Ⅰ.Constitutional Law

Special Administrative Region

Interpretation by the Standing Committee of the National People's Congress Regarding the First Paragraph of Article 13 and Article 19 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China

(Adopted at the 22nd Meeting of the Standing Committee of the Eleventh National People's Congress on August 26，2011)

The Standing Committee of the Eleventh National People's Congress deliberated at its 22nd Meeting the Draft Interpretation by the Standing Committee of the National People's Congress Regarding the first paragraph of Article 13 and Article 19 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China which was proposed for deliberation by the Chairmen's Council.The proposal of the Chairmen's Council was submitted upon the report by the Court of Final Appeal of Hong Kong Special Administrative Region requesting the Standing Committee of the National People's Congress to interpret the relevant provisions of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China，in accordance with the third paragraph of Article 158 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China.

The Court of Final Appeal of the Hong Kong Administrative Region needs to ascertain，in adjudicating a case involving the Democratic Republic of Congo，whether the Hong Kong Special Administrative Region should apply the rules or policies on state immunity as determined by the Central People's Government.For this purpose，in accordance with the provisions of the third paragraph of Article 158 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China，the Court of Final Appeal of the Hong Kong Special Administrative Region seeks an interpretation from the Standing Committee of the National People's Congress on the following questions:“(1)whether on the true interpretation of the first paragraph of Article 13，the Central People's Government hasthe power to determine the rules or policies of the People's Republic of China on state immunity; (2)if so，whether on the true interpretation of the first paragraph of Article 13 and Article 19，the Hong Kong Special Administrative Region，including the courts of the Hong Kong Special Administrative Region: (i)is bound to apply or give effect to the rules or policies on state immunity determined by the Central People's Government under the first paragraph of Article 13; or (ii)on the other hand，is at liberty to depart from the rules or policies on state immunity determined by the Central People's Government under the first paragraph of Article 13 and to adopt a different rule; (3)whether the determination by the Central People's Government as to the rule or policy on state immunity falls within“acts of the State such as national defense and foreign affairs”in the first sentence of the third paragraph of Article 19 of the Basic Law; and (4)whether，upon the establishment of the Hong Kong Special Administrative Region，the effect of the first paragraph of Article 13，Article 19 and the status of Hong Kong as a special administrative region of the People's Republic of China upon the common law on state immunity previously in force in Hong Kong (that is，before July 1，1997)，to the extent that such common law was inconsistent with the rules or policies on state immunity as determined by the Central People's Government pursuant to the first paragraph of Article 13，was to require such common law to be applied subject to such modifications，adaptations，limitations or exceptions as were necessary to ensure that such common law is consistent with the rule or policy on state immunity as determined by the Central People's Government，in accordance with Article 8 and Article 160 of the Basic Law and the Decisions of the Standing Committee of the National People's Congress issued on February 23，1997 made pursuant to Article 160.”The above request for interpretation by the Court of Final Appeal of the Hong Kong Special Administrative Region complies with the provisions of the third paragraph of Article 158 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China.

Pursuant to Subparagraph (4)of Article 67 of the Constitution of the People's Republic of China and Article 158 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China，and after consulting the Committee for the Basic Law of the Hong Kong Special Administrative Region under the Standing Committee of the National People's Congress，the Standing Committee of the National People's Congress，in relation to the request for interpretation by the Court of Final Appeal of the Hong Kong Special Administrative Region，hereby makes the following interpretation of the provisions of the first paragraph of Article 13 and Article 19 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and related issues:

1.On question (1)on which an interpretation is sought by the Court of Final Appeal of the Hong Kong Special Administrative Region.According to Subparagraph (9)，Article 89 of the Constitution of the People's Republic of China，the State Council as the Central People's Government exercises the function and power to conduct the foreign affairs of the State; as the rules or policies on state immunity fall within diplomatic affairs in the realm of the foreign affairs of the state，the Central People's Government has the power to determine the rules or policies of the People's Republic of China on state immunity to be giveneffect to uniformly in the territory of the People's Republic of China.Based on the above，in accordance with the provisions of the first paragraph of Article 13 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China that“the Central People's Government shall be responsible for the foreign affairs relating to the Hong Kong Special Administrative Region”，the conduct of the foreign affairs relating to the Hong Kong Special Administrative Region falls within the power of the Central People's Government.The Central People's Government has the power to determine the rules or policies on state immunity to be applied in the Hong Kong Special Administrative Region.

2.On question (2)on which an interpretation is sought by the Court of Final Appeal of the Hong Kong Special Administrative Region.According to the provisions of the first paragraph of Article 13 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and Article 1 of this Interpretation，the Central People's Government has the power to determine the rules or policies on state immunity to be applied in the Hong Kong Special Administrative Region.According to the provisions of Article 19 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and Article 3 of this Interpretation，the courts of the Hong Kong Special Administrative Region have no jurisdiction over the act of the Central People's Government in determining the rules or policies on state immunity.Therefore，when questions of immunity from jurisdiction and immunity from execution of foreign states and their properties arise in the adjudication of cases，the courts of the Hong Kong Special Administrative Region must apply and give effect to the rules or policies on state immunity determined by the Central People's Government as being applicable to the Hong Kong Special Administrative Region.Based on the above，in accordance with the provisions of the first paragraph of Article 13 and Article 19 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China，the Hong Kong Special Administrative Region，including the courts of the Hong Kong Special Administrative Region，is under a duty to apply or give effect to the rules or policies on state immunity that the Central People's Government has determined，and must not depart from the above-mentioned rules or policies nor adopt a rule that is inconsistent with the above-mentioned rules or policies.

3.On question (3)on which an interpretation is sought by the Court of Final Appeal of the Hong Kong Special Administrative Region.State immunity concerns whether the courts of a state have jurisdiction over foreign states and their properties and whether foreign states and their properties enjoy immunity in the courts of a state.It directly relates to the state's foreign relations and international rights and obligations.Therefore，the determination as to the rules or policies on state immunity is an act of state involving foreign affairs.Based on the above，“acts of the State such as national defense and foreign affairs”as stipulated in the third paragraph of Article 19 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China includes the act of determination by the Central People's Government as to the rules or policies on state immunity.

4.On question (4)on which an interpretation is sought by the Court of Final Appeal of the Hong Kong Special Administrative Region.According to the provisions ofArticle 8 and 160 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China，the laws previously in force in Hong Kong shall be maintained only if there is no contravention of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China.In accordance with the provisions of Article 4 of the Decision of the Standing Committee of the National People's Congress Concerning the Handling of the Laws Previously in Force in Hong Kong in Accordance with Article 160 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China，such of the laws previously in force in Hong Kong which have been adopted as the laws of the Hong Kong Special Administrative Region shall，as from 1 July 1997，be applied subject to such modification，adaptations，limitations or exceptions as are necessary so as to bring them into conformity with the status of Hong Kong after resumption by the People's Republic of China of the exercise of sovereignty over Hong Kong as well as to be in conformity with the relevant provisions of the Basic Law.The Hong Kong Special Administrative Region，as a local administrative region of the People's Republic of China that enjoys a high degree of autonomy and comes directly under the Central People's Government，must give effect to the rules or policies on state immunity as determined by the Central People's Government.The laws previously in force in Hong Kong relating to the rules on state immunity may continue to be applied after July 1，1997 only if they comply with the above requirements.Based on the above，in accordance with the provisions of the first paragraph of Article 13 and Article 19 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China，such of the laws previously in force in Hong Kong concerning the rules on state immunity which have been adopted as the laws of the Hong Kong Special Administrative Region according to the Decision of the Standing Committee of the National People's Congress Concerning the Handling of the Laws Previously in Force in Accordance with Article 160 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China，which applied as from July 1，1997，must be subject to such modifications，adaptations，limitations or exceptions as are necessary so as to be consistent with the rules or policies on state immunity that the Central People's Government has determined.

The Interpretation is hereby announced.

Interpretation by the Standing Committee of the National People's Congress Regarding Article 7 of Annex I and Article 3 of Annex II to the Basic Law of the Macao Special Administrative Region of the People's Republic of China

(Adopted at the 24th Meeting of the Standing Committee of the Eleventh National People's Congress on December 31，2011)

The Standing Committee of the Eleventh National People's Congress deliberated at its 24th meeting the Draft Interpretations by the Standing Committee of the National People's Congress Regarding Article 7 of Annex 1 and Article 3 of Annex 2 to the Basic Law of the Macao Special Administrative Region of the People's Republic of China which was proposed for deliberation by the Chairmen's Council.After consulting the Committee of the Basic Law of the Macao Special Administrative Region of the Standing Committee of the National People's Congress，the Standing Committee of the National People's Congress has decided that pursuant to Subparagraph (4)of Article 67 of the Constitution of the People's Republic of China and the first paragraph of Article 143 of the Basic Law of the Macao Special Administrative Region of the People's Republic of China，the following interpretation shall be made to Article 7 of Annex I: Method for the Selection of the Chief Executive of the Macao Special Administrative Region to the Basic Law of the Macao Special Administrative Region of the People's Republic of China，which stipulates that “If there is a need to amend the method for selecting the Chief Executive for the terms in and after 2009，such amendments must be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive，and they shall be reported to the Standing Committee of the National People's Congress for approval”，and Article 3 of Annex II: Method for the Formation of the Legislative Council of the Macao Special Administrative Region，which stipulates that“If there is a need to change the method for forming the Legislative Council of the Macao Special Administrative Region in and after 2009，such amendments must be made with the endorsement of a two-thirds majority of all the members of the Council and the consent of the Chief Executive，and they shall be reported to the Standing Committee of the National People's Congress for the record”:

1.“If there is a need to amend”the method for selecting the Chief Executive or the method for the formation of the Legislative Council in and after 2009 as prescribed in the aforesaid two Annexes shall mean that the selection or formation methods may or may not be amended.

2.The provisions that“such amendments must be made with the endorsement of a two-thirds majority of all the members of the Council and the consent of the Chief Executive，and they shall be reported to the Standing Committee of the National People's Congress for approval or for the record”as prescribed in the aforesaid two Annexes shall refer to the mandatory legal procedures in the case of amendment to the method for selecting the Chief Executive and the method for forming the Legislative Council.The amendments shall take effect only after all requirements of the said procedures have been met，including the ultimate approval or record-filing by the Standing Committee of the National People's Congress in accordance with the law.As to whether there is a need to make an amendment，the Chief Executive of the Macao Special Administrative Region should submit a report to the Standing Committee of the National People's Congress，and the Standing Committee of the National People's Congress should make a decision on it pursuant to Article 47 and Article 68 of the Basic Law of the Macao Special Administrative Region of the People's Republic of China based on the actual conditions of the Macao Special Administrative Region.The bills for amending the methods for the selection of the Chief Executive and for the formation of the Legislative Council shall be proposed by the Government of the Macao Special Administrative Region to the Legislative Council.

3.Where no amendment is made to the method for selecting the Chief Executive or the method for forming the Legislative Council which is prescribed in the aforesaid two Annexes，the provisions on the method for selection of the Chief Executive in Annex I shall remain to be applicable to the selection of the Chief Executive，and the provisions on the method for the formation of the Legislative Council in Annex II shall remain to be applicable to the formation of the Legislative Council.

The Interpretation is hereby announced.