Interpreting Hong Kong’s Basic Law: The Struggle for Coherence: The Struggle for Coherence

260 Pages·2007·1.31 MB·English

by  Hualing Fu, Lison Harris, Simon N. M. Young (eds.)

Interpreting Hong Kong’s Basic Law
Interpreting Hong Kong’s Basic Law:
The Struggle for Coherence
Edited by Hualing Fu, Lison Harris,
and Simon N. M. Young
interpreting hong kong’s basic law
Copyright © Hualing Fu, Lison Harris, and Simon N. M. Young, eds., 2007.
Softcover reprint of the hardcover 1st edition 2007 978-0-230-60041-6
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Contents
Foreword vii
Acknowledgments ix
Introduction 1
Hualing Fu, Lison Harris, and Simon N. M. Young
Part I: Interpreting Hong Kong’s Basic Law
1 Legislative History, Original Intent, and the 15
Interpretation of the Basic Law
Simon N. M. Young
2 Embracing Universal Standards?: The Role of 33
International Human Rights Treaties in Hong Kong’s
Constitutional Jurisprudence
Carole J. Petersen
3 Constitutionalism in the Shadow of the Common Law: 55
The Dysfunctional Interpretive Politics of Article 8 of
the Hong Kong Basic Law
Michael W. Dowdle
4 Interpreting Constitutionalism and Democratization in 77
Hong Kong
Michael C. Davis
5 Forcing the Dance: Interpreting the Hong Kong Basic 97
Law Dialectically
Robert J. Morris
Part II: Crossing the Border
6 The Political Economy of Interpretation 115
Yash Ghai
vi • Contents
7 One Term, Two Interpretations: The Justifications 143
and the Future of Basic Law Interpretation
Lin Feng and P. Y. Lo
8 Rethinking Judicial Reference: Barricades at the Gateway? 157
P. Y. Lo
9 Formalism and Commitment in Hong Kong’s 183
Constitutional Development
Yu Xingzhong
Part III: Legislative Interpretation and the PRC Constitution
10 Of Iron or Rubber?: People’s Deputies of Hong Kong to 201
the National People’s Congress
Hualing Fu and D. W. Choy
11 Legislative Interpretation by China’s National People’s 229
Congress Standing Committee: A Power with Roots in
the Stalinist Conception of Law
Sophia Woodman
12 China’s Constitutionalism 243
Lison Harris
Contributors 259
Index 261
Foreword
After reunification on July 1, 1997, Hong Kong is a Special Administrative
Region of the People’s Republic of China under the principle of “one coun-
try, two systems,” and is governed by the Basic Law. The principle of “one
country, two systems” is a novel and imaginative concept. In the context of
our new constitutional framework, interesting and challenging questions of
constitutional interpretation have to be addressed.
In the last ten years, useful experience of the interpretation of the Basic
Law has been gained. This book on constitutional interpretation is timely.
It consists of a collection of papers written by distinguished scholars in and
outside Hong Kong. With the benefit of the experience over the last ten
years, these papers explore the subject of constitutional interpretation from a
wide range of perspectives. The book makes an important contribution to the
lively discussion and debate of many interesting questions. Readers will find
the book useful and stimulating and will derive considerable benefit from it.
Andrew Li
Chief Justice
The Court of Final Appeal
Hong Kong Special Administrative Region
People’s Republic of China
September 18, 2007
Acknowledgments
The chapters in this book arose from a Centre for Comparative and Public
Law conference that was supported by the Faculty of Law, the University of
Hong Kong, and the Constitutional Law Project, funded by the University
of Hong Kong’s Strategic Research Theme initiative. In addition, we would
like to thank Cheng Yulin, Choy Dick Wan, and Xing Fei for their editorial
assistance.
INTRODUCTION
Interpreting Hong Kong’s Basic Law
The Struggle for Coherence
Hualing Fu, Lison Harris, and Simon N. M. Young
Introduction
The establishment of the autonomous Hong Kong Special Adminis-
trative Region (HKSAR) of the People’s Republic of China (PRC) in
1997 formed a union of two very different legal, political, and social
systems. Hong Kong’s Basic Law, passed by the National People’s Congress
(NPC) of the PRC in April 1990, was designed to form the connection between
the two systems and also to define their separation. The respective powers of
the central and HKSAR governments are set out sometimes in great detail in
the Basic Law but sometimes in broad—even obscure—terms. The power to
interpret the Basic Law therefore defines and shapes the relationship between
the HKSAR and the central authorities. The two institutions with jurisdiction
to interpret the Basic Law are the courts of Hong Kong and the Standing Com-
mittee of the NPC (NPCSC). Although the distinct ideological settings of the
NPCSC and the Court of Final Appeal (CFA)1 mean that they will inevitably
disagree over the interpretation of the Basic Law, the two systems must avoid
becoming locked, or being seen to be locked, in a battle for “the soul of Hong
Kong; instead the struggle must be towards coherence.”2
The authors of this book examine the coherence of the law relating to
the relationship between Hong Kong and Mainland China, and the extent
to which the interpretation of the Basic Law is founded on a struggle for the
soul of Hong Kong. They also assess the obstacles that they see to be ham-
pering the development and protection of Hong Kong’s autonomy, and how
such obstacles may be overcome. Is the CFA, having positioned itself as a
champion of the common law and international human rights norms, allow-
ing for the creation of a unique jurisprudence that will promote a stable and
2 • Introduction
coherent body of law relating to Hong Kong’s autonomy? Is the NPCSC too
steeped in its ideological setting to recognize creative solutions to the conflict
between the two systems?
The international community has watched the relationship between Hong
Kong and China with interest, as it is a measure of China’s ability to inter-
act with Western-style constitutional values. The “one country, two systems”
(OCTS) formula, which is the foundation of Hong Kong’s autonomy, was
intended to serve as a model for Taiwan’s reintegration into the Mainland.
The formula also has broader implications: China’s responses to constitu-
tional debates in Hong Kong are increasingly viewed as indicative of China’s
plans for the constitutional structures and processes in the Mainland. Legal
and constitutional reforms on the Mainland may even have been accelerated
by the need to deal constructively with the issues arising from the contrasting
legal systems.
For both Hong Kong and the Mainland, autonomy was the favored
approach to the resumption of Chinese sovereignty, although each side had
their own reasons. The Basic Law is both a wedge to separate the two sys-
tems and at the same time a bridge that connects the HKSAR and the PRC:
the objective was to “maintain the metaphorical and institutional distance”
between China and Hong Kong, and also to “assert sovereignty and achieve
unity.”3
Hong Kong residents feared an assault on their civil liberties and their
relatively well-developed rule of law and particularly wanted to safeguard the
region’s capitalist-market policies from China’s socialist planned economy.
The PRC Constitution4 has been amended several times to incorporate cer-
tain market economy principles and statements about the rule of law and the
protection of property rights and respect for human rights. Nonetheless, the
system of checks and balances based on the separation of powers that is famil-
iar to common-law jurisdictions is absent in China. In addition, while China
cannot realistically be called an authoritarian state, the Chinese Communist
Party (CCP) remains the repository of ultimate political power.5
For its part, China sought to preserve national unity by minimizing politi-
cal contamination and the risk of social instability that might ensue if Hong
Kong was fully integrated with the Mainland. The CCP has been familiar
with the concept of OCTS for more than sixty years. During the anti–Japa-
nese War in the late 1930s and early 1940s, the tiny region that was under
CCP control was the “other system” in a country controlled by the National-
ist Party. This first OCTS experiment failed several years after its implemen-
tation and China plunged into a prolonged civil war. Immediately following
the victory of the CCP in 1949, the party applied OCTS to Tibet. Once
again, the OCTS experiment as applied in Tibet terminated. Since then, an