刚果(金)案对完善《香港基本法》解释机制的启示

Towards a Better Interpretation Mechanism of the Basic Law:A Study on the Democratic Republic of Congo v FG Hemisphere Case

《香港基本法》被喻为香港特区的"小宪法",其制定有着独特的历史背景,核心内容源自《中英联合声明》及一系列外交谈判,某些具体领域因求同存异的需要而刻意保持了模糊,以留待时间及后人的智慧去解释。香港回归十多年来,两地法律和学术界围绕基本法解释问题争议不断,有些人甚至视全国人大常委会解释基本法如"洪水猛兽"。本文试图在探寻《香港基本法》法律解释机制的背景及其实践的基础上,辩证反思有关问题,特别是通过分析刚果(金)案释法这一最新案例的影响及启示,加深对基本法解释领域形势发展的认识,并就今后进一步完善释法工作提出一些思考与建议。

The Basic Law of the Hong Kong Special Administrative Region of the People＇ s Republic ofChina is often nicknamed as ＂the mini-constitution＂ of Hong Kong. Its enactment had come through specific historical backgrounds, with its core contents drawn heavily from ＂The Sino-British Joint Declaration on the Question of Hong Kong＂ signed in 1984, and subsequent diplomatic negotiations. For the purpose of seeking common ground while shelving differences, some specific articles of the Basic Law have been kept ambiguous, thus leaving room for the interpretation of later generations, pending time and wisdom. In fact, during the past years since Hong Kong＇ s return, serious disputes erupted with regard to the interpretation of the Basic Law. Some Hong Kong people feared the interpretation by the National People＇ s Congress of the Basic Law as much as the ＂disasters of floods or beasts＂ . This thesis tries to study the interpretation mechanism of the Basic Law by looking at its background and analyzing the latest success of the Democratic Republic of Congo v FG Hemisphere case, so as to deepen the understanding of the issue and to offer some observations and suggestions for future improvement on the interpretation of the Basic Law.