What happens when two different pieces of legislation contradict each other?
In common law, one could apply the principle of "implied repeal", where the subsequent legislation would be considered to have repealed the earlier one.
But the Basic Law has not undergone amendments since its promulgation in 1990, so this does not apply.
Another common way to resolve apparent contradictions is to consider that the more general provision be qualified by the more specific one. Yet in cases where fundamental rights are at issue, courts may instead adopt a "generous interpretation", restricting the scope of those provisions that appear to restrict fundamental rights.
Indeed, this was the approach laid out by the Court of Final Appeal in 1999 in Ng Ka Ling:
The courts should give a generous interpretation to the provisions in Chapter III that contain these constitutional guarantees in order to give to Hong Kong residents the full measure of fundamental rights and freedoms so constitutionally guaranteed.
The Court rejected the argument that Art 22(4), which provides for immigration control over people from Mainland China into Hong Kong by Mainland authorities, qualified Art 24(2)(3), and instead adopted a restricted reading of the scope of Art 22(4):
We have concluded that having defined the class of permanent residents, a generous approach should be adopted to the interpretation of the constitutional provisions guaranteeing their rights. The right of abode is aptly described by Mr Chang SC for the applicants as a core right. Indeed without it and the right to enter which is an essential element, the rights and freedoms guaranteed can hardly be enjoyed, including in particular the right to vote and to stand for election. Applying the generous approach, the Court should, in our view, scrutinize with the greatest care any submission that Article 22(4) encroaches on that core right.
Article 24(3) confers the right of abode in unqualified terms on permanent residents. If the argument that Article 22(4) qualifies the right of abode in Article 24(3) is correct, the right of abode of persons who are undoubtedly permanent residents but who are residing on the Mainland is a most precarious one. The Region's constitution, whilst conferring the constitutional right of abode in the Region on the one hand, would have with the other hand subjected that right to the discretionary control of the Mainland authorities, that discretionary control being beyond the authority of the Region. The control by one way permits would relate to the determination of both the quota as well as allocation within the quota. Further, on this argument, there would be a difference in the constitutional right of abode between on the one hand those in the third category of permanent residents in Article 24(2) who are resident in the Mainland whose right would be qualified by Article 22(4) and those in the same category who are resident outside the Mainland whose right would not be so qualified on the other hand.
We cannot accept this argument. A generous approach has to be applied to interpreting the right of abode provision. Considering the language of Article 24 and Article 22(4), in our view, "people from other parts of China", including among them persons entering for settlement referred to in Article 22(4), do not include permanent residents of the Region upon whom the Basic Law confers the right of abode in the Region. Persons with permanent resident status under the Basic Law are not, as a matter of ordinary language, people from other parts of China. They are permanent residents of this part of China. Nor is it correct to describe them as persons entering for the purpose of settlement. Their status is that of permanent residents of the Region. They do not enter the Region for the purpose of settlement. They are permanent residents with the right to enter the Region and to remain as long as they wish. (emphasis mine)
It is well known that the Court's interpretation of Art 24(2)(3) led to a subsequent interpretation by the NPCSC, effectively reversing HKCFA's decision. However, in Chong Fung Yuen, the approach towards interpretation of Chapter III of the Basic Law was apparently still unchanged, aside from the specific case of Art 24(2), in which the court seemed to have backtracked on its own decision:
As the Court held in Ng Ka Ling (at 29 A-C), the courts should give a generous interpretation to the provisions in Chapter III that contain constitutional guarantees of freedoms that lie at the heart of Hong Kong's separate system. However, when interpreting the provisions that define the categories of permanent residents, the courts should simply consider the language in the light of any ascertainable purpose and the context.
Subsequently, this "generous" approach has been affirmed many times by Courts in many cases.
Normally, a legal doctrine established by the CFA and subsequently repeatedly applied would have been considered a settled matter.
However, 2019 happened.
Due to difficulty of identifying rioters, the Hong Kong Government invoked the Emergency Regulations Ordinance (ERO), essentially banning the use of face coverings during certain public activities and providing law enforcement with powers to remove said coverings. (This happened, incidentally, just before COVID-19 became widespread.) The Pan-democrats launched a legal challenge to the government's ban, claiming that the ERO is unconstitutional. The CFI partially agreed, and struck down the mask ban and also parts of the ERO.
What happened next was one of the more scary things seen since 1997 -- a spokesperson for the Legislative Affairs Commission of the NPC expressed their views that the Hong Kong courts have no jurisdiction to declare legislation incompatible with the Basic Law[1]. Barely short of a formal interpretation, the NPC had fired a warning shot to the Hong Kong courts, threatening to bring the party to an end, once and for all.
This development, I suspect, put the Court of Appeal in a precarious position. The CA is undeniably bound by the CFA's decision in Ng Ka Ling which stated that "the courts of the Region have a duty to enforce and interpret (the Basic Law). They undoubtedly have the jurisdiction to examine whether legislation enacted by the legislature of the Region or acts of the executive authorities of the Region are consistent with the Basic Law and, if found to be inconsistent, to hold them to be invalid." However, it could obviously not ignore the high profile statement claiming the contrary by a committee of the NPC.
The CA's solution to this dilemma was apparently to promote the "theme of continuity", a doctrine of which "Ma Wai Kwan, David" was cited as authority. I personally do not think that the theme of "continuity" in "Ma Wai Kwan, David" was supposed to lay down a general principle that legislation pre-1997 is presumed to be consistent with the Basic Law unless something demonstrably breaks "continuity", but apparently the CA is extending the concept to that effect. The ERO case was, of course, appealed to the CFA. The CFA reaffirmed that Hong Kong courts do actually have jurisdiction to review whether legislation is consistent with the Basic Law, and also decided the case in favour of the government. I cannot discern whether it actually made any meaningful comment on the CA's "theme of continuity" doctrine.
The ERO case concerns the relationship of the Basic Law with local legislation and government actions. The original question raised by this article - how to reconcile articles in the Basic Law that are apparently at odds with each other - was not revisited by the CA until Kwok Cheuk Kin v Director of Lands, i.e. the "Ding Rights" case, where articles 25 and 39 was pitted against 40, 120 and 122. Here, the CA emphasized the "coherence principle", where "the Basic Law must be read as a coherent whole". The effect of this coherent reading is that, despite the CA accepting that "Ding Rights" clearly being discriminatory against females and ostensibly being at odds with BL25 and BL39, it nonetheless concluded that the scheme was "constitutional":
Reading BL120 and BL122 together, insofar as small house grants made pursuant to the Small House Policy are concerned, irrespective of the form and whether they are made before or on 30 June 1997, they will continue to be recognized and protected under the law of the HKSAR. When BL40 is construed together with BL120 and BL122, the Ding Rights must fall within the scope of NTIIs’ lawful traditional rights and interests. Any contrary construction would render BL120 and BL122, insofar as small house grants are concerned, quite meaningless.
It would seem that the approach to interpretation of the Basic Law adopted by the CA in the Kwok Cheuk Kin diverged significantly from that of the CFA in Ng Ka Ling-
* The previously well established "generous approach" in Ng Ka Ling seems to have been supplanted by a "coherent approach" in Kwok Cheuk Kin;
* whereas the CFA in Ng Ka Ling took great pains to emphasize that BL24(3) was not qualified by BL22(4) because it involved fundamental rights, the CA in Kwok Cheuk Kin was more than ready to restrict the application of gender equality rights by giving full effect to a historical arrangement of New Territories land rights;
* whereas the CFA in Ng Ka Ling gave scant weight to the fact that the UK made reservations regarding immigration rights when ratifying the ICCPR for Hong Kong, the CA in Kwok Cheuk Kin considered the UK's reservations for CEDAW[2] as one of the two main factors that decided the case.
The contrast between these approaches could not have been greater. This contrast, in addition to the CA's rebranding of the concept of "continuity" which severely limits the court's power to question "constitutionality" of local legislation, would lead me to venture to claim that the CA has essentially overturned Ng Ka Ling.
The question of "when CA and CFA decisions contradict, which one to follow?" has a textbook answer. However, in these strange times, I'm not sure whether the textbook answer is (politically?) correct. Reportedly Mr Kwok is planning to appeal the CA's decision on the issue of "Ding rights", which means that CFA will likely have a chance to comment on the issues above. However, given the current political climate, my expectation is that the CFA will not likely tackle these difficult issues head on. I suspect that, more likely, as in the recent ERO case, the CFA will merely reaffirm well established broad principles and then decide the case for the government.
It is axiomatic that the Basic Law, as a single piece of legislation, must be read in a coherent manner. It is absurd to think otherwise. However, the real question is, still, when different parts of the Basic Law are in apparent contradiction, which shall yield to which? The approach laid down in Ng Ka Ling, while politically inconvenient today[3], seems to at least provide a workable guideline that emphasis is to be placed on giving effect to fundamental rights. The "coherent approach", on the other hand, does not seem to meaningfully inform a politically naïve person on how to actually apply the principle. Despite the CFA in Ng Ka Ling taking a very different approach compared with the CA in Kwok Cheuk Kin, I think it is still fair to say that the conclusion reached in Ng Ka Ling was no less coherent, as it also renders the Basic Law self-consistent. The real issue is, I submit, how much one must squint when reading the Basic Law, and on which parts.
[1] http://www.xinhuanet.com/english/2019-11/19/c_138566373.htm // http://www.npc.gov.cn/npc/c30834/201911/a9d53f09459f4a5aa99ecf986290bf96.shtml
[2] the 1979 Convention on the Elimination of All Forms of Discrimination against Women -- If I may add, it seems to be a treaty otherwise irrelevant to the current case, and while as a matter of historical fact such reservations by the government may inform a court of those governments' intentions at a particular point in time, such governments' intentions are a different matter from the intentions of a piece of legislation. In particular, government decisions are generally reviewable by competent courts, whereas courts are generally bound to give effect to legislation unless superceded by a higher law. That Hong Kong courts have no authority to question decisions of the UK and Chinese governments (as opposed to their respective legislatures) is a political fact (and probably a decision to such effect is entirely correct from a political perspective), however I am not aware of any legal authority to that effect, and I wonder whether Kwok would eventually become such authority.
[3] and perhaps even back then, although the relationships between Mainland authorities and Hong Kong courts were not as strained as today
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