TNAG-1722-FCO40-2415-Future-of-Hong-Kong-Basic-Law-1988 — Page 40

४

for

problem in the practical application of criminal law. The principal interpretations are directed at a common problem of the moment and are usually sent quickly

down to lower level organs through normal channels

the transmission of official documents. In some cases general publication is also necessary, Interpretations of this type are more important to the national administration of

og their general guiding and

binding effect.

justice because

IV

we believe

In order to fully implement supreme judicial interpretation that the following principles should be followed in the formulation and issue of such interpretation:

1. Protection of the Unity and Consistency of the Legal System.

The unity and consistency of the legal system is સ basic condition of the correct implementation of the law.

Supreme judicial interpretation is invalid when it contravenes the rules of the Constitution and the law. It must therefore faithfully ollow the original intent of legislation, which means the intent of the legislators as expressed and embodied in the written provisions of the law. Furthermore, Supreme judicial interpretation of the

criminal law is limited to the clarification and rendering specific of the provisions of the legislation in

order to facilitate the

correct application of the criminal law in practice.

In view of the situation in recent years it is especially important to emphasize the delineation of the boundary between judicial and legislative 'interpretation. The national legislative organs (ie; the N.P.C. and its Standing Committee) have

the power

to formulate and promulgate new legislation or legislative interpretation.

In criminal legislation or interpretation they should follow the spirit. and principles of the basic criminal laws, however they may choose not to follow the restrictions of preceding criminal statutes where a fundamental principle is not in question. The power of supreme legislative interpretation includes the power to supplement or amend the written provisions of the criminal

law. (4)

Supreme judicial interpretation must not only carry out the spirit and principles of the law, but it is also restricted by the original intent of the legislation. Such interpretation cannot exceed, deviate from, supplement OF amend the original intent of the criminal law and therefore cannot give a meaning to a written provision of the law that is not logically within the meaning of its words. If an interpretation does so, it is both a violation of the

4 I presume that the authors mean that the legislative organs should follow the spirit and basic principles of the criminal laws when enacting subsequent criminal legislation, unless they are enacting revisions to those basic principles.