NPCSC's Interpretation of the Basic Law

Thanks to Ronny Tong Ka-wah, SC, I found the CFA judgement touching on the NPCSC's Interpretation of the Basic Law, which should be able to put to bed the retrospective issue once and for all :

LAU KONG YUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION [1999] HKCFA 4; [1999] 3 HKLRD 778; (1999) 2 HKCFAR 300; [1999] 4 HKC 731 ; FACV 10/1999 (3 December 1999)

72. The Interpretation, being an interpretation of the relevant provisions, dates from 1 July 1997 when the Basic Law came into effect. It declared what the law has always been. Compare the common law declaratory theory of judicial decisions, see Kleinwort Benson Ltd v Lincoln City Council [1998] 3 WLR 1095 at 1117 - 1119 and 1148.

143. I am equally in no doubt that the Interpretation took effect as from 1 July 1997. In making it, the Standing Committee did not purport to act, and has never purported to act, as a Court. Nor did it purport to be amending the law. It was doing exactly what it said it was doing, namely interpreting the law. That must mean that they were explaining what the law is and has been since the Basic Law came into effect.

第一次釋法已經自行確認了該次釋法由1997年7月1日起生效。只不過今次人大釋法沒有說明這一點。

下級法院有眾多法官可能有不同看法，須由終審法院一槌定音。分別在於人大釋法言簡意賅，而終審法院的闡述肯定了：(1)除了第一次釋法，以後釋法即使沒有提及，所有釋法均有追溯力；(2) 釋法不是修法；(3)全國人大常委會只是解釋了立法原意，無意取代法院審理案件。