The Founding of the Hong Kong Special Administrative Region: Collision of Political and Constitutional Ideologies
In order to establish the structure and institutions of government in Hong Kong after the handover, a new constitutional document, the Basic Law, was enacted. The Basic Law Drafting Committee identified five key principles that guided the design of the document: to encapsulate the governing principle of ‘One Country Two Systems’; to uphold national unity, while implementing a high degree of autonomy for Hong Kong; to promote economic growth and social stability; to retain the merits of the existing Hong Kong institutions and increase democratic participation; and to begin from the basis of the realities of Hong Kong itself.8
position of Malays and the Muslim community, and imposing on the government the job of protecting this (Wee Chong Jin Constitutional Commission, 1965).
This was a more gradual approach to dealing with the issue of race and ethnicity in elections. Further changes were made later on to introduce racial representation in Parliament and the office of the Elected President (1988 and 2016, respectively).7S ee, for example, the most recent amendment exercise relating to the Elected Presidency (Constitutional Commission, Report of the Constitutional Commission 2016).
8 Xiao Weiyun, ‘A Study of the Political System of the Hong Kong Special Administrative Region under the Basic Law’ (1988) 2 Journal of Chinese Law 95.
The relationship between the special administrative region of Hong Kong and Mainland China is encapsulated in the phrase ‘one country two systems’. This is a fundamental component of the design of the Basic Law. It is operationalised in Chapter II of the Basic Law, which sets out the division of powers between the local branches of government and the Central Government of China. The latter is responsible for issues relating to foreign and external affairs and defence.
The executive, legislature and judiciary in Hong Kong retain their respective powers outside of these contexts. The precise boundaries of the powers have been a highly complex issue. These problems are compounded by uncertainties relating to the nature of the Basic Law and how it is to be interpreted.Two problems merit particular attention. First, the lack of clarity over the division of governance powers generally between the local and central governments and the precise degree of autonomy that Hong Kong has under the ‘one country two systems’ principle. Here, the Central Government of China takes the view that Hong Kong only has as much authority as may be determined by China from time to time. For example, in 2007, Wu Bangguo, the head of the Standing Committee of the National People’s Congress (NPCSC),[129] stated that Hong Kong only has as much autonomy as Beijing authorises. The scope of the autonomy accorded to Hong Kong under the Basic Law, while referenced in this statement, could therefore be regularly recalibrated by new rulings from the Beijing central government.[130] More recently, President Xi Jinping reiterated China’s ‘comprehensive jurisdiction’ over Hong Kong in his speech at the 19th National Congress of the Communist Party. This could be interpreted to mean that Hong Kong’s autonomy would always be subject to the central governments supervision and, presumably, revision.[131]
Second, the lack of clarity over the division of powers of interpretation of the Basic Law has contributed to some of the confusion about the nature of the document. Article 81 of the Basic Law established a Court of Final Appeal within Hong Kong, replacing the Privy Council in London as the final court of appeal for Hong Kong, and Article 82 gave the Court of Final Appeal the power of final adjudication. Furthermore, the Basic Law, in Article 85, explicitly maintains the principle of an independent judiciary. However, these provisions have to be balanced against Article 158, which confers the power of final interpretation of the Basic Law in matters concerning relations between the Hong Kong SAR and China to the NPCSC.[132] This latter provision, especially when it is given a broad
The Role of Courts in Advancing Constitutional Moments 37 interpretation, can result in a considerable diminution of the Hong Kong courts' power of final adjudication and at the same time invite the substitution of the political perspective of the NPCSC on the meaning of provisions of the Basic Law for the legal perspective of the Hong Kong judiciary.
This limit to the autonomy of the Court of Final Appeal has been the subject of extensive litigation, including immediately after the handover.13 The difficulties of ascertaining the division of interpretive powers has significant consequences on the way in which the Basic Law is interpreted. Chinese law views it as legislative versus constitutional in nature.14 It has thus been a big part of the post-handover constitutional project to flesh out the nature of the Basic Law and the approach to constitutional interpretation. This has become an increasingly complex task requiring input from the courts.III.