7 - Behind the Text of the Basic Law

Summary

Interpretation of a constitution is rarely a neutral process. It always involves judicial choices among a number of plausible solutions. In making these choices and giving meaning to the general text of a constitution, the courts are from time to time guided by various fundamental values in the constitutional system. Some of these fundamental values may not be readily visible from the text of the constitution itself, and are shaped by the social, political and historical contexts of the society in which the constitution operates. This chapter tries to explore some of these invisible fundamental values in the context of Hong Kong - a common law system engulfed by a much more economically and politically powerful sovereign country with a socialist legal system and ideology under the constitutional model of One Country, Two Systems, and examines how judicial choices are shaped by the need to preserve the integrity of the common law system and the previous social and economic systems on the one hand, and the need to reconcile with the sovereign power and its legitimate exercise on the other hand, against the background of an uncertain future of how far the constitutional model of One Country, Two Systems is to last beyond the promise of 50 years till 2047.