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On the Adoption of Empirical Evidence in the Interpretation of Hong Kong Basic Law

  • Jie Zhu
  • Xiaoshan Zhang
Chapter

Abstract

Interpretation of constitutional laws is a society-related project. Besides logic and historical materials, social science data, litigant briefs, expert social scientific testimony, Brandeis briefs, and judicial notice are also used by the Court in decision-making (Michael Rustad and Thomas Koenig 1993). Interpretations of the Basic Law of the Hong Kong Special Administrative Region (hereafter referred to as “the Basic Law”) have enormous impact on the Hong Kong society. While interpreting the Basic Law, the National People’s Congress Standing Committee (hereafter referred to as the “NPCSC”) and the Hong Kong Court of Final Appeal (hereafter referred to the “CFA”) and other organs are actually reconstructing the Hong Kong society; hence, the author would call them the “social engineer” of the Hong Kong society. Applying empirical materials in the interpretation of the Basic Law not only reflects the skills of the “social engineers” but also contributes to the refinement and positivism of the Basic Law interpretation. Among the existing Basic Law interpretations, the ones made by the CFA already used a lot of social empirical evidence, while the ones made by the NPCSC contain none. Given that the interpretations made by the NPCSC are constantly challenged by the Hong Kong society, it is high time that legitimacy in the society be considered in future interpretations of the Basic Law. Hence, it is necessary for the NPCSC to introduce positive materials in the Interpretations of the Basic Law to justify the Interpretations. In this chapter, the author shall discuss the application of social empirical evidence in the interpretations of the Basic Law with some cases ruled by the CFA and put forward possible technical paths to introduce social empirical evidence in the interpretations made by the NPCSC according to the characteristics of the Interpretations.

References

  1. Cao Xudong (2012) Wrestle, struggle and popular will: a retrospect of the Chong Fung Yuen case on the “double non”. Crisis Polit Sci Law 06:17–25Google Scholar
  2. Davis KC (1942) An approach to problems of evidence in the administrative process. Harv Law Rev 55(3):364–425CrossRefGoogle Scholar
  3. Dong likun, Chen Hong (2012) On the Hong Kong high court’s rule on the ‘Vallejos Case’ and the legal effect of the NPCSC’s interpretation. Polit Sci Law 06:2–16Google Scholar
  4. Dowdle MW (2007) Constitutionalism in the shadow of the common law. Interpreting Hong Kong’s basic law: the struggle for coherence. Palgrave Macmillan US, New YorkGoogle Scholar
  5. Hastie R (1991) Is attorney-conducted voir dire an effective procedure for the selection of impartial juries. Am Univ Law Rev 40(2):703–726Google Scholar
  6. Jiang Shigong (2007) Textualism, structuralism and originalism: the art of the NPCSC’s interpretation of the basic law. Soc Sci China 05:143–159Google Scholar
  7. John Rawls (2000) Political liberalism. Yilin Press, NanjingGoogle Scholar
  8. Keith E. Whittington (2006) Constitutional interpretation: textual meaning, original intent, and judicial review. China Renmin University Press, LawrenceGoogle Scholar
  9. Lee Ben-nan, Tseng Chien-yuan (2002) Dialectics of political logic and legal logic. In: Liu Kung-Chung, Chen Shin-min (eds) Theory and practice of constitutional interpretation, vol 3. Academia Sinica Research Center for Humanities and Social SciencesGoogle Scholar
  10. Minow M (1987) Foreword: justice engendered. Harv Law Rev 101(1):10–95CrossRefGoogle Scholar
  11. Monahan J, Walker L (1986) Social authority: obtaining, evaluating, and establishing social science in law. Univ Pa Law Rev 134(3):477–517CrossRefGoogle Scholar
  12. Qin Qianhong, Huang Mingtao (2011) A comment on the Hong Kong court of final appeal requesting the interpretation of the NPCSC over the FGH v. DRC and others case. Law Sci 08:63–65Google Scholar
  13. Qin Qianhong, Huang Mingtao (2012) NPCSC’s interpretation under the common law judgement rule: starting from the Chong Fung Yuen case. Stud Law Bus 01:51–58Google Scholar
  14. Ronny Tong Ka-wah (2004) Ruling Hong Kong by interpretation of the basic law, in Ronny Tong Ka-wah: Law, politics and me. Economic Daily Press, Hong KongGoogle Scholar
  15. Rustad M, Koenig T (1993) The supreme court and junk social science: selective distortion in amicus briefs. N. C. Law Rev 72(1):91–162Google Scholar
  16. Scalia A, Gutmann A (1998) A matter of interpretation: Federal courts and the law. Princeton University Press, PrincetonGoogle Scholar
  17. Siegel SA (1991) Lochner era jurisprudence and the american constitutional tradition. N C Law Rev 70(1):1–112Google Scholar
  18. Spillenger C (2005) Revenge of the triple negative: a note on the brandeis brief in “muller v. oregon”. Const Comment 22:5–10Google Scholar
  19. Winter SL (1990) Indeterminacy and incommensurability in constitutional law. Calif Law Rev 78(6):1441–1541CrossRefGoogle Scholar
  20. Yao Guojian (2013) On the binding force of the interpretation of 1999 on Hong Kong courts: using the Chong Fung Yuen case as an example. Stud Law Bus 04:3–10Google Scholar
  21. Zheng Xianjun (2000) The development in constitutional interpretation skills in China: a comment on the interpretation of 1999. Chinese Legal Sci 04:134–142Google Scholar
  22. Zhu Jie (2007) Critique and reconstruction of the constitutional interpretation methods. Public Law Rev 5. Beijing: Beijing University PressGoogle Scholar
  23. Zhu Jie (2014) Techniques and effects of law scrutiny adopted by the court of final appeal in HKSAR. Polit Sci Law 04:13–22Google Scholar

Copyright information

© Springer Nature Singapore Pte Ltd. 2019

Authors and Affiliations

  • Jie Zhu
    • 1
  • Xiaoshan Zhang
    • 1
  1. 1.School of LawWuhan UniversityWuhanChina

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