Study On The National People’s Congress Standing Committee (NPCSC)’s Power To Interpret The Basic Law Of Hong Kong

On July 1st,2022,President Xi Jinping stressed at the conference celebrating the 25th anniversary of Hong Kong’s return to the motherland and the inauguration of the sixth government of the Hong Kong Special Administrative Region,"Only by deeply understanding and accurately grasping the practical laws of ’One Country,Two Systems’can we ensure that the‘One Country,Two Systems’ model always moves steadily towards the right direction.”"One Country,Two Systems" is a far-sighted political vision that provides political and value guidance for the development of Hong Kong.Since 1997,when the Chinese government resumed the exercise of sovereignty over Hong Kong and opened a new era in Hong Kong’s history,the constitution and the Basic Law had together structured the "new constitutional order" of Hong Kong.The report of the 20th Party Congress emphasizes that the constitutional order of the Special Administrative Region as determined by the Constitution and the Basic Law should be maintained,and the system of "one country,two systems" should be upheld and improved.It is a great innovation of "One country,Two systems" reintegrating Hong Kong into the national system of governance and constitutional legal order after more than a hundred years of separation from the nation’s main political and legal order,while maintaining its uniqueness based on a high degree of autonomy in the process of integration and rebirth.This innovation is also a big political and legal issue,which is of high theoretical research value and needs to be explored by both scholars and practitioners.The practice of "One Country,Two Systems" is a work in progress,with multi-dimensional possibilities and full of risks.The legalization thereof is both political and dynamic,and is substantialized through specific legal arrangements between the Central Government and Hong Kong.However,the interpretation of the Basic Law by the National People’s Congress Standing Committee(NPCSC)has been regarded by certain Hong Kong people as a detriment to policy that "the people of Hong Kong administer Hong Kong with a high degree of autonomy".To respond to the need of reality,this paper discusses the legal basis of the power of the NPCSC to interpret the Hong Kong Basic Law and the perfection of the system of the NPCSC ’s interpretation of the Hong Kong Basic Law,which also corresponds to the call in the 20th National Congress report to "improve the judicial and legal systems of the Special Administrative Regions".The study of the NPCSC’s power to interpret the Hong Kong Basic Law should go beyond the traditional thinking of legal interpretation or conflict of law systems,focusing on the constitutional order of "One Country" and national integration.This paper takes the way of configuration of China’s legal interpretation power as the starting point,traces the origin from the Constitution,the fundamental law of China,and then deconstructs the NPCSC’s power to interpret the Basic Law.The object of that power of interpretation is naturally the Basic Law of Hong Kong,but the source of its power is not just the Basic Law;the Constitution is the original source.At the same time,the construction of the relevant legal system of the Hong Kong Special Administrative Region needs to be continuously improved in line with the development of the practice of "One Country,Two Systems",meaning that the source of the NPCSC’s power to interpret the Basic Law is open-ended,with the introduction of the Hong Kong National Security Law as the best example.The legitimacy of the NPCSC’s power of interpretation originates from its constitutional status.The "resumption of exercise of sovereignty" makes the scope of the NPCSC’s power of interpretation extend to Hong Kong,symbolizing the beginning of the Central Government’s full scope governance.In contrast to the more lenient mode of governance of the Central Government during the early years of Hong Kong’s reunification,the Central Government is now gradually placing greater emphasis on the full scope of its authority over Hong Kong to cope with changes in Hong Kong and the international context.The implementation of this full scope governance requires supporting institutional mechanisms which includes the legal system.And the perfection of the system of the NPCSC’ s interpretation of the Basic Law is a key part thereof.The NPCSC’ s power of interpreting the Basic Law is an important element of the Central Government’s full scope governance,an important way to implement the "One Country,Two Systems" principle,and a concrete manifestation of the Central Government’s governance over Hong Kong.The doctrine of delegation of powers is the jurisprudential basis for the formulation of the Hong Kong Basic Law and the Special Administrative Region’s high degree of autonomy,thus giving birth to the system of interpretation of the Hong Kong Basic Law with Chinese characteristics.The NPCSC’s power of interpretation of the Hong Kong Basic Law plays an important role in the constitutional development of Hong Kong,including the regulatory function of clarifying the scope of the interpretation power of the Hong Kong courts,the restrictive function of restraining the judicial power from contributing to the executive-led system,and the guiding function of monitoring the constitutional and social development of Hong Kong.As of November 2022,the NPCSC has interpreted the Hong Kong Basic Law five times,covering the issue of the right of residence(1999),the issue of "dual universal suffrage"(2004),the issue of the remaining term of the Chief Executive(2005),the issue of state sovereign immunity(2011),and the Legislative Council oath-taking controversy(2016).The issue of the NPCSC’s interpretation of the Basic Law is an entanglement of law and politics.Misunderstandings thereof reflect a certain Hong Kong people’s lack of understanding of the NPCSC’s constitutional status,authority and functions.Looking into the causes of the issue,it is not simply a conflict between the legal systems of the Mainland and Hong Kong,but a combination of factors:the gap between law and fact in the structure of the HK,the rise of local awareness in Hong Kong society and the psychological changes in the process of "One country,Two systems",etc.Nowadays,The interpretation of the Basic Law by the NPC has accumulated more than twenty years of practice along with the return of Hong Kong to China.The Fourth Plenary Session of the 19th Central Committee of the CPC explicitly proposed to "improve the system of interpretation of the Basic Law by the NPCSC",underlining a more systematic,regular and proactive mechanism for the power of interpretation.A sound system of interpretation of the Basic Law by the NPCSC should be based on the fundamental principle of helping the "One country,Two systems" to run steadily and far,following the principle of constitutional and legal interpretation,and implementing a unified interpretation system headed by the NPCSC.This paper focuses on the two perspectives of the Mainland and Hong Kong,and considers the details of the system from two key elements,namely the subject and the procedure.It suggests enhancing mutual trust in interpretation between the two places,making full use of the existing Basic Law Committee system to interpret the Basic Law from a more professional,scientific and authoritative perspective,and supervising the regular operation of the interpretation power of the NPCSC through the evaluation mechanism of the Basic Law interpretation.