1
Heng Loong Cheong
Clifford Chance, London
[Article prepared as term paper for the degree of MA in Chinese Studies, School of Oriental Studies,
University of London]
[Paper in an earlier form may be found at
http://www.enstar.net/china/law/vm_articles/items/item5.htm]
the
following
web
address
-
[Paper to be published in the forthcoming spring issue of the UCLA Journal of International Law
and Foreign Affairs]
HONG KONG SAR: AUTONOMY WITHIN INTEGRATION?
This paper will review the relationship between the Hong Kong Special Administrative
Region (“HKSAR”) and the rest of the People’s Republic of China (“PRC”). It will
examine the concept of balancing the autonomy of the HKSAR with its integration into
the PRC. The dual issues of autonomy within integration are played out within the
provisions of the Basic Law but they are in no way resolved within the confines of this
legislation. Needless to say one needs to look beyond the Basic Law to comprehend the
issues of autonomy and integration 1:
“For an adequate study of constitutions, indeed of any law, one has to establish a framework
broader than the law itself……….The way in which apparently neutral concepts and rules operate
may be determined by the underlying economic or political power of the parties who use
them……The formal provisions of a constitution may not even hint at the actual repository of
power or the manner of its exercise.”
The first part of this paper will consider the issue of autonomy from a Chinese
perspective. The Chinese idea of autonomy is inextricably linked to the idea of integration
within a ‘unitary multi-national state’2 and the HKSAR formed on the basis of
“upholding (the) national unity and territorial integrity” 3 of the PRC is the latest addition
to the Chinese unitary state 4. Whilst the idea of integration certainly allows for some
autonomy, it is important to realise that it is the former concept which appears to take
precedence in Chinese legislation 5 as well as in the speeches of Chinese leaders6.
Yash Ghai, 1991, “The Past and Present of Hong Kong’s Constitution” in the China Quarterly (1991) pp.
794-813 at pages 796-797.
2
Preamble to the 1982 Constitution of the PRC (“PRC Constitution”).
3
Preamble to the 1990 Basic Law of the Hong Kong SAR of the PRC (“Basic Law”).
4
Charged incidentally, with the duty -inter alia- to “enact laws on its own to prohibit any act of treason,
secession, sedition, subversion against the Central People’s Government” (Article 23, Basic Law).
5
Article 15 of the 1984 Law on Regional National Autonomy and see also Binh G. Phan: ‘How
Autonomous are the National Autonomous Areas of the PRC? An analysis of documents and cases’, (July
1996), Issues & Studies.
6
See Li Peng, “Perform Our Work Well Among Nationalities and Strive for the Common Prosperity of all
Nationalities”; Wang Enmao, “National Solidarity is the Basis of Stability and Development”; Jiang Zemin,
“The Unification of the Motherland”; all in Peter R. Moody Jr. ed., China Documents Annual 1990
(Academic International Press, 1994). See also Li Peng’s speeches reported in FBIS-CHI-90-035, 21
February 1990, pp. 9-13 and FBIS-CHI-90-35, 18 February 1990, pp. 26-27.
1
2
In the next part provisions of the Basic Law are examined to see how ‘autonomy and
integration’ are treated therein. We will consider the questions of authority to interpret the
Basic Law 7, the applicability of PRC law to Hong Kong 8, and the relationship of the
Basic Law with the Constitution of the PRC 9. In specifying limits to the ‘high degree of
autonomy’ of the HKSAR the Basic Law falls far short of the formula in the 1984 SinoBritish Joint Declaration of a “high degree of autonomy, except in foreign and defence
affairs”. The vagueness of terms such as “affairs which are the responsibility of the
Central People’s Government10”, “concerning the relationship between the Central
Authorities and the Region” 11 create uncertainty as well as potential for paralysis of the
Hong Kong judiciary when faced with issues requiring interpretation of the Basic Law 12.
The final part will consider judicial activism in Hong Kong and the associated issue of
the ‘restraint’ of the Standing Committee of the NPC in not exercising its powers13 under
the Basic Law. The question of autonomy is ultimately dependant upon ‘activism’ of the
Hong Kong administration and judiciary, the relations between the chief executive and
the Central People’s Government as well as upon the attitude of the Central People’s
Government towards the exercise of its widely drafted powers under the Basic Law.
Sovereignty versus Autonomy: the doctrinal boundaries of the issue
The principle of a “high degree of autonomy” for the HKSAR is inextricably tied to the
principles of sovereignty and integration in the PRC context. In the notion of ‘One
Country, Two Systems’ it is the concept of ‘One Country’ which takes precedence14. The
principle of sovereignty inherent in the concept of ‘One Country’ is present not only
within the Basic Law but also within the PRC Constitution which is arguably as
7
Article 158 and 17, Basic Law.
Article 18 ibid.
9
Preamble, ibid. “While the Basic Law tries to limit severely the competence of the Chinese institutions in
the Region and prevent the basic policies enunciated in the Chinese Constitution from applying to Hong
Kong, there is no authority for these measures in the Constitution itself. In strict juridical terms, the
Constitution, as the fundamental instrument of government, overrides any conflicting provisions in the
Basic Law”; Yash Ghai, 1991, “The Past and Present of Hong Kong’s Constitution” in the China Quarterly
(1991) pp. 794-813.
10
That is, the State Council.
11
Article 158 ibid.
12
There is the problem of who decides whether or not an ambiguous provision concerns the responsibility
of the Central People’s Government or the ‘Central Regional relationship’ as well as the problem of having
to defer to the authority of the Standing Committee of the NPC on the interpretation of a potentially very
wide range of issues.
13
Such as that of interpreting the Basic Law (Article 158).
14
Yash Ghai, 1991, “The Past and Present of Hong Kong’s Constitution” in the China Quarterly (1991) pp.
794-813. See also “Anti-China antics ‘doomed’ ” in South China Morning Post (“SCMP”), March 7 1998
in which Lee Wuiting, Assistant Director of the Xinhua agency office in Hong Kong warned that ‘antiChina activities’ fundamentally contradicted the idea of ‘One Country’ which took precedence over ‘Two
Systems’.
8
3
applicable to Hong Kong as to the rest of China 15. According to Professor Ghai the threat
to autonomy posed by the “notion of the overarching political authority of the Chinese
government implicit, in the Chinese view, in sovereignty” 16 is a very real one which can
be realised by an easily influenced chief executive or kept in check by an independently
minded chief executive. He also suggests that the policy of the PRC authorities towards
intervention in HKSAR affairs is a very important factor in determining the degree of
autonomy enjoyed by the HKSAR. To this formula I would add the role of the judiciary
in upholding and delimiting the rights and powers granted by the Basic Law to the
HKSAR and its citizens. The principle of integration is of general concern and is linked
to the principle of sovereignty. Nowhere else is the principle of integration expressed
more forcefully than in the preamble to the Constitution (the PRC is a “unitary multinational state”) and Articles 1 and 12 of the Basic Law (the HKSAR is “an inalienable
part” of the PRC and is a “local administrative region” of the PRC which shall “come
directly under the Central People’s Government” whilst enjoying a “high degree of
autonomy”. The concern of the PRC authorities as made explicit in the above provisions
and implicit in the time limit of the ‘One Country, Two Systems’ experiment seems to be
to ultimately arrive at ‘One Country, One System’ 17.
The true meaning of “high degree of autonomy” is delimited by the Chinese doctrine of
sovereignty. The Chinese view of sovereignty is that it is “supreme, unlimited,
illimitable” 18. This view of sovereignty is reconciled with the principle of autonomy for
the HKSAR by defining autonomy as something that is conferred by the central
authorities -the degree and duration of autonomy enjoyed by the HKSAR being at their
pleasure 19. As Chang puts it20 the PRC authorities see the “powers that have been
reserved to Peking not as residue but as a reservoir”; that is, any autonomy which the
HKSAR enjoys is the result of a conscious grant of powers by the central authorities
rather than the result of omission or oversight on the part of the central authorities to
exclusively reserve these powers for itself21. The practical result of this is the presence in
15
Of which see below.
Yash Ghai, 1991, “The Past and Present of Hong Kong’s Constitution” in the China Quarterly (1991) pp.
794-813. In another article, Professor Ghai wonders whether the chief executive is not the “Achilles’ heel of
the Basic Law” -see Yash Ghai, “The Rule of Law and Capitalism: Reflections on the Basic Law” in
Raymond Wacks, Hong Kong, China and 1997: Essays in Legal Theory (Hong Kong University Press,
1993) at page 365.
17
A term used by David J. Clark: David J. Clark, “The Basic Law: One Document, Two Systems” in Ming
K. Chan and D. J. Clark, The Hong Kong Basic Law (East Gate, 1991) at page 37.
18
Yash Ghai, 1991 ibid. The sovereignty of the PRC is most emphatically expressed in Articles 158 and
159 of the Basic Law, which vests the power to interpret and amend the Basic Law in the NPC.
19
David J. Clark op. cit. at pages 38 and 40.
20
Denis Chang, “How China Sees It” in McGurn, Basic Law, Basic Questions (Review Publishing, Hong
Kong, 1988).
21
The question of residual powers was in fact raised at the drafting stage of the Basic Law. A proposal that
Hong Kong be given authority over all powers not specifically vested in the Central Authorities was
rejected by Chinese legal experts on the Drafting Committee. These experts considered that the vesting of
residual powers in the HKSAR was inconsistent with its status as a local administrative region and with the
unitary nature of the PRC. See Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption of
Chinese Sovereignty and the Basic Law, (Hong Kong University Press, 1997) at page 62.
16
4
the Basic Law of provisions which whilst granting certain powers to the HKSAR, place
these within the context of an express grant by the sovereign. For instance in Article 2 of
the Basic Law the NPC “authorizes” the HKSAR to exercise a high degree of autonomy.
Article 20 coming after provisions which vest independent powers of administration,
legislation and adjudication in the HKSAR, states that the HKSAR may enjoy any
additional powers “granted to it” by the NPC and its Standing Committee or the Central
People’s Government. Article 158 whilst vesting the power to interpret certain provisions
of the Basic Law to the HKSAR states emphatically that the NPC Standing Committee is
the ultimate repository 22 of this power. In short, the enjoyment of autonomy by the
HKSAR is always underlined by the sovereignty of the PRC.
The area in which the HKSAR enjoys the most autonomy is in the economic arena 23 and
the main concern of the Basic Law is to maintain the pre-handover economic system of
Hong Kong 24. Towards this end, several powers which are characteristic of sovereign
powers have been granted to the HKSAR as they were considered essential to the
maintenance and functioning of the economic system of Hong Kong 25. These include the
power to conduct “external affairs as authorized by the Central People’s Government”
(Article 62(3) ), to participate in international trade agreements and organisations such as
GATT (Article 116), to maintain and develop relations and conclude and implement
agreements with foreign states and international organisations in various areas 26 (Article
151) and to establish official or semi-official economic and trade missions in foreign
countries (Article 156). In relation to administrative, legislative and judicial autonomy, I
would like to suggest -adopting Professor Yash Ghai’s phraseology- that the main
concern in defining such autonomy was “the imperative of management and control”
which are in “marked contrast to the liberating economic provisions for the market” 27.
Due to the importance of the principles of sovereignty and integration in defining the
degree of autonomy enjoyed by the HKSAR, there has been on the part of some
academics a tendency to underplay the notion of ‘Two Systems’. Such academics expect
“The power of interpretation of this Law shall be vested in the Standing Committee of the National
People’s Congress”.
23
But even here there is not complete autonomy as the HKSAR is required -inter alia- to keep expenditure
within the limits of revenue, strive to achieve a fiscal balance and avoid deficits (Article 107), to be guided
by a low tax policy (Article 108), maintain Hong Kong’s status as an international financial centre,
safeguard the free operation of financial business and financial markets (Article 110), ensure free flow of
capital in and out of Hong Kong as well as the convertibility of the dollar (Article 112) and its free port
status (articles 114, 115). As Yash Ghai states: “the Basic Law entrenches not merely the market economy
but a special version of it associated with the doctrine of ultraconservatism”. See Yash Ghai, “The Rule of
Law and Capitalism: Reflections on the Basic Law” in Raymond Wacks, Hong Kong, China and 1997:
Essays in Legal Theory (Hong Kong University Press, 1993) at page 347.
24
Yash Ghai, 1991, “The Past and Present of Hong Kong’s Constitution” in the China Quarterly (1991) pp.
794-813.
25
Yash Ghai ibid. at pages 808-809.
26
Including the economic, trade, financial and monetary, shipping, communications, tourism, cultural and
sports fields.
27
Yash Ghai, “The Rule of Law and Capitalism: Reflections on the Basic Law” in Raymond Wacks, Hong
Kong, China and 1997: Essays in Legal Theory (Hong Kong University Press, 1993) at page 365.
22
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China to influence Hong Kong and to gradually be absorbed into the market-socialist,
Party dominated system of the PRC. The capitalist-common law system in the HKSAR
may not even run the course of fifty years as the PRC authorities may intervene in the
affairs of the SAR, applying Chinese concepts of supremacy of Party policy over law and
a hegemonic disregard of the autonomy of the HKSAR and for the rights of its citizens.
This line of debate, which I will call the ‘hegemony argument’, has been stated as
follows:
“China will not, while the present system of government is in place, be able to distinguish easily
between Hong Kong and the rest of China and will increasingly behave in Hong Kong as it does in
the mainland. To believe otherwise one has to posit that the leadership in Beijing will be able to
break significantly with its current attitudes and behavior and treat Hong Kong as a modern place
and in a modern way” 28.
Whilst agreeing that the attitudes of the PRC authorities towards the role of courts, rule of
law, etc. in the mainland will inevitably colour their response towards the same issues in
Hong Kong, the fallacy of the ‘hegemony argument’ is in assuming that this is the
decisive or the only factor in determining the policy of the PRC authorities towards Hong
Kong. As a matter of logic it is certainly possible for the PRC authorities to be influenced
by domestic attitudes towards courts, rule of law, etc. without applying these attitudes in a
mechanical, unmodified manner towards Hong Kong. Recent statements by PRC leaders
reported in the press reveal a great deal of care in avoiding any inference of PRC
interference in HKSAR affairs and suggests a genuine regard for the autonomy of Hong
Kong 29.
The ‘hegemony argument’ also fails to take stock of the limited degree of autonomy
afforded to Special Economic Zones (SEZs) and the National Autonomous Areas (NAAs)
which reveal an ability on the part of the PRC authorities to treat different areas of the
PRC differently according to ‘local conditions’. The experiment of ‘One Country, Two
Systems’ is but a progression from the experiments in limited autonomy present in the
SEZs and NAAs which combines and builds on the economic, social and legislative
autonomy of both SEZs and NAAs30 with the added ‘new’ aspect of full capitalism and
multi-party government instead of market-socialism and Communist Party domination31.
The unique and experimental nature of ‘One Country, Two Systems’ was arguably
28
David J. Clark op. cit. at page 38.
“Local NPC base ruled out” in SCMP, March 4 1998 in which Zheng Yi, Deputy Secretary General of
the NPC Standing Committee ruled out the possibility of an NPC office in Hong Kong saying that this
might undermine the authority of the SAR administration. See also “Plan for local NPC office sparks
‘meddling’ fears” in SCMP February 21 1998.
30
Yash Ghai labels the basis of autonomy enjoyed by NAAs as ‘ethnic’: see Yash Ghai, Hong Kong’s New
Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law, (Hong Kong University
Press, 1997) at page 113.
31
Binh G. Phan whilst being critical of the ability of the PRC authorities to grant a meaningful level of
autonomy to the NAAs and whilst stating that both NAAs and SARs are subject to control by the PRC
Central Authorities, nevertheless acknowledges that the degree of control over each will differ significantly.
See Binh Phan, 1996, “How Autonomous Are the National Autonomous Areas of the PRC?” in Issues and
Studies, July 1996 at page 108.
29
6
fashioned because of the felt need to treat Taiwan and Hong Kong differently from the
rest of China, not merely in theory but also in practice. The PRC authorities are capable
of using a flexible and novel approach towards the issue of the HKSAR’s autonomy.
Whilst the ultimate trend may be towards ‘One Country, One System’ in the transition
towards ‘One System’ the influence of HKSAR attitudes and practices on the PRC may
be as great as the influence of the PRC on the HKSAR 32. The influence of Hong Kong is
likely not just to be in the economic and trade sphere, but also in the legal sphere where
the legal profession in Hong Kong arguably has a lot to offer to the PRC in terms of
training and expertise. As Ghai notes33:
“One should not overlook the possibility that the HKSAR systems might also effect the mainland,
introducing new ideas and methods. We should not forget that the Basic Law is as much a
challenge to China as it is to Hong Kong….….There is a ferment of new ideas and explorations of
constitutional possibilities in China that would have been impossible even a few years ago. On a
more material basis, new forces have been generated and unleashed whose logic is yet to unfold”.
In ending this section, I would suggest that it is unrealistic for the people of Hong Kong
to see the Basic Law as guaranteeing a high level of autonomy of a ‘political’34 kind as
opposed to an economic kind. Historically, the people of Hong Kong have never enjoyed
truly representative government and the concept of ‘autonomy’ from a colonial point of
view is perhaps more similar to the PRC concept of ‘democratic centralism’35 than is
commonly perceived. As Ghai puts it 36:
“The essence of it was the wide executive and legislative powers of the governor under the
supervening authority of the Colonial Office. Britain retained the power to legislate for Hong Kong
either by an act of parliament or by prerogative, i.e. by an executive act. It also retained control
over the legislative process in Hong Kong by its powers of disallowance and the reservation of
certain types of legislation for its approval……The whole basis of British rule in Hong Kong (as
perceived and enforced by its officials and judges) was a royal charter issued in the U.K. as an act
of executive authority.”
In terms of ‘adjudicative autonomy’, the pre-handover situation was that the courts in
Hong Kong would be bound either by ‘English law’37 of which the House of Lords is
For the possible influence of PRC practices and attitudes on Hong Kong see Yash Ghai, “The Rule of
Law and Capitalism: Reflections on the Basic Law” in Raymond Wacks, Hong Kong, China and 1997:
Essays in Legal Theory (Hong Kong University Press, 1993).
33
Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the
Basic Law, (Hong Kong University Press, 1997) at page 133.
34
By ‘political’ I mean administrative, legislative, and adjudicative.
35
Not in the full Chinese sense of a system of vertical levels of local people’s congresses and horizontal
levels of administrative, judicial and procuratorial organs but merely in the more limited sense of being
“guided by the principle of giving full scope to the initiative and enthusiasm of the local authorities under
the unified leadership of the central authorities” (Article 3, 1982 PRC Constitution).
36
Yash Ghai, 1991, “The Past and Present of Hong Kong’s Constitution” in the China Quarterly (1991) pp.
794-813.
37
See Robins v National Trust Company (1927) AC 515, at 519 [Privy Council] and also Tai Hing Cotton
Mill v Liu Chong Hing Bank Ltd (1986) 1 AC 80, at 108 [Privy Council]. Both cited in Peter Wesley32
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supreme arbiter or ‘Imperial law’38 of which the Privy Council is ultimate interpreter; no
‘local’ court of law could really claim absolute adjudicative authority. It is fair to say then
that the people of Hong Kong should not expect something today which they have never
really had. Furthermore, the rejection by the PRC of the Taiwanese concept of ‘One
Country, Two Governments’ clearly hinders the development of a greater level of
autonomy in the HKSAR than it presently enjoys; sovereignty may not be shared between
the PRC government and another government, the government of the PRC is the only
legitimate central government representing China39 , the relationship between the PRC
and Taiwan and HKSAR is not one of equality (Taiwan and the HKSAR are but
provinces of the PRC)40.
Relationship between the Basic Law and PRC Constitution, and between PRC
Organs and HKSAR Organs
As mentioned above, the PRC authorities are capable of using and do in fact use a
flexible and novel approach to the issue of the HKSAR’s autonomy. This is apparent in
the provisions of the Basic Law which try to isolate the administrative, legislative and
judicial system of the PRC from the Hong Kong system. For example, Article 5 excludes
the application of the “socialist system and policies” of the PRC in the HKSAR for 50
years from 1 July 1997. Articles 8, 18, 19, 81 and 160 provide for the continuance of the
pre-handover common law system and court system. With the exception of specifically
listed laws belonging to explicitly defined categories, Article 18 significantly excludes the
applicability of PRC law to the HKSAR. However, the overwhelming concern with
sovereignty is also apparent in the Basic Law. Thus, Article 12 reminds us that the
HKSAR is a “local administrative region” of the PRC and comes “directly under the
Central People’s Government” whilst Articles 18 which appears to exclude the
applicability of PRC law to the HKSAR is actually drafted in the widest of terms to allow
the possible application of PRC law concerning “matters outside the limits of the
autonomy of the Region as specified by (the Basic Law)”. At best Article 18 merely
provides a procedural safeguard against the direct application of PRC law to Hong Kong.
At worst, the PRC authorities -perhaps aided by obliging courts- could merely ignore the
safeguards altogether. In trying to integrate at the same time as isolating the PRC and
HKSAR systems, several gaps have arisen which appear to threaten the autonomy of the
HKSAR. These gaps may not be deliberate attempts to undermine the Basic Law but
merely a result of oversight in designing ‘One Country, Two Systems’. The presence of
such gaps however and their potential effects on the autonomy of the HKSAR are some
cause for concern.
Smith, “The Common Law of England in the Special Administrative Region” in Raymond Wacks, Hong
Kong, China and 1997: Essays in Legal Theory (Hong Kong University Press, 1993).
38
See Trimble v Hill (1879) 5 Appeal Cases 342, at 344 [Privy Council] cited in Peter Wesley-Smith ibid.
39
This is particularly directed against Taiwan’s aims to establish international diplomatic recognition of its
status as an independent nation-state.
40
Li Jiaquan, “More on ‘One Country, Two Governments’ ”, Beijing Review, July 2-8, 1990, pp. 13-17.
8
Applicability of the PRC Constitution to Hong Kong
Article 5 of the 1982 PRC Constitution states that “no laws or administrative or local
rules and regulations may contravene” the PRC Constitution. To what extent does Article
5 apply to laws enacted by the HKSAR legislature? Indeed, to what extent does the rest of
the PRC Constitution apply to the HKSAR? Arguably, the PRC Constitution is ‘the’
Constitution for the whole of China and is superior to the Basic Law. As Clark notes 41:
“The (Basic Law) is not a constitution, though it is often referred to in the press as a
miniconstitution. Since China is a unitary state, there is, and can be only one constitution in China,
the constitution of 1982. While constitutive of the major organs of government, and while it lays
down the major policies to be followed by the future SAR, the (Basic Law) is an enactment of the
NPC. As such it may be changed by the same body, though the amendment process is somewhat
different for this particular NPC law than for other legislation in China……”
The Basic Law itself seems to imply this hierarchy. Article 20, Basic Law clearly
indicates that the HKSAR enjoys only such powers as are “granted” to it by the NPC and
its Standing Committee or the Central People’s Government. These bodies in turn derive
their power from the Constitution. In short, the PRC Constitution is the source of the
Basic Law.
Article 31 of the PRC Constitution states: “The state may establish special administrative
regions when necessary. The systems to be instituted in special administrative regions
shall be prescribed by law enacted by the National People’s Congress in light of specific
conditions”. Article 62(13) of the PRC Constitution states: “The National People’s
Congress exercises the following functions and powers: .……..(13) to decide the
establishment of special administrative regions and the systems to be instituted therein”.
Although the provisions above are very widely drafted to seemingly permit extensive
powers to be granted to the SARs the PRC Constitution does not expressly exclude its
other provisions from applying to the SARs. What then does “contravene” mean in the
context of HKSAR? It does not mean ‘differing from the spirit of the socialist market
economy, political and legal system’ given the whole thrust of the Basic Law (Article 5 in
particular). It would however, be too complacent to think that it merely means doing what
is outside the very wide powers granted by Articles 31 and 62(13) of the PRC
Constitution. Some issues to consider are the applicability to the HKSAR of the Chinese
ideas of ‘democratic centralism’, ‘unitary state’, ‘autonomy’, and ‘legislative
interpretation’. Indeed, certain articles of the Basic Law reflect principles present in the
PRC Constitution and hence suggest a wider applicability of the PRC Constitution to the
HKSAR than is evident by looking at Articles 31 and 62(13). For example, Articles 1, 12,
17, 20, 23 and 158, 160 of the Basic Law appear to reflect the Chinese principles of
‘unitary state’, ‘democratic centralism’42, ‘legislative supremacy of the NPC and its
41
David J. Clark 1991, op. cit. at page 41.
Clearly not in the full Chinese sense of a system of vertical levels of local people’s congresses and
horizontal levels of administrative, judicial and procuratorial organs but merely in the more limited sense of
being “guided by the principle of giving full scope to the initiative and enthusiasm of the local authorities
under the unified leadership of the central authorities” (Article 3, PRC Constitution).
42
9
Standing Committee’ and ‘legislative interpretation’ as enshrined respectively in the
preamble, Article 3, Articles 57 & 58 and Articles 62 & 67 of the PRC Constitution. Any
Hong Kong legislation which undermines -either actually or potentially- these principles
may arguably be held to contravene the Constitution and be annulled by the NPC
Standing Committee 43.
If the above argument were correct, it would be possible for legislation enacted by the
HKSAR to contravene the PRC Constitution without necessarily contravening the Basic
Law. A ruling by the NPC Standing Committee that the PRC Constitution has been
contravened would then be an additional (and possibly wider) procedure (to ruling that
the Basic Law has been contravened44) available to the Standing Committee to invalidate
enactments by the HKSAR legislature. Whether the availability of this procedure45 will
serve to undermine the autonomy of the HKSAR legislature will very much depend on
the determination of members of the legislature to uphold the independence of the
legislature46 as well as on the attitude of the PRC authorities towards the HKSAR -will it
be benevolent restraint and a certain amount of laissez faire or a hegemonic
interventionist stance? A further factor in this equation is the attitude and independence
of the chief executive. Similar to the colonial system of government before it, the
HKSAR system of government is dominated by the executive, with the chief executive
dominating the executive and exercising a wide range of powers. Amongst the chief
executive’s powers is the power to veto47 a bill passed by the Legislative Council that he
considers incompatible with the “overall interests of the Region”. Under Article 50 of the
Basic Law the chief executive may even dissolve the Legislative Council if it again
passes a bill which he refused to sign the first time round and which he still refuses to
sign. Clearly this power could significantly undermine the autonomy of the HKSAR
legislature if used by a chief executive who is unduly subservient to the PRC authorities.
As Ghai puts it 48:
“The degree of autonomy which the HKSAR enjoys will depend greatly upon the relations
between the chief executive and the Chinese government. If the chief executive is inclined to pay
undue deference to the Chinese government, there is no adequate mechanism to hold him
accountable to local institutions”.
Conflict between the Basic Law and the PRC Constitution
43
Under Article 67 of the PRC Constitution.
Article 17, Basic Law; whereby the NPC Standing Committee may after consulting the Basic Law
Committee return (i.e. reject) any law enacted by the HKSAR legislature relating to the affairs of the
Central Authorities or the relationship between the Central Authorities and the Region which it considers to
contravene the Basic Law.
45
As well as the Article 17 procedure ibid.
46
By continuing to fully debate and enact all sorts of legislation –even politically sensitive ones.
47
The relevant provisions are Articles 49 to 52.
48
Yash Ghai, 1991, “The Past and Present of Hong Kong’s Constitution” in the China Quarterly, 1991, pp.
794-813.
44
10
This is an academic problem at present as the NPC Standing Committee has already
decided that the Basic Law does not contravene the Constitution49; as the Standing
Committee has the ultimate power50 of interpreting the Constitution and supervising its
enforcement there does not appear to be any immediate danger of the Basic Law being
declared as contravening the Constitution. However, one should be wary that the
Standing Committee might change its mind in future -even if only as to a part and not the
whole of the Basic Law. The decision of the Standing Committee is only as good as the
longevity and conviction of its members.
The Basic Law: interpretation by the HKSAR judiciary and interpretation by the
NPC Standing Committee
The provisions of the Basic Law lay out the relationship between the HKSAR and the
Central Authorities and Central People’s Government. They also determine the scope of
the powers of the HKSAR administration, executive and judiciary. Crucially, Article 11
of the Basic Law prohibits any law passed by the HKSAR legislature from contravening
the Basic Law. It could be said that whatever organ has the power to interpret the Basic
Law decides the extent of the HKSAR’s autonomy and the nature of the mainland’s
sovereignty. Interpretation by the judiciary is generally more favoured because it is seen
to be impartial and considered, whereas interpretation by the NPC Standing Committee is
usually feared to be politically motivated and lacking in technical understanding of the
legal issues involved. Apart from the vagueness of jurisdiction defining terms such
“outside the limits of the autonomy of this Region as specified by this Law”51 and
“concerning the relationship between the Central Authorities and the Region”52, the issue
of interpretation is problematic because of the uncertain division of power between the
NPC Standing Committee and the HKSAR judiciary. This division of power is set out
within article 158 of the Basic Law.
The NPC Standing Committee has a ‘general’ power of interpreting the Basic Law whilst
the HKSAR judiciary may interpret the Basic Law “in adjudicating cases”. The courts
may interpret “on their own” provisions of the Basic Law which are “within the limits of
the autonomy of the Region”53 and “other provisions of this Law54”. However, when the
courts need to interpret provisions of the Basic Law which “are the responsibility of the
Central People’s Government, or concerning the relationship between the Central
Authorities and the Region”55, their capacity to do so “on their own” is limited. When an
interpretation of such Basic Law provisions (i) “will affect” the judgment on a case and
(ii) when the court’s judgment is “not appealable”, the court shall before making its
judgment defer interpretation of the provisions to the NPC Standing Committee “through
Decision of the NPC on the Basic Law of the HKSAR of the People’s Republic of China; adopted at the
Third Session of the Seventh NPC, 4 April 1990.
50
Article 67(1), PRC Constitution.
51
Article 18 (paragraph 3), Basic Law.
52
Article 158 (paragraph 3), Basic Law.
53
Article 158 (paragraph 2), Basic Law.
54
It is not clear what this means. Article 158 (paragraph 3), Basic Law.
55
Ibid.
49
11
the Court of Final Appeal”56. The problem with this scheme is not only in the vagueness
of the terms used (which are not explained anywhere in the Basic Law) but primarily in
the problem of deciding jurisdiction. For instance, can a court authoritatively say that a
Basic Law provision is “within the limits of the autonomy of the Region” or must this be
decided by the NPC Standing Committee? If the preliminary issue of jurisdiction cannot
be decided by the judiciary but must be referred to the Standing Committee, this will
severely limit judicial autonomy and slow down the judicial process. As article 158 does
not provide for such a preliminary procedure, it is possible (and desirable) for courts to
seize the initiative and decide the question of jurisdiction. However, a judicial
interpretation that a provision falls within the jurisdiction of a court may be ‘corrected’ by
a contrary interpretation of the NPC Standing Committee using its general power of
interpretation. Furthermore, even if a court is allowed to interpret Basic Law provisions
‘on its own’, the NPC Standing Committee could arguably use its general power of
interpretation to correct the court’s interpretation -“on their own” does not denote an
exclusive grant of jurisdiction to the courts but merely means that the courts do not need
to refer the matter to the Standing Committee57.
The scheme of article 158 thus seems very much weighted in favour of the NPC Standing
Committee. However, several factors will mitigate against such one-sidedness in practice.
It is for instance open to a court to decide that an interpretation of a Basic Law provision
concerning the Central / Regional relationship will not affect the judgment on a case and
thus interpret ‘own its own’ such a provision. It is also possible for some judicialisation58
of the referral process. The ambiguity about the roles of the Court of Final Appeal
(“CFA”) and the Committee for the Basic Law (“CBL”) regarding interpretation by the
NPC Standing Committee can be used to increase the influence of judicial interpretation.
For instance, the CBL (which may itself lack experienced lawyers) could seek the
informal opinion of the CFA before giving advice to the NPC Standing Committee on
interpretation of the Basic Law. The CFA, instead of just acting as a conduit between the
judiciary and the NPC Standing Committee could play a more active role; the CFA could
for instance, (i) send back referrals which it considers ought to be dealt with by the
judiciary, (ii) pass on a referral (from a lower court or from the CFA itself) together with
its opinion on the legal issues concerned. The NPC Standing Committee may itself
encourage judicial interpretation by adopting a policy of non-intervention or by seeking
the opinion of the CFA before issuing its own interpretations.
Conflict Resolution between (I) the Basic Law and PRC Law; and between (II)
court rulings on the Basic Law and legislation enacted by the Provisional
Legislature (and in future, the Legislative Council) which have been approved by
the NPC or its Standing Committee
56
Ibid.
Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the
Basic Law, pp. 197-199.
58
Ibid. at pp. 214-215.
57
12
The HKSAR Court of Appeal in HKSAR v Ma Wai Kuan (1997)59 stated that decisions
and resolutions of the NPC and its Standing Committee are laws made by the highest law
making bodies in the PRC and cannot be challenged by HKSAR courts on the basis of a
breach of the Basic Law 60. The court also stated that ratification by the NPC of a course
of action taken by the Preparatory Committee was a sovereign act which HKSAR courts
could not challenge. Two of the judgments are worth citing in relation to this issue (the
third judgment agreeing with the other two):
Per Chan CJHC at page 342:
“(The) resolution of the Eighth NPC (not merely its Standing Committee) at its fifth session
adopting the working report of the Preparatory Committee which set out the details of its Decision
to establish the Provisional Legislative Council……is a ratification by the Sovereign which has the
effect of law. Hence the legality of the Provisional Legislative Council cannot be doubted”.
Per Mortimer VP at page 370:
“Any lingering question as to the lawful exercise of the Preparatory Committee’s powers in
establishing the PLC was, in my judgment, removed on 14 March 1997 when the NPC resolved to
approve a Preparatory Committee’s report which among other things detailed the way in which the
provisional legislature had been established”.
At least two issues -both potentially serious threats to the judicial authority of HKSAR
courts- arise from the above. Firstly, the above judgment leaves open the possibility that
the NPC or its Standing Committee could make decisions or resolutions pertaining to
Hong Kong affairs which contravene or limit the Basic Law and which would not be
within the jurisdiction of HKSAR courts to question. When taken with Article 17 of the
Basic Law (which allows the NPC Standing Committee to invalidate laws enacted by the
HKSAR legislature as contravening the Basic Law) this also constitutes a significant
threat to the autonomy of the HKSAR legislature. The safeguards (uncertain as they are)
provided under Article 17 61 may be overridden by the capacity of the NPC and its
Standing Committee to make resolutions or decisions which contravene or limit the
efficacy of the Basic Law regarding affairs which do not concern the Central Authorities
or the relationship between the Central Authorities and the Region. There is no need to
rely on a negative power to invalidate62 enactments by the Hong Kong legislature when a
59
HKSAR v Ma Wai Kuan (1997), 2 Hong Kong Cases, at pages 315-372.
Per Chan CJHC at page 335:
“The PRC is the Sovereign of the HKSAR. Under its Constitution, the NPC is the highest organ of state
power. Together with its Standing Committee, they exercise the legislative power of the PRC…….the NPC
and its Standing Committee can exercise such power by way of decisions and resolutions……….such
decisions and resolutions are acts of the Sovereign and their validity is not open to challenge by the regional
courts”
61
Restricting the power of the NPC Standing Committee to invalidate laws enacted by the HKSAR
legislature as contravening the Basic Law, to cases where the laws are “regarding affairs within the
responsibility of the Central Authorities or regarding the relationship between the Central Authorities and
the Region”.
62
With no attendant power to amend -Article 17, Basic Law.
60
13
positive power is available of making law which is agreeable to the Standing Committee
in the first place. A related issue is that the procedural protection under Article 18 would
also be overridden by this process of PRC law making for the HKSAR -anytime the
Standing Committee felt like exercising its ‘sovereign’ legislative power it could override
the safeguard that before PRC law can apply to the HKSAR it must first be listed in
Annex III of the Basic Law and must be promulgated locally. Obviously the open use of
such powers by the NPC and its Standing Committee is politically risky -and hence
unlikely- at a time when the PRC is trying to improve its international image and win
Taiwan over to the ‘One Country, Two Systems’ formula but the mere possibility of such
powers being used is in itself a cause for concern.
At present, these fears are partially realised in the first instance case of Cheung Lai Wah
& others v Director of Immigration (1997) (which has since gone to the Court of Appeal).
In this case Keith J qualified63 the right of a person to exercise his right of abode under
Basic Law Article 24 with the requirement that persons who come within the definition of
“residents of the Hong Kong Special Administrative Region” must first obtain a one-way
exit permit from the PRC authorities. In arriving at this decision Keith J applied a highly
purposive interpretation to Article 22(4) of the Basic Law 64. Whilst recognising that “the
‘high degree of autonomy’ in its affairs which the HKSAR is to enjoy would be
undermined” by his decision, Keith J pointed out that this was “something which has
been expressly sanctioned by Art.22(4)”. I would like to suggest however, that Keith J’s
purposive approach was to a significant degree governed by a felt need to give effect to
the relevant immigration legislation65 of the PRC:
“For the past few decades, entry into Hong Kong from mainland China has been regulated by the
Chinese authorities. An exit permit from Hong Kong must be obtained by anyone who wishes to
leave the mainland and enter Hong Kong 66……The first sentence (of Article 22(4), Basic Law)
does not expressly identify from whom that approval must be sought, but the second sentence is, I
believe, relatively clear. Since the laws of mainland China require persons who wish to come to
Hong Kong “for the purpose of settlement” to have been issued with one-way exit permits, what
the second sentence does is to make the relevant Chinese authorities responsible for determining
the number of one-way permits to be issued”. (Italics supplied)
The obvious point to note from this is that no importance appears to be attached to the
issue of whether Chinese law contravenes the Basic Law in this case. Whilst not applying
Indeed, Margaret Ng even went as far as to say, “By separating the right from its exercise, the court has
made that right meaningless”: “A court judgment to fit the bill”, in South China Morning Post, October 17
1997.
64
“For entry into the Hong Kong Special Administrative Region, people from other parts of China must
apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement
shall be determined by the competent authorities of the Central People’s Government after consulting the
government of the Region”.
65
Art. 17 of the Law on the Control of the Exit and Entry of Citizens promulgated by the Standing
Committee of the Sixth NPC on 22 November 1985 (effective 1 February 1986), and Art.3 of the Interim
Measures for the Administration of Chinese Citizens on Passage to or from the Regions of Hong Kong or
Macao for Personal Affairs approved by the State Council on 3 December 1986 and promulgated by the
Ministry of Public Security on 12 December 1986.
66
Ibid.
63
14
the same logic as used in Ma Wai Kuan, this case illustrates the possibility that PRC
national law may be introduced indirectly into Hong Kong, undermining rights provided
for in the Basic Law and overriding Basic Law procedures regulating the application of
national law in the HKSAR.
I would like to suggest that a second issue arising from the decision in Ma Wai Kuan is
the possibility that legislation enacted by the Provisional Legislative Council (and in time
the Legislative Council) which has been ruled by a HKSAR court to be in contravention
of the Basic Law may be upheld and ‘resurrected’ by its ratification by the NPC. At least
two questions then spring to mind. What constitutes a ‘ratification’ by the NPC and does
‘ratification’ by the Standing Committee of the NPC have the same effect as a ratification
by the NPC itself 67? Furthermore, is the NPC (or its Standing Committee) restricted to
only ratifying laws “regarding affairs within the responsibility of the Central Authorities
or regarding the relationship between the Central Authorities and the Region”? 68. There
is a danger that no such limitation will apply.
When Cheung Lai Wah came before the Court of Appeal69 (made up of the same judges
who heard Ma Wai Kuan), the appellants argued that the decision in Ma Wai Kuan that
the Provisional Legislative Council was a legally consituted body was obiter and
incorrect. Counsel for the appellants argued inter alia that:
(a)
It was wrong to say that the Hong Kong courts could not challenge the laws and
acts of the NPC, particularly in relation to the setting up of the Provisional
Legislative Council (“PLC”);
(b)
Given that the Sovereign through the NPC had not reserved the power to legislate
for Hong Kong, the only way that the NPC could legislate for Hong Kong was by
amending the Basic Law. Although the PLC had been set up with the approval of
the NPC (who had ratified the decision of the Prepartory Committee to establish
the PLC), counsel for the appellants argued that as there had been no amendment
to the Basic Law this did not constitute a setting up of the PLC in accordance with
the Basic Law or the PRC Constitution.
The Court of Appeal unanimously ruled that the decision in Ma Wai Kuan was not obiter
and as a result of so ruling, felt bound to follow the earlier Court of Appeal decision. Per
Chan CJHC;
“Even if we were now to take the view that our previous decision was wrong, unless we fall within
certain restricted exceptions (which do not apply in these appeals), we are still bound by that
decision. The only remedy lies with the Court of Final Appeal which is the only authority that can
rectify it”70 .
67
Chan CJHC seems to suggest not.
Article 17, Basic Law.
69
Cheung Lai Wah & others v Director of Immigration (1998), 1 Hong Kong Law Reports & Digest, 772
[Court of Appeal].
70
Ibid. at page 779.
68
15
The interesting and important arguments raised by counsel for the appellants were left
largely unconsidered by the Court of Appeal. Chan CJHC would only say71 that his views
“on the Courts’ jurisdiction in the David Ma case were expressed in the context of the
case and cannot be understood to mean that NPC laws and acts would prevail over the
Basic Law”. Thus, the potential threat to judicial autonomy raised by Ma Wai Kuan
remains until the Court of Final Appeal has given due consideration to such issues.
Granted that Ma Wai Kuan opens up avenues of argument which can threaten the
autonomy of courts in the HKSAR, one still cannot assume that the judges will exercise
‘self-censorship’ and defer power to the NPC or its Standing Committee, or to the State
Council. Furthermore, the above discussion merely reveals the still uncertain fit between
the Basic Law and PRC Law and between the HKSAR judiciary and the legislative
apparatus of the PRC. As long as Hong Kong judges can recognise the gaps and ‘fill’
them in with reasoned and consistent judgments, they will be fully exercising the
autonomy vested in them by the Basic Law. Where Hong Kong judges have to defer to
the NPC Standing Committee (or some other PRC organ) in making some judgments, this
need not be seen as a threat to their autonomy or even a threat to the survival of the
common law in the HKSAR. Such referral to a PRC organ is merely a reflection of
integration between the ‘Two Systems’; a ubiquitous ‘theme’ within the Basic Law itself.
The example of England and European Law shows how it is possible for English
common law to survive the jurisdiction of a ‘foreign’ institution; indeed a new breed of
English common law has arguably been developed, which has even enhanced the
protection of individual rights in England 72. A new breed of Hong Kong common law
may indeed develop combining the expertise of the HKSAR judiciary and the
interpretations of the NPC and its Standing Committee.
The Judiciary: Activism or Self-Censorship?
‘Activism’ refers to the intervention by the judiciary in areas that may or may not be
within the jurisdiction of the judiciary. ‘Self-censorship’ on the other hand, refers to the
deferral of authority by the judiciary to another body in areas that may or may not be
within the jurisdiction of that other body. In short, these terms signify the extent to which
the judiciary is willing to rule on an issue over which jurisdiction is ambiguous. The
relevance of this analysis is that it enables us to draw some conclusions as to the future of
judicial autonomy in Hong Kong. The future of ‘One Country, Two Systems’ must
depend on the willingness of the judiciary to protect the rights of Hong Kong residents,
legislature, judiciary, etc. as enshrined in the Basic Law. ‘Judicial activism’ is probably
even more important than ‘bureaucratic’ and ‘legislative activism’ in that court rulings
are relied on by the bureaucracy and legislature to indicate what can and cannot be done
in relation to the Basic Law. To effectively protect and delimit rights guaranteed to the
71
Ibid. at page 780.
Raymond Wacks, “Can the Common Law Survive the Basic Law?”, Hong Kong Law Journal, 1988,
Volume 18, Number 3, pp. 435-444.
72
16
HKSAR under the Basic Law, judicial activism must of course be complemented by a
certain amount of self-restraint on the part of the NPC or its Standing Committee in
intervening in Hong Kong affairs. At present however, the NPC and its Standing
Committee seem fairly restrained in relation to Hong Kong affairs73. The NPC Standing
Committee could arguably have intervened in both Cheung Lai Wah and Chan Kam Nga
using its general power of interpretation (article 158, Basic Law) or using its power to
annul enactments of the HKSAR legislature (article 17, Basic Law). It has not to date
intervened in anyway, at any point of the two trials or afterwards. It is tempting to see this
non-intervention as deliberate rather than an oversight. The subject matter74 of the two
cases is arguably of much concern to the Central Authorities, so it is likely that some
consideration at least has been given to the question of intervention. The NPC Standing
Committee may well be pursuing a policy of minimal intervention, allowing the judiciary
to come up with its own interpretations.
The cases of Cheung Lai Wah and Chan Kam Nga at first instance reveal a certain
amount of judicial activism. The judge in both first instance cases is Keith J and both
cases concern different aspects of the new schedule 1 to the Immigration Ordinance. In
Cheung Lai Wah, Keith J declared that paragraph 1(2)(b) of the new schedule 1 to the
Immigration Ordinance (as substituted by section 5 of the Number 2 ordinance)
contravened Article 24(3) of the Basic Law. He applied the ‘blue pencil test’ to the part of
paragraph 1(2)(b) which defined the ‘parent-child’ relationship as one between a man and
a child “born to him in wedlock or, if out of wedlock, between a father and a child
subsequently legitimated by the marriage of his parents”. Wedlock need not be a
prerequisite to establishing a parent-child relationship. The Court of Appeal recently
confirmed this75. In Chan Kam Nga, Keith J declared that paragraph 2(c) of the new
schedule 1 contravened Article 24(3) of the Basic Law. Applying the ‘blue-pencil test’
once more, he struck out the requirement in paragraph 2(c) that the parents through whom
a person was seeking the right of abode needed to have acquired right of abode in Hong
Kong by the date of that person’s birth. I would suggest that these two instances of
judicial law amending are significant for two reasons: (i) they seem to be incursions into
‘NPC territory’; (ii) they seem at the same time to be upholding the guarantees of judicial
autonomy inherent in the Basic Law.
The only provisions in the Basic Law which enable the annulling or amending of
legislation declared to be in contravention of the Basic Law appear clearly to give the
power or at least the initiative to the NPC Standing Committee; no explicit mention is
made of courts of law having this same power or initiative. Article 17 for instance
73
With the major exceptions being in relation to the legality of the Provisional Legislature (Resolution of
the Eighth NPC at its Fifth session), the issue of whether the Basic Law contravenes the PRC Constitution
(Decision of the Seventh NPC at its Third Session) and concerning the continuity of laws previously in
force in Hong Kong (Decision of the Standing Committee of the Eighth NPC at its 24th sitting, 23 February
1997).
74
Indeed, mass migration of PRC citizens from the mainland into Hong Kong has been a concern of the
PRC authorities for many years.
75
The appeal to Cheung Lai Wah in which the Court of Appeal was made up of the same judges as in the
Ma Wai Kuan case: see “Rays of happiness for girls” in SCMP, April 3 1998.
17
provides for the wholesale invalidation of legislation by the Standing Committee after
consultation with the Basic Law Committee whilst Article 160 enables the Standing
Committee to declare that legislation contravenes the Basic Law which shall then be
amended or invalidated “in accordance with the procedure as prescribed by this law”76.
However, it is arguable that in applying the ‘blue-pencil test’ Keith J was keeping
perfectly within the Basic Law. Articles 18 and 8 apply the “laws previously in force in
Hong Kong” to the SAR and this includes the common law. Article 19 states that there
shall be no jurisdictional limits on judicial power of courts except that “restrictions on
their jurisdiction imposed by the legal system and principles previously in force in Hong
Kong shall be maintained”. Article 84 further states that cases shall be adjudicated in
accordance with “the laws applicable in the Region as prescribed in Article 18 of this
law” and that courts may refer to precedents from other common law jurisdictions. Keith
J was merely using a well-established common law doctrine that empowers the court to
modify the text of legislation in order for it to conform with the enabling legislation77. As
the Basic Law provides for the continued applicability of the common law in the SAR,
Keith J seems to have done nothing out of the ordinary. I would suggest though that these
are in fact quite courageous acts of judicial creativity which have resolved an otherwise
problematic situation in which the NPC Standing Committee appears to have all the
power and the courts none. This is especially clear when we note that Basic Law article 8
subjects the applicability in the HKSAR of the common law to the non-contravention of
the Basic Law, whilst Basic Law article 160 grants the NPC Standing Committee
exclusive power to determine which “laws previously in force in Hong Kong” contravene
the Basic Law (which power may seemingly be exercised at any time and without any
procedural safeguards). The reversal of Keith J's decision in Chan Kam Nga by the Court
of Appeal78 does not undermine the validity of this observation; the reversal was on the
grounds of a differing interpretation of Basic Law article 24(3) rather than on the grounds
that Keith J was wrong to use the 'blue-pencil test'.
The discussion above reveals that Hong Kong judges are not afraid to tackle politically
sensitive cases and appear to be actively building up a body of jurisprudence regarding
the relationship between the HKSAR and the PRC. Although the Court of Appeal’s
handling of the Cheung Lai Wah appeal seems a missed opportunity to tackle the
problems raised by the Ma Wai Kuan case, at least the stage is firmly set now for the
Court of Final Appeal to deal with these issues79. The fact that the same few judges seem
to be hearing cases concerning alleged contravention of the Basic Law bodes well for the
development of a coherent body of law concerning the relationship between the HKSAR
and the PRC.
76
It is unclear what this procedure is.
As long as the court is satisfied that the modification would not change the substantial purpose of the
‘offending’ legislation. See the House of Lords in Woolwich Building Society v IRC (1991) 4 AER 92.
78
Chan Kam Nga & others v Director of Immigration (1998), 1 Hong Kong Law Reports and Digest, 752
[Court of Appeal].
79
Both Chan CJHC and Nazareth VP in Cheung Lai Wah (1998) at pp. 780 and 783 respectively make
references to additional points not considered by the Court of Appeal but which may be later considered by
the Court of Final Appeal.
77
18
Conclusion: wither Autonomy?
The meaning of ‘Autonomy’ in relation to the HKSAR is somewhat different from the
normal connotations of that word. Autonomy from a Chinese viewpoint is generally very
restrictive and negatively defined in terms of what the sovereign expressly grants to the
‘autonomous’ entity. Furthermore, autonomy in the context of the HKSAR mainly refers
to ‘economic’ autonomy with whatever administrative and judicial autonomy seeming
merely supplementary to preserving the economic status quo in Hong Kong. The essential
issue in years to come is whether this limited level of autonomy can be effectively
exercised by the HKSAR. According to Ghai 80:
“Specific institutional structures are necessary to exercise this autonomy, including an impartial
machinery for adjudication which maintains the boundaries that define autonomy”.
Unlike the situation on the mainland whereby courts frequently refuse jurisdiction where
an administrative body is involved and whereby there may be different interpretations of
the same law by different administrative organs81, the courts in Hong Kong seem unafraid
to take on politically sensitive cases and the possibility of conflicting interpretations of
the same law is negligible. Conflicts of interpretation may arise with interpretation of the
Basic Law and what constitutes an infringement of the Basic Law regarding affairs within
the responsibility of the Central People’s Government or regarding the relationship
between the Central Authorities82 and the Region. But even here the provisions of the
Basic Law do provide that in the last instance it is the NPC Standing Committee that has
the ultimate right of interpretation and decision83. The law in the HKSAR as interpreted
mainly by the Hong Kong judiciary will provide a fairly coherent guide regarding the
relationship between the HKSAR and the PRC as well as between different entities
within the HKSAR with each other. In the final analysis, the future autonomy of the
HKSAR depends on continuing judicial activism and on a continuing working out -within
considered judgments- of the relationship between the HKSAR judiciary and the NPC
and its Standing Committee.
Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the
Basic Law, (Hong Kong University Press, 1997) at page 123.
81
What Professor Dicks calls ‘legal fragmentation’: see Anthony Dicks, “Compartmentalized Law and
Judicial Restraint: An Inductive View of Some Jurisdictional Barriers to Reform”, in Stanley Lubman,
China’s Legal Reforms (Oxford University Press, 1996).
82
That is, the NPC and its Standing Committee.
83
Basic Law articles 17 and 158.
80