Constitutional Adjudication in Post-1997 Hong Kong

Abstract

In July 1997, the British colony of Hong Kong was returned to the People’s Republic of China (“PRC”). It became a Special Administrative Region (“SAR”) of the PRC in accordance with the concept of “one country, two systems” embodied by the Sino-British Joint Declaration of 1984. The constitutional instrument of Hong Kong’s new legal and political system is the Basic Law of the SAR of Hong Kong, enacted by the National People’s Congress of the PRC and effective as of July 1997. Under colonial rule, Hong Kong inherited a British-style legal system. English common law formed the foundation, and the British tradition of the Rule of law and the independence of the judiciary were transplanted to Hong Kong. In the post-War era, the people of Hong Kong enjoyed relatively more civil liberties than did the people of mainland China and Taiwan. Since the signing of the Sino-British Joint Declaration in 1984, the legal system of Hong Kong was further liberalized, and the political system partially democratized. Following the Tiananmen massacre of 1989, the British colonial government introduced into Hong Kong’s constitution a Bill of Rights for the purpose of boosting residents’ confidence in Hong Kong’s future. Since the enactment of the Hong Kong Bill of Rights, the courts of Hong Kong have developed a solid body of case law on the protection of human rights, and have begun to exercise the power of judicial review of legislation. The era of constitutional adjudication thus began in Hong Kong. After the establishment of the SAR of Hong Kong in 1997, the judiciary faced dual challenges of finding a place in the new constitutional order of “one country, two systems” and leading Hong Kong forward in its legal and constitutional development. Delicate issues of Hong Kong’s constitutional relationship with the central government in Beijing have arisen, which often underscore the contradiction between the Communist Party-led legal system in mainland China and the tradition of judicial independence and the Rule of law in Hong Kong. At the same time, the courts of Hong Kong have had to tackle the classic constitutional problem of trying to work out the appropriate balance between civil liberties on the one hand and public order and communitarian values on the other hand. This article will review and evaluate how the Hong Kong courts have responded to these challenges.