The book’s chosen title, Law of the Hong Kong Constitution reflects the editors’ ambition to include ‘not just [of ] the legal and constitutional dimensions of the Basic Law of the HKSAR, but also to impart a sense of its historical, social, economic and political aspects ... also an attempt to assess living events’: from the Preface. It covers 14 years of post-1997 legal and constitutional history of the HKSAR, which also marks the beginning of Hong Kong’s 50 years of braving the new concept of ‘one country, two systems’. The book is a comprehensive collection of contributions from 29 distinguished scholars and has 30 chapters covering all aspects of the Basic Law with emphasis on fundamental rights and freedoms (occupying some 16 chapters and half of the 1011-page book). Such emphasis is justified in view of the growing concern of the Hong Kong people on their rights and the committed judicial effort to interpret, clarify and uphold them.
Part 1 of the book deals with the historical background leading to the drafting of the Basic Law and echoes the mixed feelings received by the people of Hong Kong about the Handover and also the concerns of those who have no choice but to accept the coming of the ‘one country, two systems’.
Part 2 discusses in depth the aspects of autonomy and centrallocal relations, external affairs, bilingualism, nationality and permanent residence and national security. On the question whether the political system prescribed by the Basic Law is one of separation of powers or one which is executive-led, the authors adopt a neutral approach by treating the political system as one of checks and balances, and the judiciary as truly separate and independent from the legislative and executive branches. In revisiting the famous right-of-abode controversy, the authors follow closely the development of the relevant case law and present a full picture of this most important constitutional saga since the Handover.
On external affairs, the authors pose the question whether Hong Kong is an international person. It is their view that ‘Hong Kong may generally be said to possess a high degree of international legal personality, falling short of Statehood’. They compare the international and comparative common law aspects of Hong Kong’s jurisdictional authority. They also touch upon the approach of Hong Kong courts to use international treaties as a guide towards developing the common
law.
The authors also refer to the recent CFA judgment in Democratic Republic of Congo v FG Hemisphere Associates LLC [2011] 4 HKC 151, in which the CFA sought interpretation from the Standing Committee of the National People’s Congress (NPCSC) for the first time. In August 2011, after the book went to print, the NPCSC issued the Interpretation, confirming the provisional judgment of the majority (Bokhary PJ and Mortimer NPJ dissenting) consistent with the Interpretation, ie the courts of the HKSAR must apply and give effect to the rules or policies on state immunity determined by the Central People’s Government (CPG) and must not depart from such rules or policies nor adopt a rule that is inconsistent with the same and therefore the courts have no jurisdiction over the Democratic Republic of Congo.
On the problem of bilingualism, the author rightly points out the difficulty of interpreting the Chinese version of statutes and the Basic Law. Given the equal status of the Chinese and English languages, a judge is expected to ponder over the many nuances of translation from the Chinese characters. Such difficulty is compounded as the Basic Law provides that in case of discrepancy between the two texts in the implication of any words used, the Chinese text shall prevail.
In a short but illuminating chapter on national security, the authors highlight the conflict between the CPG’s urgent need to
legislate to implement Art 23 of the Basic Law (imposing a duty on the HKSAR government to enact laws on its own to prohibit any act of treason, secession, sedition, subversion or thefts of state secrets, etc) and the Hong Kong public’s justifiable fear of possible repressive rule. They conclude that: “The Judiciary in Hong Kong, perhaps more than anywhere else in the common law world, is burdened with an especially difficult task in protecting rights and freedoms. Given this challenge, the Judiciary has, overall, proved to be remarkably creative and innovative in supervising the use of both Executive and Legislative power within Hong Kong.”
In the inaugural lecture entitled, ‘Common Law in a Chinese Setting: The Kernel or the Nut?’ delivered by the Chair of Law at the University of Hong Kong in 1970, Professor DM Emrys Evans, after reviewing the position of Chinese customary law in Hong Kong, considered that ‘the judges changed the nature of customary law for all time: they made it susceptible not to localised and particularised control and interpretation but to the modus operandi of the common law with all that entailed’. He then concluded that ‘the role of customary law as a living element in the law of Hong Kong
will virtually be over. It will have been assimilated into the English Common Law system’. Not long after the Handover, Lord Cooke of Thorndon, then a non-permanent judge of the CFA, in an address called ‘The Judge in an Evolving Society’ to Hong Kong judges and judicial officers, in discussing judicial technique to reflect an evolving society, had in mind an ‘international common law’ or ‘a common law of the world’, making headway at least in three main areas: (i) the use
of precedents; (ii) international commercial law; and (iii) human rights. He was optimistic that the role of the Hong Kong courts ‘may be seen as a pioneering bridge between western and eastern legal systems’.
With the undeniable power granted by the Basic Law to preserve the common law and to refer to precedents of other common law jurisdictions, the HKSAR’s judiciary, the CFA in particular, is therefore in a unique position and perhaps unrepeatable moment in history to create a Chinese common law system, a new member to the global common law community. Such judicial creativity has already been demonstrated in the CFA judgments of Cheng v Tse Wai Chun [2000]
4 HKC 1, Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1; [2001] HKCU 28, Shum Kwok Sher v HKSAR [2002] 3 HKC 117 and others. Some of these judgments have been cited or followed by other common law jurisdictions. It is suggested that the ‘genius of the common law’ should not find much difficulty in fitting into the Chinese society by sharing some of their common characteristics such as pragmatism, economic application and flexibility.
Part 3 describes the political structure of the HKSAR divided into the Chief Executive, development of representative government, executive government and the judiciary. It mentions the election methods of the fourth (2012-17) and the fifth (2017-22) Chief Executives, and questions the Beijing government’s attempt to manipulate the design that only a person acceptable to it is elected even by universal suffrage. In a society lacking access to a proper electoral process such as Hong Kong, the authors conclude that it has to rely upon a free media which has created ‘a kind of media-based “surrogate congress”’.
The economy and social policies of the HKSAR are the main themes of Part 4 and the different aspects of fiscal policy and financial system, land, education, science, culture, sports, religion, labour and social services, and finally, civil aviation and shipping are discussed.
The heart of the book is contained in Part 5 which deals with fundamental rights and freedoms in great depth and in a useful fashion. First, it traces the application of the International Covenant on Civil and Political Rights (ICCPR) to the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap 383) and the relationship between them. Chapter 16 examines how the Hong Kong courts interpret constitutional rights and permissible restrictions – the judicial approach, principles of legality and proportionality, and the doctrine of margin of appreciation or of deference. The authors recognize that such doctrine as modified in Hong Kong to accord deference to both the Executive and Legislative branches is not considered as judicial abdication.
The following 14 chapters deal with a full range of fundamental rights and freedoms such as right to fair trial and the criminal process, right to a fair hearing in non-criminal process, freedom of expression, right to privacy, freedom of assembly and association, right to vote and right to political participation, rights of New Territories indigenous inhabitants, etc.
It is clear to the authors in these chapters that the courts have adopted an active role in protecting fundamental rights and freedoms and built up a substantial and robust body of law. Different rights and freedoms are neatly classified and discussed under separate headings. It is a main feature of this Part that wherever applicable, the authors would also refer to their relationship with the ICCPR and other international organizations, giving its readers an international
perspective.
The f reedom to demonstrate has become an important constitutional issue after the Handover. In Yeung May Wan v HKSAR (2005) 8 HKCFAR 137 involving some 16 Falun Gong demonstrators, the CFA held that since the original arrest by the police was illegal, the demonstrators’ resistance to such unlawful arrest was justified. In the author’s view, the CFA’s decision attests to ‘its commitment to safeguard the “one country, two systems” principle and to treat all members of Hong Kong society equally, even, and especially, those derided and persecuted by the Central Government’.
Another right of increasing significance is the equal right to vote and eventually, to universal suffrage. In examining the Government’s response to whether the right to universal suffrage is a treaty right applicable to Hong Kong under the provisions of the ICCPR, the author dismisses the Government’s twin argument that the Basic Law trumps the ICCPR and that Hong Kong is immune from its application (ie Hong Kong has a valid reservation) and concludes that the problem is more political than legal. Furthermore, the author, after revealing the true meaning of the NPCSC’s 2004 Interpretation and Decision (deciding that the conditions do not exist for universal suffrage since the Hong Kong people have not reached a ‘broad consensus’ on the method for selecting the Chief Executive and the members of LegCo), sees the role of the Chief Executive as the initiator for universal suffrage and electoral reform, and puts such constitutional responsibility squarely on the shoulders of the Executive branch.
The author also criticizes the popular sense that the constitutional issues in question are being unilaterally determined from Beijing. By referring to the NPCSC’s 2007 Decision (deferring the election of the Chief Executive by universal suffrage and of all LegCo members to 2017 and 2020 respectively at the earliest), the author expresses his concern on the optimistic assumptions of a ‘timetable’ set by Beijing for constitutional reform and stresses the reporting responsibility of the Chief Executive in fulfilling his constitutional duty.
Since the Handover, the appellate courts’ caseload has sharply increased as aggrieved parties and political activists in Hong Kong challenge the Government’s stance on fundamental rights and freedoms by way of appeal or judicial review. In seeking redress by invoking the rule of law, some hope to resist the undermining of the implementation of ‘one country, two systems’ to become ‘one country, one constitution, one destiny’ (paraphrased from a quotation by the US politician, Daniel Webster 1782-1852). It is this continued appeal to justice that has made the Basic Law the ‘Magna Carta’ of Hong Kong and its courts the protector of individual rights and freedoms.
In short, the book is the first full-scale study of such an important law. Its review of each subject is consistently detailed and its commentary insightful. In dissecting complicated constitutional issues, its analysis is thorough and its argument balanced. For judges, lawyers and researchers, this book is an indispensable reference tool not just on the Basic Law but also on the political development of the HKSAR.
Jenkin SF Chan
Partner
Chan & Chuk Solicitors
May 2012 - Hong Kong Lawyer (Journal)
