic Law and in keeping with our legal system. For these reasons, the Bar unreservedly supports the decision of the CFA.

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The Bar's Views on the Right of Abode Case
Press Release 25 February 1999 THE BAR'S VIEWS ON CONSTITUTIONAL JURISDICTION OF THE COURT OF FINAL APPEAL 1. In view of the considerable debate concerning the jurisdiction and the decision of the Hong Kong Court of Final Appeal ("CFA"), and in view of the fundamental principle of our legal system that the judiciary will not, except in the course of adjudicating cases, comment in the public arena on criticisms directed against its judgment, the Bar feels it necessary to express its understanding of the approach of the decision of the CFA. Role of the Judiciary 2. The common law system practised in Hong Kong and preserved by the Basic Law is built on the premise that it is for the Legislature to legislate and the Judiciary to interpret and apply the law. In this respect, it is important to note that the only institution under our system to interpret the law is the Judiciary and not the Legislature. The position in the rest of China is different in that the ultimate power of interpretation rests with the NPC which is both the Executive and the Legislature. 3. In resolving disputes which come before it, the Hong Kong Judiciary interprets and applies the law faithfully without fear or favour. In so doing, the Judiciary is merely performing its function and is not seeking to "override" or "usurp" the function of either the Executive or the Legislature. The Rule of Law 4. It is a fundamental principle of the Rule of Law in Hong Kong that everyone is equal under the law. The Executive is as bound by law as the Legislature. Under our common law system, it falls upon the Judiciary to ensure that this is so. As a matter of fact, the examination of the legality of the acts of the Hong Kong Government is a regular occurrence in Hong Kong. This can take various forms of proceedings, the most notable example being an individual's right to seek judicial review of an act of the Hong Kong Government. The Constitution 5. The position in the rest of China is slightly but not fundamentally different. The last paragraph of the Preamble to the Constitution of the People's Republic of China ("the Constitution") confirms that the Constitution "is the fundamental law of the state and has supreme legal authority". This is further amplified in Articles 2 and 5:- "Article 2 All power in the People's Republic of China belongs to the people. The National People's Congress and the local people's congresses at various levels are the organs through which the people exercise state power. The people administer state affairs ............ in accordance with the law. .................. Article 5 .................. No laws ................ may contravene the Constitution. All state organs ...... and institutions must abide by the Constitution and the law. All acts in violation of the Constitution or the law must be investigated. No organization or individual is privileged to be beyond the Constitution or the law." 6. Article 31 further provides that the state may establish special administrative regions to be prescribed by law enacted by the NPC. This the NPC did under Article 2 of the Basic Law by authorizing the HKSAR to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the Basic Law. 7. The NPC, of course, is the highest organ of state power while the NPC and its Standing Committee exercise the legislative power of the state (see Articles 57 and 58 of the Constitution). However, under the Constitution, they are equally bound by the Constitution and the law unless and until the Constitution and the law are amended in the prescribed way. In particular, we see that under Article 5 of the Constitution all acts in violation of the Constitution or the law in the rest of China must be investigated by the relevant body, in this case, the NPC. CFA's Jurisdiction 8. The CFA's approach is thus not radically different from that enshrined in the Constitution. Far from acting contrary to the Constitution, the CFA will be failing in its function and duty if it fails to investigate any act directly concerning the internal affairs of Hong Kong which may be in contravention of the Basic Law, which of course, assumes its legal dominance and importance from both the Constitution and the NPC. 9. The Basic law, by which the NPC and its Standing Committee have accepted to be bound, is undoubtedly a mini-constitution of the Hong Kong SAR. It binds the Legislature, as no law enacted by the legislature of the HKSAR shall contravene the Basic Law (see Art. 11 of the Basic Law). It binds the Executive, who "shall conduct the administrative affairs of the HKSAR in accordance with the relevant provisions of the Basic Law" (Art. 16). The jurisdiction of the Judiciary is defined by the Basic Law (Art. 19). Thus, the Basic Law is a superior law which the Executive, the Legislature and the Judiciary in Hong Kong must observe. The Judiciary is vested with the jurisdiction to interpret those parts of the Basic Law which concerns the internal affairs of Hong Kong (Art. 158). 10. In the unlikely event the Executive fails to observe the Basic Law, it is the duty of the Judiciary to declare the breach within the confines of Hong Kong. This is a matter of obligation, and not discretion. In exercising this jurisdiction, the court is merely performing its constitutional role of upholding the Basic Law under the legal system preserved in Hong Kong. 11. This duty to examine the act of the Executive is not an exercise of a power to "control" or "override" the Executive. Where the act of the Executive relevant to a dispute before the Court is a valid act under the Basic Law, the Judiciary must give effect to such an act. This is the situation in the children's case itself where the CFA, having examined the decision of the NPC, declared the Provisional Legislative Council to be valid and within the law. Jurisdiction over any Legislative acts of the NPC or its Standing Committee 12. Unlike a statute where every single provision is a statement of law, the principle of law contained in a judgment can only be derived from reading the judgment as a whole. Under the common law system, it is not permissible to read any single sentence in a judgment in isolation as if it were a definitive and exhaustive pronouncement of a statutory provision without reading the sentence in the proper context and the judgment as a whole. This is because a judgment is only delivered in order to resolve the dispute before the Court and not for any other reason. 13. The passage which attracts the present controversy reads as follows:- "What has been controversial is the jurisdiction of the courts of the Region to examine whether any legislative acts of the National People's Congress or its Standing Committee (which we shall refer to simply as "acts") are consistent with the Basic Law and to declare them to be invalid if found to be inconsistent. In our view, the courts of the Region do have this jurisdiction and indeed the duty to declare invalidity if inconsistency is found. It is right that we should take this opportunity of stating so unequivocally." (At p.34) 14. This passage was made in the context of an argument of the constitutionality of the Provisional Legislative Council. The Provisional Legislative Council was formed by the Preparatory Committee pursuant to various NPCSC decisions. In order to examine whether the Provisional Legislative Council is within the confines of the Basic Law, the court has no choice but to examine the NPCSC decisions. Otherwise the court will be failing to discharge its duty to uphold the Basic Law. 15. At the same time, the CFA unequivocally accepted that its jurisdiction is limited by the Basic Law (at p.38). It refers to Articles 19(2) & (3) and 158, all of which impose restrictions on the jurisdiction of the courts. The power to review the legislative acts of the NPC or its Standing Committee set out at p.34 of the judgment can only be exercised if the CFA has jurisdiction in the matters concerned in the first place, and the jurisdiction of the SAR courts is limited to matters within the autonomy of the courts of the HKSAR. In other words, it is only when the legislative acts of the NPC or its Standing Committee touch on matter within the limits of autonomy can the CFA exercise its power of investigation, and the purpose of this investigation is nothing but to uphold the Basic Law. Nowhere did the CFA say or imply that it assumes a general or overriding power to review any decision of the NPC or its Standing Committee outside the context of the internal affairs of Hong Kong. 16. To put the matter in a different way, the Basic Law was enacted by the NPC. It cannot be the intention of the NPC to act contrary to the Basic Law unless the procedure of amending the Basic Law has been followed. Thus, if the legislative act of the NPC or its Standing Committee is inadvertently inconsistent with the Basic Law, then it must be right for the SAR courts to investigate the acts of the NPC or its Standing Committee insofar as they purport to have effect in the SAR on matters within the limits of autonomy of the SAR. 17. We firmly believe this is the effect of the judgment of the CFA. It does not intend to usurp the function of the NPC or its Standing Committee or to act contrary to the Constitution; nor does it have any such effect. Properly understood, the judgment is entirely consistent with the Constitution and the Basic Law and in keeping with our legal system. For these reasons, the Bar unreservedly supports the decision of the CFA.










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