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The Rule of Law Under 'One Country, Two Systems': The Case of Hong Kong 1997-2009
Abstract
The transplant of English common law to, and the development of a set of legal institutions that supported the Rule of Law in, Hong Kong is one of the major legacies of British colonial rule in Hong Kong. When the Sino-British Joint Declaration was signed in 1984 and Hong Kong began to prepare herself for reunification with the motherland in 1997, there were concerns about the possible deterioration of standards of the Rule of Law and of civil liberties in Hong Kong after the handover. It was generally recognized that one of the crucial tests for whether the “One Country, Two Systems” model works would be whether the Rule of Law can be maintained in Hong Kong after 1997. The practice of “One Country, Two Systems” (OCTS) is itself dependent on a particular kind of Rule of Law – that practiced with regard to the Basic Law of the Hong Kong Special Administrative Region (HKSAR) – the “mini-constitution” enacted by the National People’s Congress (NPC) of the People’s Republic of China (PRC) in 1990 that came into effect in 1997 as the constitutional instrument of the HKSAR of the PRC. Would the Basic Law, which embodies the grand promises made by the PRC government in the text of the Joint Declaration regarding how the HKSAR would be administered, be faithfully implemented by the Chinese authorities? Would Hong Kong be able to practice autonomy, with “Hong Kong people ruling Hong Kong”, evolve a higher degree of democracy than ever before, and ensure the protection of human rights and property rights under the Rule of Law? Would the Rule of Law continue to contribute to Hong Kong’s economic prosperity and continue to safeguard it as a free, pluralistic and open society and an international city? At this point in time, more than twelve years after the handover, we should be in a good position to answer these questions. This paper seeks to provide a basis for answering these questions by reviewing the legal and constitutional history of the HKSAR since its establishment in 1997. It will focus on what the author considers to be the most important events, cases or developments. It divides the legal history of the HKSAR so far into four periods. The four sections of the paper will deal these periods respectively, followed by a concluding section.
... For example, Lord Robert Reed, the president of the UK Supreme Court, who serves as a non-local judge of the Court of Final Appeal (CFA) in Hong Kong, was criticized for agreeing with a CFA judgment of the court's majority on a legal question of parliamentary contempt concerning the behaviour of a member of an opposition party in the Legislative Council of Hong Kong (The Diplomat 2022). The morals and political values of local and foreign judges in Hong Kong are presented as a political counter-force to the Hong Kong government, and it is argued that the behaviours of some judges in Hong Kong in fact undermine the rule of law, as their judgments disregard local social, economic and political realities (Chen 2011;Yap 2007), which seriously undermines the mutual trust between the central government and the Hong Kong judiciary (Litton 2020). As such trust is essential, a solution must be found to ensure its stability. ...
Hong Kong presents a test case of China’s willingness to adapt Western liberal values of individual freedom and the rule of law in a corner of China. The Western model of governance, along with its common law system and capitalist economic system, has been permitted to operate side by side with the Chinese socialist system within the framework of Chinese sovereignty and the People’s Republic of China’s (PRC) political and legal system. The formation and implementation of the policy of ‘one country, two systems’ (OCTS) entail Chinese law-makers’ selective integration of international and Western rules of governance into the Hong Kong and China context to serve the interests of the PRC party regime. This article explores the approaches taken by the PRC to the governance of Hong Kong in light of the regime’s political and economic goals and how the Western concept of rule of law and autonomy is perceived and substantiated in terms of the communist ideology. The author argues that the intrinsic value of OCTS lies in seeking complementarity and coexistence between the Western liberal norms of governance and Chinese communist ideology, and that this intrinsic value should be upheld and remain in full force to serve as a normative consensus between China and the West.
... (HKSAR Government, 2012). However, the Immigration Ordinance at that time restricted the right of abode to those whose "father or mother was settled or had the right of abode in Hong Kong at the time of the birth of the person or at any later time" (Chen, 2011 which later aroused public concern and ignited anti-mainland sentiment (So, 2017). (2) before intervention, the household is living below or near the official poverty line, which is drawn at half of the median monthly household income according to household size. ...
The mass media often stereotypes Mainland-Hong Kong cross-border families as “affluent but voracious” settlers plundering local resources – they battle with local families for school places in the North District, gatecrash the city’s emergency and maternity wards to give birth, and push up property prices. However, this generalization of cross-border families only tells part of the reality. There are also children born to impoverished Mainland parents in Hong Kong, who are often neglected by the public. With no wealth, no hukou (household registration) in China, no social network in Hong Kong, how do these widely ignored families and children live in the margin of Hong Kong and Mainland China? What are their challenges and opportunities? How do their experiences inform government policies? This project seeks to delve into the everyday lives of cross-border families, the obstacles they encounter in livelihood and at work and schools, and the conflicts and tension in relation to their identities as citizens of Hong Kong. Data are drawn from home visits and semi-structured individual interviews. Twenty-eight student researchers were recruited to conduct monthly home visits, under the supervision of the PI and Co-Is, to 28 Mainland-Hong Kong cross-border families. From January to May, 2018, the team conducted five home visits to each family and 28 in-depth semi-structured pair-interviews (parent and the child). Findings reveal that Mainland parents were driven by various social, cultural and financial factors to give birth in Hong Kong. Low-income cross-border families in Hong Kong are challenged not only by economic hardship but also social and institutional exclusions. The children’s educational opportunities are sometimes compromised because of the precarious migration status of their parents. Based on the findings, we suggest policy interventions in six areas – access to social services and resources, social security, traveler visa and period of stay, household registration, special employment permission, promotion of equal opportunities and elimination of discrimination – in order to enhance the life opportunities of these children.
This book is unique in presenting an interdisciplinary conversation between jurists and logicians. It brings together scholars from both law and philosophy and looks at the application of 'the new logics' to law and legal ordering, in a number of legal systems. The first Part explores the ways in which the new logics shed light on the functioning of legal orders, including the structure of legal argumentation and the rules of evidence. The second addresses how non-classical logics can help us to understand the interactions between multiple legal orders, in a range of contexts including domestic and international law. The final Part examines particular issues in the applicability of non-classical logics to legal reasoning. This book will be of interest to jurisprudence and logic scholars and students who want to deepen their understanding of relationships between law and legal reasoning, and learn about recent developments in formal logic.
Although “life” under Article 5(1) of the Federal Constitution is fundamental it was not clearly defined. Consequently, there is uncertainty on the ambit of this right in the Malaysian jurisprudence. Conversely, the Indian jurisprudence on right to “life” under Article 21 of the Constitution, which is equipollent to the Malaysian Article 5(1), is certain, and the judiciary had taken an active approach on the interpretation. Consequently, this broadens the ambit of fundamental rights. Hence, India is a source of reference in the adoption of a dynamic jurisprudence on right to “life”.
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.
In Bahadur v Director of Immigration, the Court of Final Appeal considered the question of whether rights found in Hong Kong's constitution, the Basic Law, are subject to restrictions. Bahadur concerned the right of residents to travel and enter Hong Kong, which is found in the Basic Law but not in the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong. To its credit, the Court eschewed an approach making such rights subordinate to ordinary legislation. Questions concerning the approach to restrictions on parallel Basic Law rights, ie Basic Law rights that have a parallel right in the ICCPR as applied to Hong Kong, have yet to be determined. It is argued here that these rights and their possible restrictions should have an autonomous interpretation and not have to conform to the minimum standards in the ICCPR.
In recent years the international community has continued to adopt a flow of both binding and non-binding human rights instruments. But despite the significant domestic impact of these developments, most of the literature on human rights has focused on international procedures and institutions, to the neglect of domestic legal arrangements. In this timely volume Professor Alston and a team of distinguished contributors examine the consequences of international human rights treaty obligations at national level. The problems addressed include the transformation of international norms into national law; how to prepare appropriate domestic arrangements for giving effect to international norms (with particular emphasis on the role of the bill of rights); an assessment of the impact of international obligations on domestic legal regimes. This carefully edited collection will be of interest to all practitioners, scholars, and students of the law and theory of international human rights.
The book will be particularly useful for legislators, policy-makers, lawyers, journalists, historians, teachers, and students, especially in the fields of law and the social sciences. The statutory Appendix will assist teachers and students to draw comparisons between existing law and the government's proposals. © 2005 by The Hong Kong University Press, HKU. All rights reserved.
The judgment of the Hong Kong Court of Final Appeal ("CFA") in the right of abode case has created several constitutional issues, three of which will be addressed in this paper. They are: (1) whether the CFA has the authority to review Chinese legislation; (2) whether the National People's Congress Standing Committee ("NPCSC") should interpret or amend the Basic Law; and (3) whether an original legislative intent approach or a purposive approach should be adopted for the interpretation of the Basic Law. Prompt resolution of these issues is necessary to resolve constitutional uncertainty in Hong Kong. Successful resolution of these issues may require both the NPCSC and the CFA to adopt their own interpretive approaches and exercise their own constitutional authority in strict compliance with the procedures of the Basic Law. Adoption of this unique constitutional mechanism would preserve Hong Kong's common law system while allowing the concept of "one country, two systems" to be implemented.
The Hong Kong Bill of Rights Ordinance entered into force on 8 June 1991. Its purpose is to incorporate into the law of Hong Kong the provisions of the International Covenant on Civil and Political Rights (“the ICCPR”) as applied to Hong Kong. Being one of the first occasions where the ICCPR has been given direct legal force in a common law jurisdiction, the Hong Kong experience will provide an interesting case study on how an international human rights instrument is received and interpreted in domestic law. Indeed, shortly after the coming into operation of the Hong Kong Bill of Rights Ordinance, the late Professor Opsahl predicted that it would give the ICCPR, and by implication the Human Rights Committee, a potential impact on the Hong Kong domestic legal system which could hardly be expected in other countries. He even suggested that, in dealing with matters which the Human Rights Committee has not yet considered, the interpretation of the Hong Kong courts in applying the Bill of Rights may provide a useful supplement to international human rights law. The Bill of Rights Ordinance is now seven years old. This article will address two issues: first, the impact international and comparative jurisprudence has had on the interpretation of the Hong Kong Bill of Rights and, second, the contribution the Hong Kong jurisprudence on the Bill of Rights has or could have made to the development of international and comparative human rights law.
Albert Chen provides an overview and notes some pitfalls and potholes in the Government’s proposals.
Shortly after the ninth anniversary of Hong Kong's reunification, mainland China and the HKSAR signed an agreement on mutual recognition and enforcement of judgments in civil and commercial matters. This article first reflects upon the background of the long consultation process, having regard to the theoretical and practical difficulties arising within the unprecedented framework of “one country, two systems”. The article proceeds to examine the major provisions of the agreement and critically analyses the agreement in the light of the recent comparable arrangement between the Mainland and the Macau SAR. Although the Mainland/HKSAR agreement represents a breakthrough in cross-border judicial cooperation, the authors argue that because of its very limited scope the agreement will likely be of quite limited use in the future. The notable differences between the two legal regions may also give rise to a number of uncertainties when it comes to the practical implementation of the agreement.
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