Explanation On Draft Interpretation Article -Myassignmenthelp.Com

Question: Discuss About The Explanation On Draft Interpretation Article? Answer: Introduction: Basic law is considered as national law and this law is defined by the constitution of the PRC, and this law is based on the factors of one country and two systems. It must be noted that basic law is considered as most important part of the Hong Kongs fundamental structure. It is necessary for the government to practically imply this law for the purpose of its legalization. Almost after ten years of legalization of this law, experts in China and Hong Kong start working on the area of interpretation on this law. Experts work on this area on the basis of the principle of One Country, Two Systems. For the purpose of interpreting this law, two factors are considered by the legislatures. First factor states that interpretation is made by the SCNPC and second states the interpretation of basic law through judicial point of view by the Hong Kong Courts. In other words, interpretation in context of basic law is made by the two bodies that is SCNPC and Courts of Final Appeal[1][2]. This paper discusses the power of the National People's Congress Standing Committee to interpret the Hong Kong Basic Law before, during and after court cases. Lastly, paper is concluded with brief conclusion. Constitution Law NPCSC: Constitution of the mainland states that China is a state which follows social principles, and in this country working class holds the democratic dictatorship of people. Provisions of constitution support the separation of powers because China is a socialist state which adopts the standards of equal society. . China is also a unitary state under which limitations are not imposed on the Central Government by the federalism or a checklist of enumerated powers. Constitution recognized the NPC as the uppermost body of the state, and this body exercises the powers at legislative and executive level, and these powers also include the ability of NPC to appoint the heads of the executives and judicial institutions. NPC also exercise power to elect the NPCSC members. NPC is a large institution and it meets only for two weeks annually and because of this reason main purpose of this committee is to approve the bills proposed by the other bodies of the state[3]. Interpretation of Basic law: Mainland legal system adopts the interpretation in legal manner under the constitution of PRC. Power related to the interpretation is imposed in the legislature. On the other hand, Hong Kong adopted common law system because of the judicial interpretation, and this interpretation is made by the judges. SCNPC and Courts use their power of interpretation for the purpose of establishing the basic law. [4]Section 158 of the Constitution defines that power in context of interpretation is imposed in the SCNPC, and this section further stated that Courts are also authorized to interpret the basic law in adjudicating cases. This section defines some particular circumstances in which Courts pursue help from SCNPC for interpretation before final decision of the cases which are not appealable[5]. Four situations are described below in which SCNPC exercise its constitutional power for the interpretation of the basic law and this done to clarify some specific fundamental legal issues and for faci litating the smooth implementation of the Basic Law[6]: The first matter deals with the issue related to right of abode. Article 24[7] defines the provisions related to right of abode for specific classes of person. This article provides this right to those people of Chinese nationality who took birth as permanent citizens of Hong Kong but rose on the land of China because of which they fails to enjoy this right. This matter involves the question, whether all these childrens of mainland reached at the similar time, and it also deals with the questions whether impact of this article on services related to society would have been extremely difficult to handle. Therefore, on 10th July 1997, amendments related to the Immigration Ordinance is introduced by the government of Hong Kong and these amendments caused implementation of Certificate of Entitlement Scheme for the purpose of addressing the issues related to these Mainland Childrens. As per the legislation, such persons must enjoy their right and they must hold the accurate documents rela ted to travel such as authentic permit related to one way and this permit is issues by the authorities of Mainland. It must be noted that these permits must be stamped with the accurate Certificate of Entitlement issued by a department of Immigration. For the purpose of obtaining the certificate of entitlement, person must prove for the satisfaction of director that one of their parents holds the right of abode in Hong Kong. This scheme is challenged before the Court of Hong Kong on the basis of discrepancy with the basic law. on 29th January 1999, judgment is delivered by the Court of Final Appeal in cases Ng Ka Ling Others v Director of Immigration (1999) 2 HKCFAR 4 [8]and Chan Kam Nga Others v Director of Immigration (1999) 2 HKCFAR 82[9]. Both the cases are related to the nationals of China who were not born in Hong Kong but claimed for obtaining the right of abode. Appeal was allowed by the Court of final appeal and stated that according to this article those childrens whose parents exercise the right of abode in Hong Kong also has this right, even though they are not able to get the right from mainland authority. Because of this big issue, the Chief Executive seeks interpretation from the NPC in context of important provisions of Articles 22 and 24. Confirmation was given by SCNPC in 1999 related to the basic law provisions. SCNPC interpreted the provisions related to right of abode, and as per that interpretation only those childrens can enjoy this right whose parents hold the Hong Kongs permanent citizenship at the time of the birth of that children. However, it was also necessary that they apply to the authorized institutions of mainland for approval to enter into Hong Kong. In case of Lau Kong Yung Others v Director of Immigration (1992) 2 HKCFAR 300[10], Court of final Appeal stated that power of SCNPC for interpreting the law is general in nature and based on unqualified terms, which means any such interpretation made by SCNPC also binds the Courts. Courts decision was also applied without any legality doubt in context of interpretations made by SCNPC. Later, decision of the Court of Final appeal in Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 234,[11] further stated the power related to the interpretation of SCNPC generates from the constitution of PRC and this interpretation is binding on the Courts of Hong Kong. Second matter deals with the development of constitution in Hong Kong, and it particularly deals with the basic law provisions in context of the Chief Executive. It also considers the procedure related to the Legislative Council formation after the year 2007. However, no clear provision is provided by the law for amending relative provisions. On 6th April 2004, SCNPC provides its interpretation related to Article 7 of Annex I and Article III of Annex II of the Basic Law, and in this they provide the framework for making amendments in the appointment of the Chief Executive from electoral method and also for the Legislative Council formation. Third matter deals with the length of office of the Chief Executive of Hong Kong. During the period of March 2005, Chief Executive provides resignation in between of his five-year term and this resignation is accepted by the state Council. In this context, interpretation is provided by the SCNPC by considering the necessary provisions of the Basic Law and as per this interpretation, the term of office for new chief executive must be the remainder of the original five-year term. Fourth matter deals with the application of doctrine of state immunity, and in this case considered is the proceedings launched by the American company against the Democratic Republic of the Congo (DR Congo) for the purpose of seeking enforcement of two arbitral awards in Hong Kong. In this, appeal is overturned by the Court in favor of Dr. Congo, and after that in the Court of Final Appeal argument is stated that Mainland policy related to state immunity must be followed by Hong Kong and must issue them absolute state immunity against the legal actions. On 30th June 2011, Court of Final Appeal seek interpretation from SCNPC in context of Articles 13(1) and 19 of the Basic Law for the purpose of determining the question whether Courts of Hong Kong are bound to implement the rule on state immunity stated by the CPG and they also seek the effect of these stated articles. Therefore, it can be said that SCNPC holds the power to interpret the Hong Kong Basic Law before, during and after court cases. Conclusion: After considering the above facts, it can be said that section 158 of the basic law impose power in SCNPC to interpret the basic law, but committee must consult with the Hong Kong Special Administrative Region before giving an interpretation of this Law. References Xinhua, Full text: Explanations on draft interpretation of Article 104 of Basic Law of Hong Kong SAR, (2016), https://www.xinhuanet.com/english/2016-11/08/c_135812367.htm, Accessed on 31st January 2018. Basic Law, the basic law of the hong kong special administrative region of the peoples republic of china, https://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf, accessed on 31st January 2018. Basic Law. chapter VIII : Interpretation and Amendment of the Basic Law, https://www.basiclaw.gov.hk/en/basiclawtext/chapter_8.html, accessed on 31st January 2018. Todd Schneider, David v. Goliath: The Hong Kong Courts and China 's National People's Congress Standing Committee, (2002), BJIL, Volume 20 (3). The Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of China- Section 158. Lin Feng, The Constitutional Crisis in Hong Kong-Is It Over?, 9 PAC. RIM L. POL'Y J. 281 (2000). The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China- Article 24. Ng Ka Ling Others v Director of Immigration (1999) 2 HKCFAR 4. Chan Kam Nga Others v Director of Immigration (1999) 2 HKCFAR 82. Lau Kong Yung Others v Director of Immigration (1992) 2 HKCFAR 300. Dictor of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 234 [1][1][1] Xinhua, Full text: Explanations on draft interpretation of Article 104 of Basic Law of Hong Kong SAR, (2016), https://www.xinhuanet.com/english/2016-11/08/c_135812367.htm, Accessed on 31st January 2018. [2] Basic Law, the basic law of the hong kong special administrative region of the peoples republic of china, https://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf, accessed on 31st January 2018. [3] Todd Schneider, David v. Goliath: The Hong Kong Courts and China 's National People's Congress Standing Committee, (2002), BJIL, Volume 20 (3). [4] The Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of China- Section 158. [5] Basic Law. chapter VIII : Interpretation and Amendment of the Basic Law, https://www.basiclaw.gov.hk/en/basiclawtext/chapter_8.html, accessed on 31st January 2018. [6] Lin Feng, The Constitutional Crisis in Hong Kong-Is It Over?, 9 PAC. RIM L. POL'Y J. 281 (2000). [7] The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China- Article 24. [8] Ng Ka Ling Others v Director of Immigration (1999) 2 HKCFAR 4. [9] Chan Kam Nga Others v Director of Immigration (1999) 2 HKCFAR 82. [10] Lau Kong Yung Others v Director of Immigration (1992) 2 HKCFAR 300. [11] Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 234.