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

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.