NPCSC's power of interpretation and amendment of the BL

The CFA's judgement on 3 December 1999, paragraph 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."

Ref : 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)

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。
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Other references:

The CFA's judgement on 29 January 1999, which caused an uproar in HK and Beijing:

"It is therefore for the courts of the Region to determine whether an act of the National People's Congress or its Standing Committee is inconsistent with the Basic Law, subject of course to the provisions of the Basic Law itself."

Ref : NG KA LING AND ANOTHER v. THE DIRECTOR OF IMMIGRATION [1999] HKCFA 72; [1999] 1 HKLRD 315; (1999) 2 HKCFAR 4; [1999] 1 HKC 291 ; FACV 14/1998 (29 January 1999)
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Subsequently, the CFA clarified on 26 February 1999:

"The Court's judgment on 29 January 1999 did not question the authority of the Standing Committee to make an interpretation under Article 158 which would have to be followed by the courts of the Region. The Court accepts that it cannot question that authority. Nor did the Court's judgment question, and the Court accepts that it cannot question, the authority of the National People's Congress or the Standing Committee to do any act which is in accordance with the provisions of the Basic Law and the procedure therein."

Ref : NG KA LING AND ANOTHER v. THE DIRECTOR OF IMMIGRATION [1999] HKCFA 81; [1999] 1 HKLRD 577; (1999) 2 HKCFAR 141; [1999] 1 HKC 425 ; FACV 14/1998 (26 February 1999)
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According to BL19(3), the courts have no jurisdiction over acts of state. Note the words "such as". In the Chinese text, the word is "etc". As long as the NPCSC invokes Article 67 of the Constitution and BL158(1) to interpret the BL, the courts of the Region cannot question the legality of the Interpretation. I would argue that at best the courts of the Region may seek further clarification from the NPCSC.

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."
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Someone asked whether the NPC may repeal or amend the BL in its own right, and definitely the answer is yes. The BL is a national law. Any national law is subject to repeal or amendment by the NPC, which is the highest organ of state power. BL159 provides that the power to propose bills for amendments is vested in the NPCSC, the State Council, and the HKSAR. For the HKSAR, it has to go through the motion of obtaining the prescribed consent.

BL159:

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

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.

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.

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