1. Constitutional Interpretation CHINA

2. CHINA Socialist (or communist) legal system
Power of interpretation of the Constitution vested in NPCSC: Art 67(1) of PRC Constitution
Approach: no clear guidance
More political and flexible than common law approaches

3. Constitutional Interpretation
Power of interpretation rarely exercised
5 occasions of Constitutional interpretation
4 ‘interpretations’ between , one in 1983
In the form of ‘decisions’ rather than ‘interpretations’
In the nature of supplementary or amendment legislation

4. HK Basic Law Constitution of HKSAR National Law of PRC
Political theory: ‘One country, two systems’ with high degree of autonomy
Article 158 of Basic Law:
Power of interpretation vested in NPCSC
Committee for Basic Law
HK courts authorized by NPCSC to interpret
Rules of common law or rules of Chinese law?

5. Legislative Interpretation
PRC Constitution:
Power to interpret laws vested in NPCSC (Article 67(4) )
Authority to add stipulations
1981 Resolution on Strengthening the Work of Interpretation of Laws
Law on Legislation

6. 1981 Resolution on Strengthening the Work of Interpretation of Laws
Purpose : to improve the socialist legal system
Confirms the highest status of the NPCSC in the system of interpretation of law in China
Making of ‘supplementary provisions’ falling within legitimate sphere of ‘interpretation’

7. Law on Legislation
Introduces procedural rules for interpretation of laws by the NPCSC
State organs which can request an interpretation from NPCSC specified
Article 42(2)
Interpretation of laws in two kinds of circumstances

8. Interpretations of laws
1. Implementation of Nationality Law of PRC in HKSAR
2. Implementation of Nationality Law of PRC in Macau SAR
3. Article 22(4) and 24(2)(iii) of Basic Law of HKSAR

9. Approach of NPCSC No indication of approach
Relies on legislative intent: fiction
Referral mechanism: article 158 of Basic Law
Free-standing power to interpret

10. HK Approach Generous and Purposive Approach
(Ng Ka-Ling and others v Director of Immigration)
Chong and Tam: adopted a more limited approach (literal approach)

11. Generous Approach
‘should be adopted to the interpretation of the rights and freedom’ (Gurung Kesh Bahadur v Director of Immigration)
Depends less on the intention of the legislature
Focuses on protecting rights as the constitutional duty of court

12. Purposive Approach
To avoid ‘a literal, technical, narrow or rigid approach’ (Ng Ka Ling)
Application: to read the particular article or provision in its context

13. How to Find the Purpose?
Guidance on how to find purpose of Basic Law provisions:
Start with the plain meaning of the words
Assistance as to the meaning of an expression can be gained from ‘any traditions and usages’ that may have given to the language used (CFA in Ng Ka Ling)
Rely on other resources to assist in giving a meaning to expressions e.g. travaux preparatoires

14. Purpose of provision ascertainable from: Its nature
Other provisions of the Basic Law
Relevant extrinsic materials :
Joint Declaration (Ng Ka Ling)
Explanations on the Basic Law (draft) given at the NPC on 28 March 1990 (Chong Fung Yuen)
Domestic Legislation at the time of the adoption of the Basic Law and the Joint Declaration (Chong Fung Yuen)

15. Literal / Textual Approach
Chong Fung-Yuen and Tam Nga-Yin
Text as main source to draw out purpose
Political reasons