Behind the Text of the Basic Law: Some Constitutional Fundamentals

Abstract

Since 1 July 1997, Hong Kong has become a Special Administrative Region of the People’s Republic of China (“PRC”) under the constitutional model of “One Country, Two Systems”, under which Hong Kong enjoys a high degree of autonomy except foreign affairs, defence and matters pertaining to central-local relationship, and is vested with its own executive, legislative and judicial powers. The common law system, which is premised upon the doctrine of separation of powers, western liberalism and primacy of individual rights, is preserved for Hong Kong. Across the border that is only less than 30 km away, the Mainland sovereign legal system is premised upon socialist ideology that rejects separation of powers, that emphasizes central party leadership and the political function of law, and that is still in the process of developing a distinct Chinese character, whatever that may mean. Under the Basic Law that sets out the constitutional framework of the Hong Kong Special Administrative Region (“HKSAR”), the Hong Kong courts have the power of final adjudication, whereas the power of final interpretation of the Basic Law is vested in the Standing Committee of the National People’s Congress (“NPCSC”). In the common law system, the power of interpretation of constitution is vested in the judiciary and is primarily judicial in nature. Under the PRC legal system, the power of final interpretation of the Basic Law is vested in a political organ and is primarily legislative in character. This power of final interpretation is plenary in nature and applies to all provisions of the Basic Law, and is not confined to matters outside the autonomy of the HKSAR. It is not about the interpretation of the true meaning of the Basic Law but control and keeping the HKSAR in proportion. Since the changeover, the Hong Kong Court of Final Appeal has rendered many enlightening decisions on the Basic Law and emphasized a purposive and generous approach to interpretation. At the same time, the NPCSC has rendered four interpretations of the Basic Law, and these interpretations are further supplemented by important executive decisions. In interpreting the Basic Law, the Hong Kong courts not only have to grapple with the meaning of the Basic Law with a view to giving effect to these provisions in a unique constitutional environment, but also to preserve the essence of the legal system and to constantly be vigilant on the demarcation between “one country” and “two systems” so as not to upset a delicate balance of powers that may in turn endanger the constitutional set-up. Thus, in developing the Basic Law, the Hong Kong courts are not just guided by ordinary and explicit constitutional principles but also by a set of inexplicit values and principles to maintain the integrity of the common law system in a rather delicate power structure. As mutual distrust of each other is deepening on both sides of the border, the Hong Kong courts are forced to tread a highly precarious path.