Interpretation by the SCNPC

My post to HK Free Press:

When it comes to politics, like it or not, it is a fact that many people in Hong Kong don’t trust the court anymore.

Retired judge Woo Kwok-hing, when announcing his decision to run for the top post, said that among the three powers, the judiciary is the most powerful.  This hardly sits well with the executive-led constitutional arrangement as enshrined in the Basic Law. #

In its first interpretation of the Basic Law, the SCNPC stated that “Those relevant provisions concern affairs which are the responsibility of the Central People’s Government and concern the relationship between the Central Authorities and the Hong Kong Special Administrative Region.  Before making its judgment, the Court of Final Appeal had not sought an interpretation of the Standing Committee of the National People’s Congress in compliance with the requirement of Article 158(3) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China.  Moreover, the interpretation of the Court of Final Appeal is not consistent with the legislative intent.”

Since then, perhaps many judges (including Woo Kwok-hing) may have formed the view that the judiciary has the greatest power.  So much about mutual trust.

#  I won’t repeat the many views already expressed on the executive-led system.  Suffice to supplement a few points below:

(a) BL12: “The Hong Kong Special Administrative Region shall be a local administrative region of the People’s Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People’s Government.”

Note that unlike other provinces in China where the provincial people’s congresses elect the governments and courts etc to which they are responsible and report their work, and by which they are supervised, the HKSAR comes directly under the CPG.  And according to BL43, CE shall be the head of the HKSAR, shall represent the Region and be accountable to the CPG and the HKSAR.  According to BL48(8), he/she shall implement the directives issued by the CPG in respect of the relevant matters provided for in the Basic Law.

While CE may directly dissolve LegCo according to BL50, LegCo may pass a motion of impeachment by a two-thirds majority of all its members and report it to the CPG for decision according to BL73.

It is clear that both the CE and HKSAR come directly under the CPG, the executive arm of government.

(b) In its decision of 26 April 2004, the SCNPC said: “When the set-up is such that half of the members are returned by geographical constituencies through direct elections and half of the members are returned by functional constituencies, the impact on the operation of the Hong Kong society as a whole, especially the impact on the executive-led system, remains to be examined through practice.”

The term “executive-led system” was mentioned.

Two more points:

(a) While the CFA has the power of final adjudication, it has to follow the interpretation of the SCNPC, which is a standing committee of the NPC, the highest organ of state power in China.  Note that the NPC has the power of interpretation, but it is for the court to adjudicate cases.

(b) BL19(3): “The courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs. The courts of the Region shall obtain a certificate from the Chief Executive on questions of fact concerning acts of state such as defence and foreign affairs whenever such questions arise in the adjudication of cases.  This certificate shall be binding on the courts.  Before issuing such a certificate, the Chief Executive shall obtain a certifying document from the Central People’s Government.”

Note the words “such as”.  In the Chinese text, the word is “etc”.

…