The Changing Legal Orders in Hong Kong and Mainland China: Essays on “One Country, Two Systems”

This collection of selected works by Professor Albert H.Y. Chen shows the contours of the author’s scholarship as it developed over 35 years of his academic career, from 1984 to the present. The essays are divided into three sections which cover the three major domains of Professor Chen’s research. Part I covers the legal developments and controversies of “One Country, Two Systems” since the Hong Kong interpretation on “the right of abode” in 1999 to the anti-extradition movement of 2019. Part II shifts to focus on tradition and modernity in Chinese Law, including China’s Confucian and Legalist traditions and how the socialist legal system in China evolved and modernized in the era of “reform and opening”. Part III examines the transplantation of Western thinking and constitutionalism to East Asia in modern times and discusses the achievements and failures of these efforts. In conjunction with an introductory chapter that sets out the basic orientation and paradigm of these legal and constitutional studies and an epilogue that reflects on the main themes, this collection exemplifies the author’s important contributions to the field and provides insight into how the legal orders in Hong Kong and mainland China have changed over the course of Professor Chen’s academic career.

Preface:

The works selected for publication in this volume represent the three major dimensions of my academic inquiry since I began my teaching career at the Department of Law, University of Hong Kong in February 1984. Most of the selected works were previously published as chapters in various books edited by other scholars. As I have not previously published any English book that consolidates my writings on “One Country, Two Systems” (OCTS) and my study of public law in Hong Kong, mainland China, and Asia over the last 36 years, it is hoped that this volume will make the works concerned more easily accessible to both local and international audiences. This book is divided into three parts: (1) the practice of OCTS; (2) tradition and modernity in Chinese law; and (3) constitutionalism in Asia. These are the three major domains of my research since I began my academic career.

Part I of this volume includes five chapters related to the practice of OCTS. This is a field of research I embarked on when I first began my academic career in 1984. This was the same year in which the Sino-British Joint Declaration was signed. As the only local Chinese member of the academic staff of the Faculty of Law at that time (all other law teachers at the University of Hong Kong being expatriates), I considered it my mission to research the constitutional and legal issues faced by Hong Kong in its era of transition leading up to the handover in 1997, including concerns that arose during the drafting of the Basic Law of the Hong Kong Special Administrative Region (HKSAR) that would be established. Most of my writings in the 1980s were, therefore, focused on such issues.

Hong Kong constitutional law, the Basic Law, and the jurisprudence of OCTS continued to be a main area of my research in the 1990s and in the post-1997 era. In my writings (in both English and Chinese), I tried to document and provide commentary and analysis on major constitutional developments and leading constitutional law cases decided by the Hong Kong courts since the HKSAR was established in 1997. My research orientation is based on what I believe to be a balanced approach to the study of OCTS, taking into account both the “sovereignty” claims of the Central Government in Beijing and the “autonomy” and “democracy” aspirations of the people of Hong Kong, and aiming at an objective study of relevant legal developments.

Chapter 1 of this volume introduces the constitutional and legal issues arising from the practice of OCTS in the HKSAR by reviewing key developments from the time of the establishment of the HKSAR in 1997 to the close of the first decade of the twenty-first century. It covers major episodes such as the “right of abode” controversy that led to the first ever interpretation of the Hong Kong Basic Law by the National People’s Congress Standing Committee (NPCSC) and the failed attempt to implement article 23 of the Basic Law. Chapter 2 reviews the development of Hong Kong’s political system since colonial times and analyses the political, constitutional, and legal controversies that culminated in the “Occupy Central Movement” of 2014. The OCTS model was premised on the “high degree of autonomy” the HKSAR was promised by the Sino-British Joint Declaration of 1984. Thus, Chapter 3 studies various aspects and elements of the autonomy enjoyed by the HKSAR under the Basic Law in the context of general theories and considerations of autonomy as an internationally prevalent constitutional arrangement. Chapter 4 looks at the complex relationship between law and social movements both as a matter of general theory and in the context of the HKSAR. Finally, Chapter 5 brings readers up-to-date by discussing the Anti-Extradition Bill Movement of 2019, which brought about the most serious challenge for OCTS to date.