|The New Constitutional Order under the Basic Law
Speech by Secretary for Justice
Miss Elsie Leung
at the Annual Reunion Dinner
of St John’s College, University of Hong Kong
on 1 November 1999
Ladies and Gentlemen,
1. I am honoured to be invited to speak at the Annual Reunion Dinner of your College.
2. In his invitation to me, Rev. Paul Tong, Master of your College, asked me to give a short speech on the new constitutional order under the Basic Law. I readily accepted this request with pleasure. The Chinese resumption of exercise of sovereignty over Hong Kong has undoubtedly changed Hong Kong’s constitutional order. The Basic Law, which came into force on 1 July 1997, superseded the Letters Patent and the Royal Instructions as the supreme constitutional instrument of the HKSAR. Enacted in accordance with Article 31 of the Chinese Constitution 1982, it implements the seminal and all-important principle of “one country, two systems”. The salient features of this new constitutional order, as well as its challenges and prospects, are issues of great public interest, and in this speech I will share with you my thoughts on them.
Continuity and Change
3. As decided by the Court of Appeal in the landmark case HKSAR v Ma Wai Kwan, David  HKLRD 761, a central theme of the Basic Law is one of continuity. Article 5 of the Basic Law provides, inter alia, that the previous capitalist system and way of life shall remain unchanged for 50 years. Further, Article 8 of the Basic Law provides that:
“The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.”
4. Article 8 is supplemented by Article 160 of the Basic Law which provides that, upon the establishment of the HKSAR, the laws previously in force in Hong Kong shall be adopted as laws of the HKSAR, except for those which the Standing Committee of the National People’s Congress of the PRC (“the NPCSC”) declares to be in contravention of the Basic Law. Acting under this Article 160 of the Basic Law, the NPCSC in February 1997 adopted all the laws previously in force in Hong Kong, save for 24 Ordinances which were found (in whole or in part) to contravene the Basic Law.
5. This continuance of “laws previously in force” in the HKSAR should not, however, blind us to the change in Hong Kong’s constitutional order effected by Reunification.
6. In the 156 years of her colonial history, Hong Kong never had a comprehensive written constitution governing all aspects of the systems and policies practised in Hong Kong. This was changed by the Basic Law. The Basic Law translates into constitutional provisions the basic policies of the PRC regarding Hong Kong enshrined in the Joint Declaration. It stipulates the organizations and functions of the different branches of the Government. It sets out the rights and obligations of the citizens. Like other written constitutions, it ranks superior to other domestic laws: Article 11 of the Basic Law provides that no law enacted by the legislature of the HKSAR shall contravene the Basic Law.
The Basic Law as the Interface between the Two Legal Systems
7. Since Reunification, the legal system of Hong Kong has become one of two contrasting legal systems within China. The Basic Law has not only made this possible, but also regulates the relationship between the two systems. It is important to appreciate that, in addition to being the “mini-constitution’ of the HKSAR, the Basic Law is a national law binding on all parts of China.
Furthermore, a limited number of the Mainland laws “relating to defence and foreign affairs” and other matters outside the limits of the HKSAR’s autonomy apply to the HKSAR. They are listed in Annex III to the Basic Law. Currently, there are 11 such laws, including the Nationality Law and the National Flag Law. Although the two legal systems operate independently of each other in their respective jurisdictions, they are not completely segregated from each other. The Basic Law acts as the interface between them.
9. The difference between the two legal systems have been highlighted this year by issues relating to the interpretation of the Basic Law.
10. Under the common law system, courts interpret legislation in the process of adjudication and their interpretations may become precedents that are binding on other courts. That approach continues to apply in Hong Kong in respect of all locally enacted legislation. But what about the Basic Law, which is a national law?
11. The legal system in the Mainland is more akin to a civil law system, under which the ultimate power of interpretation is in the legislature, not the courts. In the Mainland, the interpretation of national laws is vested in the Standing Committee of the National People’s Congress (“the NPCSC”). When the Basic Law was being drafted between 1985 and 1990, a solution was devised to cater for the different systems of interpretation. It is now contained in Article 158 of the Basic Law which (put simply) provides that:
the power of final adjudication shall be vested in Hong Kong's Court of Final Appeal (“the CFA”);
the ultimate power to interpret the Basic Law shall be vested in the NPCSC, which shall first consult the Basic Law Committee;
the NPCSC shall authorize the HKSAR courts to interpret provisions of the Basic Law in adjudicating cases, but in certain cases those courts must first seek its interpretation.
12. The NPCSC's constitutional power to interpret the Basic Law is rooted in Article 67(4) of the Chinese Constitution and Article 158(1) of the Basic Law. Article 67(4) of the Chinese Constitution provides that the NPCSC has the power and function to interpret laws, and Article 158(1) of the Basic Law provides that the power of interpretation of the Basic Law shall be vested in the NPCSC. Under these provisions, the NPCSC has the power to interpret the Basic Law without any reference by the CFA. It is on the authority of these provisions that the NPCSC’s June 26 interpretation on the right of abode issue was made. However, it is important to appreciate that, in practice, the NPCSC very rarely exercises its power of interpretation. You should also be aware that the SAR Government has pledged that it would only seek such an interpretation in highly exceptional circumstances. I hope you will agree that the right of abode problem did amount to highly exceptional circumstances.
13. It is true that the HKSAR Government's decision to seek an interpretation of the NPCSC generated much debate. But such debate should be viewed in a positive light. It signifies the existence of different opinions. It affirms that Hong Kong is a pluralistic society in which freedom of speech is fully protected and respected. Political parties, professional bodies, academics and members of the public may voice dissenting views from the Government, and the Government is forthcoming in explaining its policies. The Government, acting in a responsible manner, has to make decisions in the long-term interest of the whole community. In this connection, I would highlight the fact that the Government's decision to seek an NPCSC interpretation was supported by a majority of the Legislative Councillors and the people of Hong Kong. Foreign governments that we have contacted so far have also expressed their understanding towards our decision.
14. It is understandable for those who are familiar with the common law system to object to a legislative body overturning an interpretation given by a final appellate court. But one should not unjustifiably describe a constitutional and lawful decision as having "undermined the rule of law" and "impaired judicial independence" just because the method of resolving the problem is unfamiliar. The distinction between interpretation and adjudication is not uncommon in the civil law tradition. Both the Greek and Belgian constitutions empower their parliaments to issue legislative interpretations. The legislature in France has similar power. Moreover, judicial autonomy in the UK is no longer unrestricted. Since Britain joined the European Community in 1972, the House of Lords has been obliged to seek a preliminary ruling concerning the interpretation of any relevant EC treaty provisions from the European Court of Justice.
15. The common law is not static. It is not merely a collection of propositions extracted from judicial decisions, but is also a particular judicial approach, methodology and attitude. The law evolves with time and adapts to suit local circumstances. Every common law jurisdiction breeds home-grown jurisprudence. The experiences of the UK well illustrate this. Its entry to the European Community mentioned above affected one of its longest legal traditions – that of parliamentary sovereignty. It is now facing further constitutional changes as a result of devolution and the enactment of the Human Rights Act 1998. Like the local Legislative Council, the new Scottish legislature must comply with a written constitutional document, which limits its powers. No one is certain how these changes will impact upon the British legal system. But members of the community are working together to ensure that there will be a positive outcome.
16. In the case of Hong Kong, our constitutional transition provides an impetus for the emergence of local jurisprudence on the interplay between two different legal systems. An eminent senior judge who has recently retired commented as follows: “…although everybody trumpets the common law system, we all know it is not a perfect system by any means and we are always open to suggestions from other systems…It may well be that in the long term we see, because the common law is so flexible, that good things are taken on board and bad things are rejected. So the interplay of ideas is likely to be beneficial to both the Hong Kong system and…the Mainland system.”
Legal Challenges Based on the Basic Law
17. Of course, home-grown jurisprudence is built on local case law. In this light, legal challenges based on the Basic Law are constructive to the development of local jurisprudence. Litigation is a healthy sign that the new constitutional order is being developed through the clash of ideas presented to our independent judiciary. One should not forget that it took several years for the dust to settle after the enactment of the Bill of Rights Ordinance. Many jurisdictions that have written constitutions also experienced a period of frequent legal challenges immediately after the implementation of their constitutions so that guiding principles could emerge and legal implications of the constitutions could be clarified. Hong Kong is following a familiar path.
18. Some of the Basic Law litigation has, of course, created controversies. But this is no cause for alarm. If one looks at other common law jurisdictions where constitutional review of legislation is possible – the United States is of course the prime example – one finds that court decisions are frequently highly controversial. We must face the fact that, when courts are required to decide upon the constitutionality of legislation, they are drawn into issues that have a much higher policy content than is usually the case. This is inevitable when legislation dealing in detail with highly controversial issues is judged against a constitution that is drafted in broad terms, and that may not expressly deal with those issues.
The Rule of Law Remains Intact
19. The judicial proceedings related to the Basic Law also tell one fact: the rule of law remains intact in Hong Kong. The rights enshrined in the Basic Law are sacred to the Hong Kong people and they have confidence in the independence of our judiciary. If the rule of law in Hong Kong were really "dead" as some people alleged, all these proceedings would not have been commenced or continued. For what would be the point of taking the Government to court if the courts have ceased to be effective avenues to obtain justice?
Smooth Operation of the New Constitutional Order
20. Although the Basic Law has been promulgated for almost 10 years, it has been implemented for only two years or so. It is unrealistic to expect the new constitutional order to operate without a hitch at its inception. However, I believe that given time, the new order will operate smoothly for two reasons:
Judicial determination of more and more cases concerning the Basic Law will help elucidate the legal implications of the Basic Law provisions;
With a better grasp of the Basic Law, the public, the government, the legal profession and the judiciary will adapt better to the new order established by it.
21. I believe that this process will be smoother if we know more about the Mainland's legal system, and we accept that the new constitutional order has introduced some changes to our legal system. I must emphasize that this does not mean introducing the Mainland's legal system to Hong Kong. That would be inconsistent with the principle of "one country, two systems". But since the Basic Law is the interface between the two legal systems, a good understanding of the Mainland’s legal system can help us to grasp some of the concepts in the Basic Law. A lack of such understanding may, I believe, generate unnecessary problems.
22. Ladies and gentlemen, as I have tried to explain this evening, the Basic Law incorporates both continuity and change. We must be alive to both aspects as, together, we realize the noble vision of “one country, two systems”.
23. Thank you.
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