The NPCSC's Role to Interpret Basic Law Challenges the Judicial Power of Hong Kong

How the Standing Committee of National People's Congress Power to Interpret Basic Law Challenges the Judicial Power of Hong Kong Special Administrative Region

China has the principle of one country two systems. It is concerned with examining the practice of constitutional review, which is exercised by the courts in Hong Kong, and the Standing Committee of National Peoples Congress gives the interpretations to the Basic Law of Hong Kong (Chen et al., 2000). Through an examination of the status of Hong Kong Basic Law and the political and legal issues surrounding its implementation, this paper aims at contributing a good understanding of the constitutional relationship that exists between the Peoples Republic of China and Hong Kong.

Chinese leaders proposed the issue of one country two systems to help in achieving national reunification with Macau, Taiwan, and Hong Kong as it allows the coexistence of various political, legal, and social systems in a unitary country (Lo, 2017). It meant that the Peoples Republic of China maintained it socialist system while Special Administrative Regions of Macau and Hong Kong will go on with practicing capitalism and enjoying a high level of autonomy according to the Basic Law.

In 1982, the constitution made institutional changes to help strengthen the NPC. It also gave close attention to expanding the National Legislative Powers of the Standing Committee (NPCSC) of NPC (Gittings, 2013). Other special committees were also established in NPC. Through this, the position of the position of the president was restored, and there was the establishment of the Central Military Commission. In this law, the president has the obligation of fulfilling most of the ceremonial functions in pursuing the decisions of NPCSC and NPC but cannot command the military forces.

The Standing Committee of National People's Congress Power role to interpret Basic Law challenges the judicial power of Hong Kong Special Administrative Region by conducting some investigations to help in implementing specific rules (Hilmer, 2009). It can also make inquiries through its deputies to the executive. The inquiries are supposed to be answered properly and responsibly. At times, the investigatory committee is regarded as the most potent weapon in the supervisory arsenal of NPC. Therefore, the Standing Committee of National People's Congress Power plays a significant role in the judicial power of Hong Kong.

This term paper also analyzes the interpretations and nature of the Basic Law given by Committee of the National Peoples Congress, and the predicaments brought up with the existence of two legal system and governments in one country. It is because of this coexistence that Standing Committee of National People's Congress Power challenges the judicial power in interpreting the Basic Laws. The existence of two governments in one country is under the law of one state two systems. It commences with the introduction of disputes on the power of NPCSC in interpreting the Basic Laws, and it moves to analyzing the interpretations of NPCSC of the Basic Law that exists in detail (Hilmer, 2009). Investigating the nature of the authoritative analysis in the legal system of China shows that the power is gotten from the Chinese constitution and it is regarded as part of the legislative function.

The Supreme Peoples Court and Standing Committee of the National Peoples Congress has a role in protecting the supremacy of People Republic of Chinas constitution. Even though NPCSC do not have the power to interpret the laws, there is no procedure of precedents of constitutional interpretation (Wong, 2008). Additionally, the design of the current constitution makes it difficult to ensure and review the constitutionality of the national legislation that exists in China. The authoritative interpretations with NPCSC are considered as a necessary supplement in clarification of the meaning of the legal provisions.

According to the subparagraph 4 of the article 67 of Chinas constitution, makes interpretations of the Basic Law, which states that if there is a need of amending the criteria of selecting Chiefs Executives the amendments should be made with the endorsement of a two-thirds majority, and they shall be reported to the SCNPCP. The SCNPCP challenges Judicial Power of Hong Kong Special Administrative Region when interpreting the Basic law due to the integrity of the constitution (Wong, 2008). Some contradictions exist in the constitution, and this makes it difficult to interpret the Basic Law. Therefore, it shows the distinction between the exception and the norm.

The Standing Committee of National People's Congress Power role to interpret Basic Law challenges the judicial power of Hong Kong Special Administrative Region due to the incompatibility that exists between the Basic Law and Chinese Constitution. These two laws are not compatible because of the critical difference between the social principles and systems attached to them (Gittings, 2013). If the two systems are given the chance of mixing, then the Hong Kong legal system can be endangered. The reason is that the Basic Law is a restriction to the sovereignty. Provisions in the Basic Law like the amendment procedure, its limitation, and interpretation of the application of the Chinese national rules in Hong Kong are an example of the limits that are present in the Central Authority of PRC (Lo, 2017). The constitution allows for the issue of two systems in one country.

According to the interpretations of NPCSC, the provision of article 22(4) for entry in the Hong Kong Special Administrative Region, all the individuals from China must apply for the approval (Chen et al., 2000). NPCSC says that this means that people from all the municipalities, autonomous regions, or provinces directly below the Central Peoples Republic including the individuals of Chinese nationality who are born outside Hong Kong with the residents must apply, hold, and have valid documents from the relevant authorities. These interpretations challenge the applications of these laws as it applies to all the residents in China (Gittings, 2013). The interpretations of Basic Law by NPCSC have also caused controversy in the society of Hong Kong. Since article 158(2) authorizes the HKSAR courts in interpreting their provisions within a high degree of autonomy, then NPCSC is supposed to refrain from exercising the interpretive powers over the provisions. The interpretations of NPCSC challenges HKSAR as they can harm the constitution, which can further harm the independence of the judiciary and the power of the final judgment given to the HKSAR.

In conclusion, China as a country has the principle of one country two systems. The Chinese leaders proposed the issue of one-country two systems to help in achieving national reunification. Additionally, the constitution made institutional changes made in 1982 helped in strengthening the NPC. The SCNPCP role to interpret Basic Law challenges the judicial power of HKSAR by conducting some investigations to assist in implementing specific rules. Furthermore, the Supreme Peoples Court and Standing Committee of the National Peoples Congress has a role in protecting the supremacy of People Republic of Chinas constitution. The interpretations of Basic Law by NPCSC have also caused controversy in the society of Hong Kong.

References

Chen, W., Fu, H., Ghai, Y. P., & Chan, J. (2000). Hong Kong's constitutional debate: Conflict over interpretation. Hong Kong: Hong Kong University Press.

Gittings, D. (2013). Introduction to the Hong Kong basic law. Hong Kong: Hong Kong University Press.

Hilmer, S. E. (2009). Mediation in the People's Republic of China and Hong Kong (SAR). Utrecht: Eleven International Pub.Lo, P. U. I.-Y. I. N. (2017). JUDICIAL CONSTRUCTION OF THE BASIC LAW: The independent judicial power of the courts of the... Hong Kong special administrative region. S.l.: OPEN DISSERTATION PRESS.

Wong, (2008). One Country, Two Systems In Crisis: Hong Kong's Transformation since the Handover. Lanham: Lexington Books.