Of the five interpretations so far, only one interpretation has been requested by the Final Court of Appeal (CFA). Interpretation was sought in 2011 in the case of Democratic Republic of the Congo v. FG Hemisphere Associates LLC and concerned, inter alia, the jurisdiction of Hong Kong courts for state acts. The Hong Kong government requested two interpretations of the NPCSC on the provisions of the Basic Law on the Right of Residence and the mandate of a new Chief Executive, after his predecessor resigned in 1999 and 2005 respectively before the end of his term. The NPCSC had also twice interpreted the Basic Law on its own initiative, without a branch of the Hong Kong government asking it to do so. The first of the two took place in 2004 and concerned the change in the voting methods of the Chief Executive and the Legislative Council for 2007 and 2008, respectively. The second was issued in November 2016 on the substantive requirements of oaths and legal declarations under Paragraph 104 GG. Hong Kong courts may also interpret the Basic Law when deciding cases if the provisions in question fall within hong kong`s autonomy. [43] Hong Kong courts may also interpret provisions on matters over which the central people`s government has jurisdiction or which relate to the relationship between the central government and Hong Kong, provided that the case is heard before the CFA, that the interpretation affects the judgments of the case, and that the CFA has requested a binding interpretation by the NVKB in this case. [43] Since neither the Basic Law (Article 53) nor the Ordinance on the Election of the Chief Executive specified what should happen next, the Acting Chief Executive, Donald Tsang, who took his place, requested an interpretation of the Basic Law and suggested that the next Chief Executive serve the remainder of Tung`s term. The Hong Kong government then asked the Standing Committee of the National People`s Congress for an interpretation of Articles 22 and 24 in order to avoid a possible influx of more than one million Chinese migrants to the mainland (according to government estimates) in Hong Kong. This sparked a debate over the independence of the judiciary in Hong Kong.

China`s highest legislative body, the Standing Committee of the National People`s Congress (NPCSC), today (November 7) approved an interpretation of Article 104 of the Basic Law, which states that lawmakers must swear allegiance to Hong Kong as part of China, describe how they should do so, and the consequences if they do not. It could effectively exclude two elected politicians, Leung Chung-hang and Yau Wai-ching, after their controversial actions at their swearing-in ceremony in October. The interpretation of the Basic Law by Hong Kong courts and the NPCSC is politically controversial. Albert Chen called the NPCSC`s interpretations „the main cause of constitutional controversy“ since the handover. [42]:632 The basic principles of Hong Kong governance under Chinese sovereignty mirror those set out in the Sino-British Joint Declaration, and most of them are set out in the first chapter of the Basic Law. The NVKK identified Articles 1 and 12 as fundamental provisions of the Basic Law. [10] Hong Kong courts use the targeted approach to interpret the Basic Law. Since Hong Kong`s legal system is distinct from that of mainland China, courts are required to follow the common law interpretation approach. [44]:222 Courts interpret the wording of the Basic Law as taking into account the context and purpose of the provisions in establishing their legislative intent; [44]:223-224 Parliament`s intention alone is not considered a legislative intention. [44]:223 Ambiguities are resolved by taking into account the principles and objectives set out in the Chinese Constitution and other documents.

[47]:28 Nevertheless, the courts treat the Basic Law as a „living instrument“ that adapts to changing needs and circumstances. [47]:28[48]:125 While Hong Kong courts take into account the historical context of the Basic Law, they also take into account „new social, political and historical realities.“ [49]:563 Beijing`s announcement on November 7 is expected to spark political passions in an already turbulent city. Thousands of Hong Kongers gathered on Sunday (Nov. 6) to protest Beijing`s interpretation of the Basic Law. Police clashed with protesters and used pepper spray to disperse them. Hong Kong`s legal sector will hold a silent march on Tuesday( November 8 to protest the intervention. The mandate of the Chief Executive following the resignation of her predecessor was a question that arose after the resignation of Tung Chee-hwa on March 10, 2005. The legal community and the pro-democracy camp have said that the term of office of the new chief executive should be five years, in accordance with Article 46. However, the Hong Kong government, some Beijing figures and the pro-Beijing camp have said that it should be the remaining mandate of the original chief executive, through a formality in the Chinese version of the Basic Law that introduced the concept of the remaining mandate. The Hong Kong Government requested interpretation from the NPCSC on 6 April 2005. The NPCSC ruled on 27 April 2005 that Annex I of the Basic Law requires the new Chief Executive to serve the remainder of his predecessor`s term if a Chief Executive resigns no later than 2007.

Hong Kong residents who support autonomy view the Standing Committee`s „interpretation“ as an intervention by the central government in Hong Kong`s legal system in violation of the spirit of the „one country, two systems“ policy, which threatens the rule of law. [Citation needed] Hundreds of Hong Kong lawyers protested the interpretation in a silent march, fearing it would set a precedent for Beijing to reverse any decision unfavorable to the local and central government. Upon taking office, legislators, senior officials and others must take a written oath „correctly, completely and solemnly,“ including the part that states, „I will abide by the Basic Law of the Hong Kong Special Administrative Region of the People`s Republic of China, remain loyal to the Hong Kong Special Administrative Region of the People`s Republic of China,“ reads in the interpretation. The Sino-British Joint Declaration, signed on 19 December 1984 between the Chinese and British Governments, calls for the creation of the Basic Law. The Basic Law, drafted on the basis of the Declaration, sets out China`s basic policy towards Hong Kong, including the principle of „one country, two systems“, so that the governance and economic system practiced in mainland China are not extended to Hong Kong. Instead, Hong Kong would continue its capitalist system and way of life until 2047. [5] The Basic Law also defines the sources of law, the relationship between Hong Kong and the central government (State Council), the fundamental rights and obligations of Hong Kong residents and the branches of local government. In 2004, the NPCSC published an interpretation (pdf) of the two annexes, entirely on its own initiative. The interpretation added two new rules to the process, stipulating that the Chief Executive must first report to the NPCSC on any changes in the voting method, and the NPCSC can decide if necessary. This has effectively limited Hong Kong`s autonomy when it comes to reforming its own democratic process. The basic principles for the interpretation of the Basic Law are described in Article 158 and the case law. In accordance with Article 158(1), the NPCSC has a power of final interpretation.

This is in line with the NPC`s general power to interpret China`s domestic laws in accordance with Article 67(4) of the Constitution of the People`s Republic of China. [44]:222 As a national law, the Basic Law was drafted in Chinese, and its Chinese version prevails over the official English version in case of discrepancies. [45]:408 Before interpreting the Basic Law, the NPCSC must consult with its subcommittee, the Basic Law Committee of the Hong Kong Special Administrative Region. [46] Article 158 of the Basic Law gives the NPCSC the power to interpret the law – but only according to three criteria, writes Cora Chan, an associate professor of law at the University of Hong Kong.