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Copyright (c) 2000 Hong Kong Journal Ltd.
Hong Kong Law Journal

ARTICLE: The Interpretation of the Basic Law -- Common Law and Mainland Chinese Perspectives

2000

30 Hong Kong L.J. 380

Author

Albert H Y Chen*

Excerpt

INTRODUCTION

In Lau Kong-yung and 16 others v The Director of Immigration, 1 the case in which the Hong Kong Court of Final Appeal (CFA) considered the effect of the interpretation of the Basic Law issued by the National People's Congress Standing Committee (NPCSC) in June 1999, Sir Anthony Mason, Non-Permanent Judge of the Court, said:
The Standing Committee's power to interpret laws is necessarily exercised from time to time otherwise than in the adjudication of cases. So the expression 'in adjudicating cases' [in article 158 of the Basic Law] makes it clear that the power of interpretation enjoyed by the courts of the Region is limited in that way and differs from the general and free-standing power of interpretation enjoyed by the Standing Committee under Article 67(4) of the PRC Constitution and Article 158(1) of the Basic Law. This conclusion may seem strange to a common lawyer but, in my view, it follows inevitably from a consideration of the text and structure of Article 158, viewed in the light of the context of the Basic Law as the constitution for the HKSAR embodied in a national law enacted by the PRC. 2 (emphasis supplied)


The paradox of 'one country, two systems' is that special administrative regions -- Hong Kong and Macau -- within China are allowed to practise market capitalism 3 by a Chinese government that is committed to Marxism-Leninism. 4 And the paradox of the Basic Law lies in its dual nature. It is ...
 
 
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