Hong Kong’s constitutional journey, 1997–2011

Abstract

This article analyses and assess the major constitutional development in Hong Kong since its establishment as a Special Administrative Region on 1 July 1997. Hong Kong maintains a separate constitutional and legal system, and yet it has to operate within a wider civil/socialist legal and constitutional system of the sovereign country. A central issue is the extent of autonomy of the HKSAR. The first part of this article examines some of the controversial cases on central/local relationship, including the right of abode cases just before the turn of the century and the latest decision of the Court of Final Appeal on sovereign immunity. It argues that while there is a great asymmetry in the formal and substantive power between the central government and the SAR, there are rooms for developing constitutional convention to govern the exercise of the power of the central government. Given the central role of the independence of the judiciary in the constitutional framework of ‘one country, two systems’, the second part of the article examines the extent of ‘judicial autonomy’ in Hong Kong, particularly on how the notion of constitutional review has been developed and the relationship between the judicial branch and the other two branches of government. A particularly contentious issue is the extent of deference, notably in the context of social and economic rights. The jurisprudence in this area is still developing, and the article argues that some of the judgments have, in the context of social and economic rights, misunderstood the doctrine of deference and as a result, failed to exercise any appropriate judicial scrutiny over government decisions. The last part of the article explores the notion of ‘political autonomy’. It examines the development of political democracy in Hong Kong and explores its possible development within the framework of ‘one country, two systems’. It argues that there is a serious mismatch in the understanding and expectation between the central government and the SAR on the extent of political autonomy in Hong Kong, which divergence goes back to the understanding of the constitutional model of ‘one country, two systems’, and that the resolution of the difference between the central government and the SAR, if it is at all possible, will determine the future development of the rule of law and political democracy in Hong Kong.