The Sovereignty of the Judiciary in a Peaceful Revolution: Jurisdictional Controversies in Hong Kong's Constitutional Transformation

Abstract

On July 1, 1997, the People's Republic of China resumed the exercise of sovereignty over Hong Kong. Under the normative theory of constitutional law, this marked the conclusion of Hong Kong's constitutional transformation from a British colony to a Special Administrative Region within China. In this article, I argue that this formalist normative approach ignores the political complexities surrounding the design of a new constitutional order. I argue that Hong Kong's constitutional transformation is in essence a political power struggle between the Central Authorities and Hong Kong democrats (particularly the liberal-minded lawyers) in interpreting the Basic Law. I point out the dual nature of Hong Kong's constitutional transformation, which incorporates both traditional and revolutionary elements. Based on this dichotomy, I argue that the Hong Kong judiciary adopted a relatively modest approach to the exercise of judicial power and the interpretation of the Basic Law in the years immediately following the transition from British rule. However, the judiciary adopted a much more radical and activist approach in Ng Ka-ling, directly challenging the Central Authorities. To safeguard the authority of the sovereign and avoid interfering with the independent judicial power enjoyed by the HKSAR courts, the Central Authorities invoked Confucian political ethic to resolve the crisis.