3. The court frames the questions to be referred to the NPCSC for
interpretation.
4. The court renders its opinion, tentative in nature, on the
substantive issues so that the NPCSC has the benefit of a
considered judgment of the highest court of the HKSAR that is well
versed in the common-law approach.From a royal edict to a constitutional convention
The interpretation of the Basic Law has become the natural battlefield for defining
autonomy. In the first three incidents of interpretation of the Basic Law, the extent
of autonomy is directly at issue. On the first occasion, it was done to address the
difficult consequences arising from a decision of the Court of Final Appeal.
This situation is not uncommon in many jurisdictions where the government has
to deal with a judicial decision that has unpalatable economic, social or political
consequences. In a common-law system, the usual manner of resolving this prob-
lem is to introduce new legislation or an amendment of the Constitution as
appropriate. The legislative process would allow the community through its
elected representatives an opportunity to debate the issues fully. In the case of
Hong Kong, the power to amend the constitution lies in Beijing and not in Hong
Kong. Taking a view that the Basic Law should not be lightly amended, the central
government has resorted to the interpretation route to address this problem.
As shown above, the first interpretation was done at the expense of the independ-
ence of the judiciary and at a great social cost.
On the second and third occasions of interpreting the Basic Law, the NPCSC
conveyed a loud and clear message that, while prepared to tolerate a high degree of
autonomy in internal affairs, Beijing, and not Hong Kong, is in control when it
comes to the democratic development of the political process of Hong Kong.
The central government is not content with just having a final veto power to
disallow any proposed change to the method of formation of the Legislature or
the selection of the Chief Executive, but wants full control to decide whether any
change is proposed in the first place.
The NPCSC is obliged, before exercising its power of interpretation, to consult
the Basic Law Committee, which has served as nothing more than a rubber stamp.
With a highly asymmetrical power relationship, the NPCSC interpretations reaffirm
that while Hong Kong enjoys a high degree of autonomy, the extent of autonomy
rests on a rather precarious basis and lies at the pleasure of the central government.
Nevertheless, the process of interpretation has been subject to some refinements.
In the first interpretation, the NPCSC just made the interpretation and announced
it. In the second interpretation, some mainland members of the NPCSC came to
Hong Kong to explain the interpretation after it had been made. In the third
interpretation, some mainland members of the NPCSC met with some selected
people and groups in Shenzhen before it made the interpretation. On the fourth