reputation of the Court of Final Appeal and the judiciary of Hong Kong. Independ-
ence of the judiciary is further buttressed by various systemic guarantees in the
Basic Law, including the system of appointment, promotion and removal of judges.
As discussed above, the first interpretation of the NPCSC posed one of the first
major challenges to the independence of the judiciary in Hong Kong. There were
concerns that a political organ could easily reverse the considered judgment of the
Court of Final Appeal. There were also concerns whether, as a result, a judge
would always have to look over his shoulder to take into account how his decision
would be received by the central government. InChong Fung Yuenv.Director of
Immigration, the court dispelled such concerns by emphasising the independent
judicial power and its exclusive role of interpreting the law, subject only to the limit
on the court’s jurisdiction.^24 It was held that these principles flow from the doctrine
of separation of powers; they are the basic principles of the common law that
have been preserved and maintained in Hong Kong by the Basic Law. The chief
justice further explained this common-law approach to interpretation as an object-
ive process that is not influenced or dictated by the intent of the lawmaker or by any
extrinsic factors other than the intent of the legislature as expressed through the
language of the legislation:
The courts’ role under the common law in interpreting the Basic Law
is to construe the language used in the text of the instrument in order to
ascertainthe legislative intent as expressed in the language. Their task is
not to ascertain the intent of the lawmaker on its own. Their duty is to
ascertainwhat was meant by the language usedand to give effect tothe
legislative intent as expressed in the language. It is the text of the
enactment which is the law and it is regarded as important both that
the law should be certain and that it should be ascertainable by the
citizen.^25
In the same case, the court tried to minimise the influence of the NPCSC by
labelling the process a legislative process no different from other legislative pro-
cesses.^26 Subject to any constitutional constraint, the legislature is free to reverse a
judgment of the court that the legislature considers unacceptable politically,
socially or economically. This phenomenon is a consequence of a separation of
powers, and the check against legislative abuse lies in the representative legislature.
Thus, if necessary, the Constitution can be amended. The only difference is that
the Basic Law can be amended or ‘interpreted’ in a way that is not familiar to the
(^24) ( 2001 ) 4 HKCFAR 211 at 223. (^25) Ibid., italics original.
(^26) While this explanation of distancing the NPCSC interpretation from the judicial process
helps preserve the independence of the judiciary, it does not work well in the case of
judicial referral. For more detail, see J. Chan, ‘Basic Law and constitutional review’ ( 2007 )
37 Hong Kong Law Journal 407 at 415 – 19 ; Chan and Lim,Law of the Hong Kong Consti-
tution, paras. 2. 077 – 2. 090 , 10. 061 – 10. 063 and 16. 017 – 16. 022.