Slide 5
So as Hillary mentioned earlier, the CFA ruled that in the absence of any binding interpretation by NPCSC of article 24 2 (1), CFA was free to interpret it on its own applying common law interpretation. So what are the impacts and constitutional significances of the case chong fung yuen?
Slide 6
Generally, the CFA judgment is accepted by the legal profession in Hong Kong.
For example Eric Cheung Tat-ming, assistant professor in the Law Department of the University of Hong Kong, said the ruling reaffirmed the principle of the law and the constitution.
Professor Albert Chen Hung-yee, a member of the Basic Law Committee, the reaffirms the independence of our legal system."
The judgment safeguards the high degree of autonomy of SAR and reaffirms with the one country two system policy. Chong Fung yuen case is about Chinese citizen born in hk , and it would be alarming and derogation from hk's autonomy if the provision were to be regarded as excluded provision.
In one country two system, each system can respect the principle and norms of the other system without necessarily agreeing with them while maintaining critically reflective attitude towards them; in matters like in chong fung yuen there is no direct conflict of fundamental interests between two system, there is considerable space for toleration of differences. Although PRC disagreed with the CFA'S handling of the matter, it did not intervene to overrule CFA'S handling of the matter. This preserve the interests of autonomy of HKSAR and rule of law
Furthermore, it also poses practical limits to the theoretically unlimited nature of NPCSC'S authority and narrow down the numbers of clauses that needed to be reinterpreted by the NPCSC.
This limit the central government's authority over hk courts. ; there is a wide range of clauses which needs to be interpreted by NPCSC because many of them have implications on the cross border relationship, it would mean that most if not all the articles in the basic law could be potentially excluded provision.
This shows that CFA do in fact have some control of when to refer questions to NPCSC. The requirement that every constitutional question be referred to the NPCSC would have severely undermine the hong kong court autonomy. This formulated its test for determine whether a provision in the basic law is an excluded provision narrows further the NPCSC authority and correspondingly expand the hk judiciary autonomy, rule of law and eliminate the threat of article 158 to hk autonomy
The chong fung yuen judgment may perhaps be a win win scenario for both hk and china? As the common law tradition and judicial autonomy are reinforced within china’s boundaries. And further strengthening the principle of one country two system.