Washington International Law Journal
Volume 15
Number 3
9-1-2006
Constitutional Adjudication in Post-1997 Hong Kong
Albert H.Y. Chen
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Copyright © 2006 Pacific Rim Law & Policy Journal Association
CONSTITUTIONAL ADJUDICATION
IN POST-1997 HONG KONG
Albert H. Y. Chen†
Abstract: In July 1997, the British colony of Hong Kong was returned to the
People’s Republic of China (“PRC”). It became a Special Administrative Region
(“SAR”) of the PRC in accordance with the concept of “one country, two systems”
embodied by the Sino-British Joint Declaration of 1984. The constitutional instrument of
Hong Kong’s new legal and political system is the Basic Law of the SAR of Hong Kong,
enacted by the National People’s Congress of the PRC and effective as of July 1997.
Under colonial rule, Hong Kong inherited a British-style legal system. English
common law formed the foundation, and the British tradition of the Rule of law and the
independence of the judiciary were transplanted to Hong Kong. In the post-War era, the
people of Hong Kong enjoyed relatively more civil liberties than did the people of
mainland China and Taiwan. Since the signing of the Sino-British Joint Declaration in
1984, the legal system of Hong Kong was further liberalized, and the political system
partially democratized. Following the Tiananmen massacre of 1989, the British colonial
government introduced into Hong Kong’s constitution a Bill of Rights for the purpose of
boosting residents’ confidence in Hong Kong’s future. Since the enactment of the Hong
Kong Bill of Rights, the courts of Hong Kong have developed a solid body of case law on
the protection of human rights, and have begun to exercise the power of judicial review
of legislation. The era of constitutional adjudication thus began in Hong Kong.
After the establishment of the SAR of Hong Kong in 1997, the judiciary faced dual
challenges of finding a place in the new constitutional order of “one country, two
systems” and leading Hong Kong forward in its legal and constitutional development.
Delicate issues of Hong Kong’s constitutional relationship with the central government in
Beijing have arisen, which often underscore the contradiction between the Communist
Party-led legal system in mainland China and the tradition of judicial independence and
the Rule of law in Hong Kong. At the same time, the courts of Hong Kong have had to
tackle the classic constitutional problem of trying to work out the appropriate balance
between civil liberties on the one hand and public order and communitarian values on the
other hand. This article will review and evaluate how the Hong Kong courts have
responded to these challenges.
I.
INTRODUCTION
In July 1997, the British colony of Hong Kong was returned to the
People’s Republic of China (“PRC”) in accordance with the Sino-British
Joint Declaration of 1984 and became a Special Administrative Region
(“SAR”) of the PRC. The Joint Declaration provided in detail how Hong
Kong would be governed after 1997. Hong Kong would enjoy a high degree
of autonomy under Chinese sovereignty, and its existing economic, social
and legal systems would be preserved. The constitutional arrangement,
†
Professor, Department of Law, University of Hong Kong. E-mail: albert.chen@hku.hk. The
author is most grateful to the anonymous reviewer whose comments have inspired substantial revisions to
the original manuscript.
628
PACIFIC RIM LAW & POLICY JOURNAL
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known as “one country, two systems,” has been said to be an important
innovation that contributes to the practice of peaceful resolution of
international disputes.1
The constitutional instrument of Hong Kong’s new legal and political
system is the Basic Law of the SAR of Hong Kong, a law for the governance
of post-1997 Hong Kong enacted by the National People’s Congress of the
PRC in 1990. The concept of “one country, two systems” has been given
concrete legal form in the Basic Law, which came into force on July 1, 1997.
The Basic Law is now the “mini-constitution” of Hong Kong as an
autonomous territory within the PRC.2
Under colonial rule, Hong Kong inherited a British-style legal
system.3 English common law formed the foundation of Hong Kong’s legal
system,4 and the British tradition of the Rule of law and the independence of
the judiciary were transplanted to Hong Kong.5 In the post-War era, Hong
Kong Chinese enjoyed relatively more civil liberties than Chinese in both
mainland China and Taiwan.6 After the signing of the Sino-British Joint
Declaration in 1984, the legal system of Hong Kong was further liberalized,7
and the political system partially democratized.8 Following the Tiananmen
incident of 1989, the British colonial government introduced into Hong
1
See generally Yiguo Liangzhi Gailun [General Principles of “One Country, Two Systems”] (Zhao
Chunyi ed., 1988); “Yiguo Liangzhi” Yu Zhongguo Tongyi [“One Country, Two Systems” and China’s
Reunification] (Lianwang zhoukan haiwanban bianjibu [Editorial Department of the Overseas Edition of
Liangwang Weekly] eds., 1988); Huang Yi, Xianggang Wenti He Yiguo Liangzhi [The Question of Hong
Kong and “One Country, Two Systems”] (1990); Deng Xiaoping On “One Country, Two Systems” (2004);
Albert H.Y. Chen, The Concept of “One Country, Two Systems” and Its Application to Hong Kong, in
Understanding China’s Legal System: Essays in Honor of Jerome A. Cohen 353 (C. Stephen Hsu ed.,
2003).
2
See generally The Basic Law and Hong Kong’s Future (Peter Wesley-Smith & Albert Chen eds.,
1988); Yash Ghai, Hong Kong’s New Constitutional Order (2d ed. 1999); Introduction to the Basic Law of
the Hong Kong Special Administrative Region (Wang Shuwen ed., 2000); Xiao Weiyun, One Country,
Two Systems: An Account of the Drafting of the Hong Kong Basic Law (2001); Daniel R. Fung,
Foundation for the Survival of the Rule of Law in Hong Kong – The Resumption of Chinese Sovereignty, 1
UCLA J. Int’l L. & Foreign Aff. 283 (1996).
3
See Peter Wesley-Smith, An Introduction to the Hong Kong Legal System 38-42 (3d. ed. 1998);
Norman Miners, The Government and Politics of Hong Kong 53-61 (5th ed. 1995).
4
See PETER WESLEY-SMITH, THE SOURCES OF HONG KONG LAW 3 (1994); Peter Wesley-Smith, The
Common Law of England in the Special Administrative Region, in HONG KONG, CHINA AND 1997: ESSAYS
IN LEGAL THEORY 5 (Raymond Wacks ed., 1993); Peter Wesley-Smith, The Content of the Common Law in
Hong Kong, in THE NEW LEGAL ORDER IN HONG KONG 10 (Raymond Wacks ed., 1999).
5
See generally 1 Peter Wesley-Smith, Constitutional and Administrative Law in Hong Kong 12
(1995); Berry Hsu, The Common Law in Chinese Context 7-19 (1992); Judicial Independence and the Rule
of Law in Hong Kong (Steve Tsang ed., 2001).
6
See generally CIVIL LIBERTIES IN HONG KONG (Raymond Wacks ed., 1988); HUMAN RIGHTS IN
HONG KONG (Raymond Wacks ed., 1992).
7
See Albert H.Y. Chen, Civil Liberties in Hong Kong: Recent Controversies, Evolving
Consciousness and Future Legal Protection, 2 J. Chinese L. 137 (1988).
8
See Lo Shiu-Hing, The Politics of Democratization in Hong Kong (1997).
SEPTEMBER 2006
CONSTITUTIONAL ADJUDICATION IN HONG KONG
629
Kong’s legal system a Bill of Rights for the purpose of boosting residents’
confidence in Hong Kong’s future.9 Since the enactment of the Hong Kong
Bill of Rights Ordinance in 1991, the courts of Hong Kong have developed a
solid body of case law on the protection of human rights, and have begun to
exercise the power of judicial review of legislation.10 The era of
constitutional adjudication thus began in Hong Kong.
After the establishment of the SAR of Hong Kong in 1997, the courts
of Hong Kong had to face the new challenges of finding their place in the
new constitutional order of “one country, two systems” and leading the newborn Hong Kong SAR forward in its legal and constitutional development.
Delicate issues of Hong Kong’s constitutional relationship with the central
government in Beijing have arisen, which often underscore the contradiction
between the Communist Party-led legal system in mainland China and the
tradition of judicial independence and the Rule of law in Hong Kong. 11 At
the same time, the courts of Hong Kong have to tackle the classic
constitutional problem of trying to work out the appropriate balance between
individuals’ rights on the one hand and public interest on the other hand, and
to resolve internal tensions within Hong Kong society generated by
conflicting demands among different classes and groups.
This article reviews and evaluates how the Hong Kong courts have
responded to this dual challenge of defining Hong Kong’s constitutional
relationship with Beijing and of defending rights while delineating the limits
of these rights. It argues that, considering the inevitable tensions that inhere
in the constitutional experiment of “one country, two systems,” the record of
the Hong Kong courts in dealing with these challenges has thus far been
positive. The judiciary, led by the Final Court of Appeal, has chosen the
middle path12 or the “golden mean”13 between confrontation with and
subservience to Beijing, and between judicial activism and judicial restraint.
In tackling their relationship with Beijing, the courts have adopted an
approach that may be described—in a phrase translated from the Chinese—
as “neither too proud nor too humble” (bukang bubei). In the domain of
human rights, the tenor of the courts’ decisions may be described as
9
See The Hong Kong Bill of Rights: A Comparative Approach 2 (Johannes Chan & Yash Ghai
eds., 1993).
10
See introductory section in Part II of this article.
11
See generally Albert H.Y. Chen, An Introduction to the Legal System of the People’s Republic of
China (3d. ed. 2004); Randall Peerenboom, China’s Long March Toward Rule of Law (2002).
12
In the language of Chinese philosophy, such a middle path may be called “zhongyong zhidao.”
Zhong Yong (Book of the Mean) is one of the “Four Books” in the Confucian classics. See generally FUNG
YU-LAN, A SHORT HISTORY OF CHINESE PHILOSOPHY 43-44, 172-174 (Derk Bodde, ed., 1966).
13
See, e.g. James S. Hans, The Golden Mean (1994).
PACIFIC RIM LAW & POLICY JOURNAL
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moderately liberal—neither radically liberal nor conservative. This article
suggests that such a middle path is indeed appropriate in the context of Hong
Kong under “one country, two systems.”
This article, including this introduction (Part I), is divided into five
parts. Part II examines how the Hong Kong judiciary has contributed to
shaping the evolving constitutional relationship between the Hong Kong
SAR and the central government in Beijing. Part III considers the role of the
Hong Kong courts as guardians of the rights enshrined in the Basic Law.
Part IV considers the significance of Hong Kong’s experience in the practice
of “one country, two systems” for China as a whole. In Part V, the article
will conclude with some general reflections on the work of Hong Kong’s
judiciary in constitutional adjudication in the post-1997 era.
II.
THE EVOLVING CONSTITUTIONAL RELATIONSHIP BETWEEN HONG KONG
AND BEIJING
This part will begin by explaining the characteristics of the general
constitutional framework of “one country, two systems” in which Hong
Kong operates. It then reviews in chronological order the major court cases
and related constitutional events that have marked the evolving
constitutional relationship between Hong Kong and Beijing since the
establishment of the Hong Kong SAR. It will conclude with some
reflections on the jurisprudence of “one country, two systems” that the Hong
Kong courts have developed.
A.
The Constitutional Framework of “One Country, Two Systems”
Like federalism, “one country, two systems” (“OCTS”) as practiced in
Hong Kong (and also in Macau, a Portuguese colony returned to the PRC in
1999)14 is a constitutional arrangement under which a local or regional
government enjoys autonomy15 with regard to a specified range of domestic
affairs within the region. A legal formula typically divides power between
the central or national government on the one hand and the local or regional
government on the other hand. The wider the range of domestic affairs
within the jurisdiction of the regional government, the higher its degree of
autonomy. The more constitutionally entrenched the formula for the
division of power, the more secure is the region’s autonomy.
14
For the case of Macau, see Yash Ghai, The Basic Law of the Special Administrative Region of
Macau: Some Reflections, 49 INT’L & COMP. L.Q. 183 (2000).
15
See generally Models of Autonomy (Yoram Dinstein ed., 1981); Hurst Hannum, Autonomy,
Sovereignty and Self-Determination (1990).
SEPTEMBER 2006
CONSTITUTIONAL ADJUDICATION IN HONG KONG
631
Hong Kong, under OCTS, enjoys a high degree of autonomy. Its
autonomy is greater than that enjoyed by states and provinces of federal
countries such as the United States, Canada and Australia.16 Basically, all
governmental affairs in the Hong Kong SAR other than defense and foreign
affairs are within the scope of the SAR’s autonomy. The PRC mainland’s
criminal and civil laws are not applicable to Hong Kong; Hong Kong does
not need to pay any tax to the mainland government; Hong Kong has its own
currency, administers its own system of entry and exit controls on persons, is
a separate customs territory, and can sign international agreements relating
to non-sovereign business. These features suggest that Hong Kong’s
autonomy far surpasses those of the constituent units of most federal states.
When we turn from the breadth of autonomy to the legal security of
autonomy however, Hong Kong under OCTS does not compare as favorably
with states or provinces of the United States, Canada or Australia. This is
because the formula for division of power between the central government
and the SAR is not entrenched in the PRC Constitution itself. The formula
is provided for instead in the Basic Law of the Hong Kong SAR “HKSAR,”
a law made, and amendable unilaterally17 by, the National People’s Congress
("NPC"), which is the supreme legislative organ of the PRC. Indeed,
mainland Chinese scholars prefer to use the language of “delegation of
power” by the national government to the SAR rather than that of “division
of power” between the national government and the SAR.18 Furthermore,
unlike in the United States, Canada and Australia, there is no national
Supreme Court in OCTS that arbitrates and resolves jurisdictional disputes
between the national government and the regional government. Instead, the
highest authority for the interpretation of the Basic Law, including the
formula for division of power embodied in the Basic Law, is the NPC
Standing Committee ("NPCSC")19—a political or parliamentary institution
rather than a Supreme Court or constitutional court staffed by judges and
jurists. The lack of legitimacy—in the eyes of many people in Hong Kong,
particularly its legal community and a significant segment of its political
16
See Yash Ghai, A Comparative Perspective, in HONG KONG’S BASIC LAW: PROBLEMS AND
PROSPECTS 1, 9 (Peter Wesley-Smith ed., 1990); Chen, supra note 1, at 364-365; INTRODUCTION TO THE
BASIC LAW, supra note 2, at 66-88, 221-239.
17
It should however be noted that no amendment to the Basic Law has actually been introduced
since it came into force. The procedure for its amendment is governed by article 159 of the Basic Law,
which in effect prohibits any amendment that contradicts the PRC’s “one country, two systems” policies
towards the Hong Kong SAR as enshrined in the Sino-British Joint Declaration of 1984.
18
See, e.g., INTRODUCTION TO THE BASIC LAW, supra note 2, at 66-67, 221-223; GANG’AO JIBENFA
JIAOCHENG [TEXTBOOK ON THE BASIC LAWS ON HONG KONG AND MACAU] 48, 53, 71 (Xu Chongde ed.,
1994).
19
See generally Chen, supra note 11, at 58-59.
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elite—of the NPCSC in performing the task of constitutional interpretation
has proved to be the major cause of constitutional controversies in post-1997
Hong Kong.
B.
The Ma Wai Kwan Case
The first of these controversies between the national and regional
governments arose at the time of the establishment of the Hong Kong SAR
in 1997, and related to the legality of the establishment of the Provisional
Legislative Council ("PLC") by the Preparatory Committee for the SAR
appointed by the NPCSC. Critics, including pro-democracy politicians20 in
Hong Kong and the influential Hong Kong Bar Association,21 alleged that
the PLC was not lawfully established as it was not provided for in the Basic
Law. Since the Basic Law was enacted in 1990 on the assumption that there
would be a political “through train” in the sense that the members of the pre1997 legislature would become members of the first legislature of the
SAR,22 there was no provision for the establishment of the PLC (whose
members where chosen by the Preparatory Committee). The PLC was
basically a contingency measure to deal with the “derailing” of the through
train as a result of political reforms introduced by Governor Chris Patten in
the mid-1990’s, which Beijing considered to be contrary to the Basic Law
and to the understanding reached between the Chinese and British
Governments when the Basic Law was enacted in 1990.23
The constitutional issues revolving around the PLC were adjudicated
shortly after the SAR was established in HKSAR v. Ma Wai Kwan,24 a case
decided by Hong Kong’s Court of Appeal on July 29, 1997. Ma Wai Kwan
was a criminal case, where the main issue was whether the common law had
20
There are two major camps in Hong Kong politics – the pro-democracy politicians and the proChina politicians. The former are generally critical of Beijing’s policies towards Hong Kong and believe
that the Basic Law does not adequately provide for Hong Kong’s democratization. See generally Lo, supra
note 8.
21
The Bar Association is formed by all barristers in Hong Kong. The professional body of solicitors
in Hong Kong is the Law Society of Hong Kong. Hong Kong follows the English system of having a legal
profession divided into solicitors and barristers (the latter have the exclusive right of audience before the
higher courts of Hong Kong).
22
See the Decision of the National People’s Congress on the Method for the Formation of the First
Government and the First Legislative Council of the Hong Kong Special Administrative Region, enacted at
the same time as the enactment of the Basic Law on Apr. 4, 1990 and published together with the Basic
Law. The Decision is reproduced in Ghai, supra note 2, at 568-569.
23
See generally BENNY TAI, The Development of Constitutionalism in Hong Kong, in THE NEW
LEGAL ORDER IN HONG KONG 39, 55-58, 67-70 (Raymond Wacks ed., 1999).
24
HKSAR v. Ma Wai Kwan, [1997] H.K.L.R.D. 761 (C.A.). The court judgments in the cases
discussed in this article are all available at the website of the Hong Kong Judiciary,
http://legalref.judiciary.gov.hk.
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CONSTITUTIONAL ADJUDICATION IN HONG KONG
633
survived the handover. One of the arguments for the common law’s survival
was that the PLC had enacted an ordinance25 which provided for the
common law’s survival. The question of whether the PLC had been lawfully
established therefore arose.
In its judgment the Court of Appeal affirmed the legality of the PLC,
pointing out that its establishment was consistent with the text and the
purpose of the Basic Law, given the derailing of the through train and the
need for an interim legislative authority to exist immediately upon the
establishment of the SAR. Another reason given by the court in support of
its ruling however, proved to be controversial, and paved the way for a
subsequent constitutional crisis during the spring of 1999. The court
concluded that as a local or regional court, it had no power to review or
overturn an act of a sovereign authority such as the NPC or the NPCSC. It
reasoned that article nineteen of the Basic Law maintains but does not enlarge
the pre-existing jurisdiction of the Hong Kong courts. As the court could not
question the validity of an act of the sovereign before 1997 (such as an Act of
Parliament applicable to Hong Kong or the appointment of the Governor of
Hong Kong), it likewise could not adjudicate the validity of an act of the NPC
or the NPCSC after 1997. This reasoning was however criticized by some
commentators26 on the ground that the colonial analogy regarding the
relationship between the imperial government in the metropolitan territory and
the overseas colony was inappropriate to the new constitutional order of Hong
Kong. Though this analogy may indeed be questionable, it does not
necessarily follow that the conclusion reached by the Court of Appeal was
wrong. It is indeed doubtful whether a Hong Kong court may strike down an
act of the NPC or NPCSC.27 We shall return to this point later.28
A less noticed, but equally if not more important aspect of the Ma Wa
Kwan case concerns the power of Hong Kong courts to review acts of the
Hong Kong legislature. While it accepted the Solicitor General’s submission
that Hong Kong courts have no power to review the acts of the national
legislative organs in Beijing, the Court of Appeal also accepted his argument
that since Hong Kong courts had before 1997 enjoyed the power to review
25
Hong Kong Reunification Ordinance, No. 110, (1997) 3 O.H.K..
See, e.g., Yash Ghai, Dark Day for Our Rights, SOUTH CHINA MORNING POST, July 30, 1997; see
also Johannes Chan, The Jurisdiction and Legality of the Provisional Legislative Council, 27 H.K.L.J. 374
(1997).
27
See generally Albert H.Y. Chen, The Concept of Justiciability and the Jurisdiction of the Hong
Kong Courts, 27 H.K.L.J. 387 (1997); Daniel R. Fung and Peter H.H. Wong, Constitutional Law and
Litigation in the First Year of the Hong Kong SAR: Past Trends and Future Developments, 28 H.K.L.J. 336
(1998).
28
See the discussion below of the Ng Ka Ling case.
26
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the constitutionality of local legislation (on the basis of the Letters Patent –
the colonial constitution), and article nineteen of the Basic Law enables
them to retain their former jurisdiction, the courts of the Hong Kong SAR
have the “power to determine the constitutionality of SAR-made laws vis-àvis the Basic Law.”29 Although this part of the judgment is dicta, it dealt with
the most crucial issue in the new constitutional order of Hong Kong, and the
proposition it upheld has never been challenged by any party in subsequent
cases. In this way, Ma Wai Kwan paved the way for subsequent decisions by
the Hong Kong courts exercising the power of judicial review of SAR laws
alleged to be inconsistent with the Basic Law. The Ma case may thus be
regarded as the Marbury v. Madison30 of the constitutional history of the Hong
Kong SAR.
C.
The Ng Ka Ling and Chan Kam Nga Cases and Their Aftermath
1.
The Cases
The issues of the legality of the PLC and of whether the acts of the
Beijing authorities are susceptible to judicial review in Hong Kong came
before the Hong Kong courts again—this time the Court of Final Appeal
(CFA)—in the case of Ng Ka Ling v. Director of Immigration.31 The CFA
was established at the same time as the establishment of the Hong Kong
SAR in July 1997,32 and replaced the Judicial Committee of the Privy
Council as the final appellate court in Hong Kong’s legal system. The Basic
Law33 vests the power of final adjudication of all cases litigated in Hong
Kong in the CFA; there is no channel of appeal to a mainland Chinese court
whereby the CFA’s judgments may be overturned. On January 29, 1999, the
CFA rendered its judgments in the cases of Ng Ka Ling v. Director of
Immigration34 and Chan Kam Nga v. Director of Immigration.35 In these
decisions the CFA attempted to assert its supreme judicial authority as the
constitutional guardian of the Basic Law, of Hong Kong’s autonomy and of
29
Ma Wai Kwan, [1997] 2 H.K.C. 315 at 351.
5 U.S. (1 Cranch) 137 (1803).
31
Ng Ka Ling v. Director of Immigration, [1999] 1 H.K.L.R.D. 315 (C.F.A).
32
See the Hong Kong Court of Final Appeal Ordinance, Cap. 484, L.H.K. For the background to the
establishment of the court, see Lo Shiu Hing, The Politics of the Debate over the Court of Final Appeal in
Hong Kong, 161 CHINA QUARTERLY 221 (March 2000).
33
Arts. 19, 82.
34
Ng Ka Ling, [1999] 1 H.K.L.R.D. 315.
35
Cham Kam Nga v. Director of Immigration, [1999] 1 H.K.L.R.D. 304 (C.F.A.).
30
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CONSTITUTIONAL ADJUDICATION IN HONG KONG
635
the rights of the people of Hong Kong. Unfortunately, the CFA's assertions
backfired and ultimately led to Beijing’s intervention.
Both Ng Ka Ling and Chan Kam Nga were appeals to the final
appellate court from lower courts by seekers of the “right of abode” in Hong
Kong. The applicants were children of Hong Kong permanent residents, but
they were born on the mainland. Some were born before their parents
became Hong Kong permanent residents; some were born after at least one
of their parents became such residents (e.g. the children were born on the
mainland to women whose husbands were Hong Kong permanent residents
living in Hong Kong); some were illegitimate children. The children
claimed the right of abode in Hong Kong under the Basic Law,36 and argued
that the immigration legislation (passed by the PLC)37 that defined who was
entitled to the right (thereby excluding them from entitlement) and regulated
the procedures for migration to Hong Kong for settlement was in
contravention of the Basic Law. Two controversies resulted from the CFA’s
decisions in these two cases.
2.
The Constitutional Jurisdiction of Hong Kong Courts to Review Acts
of the NPC or NPCSC
The first controversy arose in the context of the CFA’s handling of the
issue of the legality of the PLC. In Ng Ka Ling, the CFA heard arguments
that the immigration legislation passed by the PLC was invalid as the PLC
itself was not lawfully established. While the CFA reached the same
conclusion as the Court of Appeal in Ma Wai Kwan regarding the legality of
the PLC, it attempted in its judgment to overrule the Court of Appeal’s
ruling in Ma that Hong Kong courts had no jurisdiction to overturn acts of
the NPC or NPCSC. The CFA stated in Ng Ka Ling that Hong Kong courts
have jurisdiction “to examine whether any legislative acts of the National
People’s Congress or its Standing Committee are consistent with the Basic
Law and to declare them to be invalid if found to be inconsistent”
(hereinafter called “the Statement”).38 This provoked an immediate strong
reaction from mainland China,39 and led to the SAR Government’s
36
Basic Law, art. 24(2)(3).
The Immigration Ordinance, Schedule No. 2, (1997), and the Immigration Ordinance, Schedule
No. 3 (1997).
38
Ng Ka Ling, [1999] 1 H.K.L.R.D. 315. 337 (C.F.A.).
39
In a highly publicized seminar reported in Hong Kong and mainland Chinese media on 7 February
1999, four leading Chinese law professors, who were also former members of the Drafting Committee for
the Basic Law and the Preparatory Committee for the establishment of the HKSAR, attacked the statement.
They suggested that it had the effect of placing Hong Kong courts above the NPC, which is the supreme
organ of state power under the Chinese Constitution, and of turning Hong Kong into an “independent
37
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unprecedented and unexpected application to the CFA to “clarify” the
relevant part of its judgment. The CFA acceded to the request and stated that
(1) the Hong Kong courts’ power to interpret the Basic Law is derived from
the NPCSC under article 158 of the Basic Law; (2) any interpretation made
by the NPCSC under article 158 would be binding on the Hong Kong courts;
and, (3) the judgment of January 29 did not question the authority of the
NPC and its Standing Committee “to do any act which is in accordance with
the provisions of the Basic Law and the procedure therein.”40
3.
The Significance of the “Clarification”
The very act of applying to the CFA for “clarification” was, as of
February 1999, the government's most controversial act in the short
constitutional history of the Hong Kong SAR. There was no precedent for
such an intervention and the legal basis for the application was dubious.41 It
was clear to everyone in Hong Kong that the application was made entirely
because of Beijing’s displeasure with the CFA's Statement. The application
was thus fiercely criticized by outspoken members of the legal community
and pro-democracy politicians as a blatant exertion of political pressure on
the highest court of Hong Kong.42
The application for “clarification” represented the first major test
endured by the CFA since its establishment in 1997. The CFA had three
options: (a) reject the application and decline to “clarify”; (b) “clarify” by
retreating from its original position; or (c) “clarify” without such a retreat.
Considering the matter strictly from the legal perspective, there was much to
be said for the first option. The political consequences of choosing the first
option, however, could have been serious. The “war of words” between
Beijing and those in Hong Kong’s legal community defending the CFA’s
original Statement could have escalated. It was also conceivable that
Beijing might resort to its power of interpretation of the Basic Law in order
political entity.” After the HKSAR’s Secretary for Justice Elsie Leung’s visit to Beijing on 12-13 February
1999 to discuss the matter, it was reported that Chinese officials had criticized the statement as
unconstitutional and called for its “rectification.” See generally HONG KONG’S CONSTITUTIONAL DEBATE :
CONFLICT OVER INTERPRETATION 73 (Johannes M.M. Chan, H.L. Fu & Yash Ghai eds., 2000) [hereinafter
HONG KONG’S CONSTITUTIONAL DEBATE].
40
Ng Ka Ling v. Director of Immigration (No. 2), [1999] 1 H.K.L.R.D. 577 (C.F.A.).
41
The application was made pursuant to rule 46(1) in part X of the Rules of the Court of Final
Appeal. This provision relates to applications for orders and directions on matters of practice and procedure
generally, and does not refer specifically to applications for “clarification.” Counsel for Government
argued that the CFA had inherent jurisdiction to entertain the application; the CFA agreed with this view.
See HONG KONG'S CONSTITUTIONAL DEBATE 91, supra note 39.
42
See, e.g., Yash Ghai, A Play in Two Acts: Reflections on the Theatre of the Law, 29 H.K.L.J 5
(1999).
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637
to resolve the constitutional issue.43 On the other hand, by acting pursuant to
the second or third option, the CFA could at least take the matter into its own
hands, seize the initiative and steer the way forward in an attempt to resolve
the crisis. It may be said therefore, that the CFA’s rejection of the first
option was a sensible course of action in difficult circumstances.
In retrospect, the CFA’s “clarification” may be considered a skillful
and successful maneuver. The crisp one-page judgment issued by the CFA
was ambiguous enough to sustain different interpretations. No one could tell
for sure whether the CFA had chosen the second or third option. Both
Bejing and Hong Kong’s legal communities could read from it what they
desired. The CFA’s “clarification” was generally understood at the time by
Hong Kong’s legal community,44 not as a retreat from the court’s original
position as defined in its judgment of January 29th, but as a statement
rendering explicit what was implicit in its original judgment. The original
judgment after all, never attempted to deny the NPCSC’s power to interpret
the Basic Law. The powers that be in Beijing also seemed satisfied with the
“clarification.”45 The “clarification” was, therefore, effective in resolving
the constitutional crisis precipitated by the CFA’s Statement.
The
jurisprudential problems at issue, however, are more complicated than
suggested by the text of the “clarification” and have remained unresolved.46
In particular, it is not clear whether the Hong Kong court has jurisdiction to
review an act of the NPC or NPCSC when the act is not accompanied by a
formal interpretation by the NPCSC stating that the act is compatible with
the Basic Law. Conversely, if such an interpretation is made simultaneously
with the promulgation of the act, it is clear under the “clarification” that the
43
Beijing’s power under article 158 to interpret the Basic Law will be discussed below. If an
interpretation were made by the NPCSC in response to the CFA’s Statement, it was likely that the
jurisdiction of the Hong Kong courts would be expressly delineated in the interpretation, and it was
difficult to predict at the time to what extent the NPCSC might attempt to curtail the jurisdiction of the
Hong Kong courts when it made such an interpretation.
44
See, e.g., Benny Y.T. Tai, Chapter 1 of Hong Kong’s New Constitution: Constitutional
Positioning and Repositioning, in CRISIS AND TRANSFORMATION IN CHINA’S HONG KONG 189, 196 (Ming
K. Chan & Alvin Y. So eds., 2002); Yash Ghai, Litigating the Basic Law: Jurisdiction, Interpretation and
Procedure, in HONG KONG’S CONSTITUTIONAL DEBATE 3, 18, supra note 39.
45
On 27 Feb 1999, which was the day following the day of the “clarification”, the Legislative
Affairs Commission of the NPCSC issued a statement commenting that the “clarification” had been
“essential”. On the following day, Vice-Premier Qian Qichen made a comment which implied that the
constitutional crisis was over. For the full text of the Legislative Affairs Commission’s statement, see
HONG KONG’S CONSTITUTIONAL DEBATE 246, supra note 39. See also Albert H.Y. Chen, Hong Kong’s
Legal System in the New Constitutional Order, in IMPLEMENTATION OF LAW IN THE PEOPLE’S REPUBLIC OF
CHINA 213, 230 (Jianfu Chen, Yuewen Li & J.M. Otto eds., 2002).
46
See Albert H.Y. Chen, Constitutional Crisis in Hong Kong: Congressional Supremacy and Judicial
Review, 33 INT’L. LAW. 1025 (1999); Bing Ling, Can Hong Kong Courts Review and Nullify Acts of the
National People’s Congress? 29 H.K.L.J. 8 (1999).
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Hong Kong courts will be bound by the interpretation and cannot review the
act.
The issue of whether the acts of Beijing authorities are susceptible to
review by the Hong Kong courts has so far been merely theoretical. Apart
from the abovementioned cases on the legality of the PLC,47 no case has yet
arisen in which any act of the NPC, NPCSC, or any other central
government agency has been challenged before a Hong Kong court.48 There
also has been no litigation of the kind common in federal states arising from
jurisdictional disputes between the central government and the autonomous
regional governments.
This lack of dispute is largely attributable to the fact that under the
OCTS arrangement, the SAR’s autonomy level is so high that in practice
almost every matter (other than defense and foreign affairs on which no
controversies have arisen in the short lifespan of the Hong Kong SAR) falls
within the SAR’s jurisdiction. Furthermore, few acts have actually been
performed by the Beijing authorities with regard to Hong Kong in exercise
of the former’s power under the Basic Law. For example, article seventeen
of the Basic Law empowers the NPCSC to nullify any law made by the
Hong Kong SAR legislature, but this power has never been exercised.
Article eighteen of the Basic Law provides for a short list of mainland
Chinese laws (including, for example, the Chinese Nationality Law) which
apply to the Hong Kong SAR; mainland laws that are not so listed are
inapplicable to Hong Kong. It also empowers the NPCSC to add to the list
where necessary. The only laws added to the list after 1997 were the Law on
the Exclusive Economic Zone and the Continental Shelf, an uncontroversial
law relating to the law of the sea that was made applicable to Hong Kong in
December 1998,49 and the Law on the Immunity Against Judicial Execution
of the Property of Foreign Central Banks, another uncontroversial law made
applicable to Hong Kong in October 2005.50
The “clarification” mentioned above refers to article 158 of the Basic
Law. This article—one of the most crucial provisions of the Basic Law—
establishes a complex scheme in which both the NPCSC and courts of Hong
47
The legality of the PLC was affirmed for reasons other than the non-susceptibility of the Beijing
authorities’ acts to judicial review in Hong Kong. The term of office of the PLC expired in 1998 when the
first legislature of the SAR was duly elected in accordance with the basic law.
48
The issue nearly arose in the Ng Kung Siu case discussed supra section B(2) of Part III below, but
the CFA managed to avoid it.
49
Promulgation of National Law 1998, in Government of the Hong Kong Special Administrative
Region Gazette, No. 52/1998, Legal Supplement No. 2, L.N. 393 of 1998 (Dec. 24, 1998).
50
See Decision of the National People’s Congress Standing Committee on an Addition to the
National Laws Listed in Annex III to the Basic Law of the Hong Kong Special Administrative Region of
the PRC dated 27 Oct. 2005, Gazette of the NPC Standing Committee, Nov. 2005.
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Kong may interpret the Basic Law. Article 158(1) declares that “[t]he power
of interpretation of this Law shall be vested in the NPCSC.” Article 158(2)
and (3) authorize the courts of Hong Kong to interpret the Basic Law when
adjudicating cases, except that the CFA should refer to the NPCSC for
interpretation of relevant Basic Law provisions “concerning affairs which
are the responsibility of the Central People’s Government, or . . . the
relationship between the Central Authorities and the Region.”51 The article
also mandates consultation with the Basic Law Committee52 before the
NPCSC issues an interpretation, and provides that judgments already given
by Hong Kong courts before an NPCSC interpretation will not be affected
by that interpretation. This “legislative interpretation,” as it is called in the
PRC legal system,53 only binds the courts when they try cases after the
interpretation has been promulgated.
The practical significance of the “clarification,” which also may be
considered an inference from the text of the Basic Law itself, is that the
Hong Kong courts’ power to interpret the Basic Law and to determine
whether it is consistent with acts of government authorities is not absolute.
It is not absolute because it is subject to the overriding power of the NPCSC.
In the absence of an interpretation by the NPCSC, the Hong Kong courts
have full authority to interpret the Basic Law on their own and to decide
cases in accordance with their own interpretation. Once the NPCSC has
spoken however, the Hong Kong courts must comply. But when can the
NPCSC speak? Can it speak only when the CFA asks for its interpretation in
accordance with article 158(3) of the Basic Law? Or can it speak even when
not asked by the CFA? This question was answered in the course of the
second controversy flowing from the CFA’s January 29th decision.
4.
Interpretation by the NPCSC
The second controversy stemmed from the CFA’s interpretation of
articles 24(2)(3) and 22(4) of the Basic Law, and its decision not to refer the
latter to the NPCSC for interpretation even though that article seemed to be
covered by article 158(3) of the Basic Law. Article 24(2)(3) of the Basic
51
Basic Law, art. 158(3).
See the Decision of the National People’s Congress to Approve the Proposal by the Drafting
Committee for the Basic Law of the Hong Kong Special Administrative Region on the Establishment of the
Committee for the Basic Law of the Hong Kong Special Administrative Region under the Standing
Committee of the National People’s Congress, adopted at the same time as the enactment of the Basic Law
on Apr. 4, 1990, and published together with the Basic Law. The decision is reproduced in Ghai, supra
note 2, at 569-70.
53
See generally Albert H.Y. Chen, The Interpretation of the Basic Law–Common Law and Mainland
Chinese Perspectives, 30 H.K.L.J. 380 (2000).
52
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Law confers the right of abode in Hong Kong on children born in mainland
China of Hong Kong permanent residents.54 It is ambiguous however as to
whether the right is confined to a child of at least one parent who was
already a Hong Kong permanent resident at the time of the child’s birth (“the
narrow interpretation”), or whether it extends also to a child whose parents
were not Hong Kong permanent residents at the time of the child’s birth, but
at least one of the parents subsequently became a Hong Kong permanent
resident (“the broad interpretation”). Article 22(4) provides that “people
from other parts of China” must apply for approval from the mainland
authorities in order to enter Hong Kong. It too is ambiguous however,
regarding whether this requirement is only applicable to mainland residents
who have no right of abode in Hong Kong under article twenty-four of the
Basic Law (“the narrow interpretation”) or whether the requirement is also
applicable to those mainland residents on whom the right of abode in Hong
Kong has been conferred by article 24(2)(3) of the Basic Law (“the broad
interpretation”).
In the course of the litigation, the Court of First Instance adopted the
broad interpretation of article 24(2)(3) and the broad interpretation of article
22(4). The Court of Appeal adopted the narrow interpretation of article
24(2)(3) and the broad interpretation of article 22(4). When the cases were
appealed to the CFA, the CFA chose the broad interpretation of article
24(2)(3) and the narrow interpretation of article 22(4). It also decided that
article 22(4) need not be referred to the NPCSC for interpretation, because it
was not the “predominant provision” to be interpreted in the case. It found
the “predominant provision” to be article 24(2), which in the CFA’s opinion
did not concern the central government’s responsibility or the relationship
between the central government and the SAR and did not therefore need to
be referred to the NPCSC.55
On the basis of sample surveys and statistical studies conducted after
the CFA’s decisions were rendered, the SAR Government estimated that the
implementation of articles 24(2)(3) and 22(4) as interpreted by the CFA
would mean that Hong Kong would need to absorb a migrant population
from mainland China of 1.67 million in the coming decade,56 imposing a
54
Before the Basic Law came into operation on 1 July 1997, such children had no legal entitlement
to reside in Hong Kong. See generally IMMIGRATION LAW IN HONG KONG: AN INTERDISCIPLINARY STUDY
(Johannes Chan & Bart Rwezaura eds., 2004).
55
For a criticism of the “predominant provision” approach, see Albert H.Y. Chen, Ng Ka-ling and
Article 158(3) of the Basic Law, 5 JOURNAL OF CHINESE AND COMPARATIVE LAW 222 (2001-2).
56
This figure is the sum total of 690,000 (being the “first generation” consisting of children of
current Hong Kong permanent residents) and 980,000 (being the “second generation” consisting of children
(already born) of the “first generation” who will be entitled to the right of abode after their parents–as
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641
social and economic burden so enormous that Hong Kong would find it
hardly endurable. In the Government’s opinion however, Hong Kong would
not need to bear this burden because the CFA’s interpretation of the relevant
Basic Law provisions was of dubious validity. The Government argued that
although the CFA is the court of final adjudication in Hong Kong, it is not
necessarily the final tribunal for the interpretation of the Basic Law, because
under article 158(1) of the Basic Law the NPC Standing Committee has the
ultimate authority to interpret the Basic Law.
Thus on May 21, 1999, the Chief Executive, Mr. Tung Chee-hwa,
requested the State Council to refer the relevant Basic Law provisions to the
NPCSC for interpretation.57 This decision was made in the midst of strong
opposition from certain sectors of the community, particularly the legal
profession and the pro-democracy politicians. The request was granted, and
the NPCSC issued an interpretation on June 26, 1999.58 The NPCSC
adopted the narrow interpretation of article 24(2)(3) and the broad
interpretation of article 22(4), the same as those adopted by the Court of
Appeal before its decision was overturned by the CFA. The CFA’s decision
on these points was effectively overruled, although the parties to the
litigation were not to be affected by the NPCSC’s interpretation.59 In the
text of its decision, the NPCSC also pointed out that the litigation did
involve Basic Law provisions concerning the central government’s
responsibility or the central-SAR relationship. It noted that these issues
ought to have been referred to the NPCSC for interpretation by the CFA
under article 158(3).
members of the “first generation”—have migrated to Hong Kong and resided there for seven years). See
generally Fung Ho-lup, The “Right of Abode” Issue: A Test Case of “One Country, Two Systems,” in “ONE
COUNTRY, TWO SYSTEMS” IN CRISIS 97 (Wong Yiu-chung ed., 2004); Albert H.Y. Chen and Anne S.Y.
Cheung, Debating Rule of Law in the Hong Kong Special Administrative Region, 1997-2002, in ASIAN
DISCOURSES OF RULE OF LAW 250, 253-260 (Randall Peerenboom ed., 2004).
57
It should be noted that although art. 158(3) provides for reference by the CFA of a Basic Law
provision to the NPCSC for interpretation in certain circumstances, art. 158 does not provide expressly that
the Hong Kong SAR Government may request the NPCSC to interpret the Basic Law. Art 158(1) does
stipulate however that “[t]he power of interpretation of this Law shall be vested in” the NPCSC.
58
Government of the Hong Kong Special Administrative Region Gazette Extraordinary, Legal
Supplement No. 2, June 28, 1999, p. 1577 (L.N. 167 of 1999).
59
This is provided for in art. 158(3) of the Basic Law and is also reiterated in the text of the
NPCSC’s interpretation. The precise scope of application of the interpretation in terms of who were
affected by it and who were not was subsequently dealt with by the CFA in Ng Siu Tung v. Director of
Immigration, [2002] 1 H.K.L.R.D. 561, [2002] 5 H.K.C.F.A.R. 1 (C.F.A.). For a commentary on this case,
see Benny Y.T. Tai and Kevin K.F. Yam, The Advent of Substantive Legitimate Expectations in Hong
Kong: Two Competing Visions, [2002] PUBLIC LAW 688.
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The Significance of the Interpretation
The referral to the NPCSC for interpretation was extremely
controversial because there is nothing in the Basic Law which suggests that
the executive branch of the SAR Government can request the NPCSC to
interpret the Basic Law. Furthermore, the reference to the NPCSC was
criticized as a self-inflicted blow to Hong Kong’s autonomy, judicial
authority, Rule of law, and system for protecting individual rights.60 The
SAR Government probably recognized that these were indeed the negative
implications of the referral, but decided nevertheless that this price was
worth paying as the alternative scenario of absorbing the huge number of
migrants from the mainland was even less palatable.
The nature of constitutional judicial review is such that once a
Supreme Court or constitutional court has determined the constitutionality of
a legislative enactment, this legal position cannot be reversed by ordinary
legislative processes. Normally the legal position may be reversed only by a
constitutional amendment. Under the constitutional arrangement established
by the Basic Law, the Hong Kong legislature has no power to amend the
Basic Law—the constitutional instrument of the Hong Kong SAR. Only the
NPC has the power to do so.61 Thus any attempt to reverse the legal position
as defined by the CFA in Ng Ka Ling and Chan Kam Nga regarding the
unconstitutionality of existing legislation governing the right of abode would
require referral of the matter to Beijing and its cooperation.
From a theoretical point of view, it would have been possible for the
Hong Kong Government to propose to Beijing an amendment to the Basic
Law in order to address the migration problems generated by the CFA’s
decisions.62 There were however, at least two factors which led to this
amendment being ruled out.63 First, the NPC only meets once a year in a
spring session lasting several weeks. Thus the earliest an amendment could
be enacted was spring 2000. Before this time, existing migrants would have
qualified as Hong Kong permanent residents in accordance with the CFA’s
rulings, and there would also be a flood of new migrants coming to Hong
60
See generally HONG KONG’S CONSTITUTIONAL DEBATE, supra note 39; Peter Wesley-Smith, Hong
Kong’s First Post-1997 Constitutional Crisis, [1999] LAWASIA J. 24; Lin Feng, The Constitutional Crisis
in Hong Kong–Is It Over? 9 PAC. RIM L. & POL’Y. J. 281 (2000). Yongping Xiao, Comments on the
Judgment on the Right of Abode by Hong Kong CFA, 48 AM. J. COMP. L. 471 (2000).
61
See article 159 of the Basic Law.
62
Under article 159 of the Basic Law, an amendment may be proposed by either the Beijing side or
the Hong Kong side. As far as the latter is concerned, an amendment may be initiated by the Chief
Executive acting together with two-thirds of the members of the Hong Kong Legislative Council and twothirds of the Hong Kong deputies to the NPC.
63
See Chen, supra note 45, at 232-37.
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643
Kong to benefit from the rulings. Secondly, the Beijing authorities were
apparently of the view that this was a case in which the CFA should have
referred the relevant Basic Law provisions to the NPCSC for interpretation
in the first place in accordance with article 158 of the Basic Law. This view
is in fact shared by some Hong Kong and overseas academic commentators
on the Ng Ka Ling case.64 It therefore made sense to address the problems—
problems caused by the CFA's “incorrect” interpretation resulting from its
failure to refer the matter to the NPCSC—by utilizing the NPCSC's power of
interpretation to “correct” the CFA’s interpretation. When all these factors
are taken into account, the Government’s ultimate decision to refer the
matter to the NPCSC could not be considered unreasonable or contemptuous
of the Rule of law. It was understandable and to a large extent dictated by
the structural constraints inherent in the Basic Law and the Chinese
constitutional system.
It should be noted that although the CFA’s interpretation of article
24(2)(3) in Chan Kam Nga and article 22(4) in Ng Ka Ling is no longer
good law after the NPCSC interpretation, other parts of the Na Ka Ling
judgment still stand because they were not touched by the interpretation.
For example, in Ng Ka Ling the CFA struck down the part of the
Immigration Ordinance65 which denied the right of abode in the Hong Kong
SAR to mainland-born illegitimate children whose fathers were Hong Kong
permanent residents. The court held that this provision was inconsistent with
the Basic Law as interpreted in light of the International Covenant on Civil
and Political Rights which is applicable to Hong Kong under article thirtynine of the Basic Law. This ruling remains valid and the Hong Kong
Government subsequently introduced an amendment66 to the legislation
recognizing the right of abode of such illegitimate children. In addition to
this specific ruling, the general approach to the interpretation of the Basic
Law enunciated by the CFA in Ng Ka Ling remains very much alive and has
been relied upon in many subsequent judgments. Thus the “purposive
64
See Chen, supra note 45, at 222; see also Chen, supra note 1, at 362 (see quotation from the
testimony given by Professor Jerome Cohen before the Subcommittee on East Asian and Pacific Affairs of
the U.S. Senate Foreign Relations Committee on 1 July 1999); see also Jerome Cohen, Unrealistic
Expectations Stir Controversy, SOUTH CHINA MORNING POST, 6 July 1999 (Includes an edited extract of
Professor Cohen’s submission to the subcommittee). Professor Yash Ghai also expressed doubt regarding
the correctness of the CFA’s reasoning behind the failure to refer article 22 of the Basic Law to the NPCSC
for interpretation: see his commentary on the Ng Ka Ling decision at [1999] 1 H.K.L.R.D. 360, 363-364,
and Ghai, supra note 42, at 34-35.
65
See Immigration Ordinance (P.R.C.), Schedule 1, para. 1(2)(b) (introduced by the Immigration
(Amendment) (No. 2) Ordinance 1997).
66
See L.N. 192 of 1999, in Government of the Hong Kong Special Administrative Region Gazette,
Legal Supplement No. 2, July 1999.
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approach” of constitutional interpretation as well as the approach of giving a
“generous interpretation” to those provisions in the Basic Law that provide
constitutional guarantees for fundamental rights and freedoms continue to be
utilized in Hong Kong.67
D.
The Lau Kong Yung Case
In December 1999, the CFA had the opportunity to determine the
effect of the NPCSC’s interpretation on the Hong Kong legal system in the
case of Lau Kong Yung v. Director of Immigration.68 In that case seekers of
the right of abode argued that the interpretation should be disregarded since
it was not issued in response to a request for interpretation by the CFA under
article 158(3). This argument was rejected by the court. In a unanimous
decision by the five-member court, the CFA held that the interpretation made
by the NPCSC in June was binding on the Hong Kong courts. It pointed out
that the NPCSC’s power to interpret the Basic Law under article 158(1) of
the Basic Law is a “free-standing” one,69 in the sense that it can be exercised
at any time, even in the absence of a reference by the CFA. Any
interpretation issued by the NPCSC, whether on its own initiative or upon a
reference by the CFA, is thus binding on the Hong Kong courts. Applying
the common law approach and English case law, the CFA held that the
interpretation had a retroactive effect in the sense that the text of the
interpretation states what the legal position should always have been since
the Basic Law came into effect. The CFA also acknowledged in Lau Kong
Yung that since the preamble to the NPCSC interpretation suggests that a
referral to the NPCSC for interpretation should have been made by the CFA,
it might be necessary for the CFA to re-visit in the future, the test (such as
the “predominant provision” test) for determining when such a referral
should be made.
Different assessments have been made of the CFA’s “constitutional
repositioning”70 in Lau Kong Yung. Professor Jerome Cohen opined that the
CFA had moved “from one extreme to the other.” He noted that “instead of
again provoking the Central Government [as in Ng Ka Ling], [the CFA]
unnecessarily prostrated itself before Beijing.”71 Professor Yash Ghai
67
Ng Ka Ling v. Director of Immigration, [1999] 1 H.K.L.R.D. 315, 339-40 (C.F.A).
Lau Kong Yung v. Director of Immigration, [1999] 3 H.K.L.R.D. 778 (C.F.A.).
69
Id. at 820.
70
See Tai, supra note 44 (Professor Tai uses this term).
71
Jerome A. Cohen, Hong Kong’s Basic Law: An American Perspective 7, paper presented on April
1, 2000, at the international symposium to commemorate the 10th anniversary of the promulgation of the
Hong Kong SAR Basic Law organized by the Faculty of Law, University of Hong Kong (on file with
author).
68
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discussed “the total capitulation by the Court to the Central Authorities” and
“the excessive deference that the CFA has paid to the NPCSC.”72 On the
other hand, Professor Benny Tai suggested that “the CFA did not have much
choice,” and that the CFA’s stance in the Lau case was consistent with “its
constitutional position as the guardian of the rule of law.”73
The better view seems to be that the approach adopted by the CFA
was the only approach consistent with the NPCSC’s power of interpretation
of law under the Chinese Constitution74 and the Basic Law of the Hong
Kong SAR. The power of interpretation is not one that is exercised in
deciding a case litigated before a court. It is a legislative power75 and its
exercise is governed by procedures similar to those applicable to lawmaking by the NPCSC.76 The effect in practice of the promulgation of an
interpretation by the NPCSC is virtually the same as if the law were
amended by having the text of the interpretation incorporated into it.77 Thus,
although the NPCSC’s enactment is called an interpretation, it performs the
same function as a legislative enactment and does not operate like a court
judgment.
Given this system and the language of article 158 of the Basic Law
(which does not provide any express limit on the scope of the NPCSC’s
power of interpretation), the only conceivable way in which the CFA could
have limited the scope of the power of interpretation would be to assert that
the Hong Kong court may scrutinize whether an enactment which the
NPCSC calls an interpretation of the Basic Law is indeed an interpretation
of the Basic Law. However, this would amount to competing with the
NPCSC for the power to define the word “interpretation” in article 158 of
the Basic Law. Given the way article 158 of the Basic Law was drafted,78 it
would seem that the Hong Kong courts do not have a secure legal basis for
72
Yash Ghai, The NPC Interpretation and Its Consequences, in HONG KONG’S CONSTITUTIONAL
DEBATE 199, 213, supra note 39 .
73
Tai, supra note 44, at 205 (in Tai’s opinion, the CFA’s approach was deliberately nonprovocative
in order to avert actions by the NPCSC to curtail the jurisdiction of the Hong Kong courts, which would
further damage the Rule of law in Hong Kong).
74
Art. 67(4).
75
See generally Chen, supra note 53, at 411-16; Albert H. Y. Chen, An Introduction to the Legal
System of the People’s Republic of China 118-23 (3d ed. 2004).
76
See Law on Legislation (Lifa fa) enacted by the NPC in 2000, arts. 42-47.
77
However, the extent to which such an “interpretation” may have retrospective effect has not
apparently been settled in mainland Chinese law.
78
Art. 158(1) of the Basic Law vests the power of interpretation of the Basic Law in the NPCSC,
while art. 158(2) provides that the NPCSC “shall authorize” the Hong Kong courts to interpret the Basic
Law. As the CFA pointed out in the “clarification” mentioned above, “[t]he courts’ jurisdiction to interpret
the Basic Law in adjudicating cases is derived by authorization from the Standing Committee under arts.
158(2) and 158(3).” Ng Ka Ling v. Director of Immigration (No. 2) [1999] 1 H.K.L.R.D. 577, 578.
PACIFIC RIM LAW & POLICY JOURNAL
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“winning” the competition. It is therefore submitted that the CFA’s approach
in Lau Kong Yung was adopted not only because—as suggested by Professor
Tai—politically the court had no other alternative, but also because this
approach was mandated by the structure of the national constitutional system
in which the Hong Kong courts are situated. Given the context of “one
country, two systems,” it would not have been possible for the Hong Kong
CFA to assert the full jurisdiction of a national Supreme Court or
constitutional court vis-à-vis the national parliament.
The acknowledgement by the CFA in Lau Kong Yung, of the binding
authority of the NPCSC interpretation of the Basic Law, even where the
interpretation is not made pursuant to a referral by the CFA to the NPCSC,
further explicates the position adopted by the CFA in its “clarification” of
February 1999. The full implication of article 158 of the Basic Law was
now apparent: although the CFA has the power of final adjudication of cases
while the NPCSC has no power to decide any case litigated in the Hong
Kong courts, the NPCSC, at least in theory, may issue an interpretation of
the Basic Law at any time, and thereupon the Hong Kong courts must follow
such interpretation when they decide cases. It follows that if the NPCSC
were to exercise this overriding power frequently, the autonomy and
authority of the Hong Kong courts in deciding cases on their own (at least in
cases that touch upon an interpretation of the Basic Law) would be severely
hampered. Such an erosion of the common law system in Hong Kong would
undermine local and international confidence in the Rule of law in Hong
Kong.
Fortunately, this has not happened. The NPCSC has practiced a
degree of self-restraint in exercising its power of interpretation of the Basic
Law. Since its interpretation of 1999, only two other interpretations have
been promulgated, one in 2004 on the issue of political reform and
democratization in Hong Kong and the Beijing authorities’ role in the
process,79 and one in 200580 on the issue of the term of office of the
successor to Chief Executive Tung Chee-hwa who resigned in March 2005
before completing his second term of office of 2002-07.81 The 2004
interpretation was issued on the NPCSC’s own initiative in the absence of
any litigation on the matter or any request for interpretation by the Hong
Kong Government. The 2005 interpretation was issued at the request of the
Hong Kong Government at a time when litigation (to challenge a bill
79
80
81
See Albert H.Y. Chen, The Constitutional Controversy of Spring 2004, 34 H.K.L.J. 215 (2004).
See Albert H.Y. Chen, The NPCSC’s Interpretation in Spring 2005, 35 H.K.L.J. 255 (2005).
Mr. Donald Tsang was subsequently elected unopposed as Mr. Tung’s successor.
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introduced in the Hong Kong legislature on the Chief Executive’s term of
office) was pending but before there had been a full trial in any court.
Both interpretations were controversial and were resisted by many
prominent figures in the legal community and the pro-democracy camp in
Hong Kong. The primary complaints were that the interpretations were
motivated by political rather than jurisprudential considerations, and that
they actually introduced additional content into the Basic Law and were
effectively amendments to the Basic Law that bypassed the amendment
procedure stipulated in article 159 of the Basic Law. These criticisms are
legitimate. There is much to be said for invoking the amendment procedure
to deal with the issues covered by the two interpretations. Even though the
ultimate power of amending the Basic Law is in the hands of the NPC, the
amendment procedure at least provides for more transparency and room for
public debate on the bill containing the proposed amendment.82 It seems
that, as in the case of the 1999 interpretation, the amendment procedure was
not adopted in these two cases mainly because an amendment would have
had to wait until the next annual meeting of the NPC, while a timely
interpretation by the NPCSC could more easily be made, as the latter meets
at least once every two months in a session lasting a few days. However, as
this article focuses on constitutional adjudication by Hong Kong courts,
these issues will not be further explored here.
E.
The Chong Fung Yuen Case
The last major case decided by a Hong Kong court and dealing with
the constitutional relationship between the Beijing authorities and the Hong
Kong SAR is the CFA’s decision in Director of Immigration v. Chong Fung
Yuen.83 This case may be said to symbolize the restoration of the selfconfidence of the Hong Kong courts after the “trauma” of 1999. Moreover,
the aftermath of this case demonstrated the spirit of accommodation and
tolerance of the difference between the “two systems” on the part of the
mainland authorities. In Chong Fung Yuen, the issue was whether, under
article 24(2)(1) of the Basic Law, the right of abode in Hong Kong vests in
children born in Hong Kong to Chinese parents who are not Hong Kong
82
For the lack of transparency and other procedural defects in the current system for interpretation of
the Basic Law by the NPCSC, see Ghai, supra note 42, at 50-51; Yash Ghai, The Imperatives of Autonomy:
Contradictions of the Basic Law, in HONG KONG’S CONSTITUTIONAL DEBATES 29, 39-41 (Johannes Chan
& Lison Harris eds., 2005); Chen, supra note 80, at 263-64.
83
[2001] 2 H.K.L.R.D. 533 (C.F.A.). The discussion of this case here draws on Albert H.Y. Chen,
The Constitution and the Rule of Law, in THE FIRST TUNG CHEE-HWA ADMINISTRATION 69, 81-83 (Lau
Siu-kai ed., 2002).
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residents but who are mainlanders visiting Hong Kong temporarily or
illegally staying in Hong Kong. A literal interpretation of article 24(2)(1)
would read that such children are Hong Kong permanent residents and enjoy
the right of abode. The Preparatory Committee for the SAR in 1996,
however, had suggested otherwise when it issued an opinion on the
implementation of article 24. In its June 1999 interpretation the NPCSC
stated, inter alia, that the Preparatory Committee’s 1996 opinion “reflected”
the “legislative intent” behind article 24(2) of the Basic Law. The question
for the CFA in Chong Fung Yuen was whether it should follow the views of
the Preparatory Committee in this regard, given that such views had been
affirmed in the text of the NPCSC’s interpretation of 1999.
The CFA’s judgment in this case was an emphatic statement that when
Hong Kong courts interpret the Basic Law, they should adopt the common
law approach to interpretation, and do not need to resort to or otherwise take
into account any principle or norm of the mainland legal system. The
common law approach gives effect “to the legislative intent as expressed in
the language.”84 “Whilst the courts must avoid a literal, technical, narrow or
rigid approach, they cannot give the language a meaning which the language
cannot bear.”85 Applying the common law approach to interpretation in this
case, the CFA held that there was only one possible answer to the legal
question raised: the child concerned was entitled to the right of abode in
Hong Kong. As for the Preparatory Committee’s opinion, since it was
issued years after the enactment of the Basic Law, it could hardly be
regarded (from the common law perspective) as evidence of the legislative
intent behind the Basic Law. The CFA also did not attach any weight to the
suggestion in the June 1999 interpretation by the NPCSC that the
Preparatory Committee’s opinion reflected the legislative intent behind
article 24 of the Basic Law. The CFA stressed that this was an interpretation
only of articles 22(4) and 24(2)(3) of the Basic Law. It was not an
interpretation of article 24(2)(1) of the Basic Law, which was the provision
being interpreted in the Chong Fung Yuen case. In the absence of any
NPCSC interpretation of article 24(2)(1), the CFA was free to apply its own
interpretation.
In Chong Fung Yuen, the CFA rejected the Government’s argument
that the interpretation of article 24(2)(1) should be referred to the NPCSC
because the “implementation” of the provision would have a “substantive
effect” on the relationship between the Hong Kong SAR and the Central
84
85
Chong Fung Yuen, 2 H.K.L.R.D. at 546.
Id.
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Authorities, or on affairs which are the responsibility of the Central
Government. The CFA held that in determining whether a referral to the
NPCSC should be made, the court is to look at the character of the Basic
Law provision concerned rather than the factual determination of the effect
of its implementation. Article 24(2)(1) concerns only the right of abode in
Hong Kong of persons of Chinese nationality born in Hong Kong and makes
no specific reference to the question of whether the parents of such persons
are residents of Hong Kong, mainland China, or any other country. Thus,
the CFA held that the character of this provision is such that it does not
concern the relationship between the Hong Kong SAR and the Central
Authorities, or affairs which are the responsibility of the Central
Government. On this basis, the court held that article 24(2)(1) need not be
referred to the NPCSC. The court considered it unnecessary in this case to
re-visit the “predominant provision” test for reference to the NPCSC, which
was applied in Ng Ka Ling and which is only relevant when more than one
Basic Law provision is at issue. The Chong case concerned the
interpretation of only one Basic Law provision.
The CFA’s decision in Chong Fung Yuen was generally applauded by
the legal community of Hong Kong,86 although there was some public
concern about pregnant women from the mainland being induced to come to
Hong Kong to give birth to their babies. In a very unusual manner not seen
since the constitutional crisis of February 1999, Beijing reacted publicly to
the decision as well. On July 21, 2001, the morning after the CFA’s
decision, a spokesman from the Legislative Affairs Commission of the
NPCSC pointed out in a widely reported press statement87 that the CFA’s
decision in Chong Fung Yuen was “not consistent” with the NPCSC’s
interpretation, and “expressed concern” about the matter. Apart from this
terse statement, however, no further action on the matter was taken by the
Beijing side. In particular, no interpretation on the issue was issued by the
NPCSC.
The statement of July 21, 2001 was an indication that the NPCSC
wanted to distance itself from the CFA’s interpretation of article 24(2)(1),
and suggested that if the NPCSC had interpreted the provision, it probably
would have interpreted it differently. The statement can also be understood
as an expression of Beijing’s displeasure about the CFA’s lack of respect for
the text of the NPCSC’s interpretation of June 1999, which, after all, did say
that the Preparatory Committee’s opinion reflected the legislative intent
86
See various Hong Kong newspapers of July 21, 2001, e.g., Legal Community Praises CFA
Realizing Autonomy, MING PAO (H.K.), July 21, 2001.
87
The statement was reported in various Hong Kong newspapers on July 22, 2001.
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behind the whole of article 24(2). Given these considerations, Beijing’s
reaction to the Chong Fung Yuen decision must be considered a very muted
one. Utmost self-restraint was adhered to in order not to undermine the
authority of the Hong Kong courts and public confidence in the Rule of law
in Hong Kong.88
In Chong, the CFA implicitly claimed for itself and exercised on its
own the power to interpret the text of any NPCSC interpretation in the
course of considering whether and how to apply it to a case before the court.
It concluded—as a matter of interpretation—that as far as the particular text
of June 1999 was concerned, it did not constitute an interpretation of article
24(2)(1) of the Basic Law.
This conclusion is well justified on
jurisprudential grounds. The title of the June 1999 interpretation is “The
Interpretation by the NPCSC of Articles 22(4) and 24(2)(3) of the Basic Law
of the Hong Kong SAR.” There is nothing either in the text of the
interpretation itself, or in the explanatory speech89 made by Mr. Qiao
Xiaoyang, the official introducing the bill for the interpretation to the
NPCSC, that suggests that it constitutes an interpretation of any Basic Law
provisions other than articles 22(4) and 24(2)(3).
The CFA in Chong relied on a strategy commonly employed by courts
in the common law world. Although courts are bound by legislative texts in
accordance with the doctrine of separation of powers (putting aside for the
moment the question of constitutional judicial review), they jealously guard
their power to interpret the text in the course of applying it. Insofar as the
text is ambiguous, the courts may resolve the ambiguity in a way they deem
appropriate. On the other hand, where the legislature has spoken clearly and
the text is unambiguous, the courts must apply the legislative text no matter
how much they dislike it. The NPCSC did not make clear that the June 1999
interpretation constituted an interpretation of article 24(2)(1), or for that
matter, any of the various limbs of article 24(2) other than article 24(2)(3).
Under article 158 of the Basic Law, the Hong Kong courts are only bound by
official interpretations issued by the NPCSC. Hence the CFA could
legitimately choose to ignore what the NPCSC had said about the
Preparatory Committee’s views.
88
See generally Albert H.Y. Chen, Another Case of Conflict Between the CFA and the NPC
Standing Committee?, 31 H.K.L.J. 179 (2001).
89
For an English translation of the texts of the interpretation and the speech, see HONG KONG’S
CONSTITUTIONAL DEBATE, supra note 39, at 478-86.
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In Conclusion: The Jurisprudence of “One Country, Two Systems”
The abovementioned cases represent the jurisprudence that has
evolved thus far on the constitutional relationship between the Hong Kong
SAR and the central governmental authorities in Beijing. Unlike the
complex jurisprudence governing the division of power between national
and provincial authorities in federal systems, the jurisprudence of “one
country, two systems” is relatively simple. The NPCSC has supreme
authority over the interpretation of the Basic Law—including Basic Law
provisions governing the relationship between Hong Kong and Beijing, as
well as provisions pertaining to Hong Kong’s domestic affairs—which it can
exercise through the legislative process of interpretation. Whether, when,
and how it will exercise this power is not governed by law but is a matter of
practice which is, or will hopefully be, governed by evolving constitutional
conventions that supplement the written text of the Basic Law.90
In the absence of any relevant interpretation by the NPCSC, the courts
of Hong Kong are free to interpret the Basic Law on their own when
adjudicating cases. In doing this, they adhere to the common law approach
of constitutional and statutory interpretation and do not take account of any
mainland Chinese approach. Any approaches to or theories underlying the
interpretation of the Basic Law that may be implicit in the interpretations
issued thus far by the NPCSC will not affect how Hong Kong courts
interpret the Basic Law. Interpretations of the Basic Law by the NPCSC
operate in practice as legislative amendments to the Basic Law that
nevertheless have the same retroactive effect as interpretations of the law
contained in decisions by a common law court.91
The NPCSC’s
interpretations have the same force as legislation once they are issued, but
they cannot overturn any court judgment as far as the rights and interests of
the parties to the litigation are concerned.
Faced with the constitutional crisis that followed the CFA’s twin
decisions of January 29, 1999, the Hong Kong courts under the CFA’s
leadership have not attempted to resist or limit the authority of the NPCSC
90
As pointed out by Jennings, “constitutional conventions . . . provide the flesh which clothes the
dry bones of the law; they make the legal constitution work.” Ivor Jennings, THE LAW AND THE
CONSTITUTION 81-82 (5th ed. 1979). For constitutional conventions in colonial Hong Kong, see WesleySmith, supra note 5, at 6-8. For constitutional conventions in post-1997 Hong Kong, see Sonny Shiu Hing
Lo, The Emergence of Constitutional Conventions in the Hong Kong Special Administrative Region, 35
H.K.L.J. 103 (2005).
91
When a common law court interprets the meaning of a statutory provision, the provision is taken
to have always meant (from the time of its enactment) what the court now says it means. In this sense a
judicial decision has retroactive effect. It declares what the legal position has always been since the
statutory provision (now interpreted) was enacted.
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to interpret the Basic Law, nor even the right of the Hong Kong SAR
Government to request an NPCSC interpretation in the absence of an express
Basic Law provision authorizing the SAR Government to do so.92 That does
not mean, however, that the Hong Kong judiciary has betrayed the ideal of
“one country, two systems” or has let it be turned into “one country, one
system.” While accepting the authority of the NPCSC to promulgate
interpretations of the Basic Law, which (putting aside the issue of how
article 158 should be interpreted, as argued in Lau Kong Yung) it is
empowered to do under the PRC Constitution,93 the Hong Kong courts have
developed a jurisprudence of treating such interpretations as no more than
legislative pronouncements. The courts have retained and continue to
exercise the authority to interpret the Basic Law in accordance with those
principles of interpretation that they themselves choose to adopt, so long as
the relevant Basic Law provision has not been interpreted by the NPCSC.
Furthermore, they have retained and continue to exercise the authority to
interpret the meaning, scope, and effect of any NPCSC interpretation of the
Basic Law, and to apply it to concrete cases, just as they have the authority
to interpret any law in force in Hong Kong and to apply it to concrete cases.
Thus, when it comes to what fate befalls the litigant in a particular case, the
Hong Kong courts still have the last word.
III.
THE RIGHTS AND LIBERTIES OF HONG KONG PEOPLE
This part will begin by explaining the history of the development of
the constitutional framework for the protection of civil liberties and human
rights in Hong Kong. It will then review the leading cases decided by the
Hong Kong courts since 1997 on several key domains of human rights,
including freedom of speech and expression, freedom of assembly and
procession, and the right to equality and non-discrimination. It will
92
Both the interpretations of 1999 and 2005 were requested by the Hong Kong SAR Government by
submitting a report to China’s State Council, which in turn requested the NPCSC to make an interpretation.
In each case the SAR Government purported to rely on articles 43 and 48(2) of the Basic Law as the legal
basis for the submission of the report to the State Council. (Article 43 provides, inter alia, that the Chief
Executive of the Hong Kong SAR shall be accountable to the Central People’s Government (which,
according to article 85 of China’s Constitution, is the State Council) and the Hong Kong SAR. Article
48(2) provides that the Chief Executive shall be responsible for the implementation of the Basic Law and
other laws which apply in Hong Kong. For an English translation of the full text of the Chief Executive’s
report to the State Council in 1999, see HONG KONG’S CONSTITUTIONAL DEBATE, supra note 39, at 47477.) On the other hand, the NPCSC interpretation of 2004 was not requested by the Hong Kong SAR
Government but was initiated by the Council of Chairpersons of the NPCSC itself.
93
Article 67(4) of the Constitution empowers the NPCSC to interpret any law. It also has the power
to interpret the Constitution itself under article 67(1).
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conclude with some reflections on the human rights jurisprudence developed
by the Hong Kong courts in the post-1997 era.
A.
Historical Background and Constitutional Framework
Apart from managing the relationship between different governmental
organs, the other major task of constitutional adjudication is to safeguard the
human rights and civil liberties of citizens and other individuals in the state.
As mentioned in the introductory section of this article, since the enactment
of the Hong Kong Bill of Rights in 1991, the courts of Hong Kong have
practiced the art of reviewing the compatibility of executive acts and
legislation with constitutional guarantees of human rights. Their work in
this regard has seen further progress in the post-1997 era. The Basic Law
has proved to be even more potent than the Hong Kong Bill of Rights in
facilitating constitutional challenges by way of judicial review.
Hong Kong’s pre-1997 constitution94 was contained in the Letters
Patent issued by the British Crown.95 Before the 1991 amendment of the
Letters Patent, the Hong Kong courts in theory enjoyed the power to review
the constitutionality of local legislation, but in practice never had the
opportunity to exercise that power.96 This was because the rudimentary
Letters Patent did not contain any guarantee of civil liberties or human
rights, nor did it set up any system of division of power as between the
colonial government and the metropolitan government.
In light of this background, what happened in 1991 can be regarded as
the first constitutional revolution in Hong Kong—the second being, of
course, the reversion to Chinese rule and the commencement of the
operation of the Basic Law in 1997 (which involved a shift in the
Grundnorm).97
In 1991, in an attempt to restore confidence in Hong
94
The discussion here draws on Chen, supra note 53, at 417-20.
See generally Miners, supra note 3, ch. 5; Wesley-Smith, supra note 5, ch. 2.
96
See generally Wesley-Smith, supra note 5, at 96-105; Ghai, supra note 2, at 305-06. There were
however a few cases in which the Hong Kong courts were called upon to interpret the provisions of the
Letters Patent: see Peter Wesley-Smith, Constitutional Interpretation, in HONG KONG’S TRANSITION 51,
69-70 (Peter Wesley-Smith ed., 1993). The leading case in this regard is Rediffusion (Hong Kong) v.
Attorney-General of Hong Kong [1970] A.C. 1136. See also Peter Wesley-Smith, Legal Limitations upon
the Legislative Competence of the Hong Kong Legislature, 11 H.K.L.J. 3 (1981).
97
The concept of the “Grundnorm” (a German word) was developed by the legal philosopher Hans
Kelsen for the purpose of analyzing the structure of a legal system. For its application to the Hong Kong
context, see generally Albert H.Y. Chen, The Provisional Legislative Council of the SAR, in 27 H.K.L.J. 1,
9-10 (1997); Albert H.Y. Chen, Continuity and Change in the Legal System, in THE OTHER HONG KONG
REPORT 1998, 29, 30 (L.C.H. Chow and Y.K. Fan eds., 1999).
95
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Kong’s future which had been deeply shaken by the Tiananmen incident,98
the Hong Kong Government enacted the Hong Kong Bill of Rights
Ordinance (“Ordinance”).99 The Ordinance incorporated into the domestic
law of Hong Kong, the provisions of the International Covenant on Civil and
Political Rights ("I.C.C.P.R.") which had already been applied by the British
to Hong Kong on the level of international law since 1976. The Ordinance
expressly repealed all pre-existing legislation that was inconsistent with it.100
At the same time, the Letters Patent were amended to give the I.C.C.P.R.
supremacy over future ordinances enacted by the colonial legislature.101 As
the Court of Appeal explained in 1994:
The Letters Patent entrench the Bill of Rights by prohibiting
any legislative inroad into the International Covenant on Civil
and Political Rights as applied to Hong Kong. The Bill is
the embodiment of the covenant as applied here. Any
legislative inroad into the Bill is therefore unconstitutional, and
will be struck down by the courts as the guardians of the
constitution.102
The Bill of Rights and the corresponding amendment to the Letters Patent
inaugurated the era of judicial review of legislation on the basis of
constitutional guarantees of human rights. The case law developed by Hong
Kong courts during this period has been well documented.103
It
demonstrates that Hong Kong courts had acquired considerable experience
in judicial review of the constitutionality of legislation by the time the Basic
Law came into force in July 1997. They had introduced into Hong Kong
law basic principles of constitutional review such as the principles of
rationality and proportionality. They had also adopted the approach to
constitutional interpretation advocated by the Privy Council in cases such as
98
See generally Albert H.Y. Chen, The Suppression of China’s Democracy Movement and Hong
Kong’s Future, 19 H.K.L.J. 283 (1989); Albert H.Y. Chen, The Basic Law, the Bill of Rights and the
British Citizenship Scheme, 20 H.K.L.J. 145 (1990).
99
Cap. 383, L.H.K. See generally HONG KONG’S BILL OF RIGHTS (Raymond Wacks ed., 1990); THE
HONG KONG BILL OF RIGHTS, supra note 9; HUMAN RIGHTS IN HONG KONG, supra note 6; Hong Kong Bill
of Rights Ordinance, No. 59 (1999).
100
Hong Kong Bill of Rights Ordinance, No. 59, (1999) § 3.
101
The amendment related to article VII of the Letters Patent. See THE HONG KONG BILL OF RIGHTS,
supra note 9, at 539-540.
102
R v. Chan Chak Fan [1994] 3 H.K.C. 145, 153 (C.A.).
103
Yash Ghai, Sentinels of Liberty or Sheep in Woolf’s Clothing? Judicial Politics and the Hong
Kong Bill of Rights, 60 MOD. L. REV. 459 (1997); Johannes M.M. Chan, Hong Kong’s Bill of Rights: Its
Reception of and Contribution to International and Comparative Jurisprudence, 47 I.C.L.Q. 306 (1998);
Andrew Byrnes, And Some Have Bills of Rights Thrust Upon Them: The Experience of Hong Kong’s Bill
of Rights, in PROMOTING HUMAN RIGHTS THROUGH BILLS OF RIGHTS: COMPARATIVE PERSPECTIVES (Philip
Alston ed., 2000).
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Minister of Home Affairs v. Fisher104 and Attorney General of the Gambia v.
Jobe,105 which was to give provisions on rights “a generous and purposive
construction”106 and to avoid “the austerity of tabulated legalism.”107
Generally speaking, the courts were more activist in judicial review in the
early history of the Bill of Rights litigation, but subsequently leaned towards
judicial restraint.108
It is noteworthy that the legitimacy of judicial review in Hong Kong
in this era was never queried. It was evident that the kind of “countermajoritarian difficulty”109 that constitutional theorists encounter in the
United States and other liberal democratic states was not relevant to colonial
Hong Kong. In the early 1990s, Hong Kong was just beginning its journey
of democratization, with the first ever direct election on the basis of
universal suffrage introduced in 1991 (the 1985 and 1988 elections were
both on the basis of “functional constituencies” only).110 Most laws on the
books had been enacted by a legislature that consisted solely of members
appointed by the Governor. In these circumstances, the use by the judiciary
(though predominantly expatriate)111 of international and comparative
human rights jurisprudence to review the constitutional validity of Hong
Kong laws could only be a welcomed phenomenon for the local community.
Although the colonial constitution embodied in the Letters Patent lost
its force when the Hong Kong SAR was established, article eight of the
Basic Law provides for the continued validity of laws previously in force in
Hong Kong that are consistent with the Basic Law, subject to any
amendment by the SAR legislature. Under article 160 of the Basic Law, the
NPCSC may declare which of Hong Kong’s pre-existing laws contravene
the Basic Law and cannot therefore survive the 1997 transition. This
declaration was made by the NPCSC on February 23, 1997, in its Decision
104
[1980] A.C. 319.
[1984] A.C. 689.
Jobe, A.C. 689 at 700.
107
Fisher, A.C. 319 at 328.
108
Professor Andrew Byrnes stated “After an initial period of expansive rhetoric, reasonably
generous interpretations of the Bill of Rights, and a preparedness on the part of the courts to subject
legislative and executive decisions to substantive scrutiny, the trend has been towards a more conservative
and parochial approach to interpretation of the Bill of Rights, with an increasing reluctance on the part of
the courts to subject the legislature and executive to meaningful scrutiny against the standards of the Bill.”
Byrnes, supra note 103, at 352.
109
See generally Alexander M. Bickel, The Least Dangerous Branch; The Supreme Court at the Bar
of Politics, 16-18 (1962).
110
On the developing political and electoral system in Hong Kong, see Lo, supra note 8; ALVIN Y
SO, HONG KONG’S EMBATTLED DEMOCRACY (1999).
111
See generally Peter Wesley-Smith, The Judiciary, in INTRODUCTION TO THE CRIMINAL JUSTICE
SYSTEM (Mark S. Gaylord & Harold Traver eds., 1994); Ghai, supra note 2, ch. 8.
105
106
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on the Treatment of the Laws Previously in Force in Hong Kong.112 The
Decision declared, inter alia, the non-adoption of three interpretative
provisions in the Hong Kong Bill of Rights Ordinance,113 apparently on the
ground that they purported to give the Ordinance a superior status over other
Hong Kong laws, a mandate that is inconsistent with the principle that only
the Basic Law is superior to other Hong Kong laws.
The operative force of the Hong Kong Bill of Rights and the Hong
Kong courts’ power of judicial review of legislation on human rights
grounds have survived the non-adoption of these provisions in the Hong
Kong Bill of Rights Ordinance. This is clear from the case law of the post1997 era, particularly the CFA’s decisions in Ng Kung Siu (on the freedom of
expression) and Leung Kwok Hung (on the freedom of assembly and
procession) discussed below. The Hong Kong courts’ post-1997 approach to
human rights protection, which has not been challenged by litigants or their
lawyers in any case and thus represents the consensus of the legal
community in Hong Kong, is basically as follows. The courts may review
any legislative or executive action for violations of the human rights
guaranteed by Chapter III of the Basic Law or by the I.C.C.P.R. (the
applicable provisions of which have, as mentioned above, been reproduced
in the Hong Kong Bill of Rights) which is given effect by article thirty-nine
of the Basic Law. The courts114 have interpreted article thirty-nine to mean
that the relevant provisions override laws that are inconsistent with these
provisions. In this regard reliance has been placed on article eleven of the
Basic Law, which provides: “No law enacted by the legislature of the Hong
Kong Special Administrative Region shall contravene this Law.”
The net effect of the commencement of the operation of the Basic
Law in July 1997 and the Hong Kong courts’ interpretation of its judicial
112
For an English translation of this decision, see Albert H. Y. Chen, Legal Preparation for the
Establishment of the Hong Kong SAR: Chronology and Selected Documents, 27 H.K.L.J. 419 (1997).
113
The interpretive provisions concerned were sections 2(3), 3 and 4 of the Ordinance. Section 2(3)
provides that “[i]n interpreting and applying this Ordinance, regard shall be had to the fact that the purpose
of this Ordinance is to provide for the incorporation into the law of Hong Kong of provisions of” the
I.C.C.P.R. Section 3 provides that “[a]ll pre-existing legislation that admits of a construction consistent
with this Ordinance shall be given such a construction”; “[a]ll pre-existing legislation that does not admit of
a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed.” Section 4
provides that “[a]ll legislation enacted on or after the commencement date [of this Ordinance] shall, to the
extent that it admits of such a construction, be construed so as to be consistent with” the I.C.C.P.R. For the
effect of the non-adoption of these provisions, see Peter Wesley-Smith, Maintenance of the Bill of Rights,
27 H.K.L.J. 15 (1997); Johannes Chan, The Status of the Bill of Rights in the Hong Kong Special
Administrative Region, 28 H.K.L.J. 152 (1998).
114
The relevant cases are discussed below.
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review power under the Basic Law has been a broadening of the grounds on
which legislative and executive actions may be challenged by way of
judicial review. After 1991, but before 1997, it was possible to launch such
a challenge on the basis of the provisions of the Hong Kong Bill of Rights,
which are identical to those provisions of the I.C.C.P.R. that are applicable to
Hong Kong. After 1997, a challenge may still be launched on this basis, but
in addition, a challenge may also be based on other provisions of the Basic
Law, particularly those which confer rights that are not expressly or
adequately provided for in the I.C.C.P.R., such as the right of abode115 or the
right to travel.116 In this section of the article, several leading cases on rights
and liberties decided by the Hong Kong courts in the post-1997 era will be
discussed in order to elucidate the courts’ approach to the constitutional
protection of human rights in the context of “one country, two systems.”
B.
Freedom of Speech and Expression
Freedom of speech and expression is one of the most fundamental
civil liberties of the modern world. It often provides a litmus test of the
extent to which a society is free and open. Hong Kong had the good fortune
of being one of the freest societies in Asia during the pre-1997 decades of
British colonial rule. Free speech continued to flourish in the Hong Kong
SAR after its establishment in 1997. The following cases, which are the
leading cases since 1997, illustrate how the courts have tackled the
constitutional task of delineating the boundaries of free speech. They will be
briefly introduced in chronological order.
1.
The Press Freedom Case
In Wong Yeung Ng v. Secretary for Justice,117 Wong was the chief
editor of Oriental Daily News, a popular newspaper which, at the time, had
captured 53% of the newspaper market in Hong Kong. He was convicted on
two counts of contempt of court and sentenced to four months’
115
Leading cases on the right of abode other than those mentioned above include Tam Nga Yin v.
Director of Immigration, [2001] 2 H.K.L.R.D. 644 (C.F.I.); Fateh Muhammad v. Commissioner of
Registration, [2001] 2 H.K.L.R.D. 659 (C.A.), [2001] 4 H.K.C.F.A.R. 278 (C.F.A.); Prem Singh v. Director
of Immigration, [2003] 1 H.K.L.R.D. 550 (C.F.I.), (2003) 6 H.K.C.F.A.R. 26 (C.F.A.).
116
Leading cases on the right to travel include Gurung Kesh Bahadur v. Director of Immigration,
[2002] 2 H.K.L.R.D. 775 (C.F.A.), [2002] 5 H.K.C.F.A.R. 480 (C.F.A.) Director of Immigration v. Lau
Fong, [2004] 2 H.K.L.R.D. 204 (C.F.I.), [2004] 7 H.K.C.F.A.R. 56 (C.F.A.). For a commentary on the
Bahadur case and its significance (particularly in terms of the standards for reviewing restrictions to rights
provided for in the Basic Law), see Simon N. M. Young, Restricting Basic Law Rights in Hong Kong, 34
H.K.L.J. 109 (2004).
117
[1999] 2 H.K.L.R.D. 293 (C.A.).
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imprisonment.118 He appealed to the Court of Appeal and challenged the
contempt of court law under which he was convicted on the ground that it
violated the constitutionally protected freedom of expression and freedom of
press. The two counts of contempt of court related respectively to a series of
articles vehemently attacking the judiciary in abusive and scurrilous
language (for biased decisions against and political persecution of the
Oriental Daily newspaper) published in the newspaper in December 1997
and January 1998, and a 24-hour “paparazzi” type pursuit and surveillance
of a High Court judge conducted by reporters and photographers of the
newspaper for three consecutive days in January 1998 (purportedly to
“educate” the judge on the meaning of “paparazzi” which the judge had
allegedly referred to in his judgment on a case involving the Oriental Daily
and to “punish” him for the judgment). The grievances the newspaper had
against the judiciary stemmed from decisions of the Obscene Articles
Tribunal and other courts against the newspaper regarding its publication of
obscene and indecent materials. There had also been a judicial decision
unfavorable to the newspaper in a civil suit in which the Oriental Press
Group sued Apple Daily—its main competitor—for copyright violation
when the latter re-printed a photo published by Oriental. The photo was of
the singer Faye Wong revealing that she was pregnant, and was taken by an
Oriental Daily reporter clandestinely at the airport in Beijing.
Wong’s appeal was dismissed unanimously by the three-member
bench of the Court of Appeal in February 1999. It was pointed out that
although the Basic Law, the I.C.C.P.R. and the Hong Kong Bill of Rights
protect freedom of expression, one of the grounds recognized by the
I.C.C.P.R. and the Bill of Rights on which this freedom may be limited, is
that of “public order (ordre public).”119 The court held that this concept is
wide enough to cover the due administration of justice and the maintenance
of the authority of the judiciary. The court further held that the restrictions
on freedom of expression imposed by the contempt of court law—in
particular, those portions of the law that prohibit “scandalizing the court”
and interference with the administration of justice as a continuing process—
are justified and not inconsistent with the I.C.C.P.R. standards for freedom
of expression. The court followed New Zealand case law120 (rather than the
different Canadian case law121) in holding that contempt is committed when
118
Secretary for Justice v. Oriental Press Group Ltd., [1998] 2 H.K.L.R.D. 123 (C.F.I.).
The French term “ordre public” forms part of the text of the relevant provisions in the I.C.C.P.R.
and the Hong Kong Bill of Rights.
120
Particularly Solicitor-General v. Radio Avon Ltd., [1978] 1 N.Z.L.R. 225 (C.A.).
121
Particularly R. v. Kopyto, [1988] 47 D.L.R. 213.
119
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the publication or action entails a “real risk” (as distinguished from “real,
substantial and immediate danger” as suggested by the Canadian case law)
that public confidence in the administration of justice will be undermined or
the administration of justice will be interfered with. The court stressed that
in determining what constitutes contempt of court and in choosing between
varying interpretations of foreign case law, the local circumstances of Hong
Kong should be taken into account. In this regard, the court referred to “the
relatively small size of Hong Kong’s legal system,” the ease of
“communication with a very substantial proportion of the population,” the
“special importance” in Hong Kong of “confidence in our legal system, the
maintenance of the rule of law and the authority of the court,” the “frequent,
if misconceived, expressions of anxiety in this respect,” and the fact that
“the ordinary citizen in Hong Kong regards the court as his ultimate and sure
refuge from injustice and oppression.”122
Although the court decided against Wong in this case and chose to
follow the more conservative New Zealand approach rather than the more
liberal Canadian approach to the law of contempt of court, this case was not
a deliberate attempt to restrict freedom of the press in post-1997 Hong Kong.
The decision is explicable on the particular facts of the case, in which a
coordinated and sustained campaign was launched by a newspaper to
discredit the Hong Kong judiciary and to put pressure on individual judges.
The “paparazzi” type pursuit of the judge clearly went far beyond acceptable
norms of journalist behavior. On the other hand, it may be questioned
whether the court was too harsh in holding that the publication of the
relevant articles in the newspaper also constituted contempt. It is arguable
that Hong Kong should follow Canadian and American law in this regard
and allow greater freedom to criticize the courts. By restricting the freedom
to publish attacks on the judiciary in abusive and scurrilous language, the
Wong case has indeed drawn a legal limit to possible criticisms of the
judicial branch in Hong Kong. On the other hand, it should be noted that in
the post-1997 era, Hong Kong courts have never silenced criticisms of the
executive or legislative branches of government, and the law of defamation
has never been invoked by government officials against their critics.
2.
The Flag Desecration Case
Later in the year, in December 1999—the month the CFA in Lau Kong
Yung determined the effect of the NPCSC interpretation of June 1999—the
CFA gave judgment in probably the most theoretically significant
122
Wong Yeung Ng v. Secretary for Justice, [1999] 2 H.K.L.R.D. 293, 313 (C.A.).
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constitutional case on civil liberties and human rights in the legal history of
the Hong Kong SAR thus far. In HKSAR v. Ng Kung Siu,123 the defendants
had participated in a demonstration in Hong Kong for democracy in China
during which they displayed a defaced national flag (of the PRC) and a
defaced regional flag (of the SAR). They were subsequently charged with
violations of section seven of the National Flag and National Emblem
Ordinance and section seven of the Regional Flag and Regional Emblem
Ordinance. These sections prohibit desecration of the national and regional
flags and emblems. The former section was basically reproduced from
article nineteen of the PRC Law on the National Flag and article thirteen of
the PRC Law on the National Emblem.124 These two PRC laws were listed
in Annex III to the Basic Law as among those mainland laws that are
applicable to Hong Kong under article eighteen of the Basic Law.125
The defendants were convicted by the magistrate; they were neither
fined nor imprisoned, but bound over126 to keep the peace on a recognizance
of HK$2000 for each of the two charges for 12 months. They successfully
appealed against their conviction before the Court of Appeal. The court held
that the sections under which they were charged were contrary to the
guarantee of freedom of expression in article nineteen of the I.C.C.P.R. as
applied by article thirty-nine of the Basic Law. In the court’s opinion, the
prohibition of desecration of the national or regional flag, being a restriction
on freedom of expression, cannot be justified by any necessity to protect
“public order (ordre public).”127
The Government appealed the case to the CFA, which rendered its
judgment on December 15, 1999. The CFA unanimously allowed the
appeal, and the impugned ordinances were upheld as constitutional and
valid. The CFA pointed out that the national and regional flags are important
and unique symbols of the nation and of the Hong Kong SAR respectively.
The court noted that the objective behind the flag desecration laws was to
123
[1999] 3 H.K.L.R.D. 907 (C.A.), [1999] 2 H.K.C.F.A.R. 442 (C.F.A.). The following discussion
draws on Albert H.Y. Chen, Hong Kong’s Legal System in the New Constitutional Order: The Experience
of 1997-2000, in IMPLEMENTATION OF LAW IN THE PEOPLE’S REPUBLIC OF CHINA 213, 219-20 (Jianfu
Chen, Yuwen Li & Jan Michiel Otto eds., 2002).
124
See also the Criminal Code of the PRC, art. 299.
125
See Promulgation of National Laws (No. 2) 1997, in Government of the Hong Kong Special
Administrative Region Gazette, No. 1/1997, Legal Supplement No. 2, p. B119 (L.N. 386 of 1997).
126
For the practice of “binding over,” see Wesley-Smith, supra note 5, at 26-27.
127
Both the English and French expressions appear in the text of article 19 of the I.C.C.P.R. The
Court of Appeal in its judgment referred to two decisions of the United States Supreme Court to the effect
that the criminalization of flag desecration violates the “free speech” clause in the U.S. Constitution and is
unconstitutional: Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).
Each of these cases was decided by a majority of 5 to 4 in the Supreme Court and was extremely
controversial in the United States.
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uphold the societal and community interests in the protection of the flags.
Such protection was held to fall within the concept of “ordre public” as used
in the I.C.C.P.R. The CFA concluded that the court below adopted too
narrow a conception of “ordre public” which, in the context of the
I.C.C.P.R., is not confined to the common law notion of maintaining law and
order. The CFA determined that “ordre public” should be construed more
broadly to embrace notions of the “general welfare” and the “interests of the
collectivity as a whole.”128 This conception of the public order is “an
imprecise and elusive one,” and “must remain a function of time, place and
circumstances.”129
The next questions for the CFA were whether the flag desecration
laws impose restrictions on the freedom of expression, and, if so, whether
such restrictions can be justified on the ground that they are necessary for
the protection of “ordre public” and proportionate to the objective sought to
be achieved. Here the court held that flag desecration is indeed “a form of
non-verbal speech or expression,”130 and the impugned laws do constitute a
restriction thereon. The court pointed out however, that such restriction is
only applicable to a particular mode of expression (i.e. flag desecration); the
same message which the actor wants to express could still be freely
expressed by other modes.131 It was therefore concluded that the “necessity”
and “proportionality” tests had been satisfied.132
It is noteworthy that the CFA took into account separation of powers
considerations in its decision (e.g. giving “due weight to the view of the
HKSAR legislature that the enactment of the National Flag Ordinance … is
appropriate for the discharge of the Region’s obligation to apply the national
law arising from its addition to Annex III [to the Basic Law] by the Standing
Committee”133). At the same time, the court stressed the importance of
considerations of “time, place and circumstances”:
The intrinsic importance of the national flag and the regional
flag to the HKSAR as such unique symbols is demonstrated by
the fact that at the historic moment on the stroke of midnight on
1 July 1997, the handover ceremony in Hong Kong to mark the
People’s Republic of China’s resumption of the exercise of
sovereignty over Hong Kong began by the raising of the
128
129
130
131
132
133
HKSAR v. Ng Kung Siu, 2 H.K.C.F.A.R. at 459 (C.F.A.).
Id. at 460.
Id. at 455.
Id. at 456.
Id. at 460-61.
Id. at 460, 467.
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national flag and the regional flag. . . . Hong Kong is at the
early stage of the new order following resumption of the
exercise of sovereignty by the People’s Republic of China. The
implementation of the principle of “one country, two systems”
is a matter of fundamental importance, as is the reinforcement
of national unity and territorial integrity. Protection of the
national flag and the regional flag from desecration, having
regard to their unique symbolism, will play an important part in
the attainment of these goals.134
Apart from its decision to uphold the flag desecration law, Ng Kung Siu is
also significant because the CFA reaffirmed the power of the Hong Kong
courts to review the constitutionality of Hong Kong legislation on human
rights grounds, and, if necessary, to strike down such legislation. Although
no legislation was actually struck down by the CFA in this case, the
constitutional review power that it has authoritatively affirmed is a potent
one.
The day the CFA delivered its judgment in Ng Kung Siu was a
moment of great constitutional importance. The case must have been
extremely difficult for the CFA. At issue was more than striking a balance
between the individual’s freedom of expression and the public and national
interest in the protection of the national flag. What was even more
significant—although not discussed in the judgment of the court below—
was that the national flag desecration law challenged in this case had been
enacted by the Hong Kong legislature for the purpose of implementing a
national law which the NPCSC had decided to apply to Hong Kong. If the
CFA had determined that the flag desecration law constituted an unnecessary
or disproportionate restriction on freedom of expression, it would then have
to deal with the politically sensitive issue of whether a Hong Kong court could
decline to enforce a national law made applicable to Hong Kong. An
affirmative answer would bring the Hong Kong courts into direct conflict
with the NPCSC, and a constitutional crisis like that witnessed in early 1999
would likely ensue. Fortunately, the CFA did not have to tread this path of
potential collision with Beijing.135
As far as the structure of legal reasoning is concerned, two different
routes would have been equally viable for the purpose of reaching a decision
in this case. The first route was the one actually taken by the CFA. The
second route would be as follows. The CFA would first consider whether it
134
135
Id. at 447, 461.
Tai offers a similar analysis; see supra note 44 at 205-07.
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had the power to strike down a law enacted by the Hong Kong legislature to
implement a national law that the NPCSC had decided to apply to Hong
Kong. If this question was answered in the negative, then it would be
unnecessary to proceed further, and the appeal would be allowed. If this
question was answered in the affirmative, then the CFA would have to
proceed to consider whether the flag-desecration laws constituted an
unconstitutional restriction on freedom of expression.
Logically, both routes were equally viable, and neither is logically
preferable to the other. Politically speaking, however, the first route was
clearly preferable, because by taking this route, it might be possible to avoid
the issue of whether the Hong Kong court may decline to enforce an
applicable national law. Route (a) being that actually taken by the CFA, it
may be said that the CFA acted strategically in choosing the “line of least
resistance” from the political point of view. Furthermore, given the fact that
even the American Supreme Court was divided five to four on the issue of
whether the criminalization of flag desecration was unconstitutional,136 the
CFA’s decision in Ng Kung Siu is defensible jurisprudentially, and is
certainly consistent with the political reality of Hong Kong under “one
country, two systems.”
3.
The Taxi Driver Case
The next “free speech” case in the legal history of the Hong Kong
SAR concerned a relatively trivial matter—foul language spoken by a taxi
driver to his passenger. In HKSAR v. Tsui Ping Wing,137 Tsui, a taxi driver,
aggrieved by the shortness of the journey ordered by his passenger, verbally
abused and insulted the passenger. He was charged with the offense of not
behaving “in a civil and orderly manner,” convicted by the magistrate, and
fined HK$500. He appealed to the Court of First Instance and argued that
the law creating the offense was too vague and that it violated the
constitutional guarantees of freedom of expression and equality before the
law in the Basic Law and the I.C.C.P.R. The court dismissed the appeal in
April 2000, holding that the impugned law was not too vague and that the
restriction on freedom of expression imposed by it was justifiable and not
excessive. The court considered that the law served to protect the rights of
others, the public order, and public morals (permissible grounds for
restriction under article sixteen of the I.C.C.P.R.). In reaching this
conclusion, the court took into account the fact that a taxi driver needs a
136
137
See supra note 127.
[2000] 3 H.K.C.F.I. 538 (C.F.I.).
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license in order to operate, and that “Hong Kong’s reputation, to a not
insignificant degree, depends on the manners of its taxi drivers. . . . [T]hey
represent and epitomise Hong Kong’s standard of behaviour at street
level.”138
The Tsui case suggests that the use of foul language deserves a lower
degree of constitutional protection than “political speech.” Not only is the
validity of this conclusion hardly questionable, but the decision on the facts
of the case is also reasonable and probably in line with community
sentiments.
4.
The Defamation Case
The “free speech” cases mentioned so far concern the boundary of the
law of criminal punishment for speech and acts of expression such as flag
desecration. Free speech is also relevant in the context of civil law,
particularly the law of defamation. In Cheng v. Tse Wai Chun,139 Albert
Cheng and the other defendant in this case were hosts of a phone-in radio
talk show. Tse sued them for defamatory statements they made about him
during the radio program, and the defendants raised the defense of fair
comment. According to the English common law of defamation, if a
defamatory comment consists of opinions genuinely held by the
commentator on matters of public interest, and such opinions have some
objective factual basis, then the commentator is not liable for defamation.
However, this defense may be negated by the fact that the commentator was
actuated by malice in making the comment. In the Court of First Instance,
the judge gave directions to the jury regarding these legal principles, and the
jury found the defendants liable for defamation. The defendants appealed to
the Court of Appeal which dismissed the appeal. On further appeal to the
CFA, the CFA held that the Court of First Instance had misdirected the jury
on the law governing the defense of fair comment and ordered a new trial.
The main judgment in the Cheng case was delivered by Lord Nicholls
of Birkenhead, a member of the highest appellate court in England (the
House of Lords in its judicial capacity), who served as a nonpermanent
judge for the CFA in this case.140 The judgment affirmed the importance of
138
Id. at 255.
[2000] 3 H.K.L.R.D. 418.
140
The CFA consists of a five-member bench in hearing each case. There are four permanent judges
and a number of nonpermanent judges of the court. The five-member bench normally consists of the four
permanent judges and one nonpermanent judge. While some of the nonpermanent judges are retired Hong
Kong judges, others are retired or serving judges of the highest courts in England and Australia. For
example, Sir Anthony Mason, retired former chief justice of Australia, sat as nonpermanent judge in most
of the constitutional cases heard by the CFA mentioned in this article.
139
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free discussion on matters of public interest and held that the defense of fair
comment should be given a generous interpretation. It redefined the
meaning of the “malice,” which can negate the defense of fair comment.
Before the CFA’s decision, some books and authorities in the common law
world suggested that the maker of the defamatory statement would be
regarded as having been actuated by malice if he had some improper and
personal motive or objective when he made the statement, such as personal
gain or to injure his enemy’s reputation. The CFA held that so long as the
defamatory statement satisfies the requirements of the defense of fair
comment (as mentioned above), the “impurity” or moral dubiousness of the
motive or purpose behind the statement would not of itself negate the
defense. This does not mean that evidence as to such motive or purpose is
entirely irrelevant, for it may be used to show that the speaker did not
genuinely and honestly hold the opinion expressed, in which case one of the
essential elements of “fair comment” is missing.
In 2000, Denis Chang S.C., one of Hong Kong’s most famous
lawyers, posed the following question as the title of an article: “Has Hong
Kong Anything Special or Unique to Contribute to the Contemporary World
of Jurisprudence?”141 He gave an affirmative answer to the question, citing
the Cheng case as part of the evidence. In particular, he underscored the
Chinese element in this contribution:
The CFA’s decision, whilst rooted in the common law, has an
added dimension which comes from the very fact that the Court
which delivered it is on territory which is part of China and
which is governed by the Basic Law. The Court clearly did not
see anything in the Basic Law which inhibited it from giving
the right of fair comment (as an integral part of the freedom of
speech) its full measure. Quite the contrary, it adopted a
generous approach and developed the right to a fuller measure
than what the common law had generally been perceived to
give.142
Cheng is a landmark freedom-of-speech case and is likely to have an impact
on other jurisdictions in the common-law world.
141
142
30 H.K.L.J. 347 (2000).
Id. at 349 (emphasis in original).
666
C.
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Freedom of Assembly and Procession
The freedom of assembly, procession, and demonstration is closely
related to the freedom of expression and is one of the hallmarks of civil
society. The number of demonstrations in Hong Kong in recent years, such
as the one-half-million-person march on July 1, 2003, against the proposed
national security bill to implement article twenty-three of the Basic Law
(which was as a result postponed indefinitely),143 the annual vigil in memory
of the victims of the June 4, 1989, massacre, and protests by Falun Gong
practitioners against the persecution of their sect in mainland China, is
testimony to the success of “one country, two systems” and the reality of
political freedom and social openness in Hong Kong. As far as the legal
aspect of assemblies and demonstrations is concerned, two leading cases
stand out in the post-1997 era, both of which reached the CFA in 2005.
1.
The Falun Gong Case
The first case is Yeung May-wan v. HKSAR,144 concerning the
prosecution of Falun Gong protesters in 2002. In this case the police
resorted to the law of obstruction of public places,145 traditionally used in
Hong Kong against illegal hawkers in the streets, to deal with the
demonstrators. The case arose from a small-scale demonstration staged by
sixteen Falun Gong activists146 outside the entrance to the Liaison Office of
the Central People’s Government in Hong Kong on March 14, 2002.
Because the number of demonstrators was small, there was no need under
the Public Order Ordinance (discussed in the Leung case below) to notify the
police in advance or to comply with procedural requirements, which are only
applicable to assemblies involving more than fifty persons or processions
involving more than thirty persons. After the protesters refused to leave
despite repeated police warnings, the police arrested them. There was some
physical violence during and after the arrests.
The protesters were charged with obstructing a public place and
obstructing or assaulting police officers in the execution of their duty. In
August 2002, after a twenty-seven-day trial, a magistrate judge convicted the
protesters of the offenses charged, and they received fines ranging from
HK$1300 to $3800. They appealed to the Court of Appeal, which gave
143
See generally National Security And Fundamental Freedoms: Hong Kong’s Article 23 Under
Scrutiny (Fu Hualing et al. eds., 2005).
144
The citations of the Court of Appeal’s and the CFA’s decisions in this case are provided below.
145
See the Summary Offences Ordinance, §§ 4(28) and 4A.
146
For Falun Gong in Hong Kong, see Chen and Cheung, supra note 56, at 261-62.
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judgment in November 2004.147 In a unanimous decision, the Court of
Appeal held that due regard to the protection of the right of assembly should
be given in applying the law of obstruction of public places. The court
overturned the conviction on the ground that the magistrate failed to address
sufficiently whether the manner in which the protesters exercised their right
of assembly was so unreasonable as to constitute an unlawful obstruction.
The defendants lost on their appeal of the other charges and thus further
appealed to the CFA on these issues.
The appeal was successful. On May 5, 2005, the CFA148 unanimously
held that the arrests of the defendants were unlawful. The police officers
who carried out the arrests were not able to satisfy the court that they had
reasonable grounds for suspecting that the defendants had committed the
offense. The court stressed that the offense is not committed by mere
obstruction. The use of the public place or highway must be unreasonable;
if there is a lawful excuse for the obstruction, no offense is committed. The
court held that in determining whether there was an unreasonable use or a
legitimate excuse, the defendants’ right to peaceful assembly and
demonstration should be given due weight. The court further held that the
defendants in the present case could not be convicted for obstructing or
assaulting police officers in the execution of their duty even though physical
resistance was involved. Since the arrest was unlawful, the police officers
were not actually acting defendants. The court noted that citizens have a
right to use reasonable force to resist an unlawful arrest and detention.
The political significance of the Yeung case exceeds its constitutional
and legal significance. The case is politically significant because it
concerned a demonstration staged by the Falun Gong group, which has been
under intense and continuous persecution in mainland China since 1999,149
outside of the highest representative office of the Beijing government in
Hong Kong. Indeed, the police intervention on the day of the demonstration
was prompted by a complaint made by staff of the Liaison Office of the
Central Government. The ultimate acquittal for the Falun Gong activists
was therefore an important symbolic victory for the sect in its struggles
against Beijing. It also testifies to the equality of all—including the most
vocal opponents of the Chinese government—before the law in Hong Kong,
as well as the independence of the judiciary and the rigorous legal protection
of human rights in the SAR.
147
HKSAR v. Yeung May Wan [2004] 3 H.K.L.R.D. 797 (C.A.).
Yeung May Wan v. HKSAR [2005] 2 H.K.L.R.D. 212 (C.F.A.).
149
See, e.g., Anne S. Y. Cheung, In Search of a Theory of Cult and Freedom of Religion in China:
The Case of Falun Gong, 13 Pac. Rim L & Pol’y J. 1 (2004).
148
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From the legal point of view, however, the case is of less
constitutional significance than the national-flag case discussed above or the
Public Order Ordinance case discussed below. The Falun Gong case did not
involve judicial review of the constitutionality of legislation. The
demonstrators were prosecuted mainly for obstruction of a public place,
which is a statutory offense that on its face does not directly concern
freedom of demonstration and has traditionally been used only against
hawkers in the streets. The CFA’s decision exemplifies the successful use of
familiar techniques of statutory construction for the purpose of advancing a
constitutional right. It was particularly significant in enhancing the right to
assembly and procession in Hong Kong where the number of demonstrators
does not exceed fifty (in the case of an assembly) or thirty (in the case of a
procession) as stipulated in the Public Order Ordinance, to which we now
turn.
2.
The Public Order Ordinance Case
The next case, Leung Kwok Hung v. HKSAR,150 concerned a
demonstration of a slightly larger scale than that in Yeung. As mentioned
above, the Public Order Ordinance requires organizers of demonstrations to
notify the police in advance of the event. The ordinance also empowers the
police to prohibit the proposed demonstration on certain specified grounds
or to impose conditions which demonstrators must comply with.151 In
theory, demonstrators must comply with the rule regarding prior
notification.152 In practice, however, the rule has often been ignored. Many
demonstrations took place without complying with this rule, and yet the
organizers or demonstrators were not prosecuted.153
In 2002, the SAR Government attempted for the first time to enforce
the notification rule. In May 2002, Leung Kowk-hung, a political activist
150
The citations of the decisions of the two appellate courts in this case are provided below.
See generally Janice Brabyn, The Fundamental Freedom of Assembly and Part III of the Public
Order Ordinance, 32 H.K.L.J. 271 (2002).
152
See generally Janice Brabyn, The Fundamental Freedom of Assembly and Part III of the Public
Order Ordinance, 32 H.K.L.J. 271 (2002).
153
One hundred twenty-six protests were organized in 1998 and 183 protests in 1999 without
applying for any notice of objection: see Alvin Y. So, Social Protests, Legitimacy Crisis, and the Impetus
Toward Soft Authoritarianism in the Hong Kong SAR, in THE FIRST TUNG CHEE-HWA ADMINISTRATION,
supra note 83, at 399, 405. However, the government did not prosecute any of the organizers. Other
organizers of demonstrations complied with the legal requirements, and 1,388 protests were approved in
1998 and 1,283 in 1999. According to official figures in the period between July 1997 and March 2002,
about one in seven public rallies were in fact held without notifying the police in advance. See Anne S. Y.
Cheung & Albert H. Y. Chen, The Search for the Rule of Law in the Hong Kong Special Administrative
Region, 1997-2003, in “ONE COUNTRY, TWO SYSTEM” IN CRISIS 61, 79, supra note 56.
151
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(who was subsequently elected as a member of the Legislative Council in
2004) and two student activists were arrested by the police and charged with
organizing an unauthorized procession.154
The number of people
participating in the procession varied at different points in time but was
between 40 and 96.155 The three defendants were convicted by a magistrate
in November 2002 and were required to be bound over for three months on a
recognizance for HK$500 (i.e. to undertake that they would be of good
behavior and not violate the law during this period; the breach of the
undertaking would result in a fine of $500).156 The defense lawyers’
challenge to the constitutionality of the Public Order Ordinance was
unsuccessful. The defendants appealed to the Court of Appeal. In
November 2004, the Court of Appeal dismissed the appeal by a majority
ruling of two to one.157 The majority held that the relevant provisions of the
Ordinance were consistent with the guarantee of freedom of assembly and
procession in the Basic Law, the Hong Kong Bill of Rights, and the
I.C.C.P.R.. The dissenting judge, however, was of the view that the power
conferred by the Ordinance on the police to prohibit or impose restrictions
on demonstrations on, inter alia, the ground of “public order (ordre
public)”158 was problematic. The judge felt that it was framed in such a way
as to fail the requirement of legal certainty, and that it also failed the
“necessity” test which requires that any restriction of the right of assembly
and procession be necessary. The case was appealed to the CFA.
On July 8, 2005, the CFA, by a majority of four to one, dismissed the
appeal.159 The court basically steered a middle course between the majority
and minority views in the court below. It upheld the requirement in the
Ordinance that organizers of public processions involving more than thirty
persons should notify the police in advance. It pointed out that prior
notification would not only enable the police to take steps to safeguard
public order during the demonstration, but would also be in the interests of
the demonstrators. It stated that “notification is required to enable the Police
to fulfill the positive duty resting on Government to take reasonable and
appropriate measures to enable lawful demonstrations to take place
154
See generally Cheung and Chen, supra note 56.
See id., supra note 56.
156
See supra note 126.
157
HKSAR v. Leung Kwok Hung, [2004] 3 H.K.L.R.D. 729 (C.A.).
158
The term, including the French term in brackets, was in the Public Order Ordinance and is also in
art. 21 of the I.C.C.P.R. on which the relevant provisions in the Ordinance were based.
159
Leung Kwok Hung v. HKSAR, [2005] 3 H.K.L.R.D. 164 (C.F.A.).
155
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peacefully.”160 The court opined that such notification requirement is
widespread in other jurisdictions.
The court upheld the authority of the police to restrict processions on
the ground of “public order” in the “law and order” sense of the word but
rejected as unconstitutional, the broader concept of “ordre public” as used in
the Ordinance. The court determined that the concept was too broad and
imprecise to satisfy the test of legal certainty. Here the court drew a
distinction between the concept of “ordre public” as part of a constitutional
norm (enshrined in the I.C.C.P.R. which is applicable to Hong Kong under
article thirty-nine of the Basic Law) and the same concept as part of a norm
in legislation to implement the constitution. While it is legitimate for “ordre
public” to be used as a constitutional norm (the CFA itself applied it in Ng
Kung Siu to review the constitutionality of the flag desecration law), this
concept as used in the Public Order Ordinance failed to give a sufficient
indication of the circumstances in which the police may restrict the right to
freedom of demonstration. Therefore, insofar as the Public Order Ordinance
provided that “ordre public” constituted a ground for restricting the freedom
of demonstration, it failed to conform to the constitutional requirement that
any restriction of this right must be “prescribed by law,” which imports a
high requirement in terms of the certainty of the meaning and the
predictability of the operation of the law concerned.
The court also stressed that in exercising discretionary power to
regulate processions, the police must comply with the “proportionality” test.
This test mandates that the police “must consider whether a potential
restriction is rationally connected with one or more of the statutory
legitimate purposes [public order as narrowly defined above, national
security, public safety, etc.] and whether the potential restriction is no more
than is necessary to accomplish the legitimate purpose in question.”161
Furthermore, “[w]here the Commissioner [of Police] decides to object [to a
notified procession] or to impose conditions, the reasons given must be
sufficient to show that he has properly applied the proportionality test in
making his decision.”162 The discretionary power to control demonstrations
“is thus not an arbitrary one but is a constrained one.”163 The manner in
which it is exercised in a particular case can be subject to judicial review on
the basis of the principles enunciated by the CFA in this case.
160
161
162
163
Id. at para. 65.
Leung Kwok Hung v. HKSAR, [2005] 3 H.K.L.R.D. 164 at para. 96 (C.F.A.).
Id. at para. 59.
Id. at para. 96.
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The dissenting judge, Justice Bokhary, agreed that it is legitimate to
impose a prior notification requirement on processions, but disagreed with
the view that this requirement can be enforced by criminal sanctions. He
also believed that the police power of prior restraint of demonstrations is
unconstitutional.
The primary significance of Leung lies in the fact that it goes beyond
the traditional “Wednesbury unreasonableness” principles of judicial review
of administrative action in English administrative law,164 and enunciates
clearly the application of the “proportionality” principle to police decisions
on any restriction of the citizen’s right to demonstrate. In this way the
decision makes a major contribution to the advancement of the freedom of
demonstration in the Hong Kong SAR. The majority's legal reasoning on
whether the statutory scheme for the control of demonstrations was
constitutional however, is not completely convincing, particularly when
compared with the dissent. Justice Bohkary’s conclusion that it is
unconstitutional to attach penalties to the requirement of advance
notification of processions (the stipulated maximum of which are severe
sanctions of criminal punishment165) has much persuasive force.
Regrettably, the majority judgment did not discuss this issue at all but
instead chose to focus its constitutional analysis on “ordre public” as a
possible ground for the restriction of the freedom of demonstration, a mere
subsidiary question compared to that posed by the dissent.
Although the majority decision lacks legal rigor in this respect, it
makes practical sense in the context of the actual operation of the regulation
of demonstrations in Hong Kong. As discussed above, the law on
notification has seldom been rigorously enforced, and in practice those who
give advance notification of demonstrations to the police will invariably
obtain approval for their activities. Given this reality, the majority in the
CFA probably concluded that it made more practical sense to subject police
actions regulating demonstrations to the proportionality test, rather than to
strike at the fundamentals of the existing system of regulation by using
criminal sanctions to enforce the regulatory requirements.
164
See generally H.W.R. Wade & C.F. Forsyth, Administrative 351-365 (9th ed. 2004).
As stated in the majority's opinion: “if a public procession subject to the statutory scheme takes
place without complying with the notification or the no objection requirement, the public procession
becomes an unauthorized assembly: section 17A(2)(a). Every person who holds or assists in holding a
public procession after the same has become an unauthorized assembly is guilty of an offence. The
maximum penalty is five years’ imprisonment on conviction on indictment or a fine of $5,000 and three
years’ imprisonment on summary conviction: section 17A(3)(b)(i). The appellants were summarily
convicted of this offence.” Leung Kwok Hung v. HKSAR, [2005] 3 H.K.L.R.D. 164 at para. 63 (C.F.A.).
165
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In both Falun Gong and the Public Order Ordinance case, the CFA
stressed the importance of the constitutional right to freedom of peaceful
assembly and demonstration. As the CFA put it at the opening of its
judgment in Falun Gong:
The freedom to demonstrate is a constitutional right. It is
closely associated with the freedom of speech. These freedoms
of course involve the freedom to express views which may be
found to be disagreeable or even offensive to others or which
may be critical of persons in authority. These freedoms are at
the heart of Hong Kong’s system and it is well established that
the courts should give a generous interpretation to the
constitutional guarantees for these freedoms in order to give to
Hong Kong residents their full measure.166
The CFA’s decisions in the two cases may be interpreted as a recognition,
consolidation, and to some extent expansion of the freedom of
demonstration in the Hong Kong SAR. Collectively they epitomize the
vibrancy of the life of the law and the spirit of human rights in Hong Kong
and reveal the deeper meaning of “one country, two systems.”
D.
The Right to Equality and Non-discrimination
Equal protection under the law and non-discrimination are core
elements of the modern concept of human rights. In Hong Kong, the
constitutional principles of equal opportunity and non-discrimination were
introduced in the 1990s by the Hong Kong Bill of Rights and amplified by a
series of anti-discrimination laws such as the Sex Discrimination Ordinance.
In the post-1997 era, the courts of Hong Kong have further developed the
jurisprudence of equal rights and non-discrimination. The two following
cases are the most well known in this regard.
Secretary for Justice v. Chan Wah and Tse Kwan Sang167 was a
politically controversial case. The legal arguments of Chan and Tse,
however, were so persuasive that they won in all three courts—the Court of
First Instance, the Court of Appeal, and the CFA. The litigation concerned
local village elections in Hong Kong’s New Territories (“NT”), a part of
Hong Kong that is partly urbanized but still consists mainly of rural areas.
Some of the residents of the villages of the NT are known as “indigenous
166
Yeung May Wan v. HKSAR [2005] 2 H.K.L.R.D. 212 at para. 1.
Secretary for Justice v. Chan Wah, [2000] 3 H.K.L.R.D. 641, (2000) 3 H.K.C.F.A.R. 459
(C.F.A.).
167
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inhabitants” or “indigenous villagers” (defined168 as those descended
through the male line of residents in the year 1898 of villages in the
geographical area the British colonizers called the New Territories). In 1898
the British colony of Hong Kong—then comprising Hong Kong Island and
Kowloon Peninsula—was expanded to include the New Territories north of
Kowloon. Unlike Hong Kong Island and Kowloon, which were sparsely
populated at the time of colonization, Chinese peasants had lived in the NT
for many centuries before the territories came under British rule. The British
colonial government recognized to a significant extent the existing land
rights of the Chinese peasants in the NT at the time of colonization. The
concept of “indigenous inhabitants” was therefore created and receives
recognition in the Basic Law itself. Article forty of the Basic Law, for
example, provides that “[t]he lawful traditional rights and interests of the
indigenous inhabitants of the ‘New Territories’ shall be protected by the
Hong Kong Special Administrative Region.”169
The villages in the NT had for decades operated their own system of
election of village representatives (“VR”). The VR of a village is a member
of the Rural Committee of the area in which the village is situated. There
are a total of twenty-seven Rural Committees, which are linked to higher
levels of government in the NT and the political system of Hong Kong (in
which all Hong Kong permanent residents have voting rights). The rules
governing such elections in most villages limited the right to vote and the
right to stand as candidates to indigenous inhabitants. In the Chan case,
Chan and Tse were non-indigenous inhabitants of the villages in which they
lived. They challenged the electoral rules as discriminatory because the
rules denied them the right to take part in the conduct of public affairs under
article 21(a) of the Bill of Rights (article twenty-five of the I.C.C.P.R.).
In the final judgment170 delivered in December 2000, the CFA held
that the impugned electoral rules in this case imposed unreasonable
restrictions on Chan’s and Tse’s right to take part in public affairs through
freely chosen representatives. It also held that article forty of the Basic Law
did not give indigenous inhabitants the political rights to vote and to stand as
candidates in elections for VRs to the exclusion of others. In explaining its
decision, the court noted that there were approximately 600 villages in the
NT. It pointed out that the composition of the population of villages has
changed in recent decades, with the migration away from the villages of
many indigenous inhabitants and the migration into the villages of people
168
169
170
See the Government Rent (Assessment and Collection) Ordinance, Cap. 515. L.H.K.
See also art. 122 of the Basic Law.
Chan Wah, 3 H.K.L.R.D. 641.
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from other parts of Hong Kong. Thus, in the village where Chan lived, there
were approximately 400 indigenous inhabitants and 300 non-indigenous
inhabitants. In Tse’s village, 470 out of nearly 600 villagers were nonindigenous. The court pointed out that the VRs performed many functions,
some of which related only to indigenous inhabitants and some of which
related to all residents of the village, so that in relation to the latter the VRs
should serve or represent the interests of all villagers as a whole. It was
therefore, unreasonable for the electoral rules to deny voting rights to nonindigenous villagers. The CFA's decision caused the Government to reform
the village election system by introducing legislation providing for a dual
system in which each village would elect two VRs, one serving only the
indigenous inhabitants, and the other all the villagers.171
While Chan concerned discrimination on the basis of origin or status,
Equal Opportunities Commission v. Director of Education172 dealt with
gender discrimination. In that case, the Equal Opportunities Commission, a
statutory body established by the Government in 1996 to promote equal
rights and non-discrimination, challenged the Education Department’s policy
regarding the allocation of secondary school places to students completing
primary school education. The system had been in operation since 1978, but
the mechanics of the system did not become widely known until 1998, when
the Equal Opportunities Commission began to receive complaints from
parents. The effect of the operation of this system was that boys stood a
better chance of admission to a preferred secondary school than did girls,
despite equal academic merits. The policy was based on findings that girls’
academic achievements (as measured by scores) at the time of completion of
primary education were on average higher than boys because girls'
intellectual development moves more quickly at that age. The policy was
therefore designed to ensure a more balanced ratio between male and female
students in the elite schools.
The Court of First Instance held that the Education Department’s
policy was discriminatory as against female students and that the
discrimination was not justified by any of the reasons advanced by the
Department. Referring to article twenty-five of the Basic Law, article
twenty-two of the Hong Kong Bill of Rights, the Sex Discrimination
Ordinance, and the Convention on the Elimination of All Forms of
Discrimination Against Women, which was extended to Hong Kong in 1996,
the court stressed that the right to equal treatment was a fundamental right of
171
172
See the Village Representative Election Ordinance, Cap. 576, L.H.K. (Ord. No. 2 of 2003).
Equal Opportunities Commission v. Director of Education, [2001] 2 H.K.L.R.D. 690 (C.F.I.).
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the individual that could not easily be subordinated to considerations of
“group fairness”173 or the desire to attain a better balance in schools between
boys and girls. Any restriction of the girls’ right against discrimination in
this case had to pass the stringent standards of the “proportionality test”174 in
order to be justified. After examining the Government’s arguments and the
evidence submitted by it, the court held that the impugned scheme of
allocation of school places failed the test.175 As a result of this decision, the
Education Department changed its original policy.
Both cases above concern matters of public policy; their ramifications
extend far beyond the individual litigants or complainants in the cases. They
demonstrate the increasingly significant role of the courts in Hong Kong in
shaping social policy and in promoting social reform by employing
jurisprudential concepts—in these two cases the fundamental human right to
the equal protection of the law without discrimination.
E.
In Conclusion: Bill of Rights Jurisprudence Under “One Country,
Two Systems”
The human rights jurisprudence of the Hong Kong SAR neither
started from a clean slate, nor was it created instantaneously. Instead,
constitutional adjudication on human rights issues in Hong Kong has a
history dating back to the enactment of the Hong Kong Bill of Rights
Ordinance in 1991. The accumulated judicial experience of 1991-1997
provides a secure foundation for the constitutional protection of human
rights in the post-1997 era.
As discussed above, despite an attempt by the NPCSC at the time of
the 1997 handover to tamper with the content of the Hong Kong Bill of
Rights Ordinance, the courts have ensured, through interpretation of the
Basic Law, that the power of judicial review of the constitutionality of
legislation on human rights grounds would remain intact. The NPCSC has
not intervened and thus has acquiesced in the Hong Kong courts’ post-1997
practice of constitutional review in the protection of human rights.
Hong Kong courts have by no means been conservative in the post1997 era of constitutional adjudication. In Chan Wah, the CFA promoted
equal rights and mandated a fundamental reform of the existing system of
173
174
175
Id. at para. 80.
Id. at para. 121.
Id.
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village elections. In the Equal Opportunities Commission case, the court
again outlawed discriminatory practices and pushed for comprehensive
reform of the existing system of allocation of secondary school places. In
the Falun Gong case, the CFA acquitted the demonstrators by interpreting
the law of obstruction liberally. In the Public Order Ordinance case, the
CFA exercised the power of constitutional review of legislation to strike
down the “ordre public” provision in the Public Order Ordinance, and
subjected police actions under the ordinance to the principles of
proportionality. Finally, in Cheng v. Tse, the CFA liberalized the defense of
fair comment in the common law of defamation in a way that was without
precedent in the common law world.
Similar to the pre-1997 era, the Hong Kong courts have not been
radically liberal in the post-1997 era. Thus, in Wong Yeung Ng, the Court of
Appeal chose a more traditional common law version of the law of contempt
of court then the liberal version adopted in North America. In the Public
Order Ordinance case, the CFA tolerated the continued existence of a system
for control of demonstrations that relied on criminal sanctions for its
enforcement. In the flag desecration case, the CFA declined to follow the
more liberal American approach and was sensitive to the political and
ideological tensions within “one country, two systems.”
IV.
THE IMPACT OF “ONE COUNTRY, TWO SYSTEMS” ON MAINLAND CHINA
For believers in constitutionalism, the highest hope is that the
constitutional discourse as recounted above in this article regarding the
Hong Kong Basic Law and human rights issues in the “one country, two
systems” framework will not only serve to consolidate constitutionalism in
Hong Kong but will also contribute to the development of constitutionalism
in China and the search for a constitutional solution to the tension across the
Taiwan Straits.
Comparative scholars of constitutional law have distinguished
between nominal, semantic, and normative constitutions.176
The
constitutions in Communist states are generally nominal or semantic as
opposed to normative constitutions “actually governing the dynamics of the
power process instead of being governed by it.”177 In Marxist-Leninist states
such as the People’s Republic of China, the supremacy of the Communist
Party means that the constitution and the law are not supreme. This is
particularly true where there is a conflict between decisions and actions of
176
177
See generally Karl Loewenstein, Political Power And The Governmental Process 147-153 (1957).
Id. at 150.
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the party leadership and the formal requirements and procedures prescribed
by law. In the case of China, although the current Constitution, enacted in
1982, provides for a functional division of powers among legislative,
executive, judicial and procuratorial organs, all such organs are subject to
the leadership of the Chinese Communist Party.178 The high degree of
concentration of power in party leaders and party organs, the limited extent
of judicial independence,179 the lack of any court or specialized tribunal
having the power of constitutional adjudication,180 and the weakness of
independent civil actors capable of exercising checks and balances against
the Communist Party-State are all factors that tend to minimize the relevance
of the constitution as a device to contain, structure, or direct the operation of
political forces and to safeguard citizens’ rights.181 Despite constitutional
amendments, introducing concepts like the Rule of law, human rights, and
private property rights into the Constitution,182 mainland China today can
hardly be called a constitutional state.
Most of the political and social factors militating against
constitutionalism in mainland China do not exist in Hong Kong. Under “one
country, two systems,” the Basic Law of the Hong Kong SAR is a normative
rather than a merely semantic constitutional document. This article
demonstrates how much the Basic Law means to the people of Hong Kong,
how seriously it is taken in practice, and how it is actually enforced by a
robust and independent judiciary in Hong Kong. Hong Kong may therefore
serve as a beacon of constitutionalism in a country where constitutionalism
is under-developed. So can Taiwan, where constitutionalism has thrived
under the leadership of an activist Constitutional Court since
democratization in the late 1980s.183 It is to be hoped that scholars, leaders
178
See, e.g., Chen, supra note 11, chs. 4, 5.
See, e.g., Veron Mei-ying Hung, China’s WTO Commitment on Independent Judicial Review:
Impact on Legal and Political Reform, 52 AM. J. COMP. L. 77 (2004).
180
See generally Shen Kui, Is It the Beginning of the Era of the Rule of the Constitution?
Reinterpreting China’s “First Constitutional Case,” 12 PAC. RIM L. & POL’Y J. 199 (2003).
181
See generally PEERENBOOM, supra note 11.
182
The term “Rule of law” (or “Rechtsstaat” in German, which would be the more precise translation
from the Chinese term fazhi guojia that now appears in the Chinese Constitution) was introduced into the
Constitution by the 1999 amendment. The terms “human rights” and “private property rights” were
introduced by the 2004 amendment. See Chen, supra note 11, at 45-46.
183
See, e.g., Lawrence Shao-liang Liu, Judicial Review and Emerging Constitutionalism: The Uneasy
Case for the Republic of China on Taiwan, 39 AM. J. COMP. L. 509 (1991); F. Fraser Mendel, Judicial
Power and Illusion: The Republic of China’s Council of Grand Justices and Constitutional Interpretation, 2
PAC. RIM. L. & POL’Y J. 157 (1993); Jau-Yuan Hwang and Jiunn-rong Yeh, Taiwan, in ASIA-PACIFIC
CONSTITUTIONAL YEARBOOK 1995, 279 (Cheryl Saunders & Graham Hassal eds., 1997); Sean Cooney,
Taiwan’s Emerging Liberal Democracy and the New Constitutional Review, in ASIAN LAWS THROUGH
AUSTRALIAN EYES 163 (Veronica Taylor ed., 1997); Sean Cooney, A Community Changes: Taiwan’s
Council of Grand Justices and Liberal Democratic Reform, in LAW, CAPITALISM AND POWER IN ASIA 253
179
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and others in mainland China will gradually learn more from Hong Kong
and Taiwan about how constitutionalism can contribute to a better Chinese
society in which human beings live in the full dignity accorded them by the
doctrine of human rights. If the original objective of the theory of “one
country, two systems” which Deng Xiaoping developed for Taiwan in the
late 1970s and applied to Hong Kong in the early 1980s was to contribute to
China’s unification and economic modernization, Deng probably underestimated the full potential of OCTS. For OCTS may have a role to play in
contributing to China’s political and constitutional modernization as well.
V.
CONCLUSION: THE ACHIEVEMENTS OF THE HONG KONG JUDICIARY IN
THE POST-1997 ERA
In concluding an article written not long after the constitutional crisis
of 1999, I drew an analogy between courts learning to cope with a new
constitutional environment and children learning to walk:
Hong Kong is a latecomer to the world of constitutional
interpretation and judicial review, and she has only started the
journey of her constitutional history as an autonomous part of
China. The child is learning to walk; she stumbles, she falls,
she rises again; she staggers, and she then moves forward with
greater confidence and more hope. So hope abides; and
learning never ends.184
Six years since this passage was written, the record of the Hong Kong courts
as covered in this article shows that the hope expressed in the passage was
not misplaced. Hong Kong courts have coped well with the challenges of
constitutional adjudication. After experiencing a steep learning curve
initially, they have now reached a line of steady growth, a state of increasing
confidence and growing maturity. Lord Irvine of Lairg QC, Lord Chancellor
of Britain, described the early record of the British courts in interpreting and
applying the Human Rights Act 1998 as follows: “[T]he overriding theme
(Kanishka Jayasuriya ed., 1999); Tay-sheng Wang, The Legal Development of Taiwan in the 20th Century:
Toward a Liberal and Democratic Country, 11 PAC. RIM L. & POL’Y J. 531 (2002); TOM GINSBURG,
JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES, ch. 5 (2003);
Thomas Weishing Huang, Judicial Activism in the Transitional Polity: The Council of Grand Justices in
Taiwan, 19 TEMP. INT’L & COMP. L.J. 1 (2005). For the implications of “one country, two systems” as
practiced in Hong Kong for Taiwan, see Sean Cooney, Why Taiwan is Not Hong Kong: A Review of the
PRC’s “One Country Two Systems” Model for Reunification with Taiwan, 6 PAC. RIM L. & POL’Y J. 497
(1997); George E. Edwards, Applicability of the “One Country, Two Systems” Hong Kong Model to
Taiwan, 32 NEW ENG. L. REV. 751 (1998).
184
Chen, supra note 53, at 431.
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that emerges is balance: balance between scrutiny and deference; between
the individual and the community; and between interpretation and
declarations of incompatibility.”185 I believe exactly the same may be said
of the overall performance so far of the Hong Kong courts in constitutional
adjudication in the post-1997 era.
As mentioned in the introduction to this article, the Hong Kong courts
in the new constitutional order established by the Basic Law faced the dual
challenge of managing the constitutional relationship between the Hong
Kong SAR and the central state organs in Beijing, and of serving as guardian
of the civil liberties and human rights of the people of Hong Kong. As far as
the first challenge is concerned, there has not been any concrete dispute
regarding the respective competence of the SAR government and the central
government which the Hong Kong courts have been called upon to resolve.
The constitutional drama has revolved instead around the power of
interpretation of the Basic Law under article 158. The significance of this
issue was well described by Sir Anthony Mason:
In a nation-wide common law system, the link would normally
be between the regional courts and the national constitutional
court or the national Supreme Court. Here, however, there are
not only two different systems, but also two different legal
systems. In the context of “one country, two systems[,]” . . .
Article 158 of the Basic Law provides a very different link.
That is because the Article, in conformity with Article 67(4) of
the PRC Constitution, vests the general power of interpretation
of the Basic Law . . . in the NPC Standing Committee.
Consistently with that vesting . . . the Standing Committee
authorizes the courts of the Region to interpret “on their own, in
adjudicating cases” the provisions of the Basic Law which are
within the limits of the autonomy of the Region.186
The major constitutional controversy in the post-1997 era relates to
the relationship between the respective powers of Basic Law interpretation
of the NPCSC and the Hong Kong courts. As discussed in this article, the
courts of Hong Kong led by the Court of Final Appeal have accepted
unconditionally the “free-standing” power of the NPCSC to promulgate
interpretations of the Basic Law irrespective of whether the CFA has
requested an interpretation. At the same time, the courts have courageously
185
Lord Irvine of Lairg, The Impact of the Human Rights Act: Parliament, the Courts and the
Executive, PUBLIC LAW 308, 313-14 (2003) (Eng.) (emphasis in original).
186
Lau Kong Yung v. Director of Immigration, [1999] 3 H.K.L.R.D. 778 (C.F.A.).
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defended their prerogative to apply the common law approach to the
interpretation of the Basic Law in the absence of any relevant NPCSC
interpretation. They have also rejected any suggestion187 that in performing
the task of interpretation, the Hong Kong courts should put themselves in the
position of the NPCSC and seek to reach an interpretation which the NPCSC
would itself be inclined to make.
There is a Chinese saying, “bukang bubei,” which may be translated
as “neither too proud nor too humble.” I believe this is the appropriate
characterization of the approach adopted by the Hong Kong courts in
tackling their constitutional relationship with the Beijing authorities. In the
words of the “clarification” of 1999, the courts do “not question the
authority of the Standing Committee to make an interpretation under article
158 which would have to be followed by the courts of the Region”; neither
do they “question the authority of the National People’s Congress or the
Standing Committee to do any act which is in accordance with the
provisions of the Basic Law and the procedure therein.”188 In the wide realm
on which the NPCSC has not exercised its power of interpretation, however,
the courts of Hong Kong and the common law system are still in complete
control. In practice the NPCSC exercises self-restraint and thus implicitly
recognizes the high degree of judicial autonomy in Hong Kong.
With regard to the second constitutional challenge, adjudicating the
rights of the Hong Kong people, the courts have steered a middle course
between judicial activism and judicial restraint. The tenor of their decisions
may be described as moderately liberal — neither radically liberal nor
conservative. They have built upon their experience since 1991 of judicial
review of legislative and administrative actions on the basis of the I.C.C.P.R.
(as reproduced in the Hong Kong Bill of Rights), and have continued the
work of borrowing foreign jurisprudence in order to keep pace with
contemporary international trends.
These positive evaluations of the performance of the Hong Kong
courts in the post-1997 era will likely be disputed, particularly by
“fundamentalists” of the Rule of law and human rights.189 They would
probably argue that the courts have not done enough or should have done
more (a) in standing up to Beijing on issues of the constitutional relationship
187
See, e.g., Chong Fung Yuen v. Director of Immigration [2000] 3 H.K.L.R.D. 661, 682, 686
(C.F.A.).
188
Ng Ka Ling v. Director of Immigration (No. 2) [1999] 2 H.K.C.F.A.R. 4 at 578 (C.F.A.).
189
The descriptive concept of “fundamentalist adherents to the conception of the rule of law” in the
context of constitutional discourse in Hong Kong was developed in Chen and Cheung, supra note 56, at
272-77. Such “fundamentalist” views have been expressed from time to time in the Hong Kong media by
some politicians, lawyers, and commentators.
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between Beijing and Hong Kong, and (b) in promoting the cause of civil
liberties and human rights in Hong Kong. On point (a), they would likely
criticize the CFA for acceding to the Government’s request for
“clarification” after Ng Ka Ling was decided. They might also question
whether the CFA in Lau Kong Yung conceded too much to Beijing in not
setting any limiting conditions for the recognition of interpretations made by
the NPCSC. On (b), they would probably question whether the flag
desecration case was rightly decided and whether the decision was
politically motivated to placate Beijing; and they would probably prefer
Justice Bokhary’s dissent to the majority judgment in the Public Order
Ordinance case.
In discussing the cases in this article, I have tried to analyze the
courts’ decisions and explain to what extent they were acceptable and
reasonable. A more general point can be made here: in assessing the
performance of the Hong Kong courts in the post-1997 era, due account
should be taken of the constitutional and political context in which the courts
operate. Constitutional jurisprudence is necessarily tailored to the particular
configuration of legal, political, and social circumstances to which the
constitution applies. In the case of Hong Kong, the constitutional instrument
is the Basic Law, and the legal and political context is that of “one country,
two systems.” In developing Hong Kong’s constitutional jurisprudence, the
courts cannot focus only on the autonomy of the Hong Kong SAR under the
“two systems” limb of the formula; they need also to give due weight to the
“one country” limb of the formula, which in the Basic Law is mainly
expressed in the form of the sovereign authority of the NPC and the NPCSC.
In making the “clarification” to Ng Ka Ling and in rendering the
judgment in Lau Kong Yung, the CFA has given full recognition to the
overriding authority of the NPCSC to interpret the Basic Law. I do not think
the CFA can be faulted for doing so. Given the nature of the Chinese
constitutional system in which the NPC and the NPCSC enjoy plenary
powers similar to those of the British Parliament under the doctrine of
Parliamentary supremacy,190 and given the nature of the interface established
by the Basic Law between the Chinese constitutional system and the Hong
Kong SAR, the Hong Kong courts have no choice but to recognize the “freestanding” power191 of the NPCSC to interpret the Basic Law. This results in
a situation in which only self-restraint as a matter of practice on the part of
the NPCSC, rather than constitutional principles enforceable in a Hong
190
For the analogous positions of the NPC and the British Parliament in terms of unlimited legislative
authority, see Chen, supra note 46.
191
Lau Kong Yung v. Director of Immigration, [1999] 3 H.K.L.R.D. 778, 820 (C.F.A.)
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Kong court, can preserve judicial autonomy in Hong Kong. The situation
may be unsatisfactory, but then the “fault” lies in the structural design of the
Basic Law rather than the performance of the Hong Kong judiciary.
As to whether the courts have performed well as guardians of human
rights, it seems that the decisions discussed in this article are generally in
line with community sentiments. For example, flag desecration and the
freedom to engage in such an act have not become contentious issues in
public opinion in Hong Kong; the CFA’s decision in Ng Kung Siu has not
been met with significant criticism. There has also been no suggestion that
the CFA in the Public Order Ordinance case has failed to defend freedom of
assembly in Hong Kong.
While a positive assessment192 has been provided in this article of the
performance of the Hong Kong courts in the post-1997 era, due credit also
should be given to the institutional and social environment in which the
courts have operated. Although Hong Kong is not yet a full democracy by
Western standards, it does have a government committed to the Rule of law
and respectful of judicial decisions. It is also blessed with a vibrant civil
society, a strong middle class, a free media, active party politics, and
dedicated lawyers and politicians skilled in the art of legal argumentation.
Most important of all, it has a population that is sensitive to legal issues and
interested in discussing and debating them. All of these elements provide a
favorable environment for the discourse of constitutionalism and rights in
Hong Kong. For what, after all, is the business of constitutional adjudication
but “an ongoing discourse—a discourse with the other levels and branches
of government, with the people at large, with courts that have gone before
and courts yet to be appointed”?193 As this article has shown, this discourse
is very much alive and well in Hong Kong. The conversation and debate
about the Hong Kong Basic Law will go on, for the Basic Law is—to
borrow from what Professors Tribe and Dorf wrote of the American
Constitution—“a text to be interpreted and reinterpreted in an unending
search for understanding.”194
192
For other assessments, see, e.g., Paul Gewirtz, Approaches to Constitutional Interpretation:
Comparative Constitutionalism and Chinese Characteristics, 31 H.K.L.J. 200 (2001); JAMES CRAWFORD,
RIGHTS IN ONE COUNTRY: HONG KONG AND CHINA (Faculty of Law, University of Hong Kong, 2005).
193
Laurence H. Tribe, American Constitutional Law 66 (2nd ed. 1988).
194
Laurence H. Tribe & Michael C. Dorf, On Reading The Constitution 32-33 (1991).