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In response tothe challenge of the Court to the authority of the NPC, some Mainland scholarshave denounced the reasoning of the Court, on the behalf of the CentralGovernment. In their opinion, the NPC is the highest organ to say what the BasicLaw means, as Article 158 of the Basic Law provides. As the highest organ ofstate power, the acts of the NPC and its Standing Committee shall be thehighest commands of the sovereign, to which any person or body must obey. Thesentence of the Court to the case is thus unacceptable. The Court must take anexplicit action to correct its mistake. The Court then on February 26 gave outa complementary judgment:
The Court''s judgment on 29 January 1999did not question the authority of the Standing Committee to make aninterpretation under Article 158 which would have to be followed by the courtsof the Region. The Court accepts that it cannot question that authority. Nordid the Court''s judgment question, and the Court accepts that it cannotquestion, the authority of the National People''s Congress or the StandingCommittee to do any act which is in accordance with the provisions of the BasicLaw and the procedure therein.
Although in thisjudgment the Court did not say whether it still has the right to challenge theoverwhelming force of the acts of the NPC and its Standing Committee, theCentral Government kept silence to this judgment, to shows that the Centeractually has not had the willing to interfere deep into the autonomic affairsof Hong Kong. But the sentence of the Court on January 29 has brought adreadful result that there would be over one million mainlanders who havegained the legal status to immigrate into Hong Kong. This would be a greatburden for Hong Kong, which is above the receiving ability of it. In thissituation, the Hong Kong government sought for an interpretation to thearticles 22(4) and 24(2c) ofthe Basic Law, which are concerned of the conditions of them immigrating intothe Region and the definitions of the Hong Kong residents, from the StandingCommittee of the NPC, to endeavor for limiting the amount of immigration. TheStanding Committee emitted an interpretation, which is the first time of thekind, for response. The interpretation clarifies the meaning and the scope ofthe Hong Kong permanent residents and limits the status of immigration to theRegion. Furthermore, the interpretation overthrows the judgment of the Court incase of Ng Ka Ling and Ng Tan Tan v. the Director of Immigration, andreaffirms the authority of the NPC and the Standing Committee over theexplanation power of the Hong Kong courts.
Because theStanding Committee has enough measure to defend its authority, the true purposeof the interpretation of the Standing Committee is to support the executive authoritiesof Hong Kong for their capacity to handle with the affairs within their powers.The executive domination principle should not be replaced by the authority ofthe courts. It is the core of the Basic Law in matters of administration. Tellthe truth, the question is beyond the scope of law, but in the political.
If we take a stand on the view of pure jurisprudence, the result wouldbe more different. Before the adoption of the constitutional amendments onMarch 1999, President Jiang Zhemin said, "In order to erect more higherthe authority of the Constitution in the whole society, the most importantthing is to restrict and to circumscribe the powers of the state organs inaccordance with law. We ought to insure that the public powers are wielded pursuantstrictly to the Constitution. … The breach of the Constitution is the mostserious breach of law. All acts in violation of the Constitution and the lawmust be investigated." The NPC and its StandingCommittee naturally belong to the state organs which have the duty to obey theConstitution and the laws of the land, passed by themselves, because theArticle 5 of the Constitution provides that no organization or individual mayenjoy the privilege of being above the Constitution and the law. Therefore, theNPC and the Standing Committee must abide by the Constitutions and the lawsincluding the Basic Law until they are revised by the formal amendments. As a result of theprocedural regulation of the Article 159 of the Basic Law for its revision, ifthere is an act in the future passed with the essential revision to the BasicLaw and without complying with the Article 159, the act would be declared inbreach with the Basic Law and unconstitutional. And as an independentjudiciary of the local with the right of final appeal, though the Final AppealCourt has no authority to check the implementation of laws of the land in theareas of the Mainland, it has lawful right to justify the legality ofimplementation of any laws and acts of the land, except the Constitution,within the boundary of Hong Kong. However, this authority should be under theconstraint set by the Article 19(2) of the Basic Law, which reads that thecourts of the Region shall have no jurisdiction over acts of state.
On the other hand, the authority of the NPC and its Standing Committeeshould not be higher over or even in the parallel position to the authority ofthe Constitution. The authority of the NPC is not the authority of the writtenConstitution. And in a state with the creed of rule of law, every authoritycomes from the constitution of the land, therefore being controlled by theconstitution.Thus the NPC and its Standing Committee cannot take any conduct ultra vires which is denied by thespirit of the Constitution and cannot set itself out of the laws it passed.
#a#5. The Prospect of the Developmentof the Basic Law#/a#We have discussedthe question of interpretation of the Basic Law. Now we should consider thefuture development of it. That indicates the possibility of revision of theBasic Law.
The Article 159of the Basic Law provides that the power of amendment of it shall be vested in theNPC. This regulation makes in reality an informal amendment to the ChineseConstitution, as I have mentioned at the beginning of this paper, for by theConstitution the other basic statutes could be partially revised by theStanding Committee, whereas the Article 159 of the Basic Law actually restrainsor prohibits the power of amendment of the Standing Committee to the Basic Law.There bring about two results. Man may ask at first that can the Constitutionbe revised by an ordinary law of the land, not by the formal procedure providedat the Article 64 of the Constitution. This question could be construed fromthe supremacy of the NPC. The NPC may make or unmake any law of the Land,including in its authority the power of constitutional amendment, and anyorgans below it must abide by its command. Because of the Basic Law of HongKong being a statute made by the NPC, if the Law implies that the StandingCommittee has no right to revise it, the Standing Committee must obey andpostpone wielding its power to revise the Basic Law. Automatically reasonedfrom such a conclusion, the second reasoning is that the Basic Law is in aplace a little bit higher than the other basic statutes drafted also by theNPC, such as civil and criminal codes or procedural laws, though in Chineselegal scroll they are in the same level of legal force. Therefore, it could beright that the Basic Law is at least in a special position within the Chineselegal system. Through this status the rights and freedoms of the Hong Kongresidents can be much surely guaranteed by the Basic Law.
As a fundamental law for Hong Kong, the stabilityof the Basic Law is important for the prosperity of Hong Kong. It shouldn''t befrequently revised. Only in the necessary occasions can it be amended under thestrict procedure and through a wide consensus. However, some of the presentclauses of it will lead it to the road of revision. Let us just have aconsideration in the respects of political system. The Article 45(2) exhibitsthe probability: the ultimate aim for the position of the Chief Executive isthe selection of him or her "by universal suffrage upon nomination by abroadly representative nominating committee in accordance with democraticprocedures". This indicates the would-be direct election method of theChief Executive, as mentioned above, after 2007, according to Annex II of theBasic Law. Similarly, Article 68(2) provides that the ultimate aim for seats ofthe Legislative Council is "the election of all the members of it byuniversal suffrage". The change will also happen or start after 2007. Atthat time, it presumes that the all seats of the Legislative Council will bepossessed by direct elections, then a strong parliamentary majority party orparties'' alliance must emerge at the legislature. This will cause the strikesto the principle of executive leading role, because no one could assure thatthe executive and the legislature will keep concurrence on every government policy. If the legislature constantlyexpresses its different opinions on the policies, how will the executiveauthorities do? What can the executive do? And will it make what affections tothe whole society of Hong Kong? The Basic Law must reply these questions and makeitself fit for the requirements under such a political situation.
Let us now give atry to consider some possibilities to answer the questions. The directelections of the Chief Executive and the Legislative Council will spring twocenters of the powers for Hong Kong, which is ugly for a democratic society. Tokeep the leading position of the executive, there are two ways. One way is tofollow the model of English parliamentary government, turning the legislativemajority into the executive lead. This needs to change the political systemthoroughly, which will not be accepted by the Basic Law. Another way is tolearn from the model of American separation of powers, setting apart theexecutive and legislative powers. This will wipe out the power of the ChiefExecutive to dismiss the legislature. There will be problems, too. To tell the truth that the principle of theexecutive lead should be pondered thoroughly, if the problems should be wellresolved. In any case, the influence of the political parties should be putinto the consideration. Anyway, the Basic Law must be revised to get the systemto work effectively. Man cannot live but not express his life.
#a#V. THE SIGNIFICANCES OF THE HONG KONG MODEL#/a#The Hong Kong model is simply to say that,according to the principle of one country, two systems, the given government ofa country establishes, pursuant to a constitutional law of the land, a specialadministrative region within a territory of the country, within which thesocial, economic, legal and political systems are allowed different to those ofthe other parts of the land. Hong Kong is the first of such a region withinChina, and might be the first instance in the world. The establishment of theRegion has, therefore, a far-reaching historical significance both to China andin the world.
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