"Apres Moi Le Deluge"? Judicial Review in Hong Kong Since Britain Relinquished Sovereignty

Abstract

One of burning questions stemming from China's promise that Hong Kong Special Administrative Region (HKSAR) would enjoy a high degree of autonomy is whether HKSAR's have authority to review issues of constitutional magnitude and whether their decisions on these issues would stand free of interference by PRC. The Sino-British Joint Declaration of 1984 promulgated in PRC law and international law a guaranty that implied a positive answer to this question: the system previously practised in Hong Kong shall maintained except for those changes consequent upon vesting in of Hong Kong Special Administrative Region of of final adjudication. The PRC further promised in Joint Declaration that judicial power that was to be vested in courts of SAR was to exercised independently and free from any interference. The only limit upon discretion of decisions mentioned in Joint Declaration was the laws of Hong Kong Special Administrative Region and [to a lesser extent] precedents in other common law jurisdictions. Despite these promises, however, most of academic and popular discussion about Hong Kong's judiciary in United States, and much of it in Hong Kong, during several years leading up to reversion to Chinese sovereignty, revolved around a fear about its decline after reversion. The source of concern was China's lack of respect for independence and its predisposition against as enforcers of rights. Litigants may not challenge constitutionality of legislation or administrative acts in of People's Republic of China (PRC), and under Administrative Litigation Law, may under only limited circumstances challenge legality of administrative acts in PRC courts. Only National People's Congress (NPC) may interpret PRC constitution in PRC. Britain's relative lack of concern for people of Hong Kong in years leading up to transfer of sovereignty only compounded these fears. The British officials who governed Hong Kong during last two decades of British colonial rule over city did little to ensure that PRC would maintain scope of review present in Hong Kong at transfer of sovereignty. Nor did United Kingdom do as much as it might have to include Hong Kong residents in negotiations about terms of transition of power. The few dozen locals who participated in drafting constitution for Hong Kong after transfer were known to carefully chosen by China's leaders, who considered loyalty to Beijing to paramount qualification for participation. Members of Hong Kong's Democratic Party in particular feared that, without input of a more rights-conscious group of Hong Kong citizens, conditions were ripe for China to take away from Hong Kong's judiciary to review governmental acts. These Democrats criticized even Governor Christopher Patten's pro-democracy government for caving in to China on terms of review for Hong Kong that PRC enacted in 1995. One American law student has concluded in a law review note, that with limitations on review enacted in Basic Law and in Hong Kong ordinance establishing Hong Kong's Court of Final Appeal, China eviscerated it. Contrary to these dire predictions, however, review in Hong Kong after its transfer to China did not disappear. It survived transfer, though with uncertainty about its parameters. Uncertainty about such parameters is not unusual in legal systems and does not itself diminish its health. In fact, a state of uncertainty can lead to a state of flux, which provides opportunities to enlarge scope of review. Just like much of rest of Hong Kong society, its judiciary stands at a juncture of great possibility for defining boundaries of review. Now embarked on its fourth year under Chinese rule, Hong Kong is being shaken to its foundations, with academic freedom being questioned in protests and in press, reputation of Chief Executive and under attack, and 47 people being stabbed or injured by fire in a riot staged by about 20 mainland Chinese in Hong Kong's Immigration Department after they were refused local identity cards. It is a situation which, because of change it is inviting, can just as easily bode well as ill. The key for judiciary of Hong Kong if it wants to help move trajectory toward well and away from ill is prudence in exercise of its review power. Judicial review in Hong Kong's British tradition encompasses three types of authority. One is to invalidate statutes because they conflict with constitution. In colonial Hong Kong, could invalidate Hong Kong statutes if they contravened British legislation and constitutional law for Hong Kong, namely, Letters Patent and Orders in Council. In Hong Kong Special Administrative Region (HKSAR), there are potentially two types of constitutional issues, those arising under PRC constitution and those arising under Basic Law. Another kind of review is to declare administrative acts either contrary to enabling statute or unconstitutional. In colonial Hong Kong exercised this power, and they continue to do so under Chinese rule, although this is complicated by two-tiered structure of government in Hong Kong SAR, in which Hong Kong is subject to administrative decisions of both a local administration and a national administration, and it is unclear whether Hong Kong may review PRC administrative acts. A third sense of review is to review acts in general, or, in other words, jurisdiction of court. Under this scheme, reach zenith of their powers when they invalidate statutes, because this puts them on a virtually equal footing with legislature, and in a legal system where executive is primarily responsible for bills that legislature enacts, as is case in Hong Kong, because this puts them on a virtually equal footing with executive. The clearest gauge, then, of whether review lost ground in Hong Kong under Chinese rule is whether Hong Kong lost to declare local statutes unconstitutional. I argue in this article that Hong Kong have not lost to declare local statutes unconstitutional. Rather, at start of fourth year of Hong Kong SAR, its enjoy to invalidate statutes that is encumbered by few legal constraints. My argument follows four lines. First, National People's Congress Standing Committee [NPCSC], when it handed down on June 26, 1999 an interpretation of constitutional provisions at issue in landmark constitutional cases Ng Ka Ling v. Director of Immigration and Chan Kam Nga v. Director of Immigration, did not for all affected parties restore portions of Hong Kong statute invalidated by Court of Final Appeal. Thus, to extent that this decision interfered with Court of Final Appeal's to invalidate local law, degree of its interference was limited in its application. Second, NPCSC did not nullify of Hong Kong to invalidate local statutes in that decision, nor did Court of Final Appeal in its application of decision nullify this power. While NPCSC decision restored statute that court declared unconstitutional, it refrained from vacating any of court's language in these two opinions which asserted that it had broad to review constitutional issues. Third, Standing Committee decision did not necessarily set a precedent for procedures whereby constitutional review is not final in HKSAR. Fourth, Hong Kong have not yet refused to take jurisdiction over any administrative act by either Hong Kong or PRC government bodies on ground that these are acts of state which are not reviewable under Article 19 of Basic Law. Therefore, door is still open to Hong Kong reviewing constitutionality not just of Hong Kong statutes, but also PRC statutes.