Constitutional Adjudication in Post-1997 Hong Kong

Abstract

I. INTRODUCTIONIn July 1997, the British colony of Hong Kong was returned to the People's Republic of China (PRC) in accordance with the Sino-British Joint Declaration of 1984 and became a Special Administrative Region (SAR) of the PRC. The Joint Declaration provided in detail how Hong Kong would be governed after 1997. Hong Kong would enjoy a high degree of autonomy under Chinese sovereignty, and its existing economic, social and legal would be preserved. The constitutional arrangement, known as country, two systems, has been said to be an important innovation that contributes to the practice of peaceful resolution of international disputes.1The constitutional instrument of Hong Kong's new legal and political system is the Basic Law of the SAR of Hong Kong, a law for the governance of post-1997 Hong Kong enacted by the National People's Congress of the PRC in 1990. The concept of country, two systems has been given concrete legal form in the Basic Law, which came into force on July 1, 1997. The Basic Law is now the mini-constitution of Hong Kong as an autonomous territory within the PRC.2Under colonial rule, Hong Kong inherited a British-style legal system.3 English common law formed the foundation of Hong Kong's legal system,4 and the British tradition of the Rule of law and the independence of the judiciary were transplanted to Hong Kong.5 In the post-War era, Hong Kong Chinese enjoyed relatively more civil liberties than Chinese in both mainland China and Taiwan.6 After the signing of the Sino-British Joint Declaration in 1984, the legal system of Hong Kong was further liberalized,7 and the political system partially democratized.8 Following the Tiananmen incident of 1989, the British colonial government introduced into Hong Kong's legal system a Bill of Rights for the purpose of boosting residents' confidence in Hong Kong's future.9 Since the enactment of the Hong Kong Bill of Rights Ordinance in 1991, 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.10 The era of constitutional adjudication thus began in Hong Kong.After the establishment of the SAR of Hong Kong in 1997, the courts of Hong Kong had to face the new challenges of finding their place in the new constitutional order of country, two systems and leading the newborn Hong Kong SAR 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.11 At the same time, the courts of Hong Kong have to tackle the classic constitutional problem of trying to work out the appropriate balance between individuals' rights on the one hand and public interest on the other hand, and to resolve internal tensions within Hong Kong society generated by conflicting demands among different classes and groups.This article reviews and evaluates how the Hong Kong courts have responded to this dual challenge of defining Hong Kong's constitutional relationship with Beijing and of defending rights while delineating the limits of these rights. It argues that, considering the inevitable tensions that inhere in the constitutional experiment of country, two systems, the record of the Hong Kong courts in dealing with these challenges has thus far been positive. The judiciary, led by the Final Court of Appeal, has chosen the middle path12 or the golden mean13 between confrontation with and subservience to Beijing, and between judicial activism and judicial restraint. In tackling their relationship with Beijing, the courts have adopted an approach that may be described-in a phrase translated from the Chinese-as neither too proud nor too humble (bukang bubei). …