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The Past and the Future of Hong Kong's Constitution*

Published online by Cambridge University Press:  12 February 2009

Yash Ghai
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Extract

The purpose of this article is to examine the role of constitutions in Hong Kong, the principal concern being the implications of the Basic Law which comes into effect in July 1997 as the constitution of the Hong Kong Special Administrative Region (HKSAR). In order to show the purpose and method of the Basic Law, I also examine the role of colonial constitutions in the territory.

Type
Research Notes
Information
The China Quarterly , Volume 128 , December 1991 , pp. 794 - 813
Copyright
Copyright © The China Quarterly 1991

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References

1. Art. 31 says, “The state may establish special administrative regions when necessary. The systems to be instituted in special administative regions shall be prescribed by law enacted by the National People's Congress in the light of specific conditions.” It was introduced in the 1982 Constitution to provide for the accommodation of Taiwan with its distinct economic and political system within the PRC. See the Report of the Draft of the Revised Constitution of the People's Republic of China by Peng Zhen (26 November 1982) (reproduced in an appendix to The Laws of the People's Republic of China 1979–1982 (1987), Beijing, pp. 414–16)Google Scholar.

2. There is considerable literature on the background to the Joint Declaration and the provisions of the Basic Law, although as far as the Basic Law is concerned, it relates largely to earlier drafts. Some principal works are: Wesley-Smith, Peter and Chen, Albert (eds.), The Basic Law and Hong Kong's Future (Hong Kong: Butterworths, 1988)Google Scholar; McGurn, William (ed.), Basic Law, Basic Questions (Hong Kong: Review Publishing Co. Ltd)Google Scholar; Davis, Michael, Constitutional Confrontation in Hong Kong (London: Macmillan, 1989)Google Scholar; Yao, Y.C. et al. (eds.), Hong Kong and 1997: Strategies for the Future (Hong Kong: Centre of Asian Studies, University of Hong Kong, 1987)Google Scholar; and Wesley-Smith, P. (ed.), Hong Kong's Basic Law: Problems and Prospects (Hong Kong: Faculty of Law, University of Hong Kong, 1990)Google Scholar.

3. The Joint Declaration established two joint commissions, one, the Land Commission, to deal with leases of government land (Annex III) and the other, the Sino-British Joint Liaison Group, for consultations on the implementation of the Joint, Declaration (Annex II). The first has important powers in relation to various aspects of land policy, and the second, while not a decision-making body, has a wide mandate. Although it is stated that it will play no part in the administration of Hong Kong, there is widespread feeling that the PRC has used it to influence policies for which the present government of Hong Kong is properly responsible.

4. An instance of the influence of the Basic Law on current political and constitutional developments is provided by the abandonment by the Hong Kong and U.K. governments of the principles outlined in a Green Paper of July 1984 for the, “progressive development of a system of government the authority for which is firmly rooted in Hong Kong, which is able to represent authoritatively the views of the people of Hong Kong, and which is more directly accountable to the people of Hong Kong.” Green Paper: The Further Development of Representative Government in Hong Kong, (Hong Kong: Government Printer, 07 1984)Google Scholar. These principles were not incompatible with the Joint Declaration (signed later that year) since it provides for a legislature of the HKSAR to be “constituted by elections” and for the executive to be accountable to the legislature. However, as we shall see later, in the Basic Law the PRC interprets elections in a way which does not necessarily require all its members to be elected directly by the people; and the chief executive will have more control over the legislature than the other way round. The PRC argued that constitutional developments in Hong Kong until 1997 should not be inconsistent with the framework to be established under the Basic Law (the theory of convergence). The British capitulated to these demands, as is evident from its backtracking on significant political reform.

5. The PRC has argued that the government of Hong Kong does not represent the people of Hong Kong, and therefore it has to take initiatives to protect their legitimate interests. Its intervention in the proposals for the new airport for Hong Kong is based on this argument. The U.K. appears to have accepted, at least in part, the legitimacy of the PRC's claims to have a say now in the internal affairs of Hong Kong, by its agreement of 4 July 1991 with the PRC on the conditions for the building of the new airport. Among the terms of this agreement are that an airport committee under the auspices of the Joint Liaison Group will screen all major airport-related franchises and contracts; China's consent is necessary for loans in excess of $5 billion that the Hong Kong government may raise; the present government will leave at least $25 billion in fiscal reserves on the transfer of sovereignty; and the senior ministers of the PRC and the U.K. are to meet twice a year on major issues of mutual concern for the next six years. South China Morning Post, 5 July 1991. The agreement both erodes the limited autonomy that Hong Kong has enjoyed vis-à-vis the U.K. and may set a precedent for the intervention by the PRC in the internal affairs of the HKSAR even though then it could not be claimed that its government represents external interests.

6. Chang, D., “Towards a jurisprudence of a third kind–‘One Country, Two Systems’,” Case Western Reserve Journal of International Law, No. 20 (1988), pp. 99–126Google Scholar.

7. This is not, as might be suspected, merely a Marxist proposition. It was brilliantly sketched by Max Weber; see Rheinstein, Max (ed.), Max Weber on Law in Economy and Society (New York: Simon and Schuster, 1954)Google Scholar, ch. VI.

8. A point particularly well made by Poggi, G.S., The Development of the Modern State (London: Hutchinson, 1978)Google Scholar.

9. The principal works on the constitution of Hong Kong are Wesley-Smith, P., Constitutional and Administrative Law in Hong Kong, Vols. I and II (Hong Kong: China and Hong Kong Law Studies, 1987)Google Scholar and Miners, Norman, The Government and Politics of Hong Kong (Hong Kong: Oxford University Press, 1986) 4th edGoogle Scholar.

10. Wight, M., British Colonial Constitutions (Oxford: Clarendon Press, 1952) p. 17Google Scholar.

11. An interesting history of Hong Kong's constitutional development, although only up to 1962, is Endacott, G.B., Government and People in Hong Kong (Hong Kong: Oxford University Press, 1964)Google Scholar.

12. Endacott provides an early but rare example of a successful opposition to the governor by the Legislative Council in 1846 (when the Council consisted only of officials) over the governor's tax proposal. Gladstone, then secretary for colonies, upheld the objection of the Council. Ibid. p. 42.

13. Ibid. p. 45.

14. See, for example, Miners, , The Government and Politics of Hong Kong, pp. 65–67Google Scholar.

15. See, for example, Scott, Ian, Political Change and the Crisis of Legitimacy in Hong Kong (Hong Kong: Oxford University Press, 1989), pp. 140–46Google Scholar.

16. The only provision relevant to the present point appears in the Royal Instructions which require the governor to reserve for the British government assent to any bill of the Legislative Council “whereby persons not of European birth or descent may be subjected or made liable to any disabilities or restrictions to which persons of European birth or descent are not also so subjected or made liable” (art. XXVI (9)). As a for procedure, see the decision in Pong Wai-ting v. Attorney-General (1925) 20 HKLR 22, where the then chief justice, Sir Henry Gollan, held that the failure to observe the governor's obligations to reserve specified bills for the assent of the Queen did not invalidate the bill.

17. See, for example, Re Wong Hon [1959] HKLR 601 and Winfat Enterprise (HK) Co. Ltd. v. Attorney-General [1985] 2WLR 786.

18. Labouchere, secretary of state for colonies, quoted in Endacott, , Government and People, p. 52Google Scholar.

19. Ibid. p. 65–66.

20. Ibid. p. 52.

21. See Scott, Political Change, ch. 3.

22. See for example, Siu-kai, Lau, Society and Politics in Hong Kong (Hong Kong: Chinese University of Hong Kong, 1984)Google Scholar.

23. A classic exposition of this view is Balandier, G., “The colonial situation concept,” in his book, The Sociology of Black Africa (London: Andre Deutsch, 1970)Google Scholar.

24. Siu-kai, Lau, Society and Politics, pp. 40–48Google Scholar.

25. Both the Confucianist and Marxist traditions concur in this attitude towards the law. See van der Sprenkel, S., Legal Institutions in Manchu China (London: Athlone Press, 1962)Google Scholar; Tay, Alice, “Law in communist China,” Sydney Law Review, No. 6 (1969), pp. 153–172, 335–370Google Scholar; Li, Victor, “The evolution and development of the Chinese legal system,” in Lindbeck, John, China: Management of a Revolutionary Society (Seattle: University of Washington Press, 1971)Google Scholar.

26. Art. 67 of the Basic Law allows foreigners to hold up to 20% of the seats in the legislature; art. 61 allows, by implication, foreigners to hold administrative posts other than those reserved for citizens; and arts. 90, 93 and 94 permit foreigners to be appointed judges.

27. When I advised on the constitution in Papua New Guinea, there was wide consultation with the people, and the constitutional committee made visits to numerous villages with a list of questions. Some years later I revisited one of the villages and an old wizened man came up to me and said, “I know you. You and I wrote the constitution of this country together. It has served us well. We are proud of it.”

28. Endacott, , Government and People, p. 155Google Scholar.

29. The Joint Declaration had remarkably little to say on political institutions, the matter being dealt with in one short paragraph in art. 1. There was nothing about the nature of the executive or its relationship with the legislature. Provisions for the appointment of the former and election of the latter were extremely vague. The Basic Law has more details, but the tentative nature of the provisions is evident from Annexes I and II and the Decisions of the National People's Congress on the Method for the Formation of the First Legislative Council (appended to the text of the Basic Law) that the future shape of the legislature and the method of appointment of the chief executive are matters still open for decision.

30. This is what arts. 13 and 14 seem to amount to. However, as I discuss later, when providing for the application of PRC laws in the HKSAR, art. 18 authorizes those on defence and foreign affairs “as well as other matters outside the limits of the autonomy of the Region as specified by this Law.”

31. It is only fair to mention that the Basic Law provides for the preservation of the existing system for education, religion, culture, labour, sports and social services in ch. VI. One purpose of the chapter is to grant autonomy to non-governmental organizations, and in this way to preserve an area of civil society. However, nothing in it detracts from the underlying economic policies discussed above.

32. If this interpretation is right, it has similarities to the doctrine of the fundamental features of the constitutiona established by the Indian Supreme Court in Kesavandan Bharti v. State of Kerala (1973) 4SCC 1461, and adopted in Bangladesh in Anwar Hossui Chowdhury v. Bangladesh (1989) BLD (Spl.) 1, whereby certain provisions of the constitution are unalterable.