Hong Kong’s Quasi-Constitutionalities: Part 2

–P. Y. Lo, LLB (Lond.), Ph D (HKU), Barrister-at-law, Gilt Chambers, Hong Kong

In Part 1 of this two-part post, I discussed the constitutional instruction in Article 23 of the Basic Law of Hong Kong obliging the Hong Kong authorities to enact legislation to safeguard the national security of Hong Kong’s sovereign, the People’s Republic of China and the ongoing saga of Hong Kong not carrying out this instruction.

Now I turn to the other aspect of quasi-constitutionality in Hong Kong of a statute that has become “entrenched” under the Basic Law, Hong Kong’s constitutional instrument. This concerns the Hong Kong Bill of Rights Ordinance (HKBORO), which was enacted in 1991 prior to the resumption of the exercise of Chinese sovereignty over Hong Kong on 1 July 1997.

HKBORO was enacted to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong. The HKBORO was enacted as a piece of ordinary legislation, though it provided, amongst its provisions, for the repeal of all pre-existing legislation that does not admit of a construction consistent with it (to the extent of the inconsistency) and for the construction of subsequent legislation to be consistent with the ICCPR as applied to Hong Kong. The HKBORO was not favorably treated by the Central Authorities in Beijing, which made a decision on 23 February 1997 to decline to adopt as the laws of the Hong Kong Special Administrative Region those sweeping provisions mentioned in the preceding sentence.[1] The HKBORO, thus “treated”, seemed to have been neutralized or neutered from having any “supra-statutory” or even “constitutional” significance in the laws of the Hong Kong Special Administrative Region.

It has turned out not to be. The courts of the Hong Kong Special Administrative Region have “blessed” the HKBORO as they develop the constitutional jurisprudence of the Special Administrative Region.

First, the courts accepted that a provision in legislation enacted before the HKBORO that cannot admit of a consistent interpretation with the rights guaranteed in the HKBORO was repealed by the HKBORO to the extent of the inconsistency and could not have been a law previously in force in Hong Kong for adoption as part of the laws of the Hong Kong Special Administrative Region.[2]

Second, the courts referred to Article 39 of the Basic Law, which states:

(1) The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. (2) The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

From the interpretation that Article 39 effects the incorporation into the Basic Law of the provisions of the ICCPR, the courts came to regard the HKBORO as providing for the incorporation of the provisions of the ICCPR into the laws of the Hong Kong Special Administrative Region and the implementation of the provisions of the ICCPR as applied to Hong Kong.[3] This judicial treatment of the HKBORO as the implementation of the provisions of the ICCPR as applied to Hong Kong pursuant to Article 39 breathed new life, or “constitutional force”, to the then standalone and otherwise neutered legislation, and litigants resumed reliance on the HKBORO as before.[4]

At the same time, this perspective, subsequently rationalized to be reflective of the dualist approach of a legal system based on the common law towards treaties not conferring any rights and obligations unless made part of the domestic law by legislation,[5] ignores interpretative possibilities of Article 39(1), such as the Basic Law itself being the means or providing the mechanism of implementation, and carries undesirable consequences for the other two categories of international conventions presumably also incorporated into the Basic Law by Article 39(1), particularly the provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as applied to Hong Kong.

Third, the courts considered as implicit in the provisions of the ICCPR as applied to Hong Kong within the meaning of Article 39(1) the reservation entered by the United Kingdom and continued by the People’s Republic of China to ensure that the application of immigration legislation in respect of persons not having the right to enter and remain in Hong Kong would not be affected by the ICCPR. The terms of this reservation were enacted as section 11 of the HKBORO: “As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.” Section 11 was construed by the Hong Kong Court of Appeal in 1994 to preclude not only the person not having the right to enter and remain in Hong Kong relying on the HKBORO for judicial remedies under the Ordinance but also that person’s family members relying on their own enjoyment of rights guaranteed under the HKBORO for judicial remedies under the Ordinance.[6] The Hong Kong Court of Final Appeal held in 2012 that section 11 was not only consistent with the immigration reservation but also had the “blessing” of Article 39(1) and could not be unconstitutional. On the other hand, a purposive interpretation of the HKBORO as whole meant that section 11 would be subject to the protection of absolute and non-derogable rights guaranteed under the HKBORO, such as the prohibition of torture and other cruel, inhuman or degrading treatment or punishment.[7]

Section 11 of the HKBORO has been further blessed by the Hong Kong Court of Final Appeal. In 2014, the Court held that for a person who is not a Hong Kong resident, he could not rely on the constitutional protection of a fundamental right or freedom guaranteed in Chapter III of the Basic Law for Hong Kong residents such as the right against arbitrary or unlawful detention because he may not enjoy such a right or freedom unless “in accordance with law” pursuant to Article 41 of the Basic Law, and section 11, by virtue of Article 39, “operates at the constitutional level and qualifies the scope and effect of [Article 41]”. Section 11 was a specific exception to the HKBORO given constitutional status by Article 39 and it was necessary to read a right guaranteed in Chapter III as subject to section 11 by reason of the provision of “in accordance with law” in Article 41. [8]

In 2019, the Hong Kong Court of Final Appeal heard and determined appeals to challenge the 1994 reading of section 11 of the HKBORO and the spillover of that reading, via Articles 39 and 41 of the Basic Law, to effect the precluding of reliance of a fundamental right or freedom guaranteed in Chapter III of the Basic Law (such as the right of Hong Kong residents to raise a family freely) by a member of a family living in Hong Kong subject to immigration control decision-making and by the other members of the families (including a permanent resident of Hong Kong). The appellant families contended that:

(1) The 1994 case was wrongly decided as the family members enjoy their guaranteed rights on their own;

(2) Equally given constitutional status by Article 39 was section 2(5) of the HKBORO, which reflects domestically the principle of international human rights law (say in ICCPR Article 5(2)) that “[there] shall be no restriction or derogation from any of the fundamental human rights recognized or existing in Hong Kong pursuant to law, conventions, regulations or custom on the pretext that the Bill of Rights does not recognize such rights or that it recognizes them to a lesser extent”, and the legal consequences of this are not only that section 11 itself must be qualified its effect by section 2(5) but also that Article 39’s effect in holding the provisions of the ICCPR as applied in Hong Kong remaining in force must include giving effect to Article 5(2) of the ICCPR;

(3) By reason of (1) and (2), family members are not precluded by the HKBORO or the Basic Law from requiring the Director of Immigration to take account of their enjoyment of fundamental rights and freedoms guaranteed under the Basic Law, the HKBORO, the ICCPR and the ICESCR where the Director makes a decision bearing on whether the family member  who is subject to immigration control may continue to remain in Hong Kong and live together as a family unit in Hong Kong.

The Court rejected the contentions above and preferred the Director’s submission that the complete answer was provided by section 11 read with Article 39 and Article 154(2) of the Basic Law, which provides that: “The Government of the Hong Kong Special Administrative Region may apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions.”

The Court believed, without referring to any drafting history, that the drafters of the Basic Law must have intended to make the rights guaranteed under the Basic Law subject to the immigration reservation reflected in section 11, when the plain fact is the Basic Law was enacted in 1990 and the HKBORO in 1991. The Court in any event held that the Basic Law rights relied on must be construed as a “coherent whole” together with Article 39 and section 11, which has been given constitutional status by Article 39. As a matter of necessary implication, section 11

limits the application of cognate rights in the [Basic Law] whether they are invoked directly or in connection with the enjoyment of another right … To seek to isolate section 11 would frustrate [Article 39], especially when the family rights relied upon under the Basic Law … are also contained in the ICCPR … and [HKBOR].

The Court further expressed that there was a link between Article 154(2) and section 11 such that, save for non-derogable rights, it was appropriate “to exclude all other rights, be they in the [HKBOR] or the Basic Law, in the context of a decision relating to entry into, stay in or departure from Hong Kong by someone without the right to enter and remain.”[9]

The Hong Kong courts have held that the most constitutionally blessed provision of the HKBORO, a constitutional statute, is an exclusionary provision underpinning the priority of immigration control over foreigners. Xenophobia is encoded in the Basic Law accordingly. Given the inversion of principle, it is appropriate to call upon the Three Sisters: “Fair is foul, and foul is fair: Hover through the fog and filthy air.” (Macbeth, Act I Scene 1).

Suggested Citation: P.Y. Lo, Hong Kong’s Quasi-Constitutionalities: Part 2, Int’l J. Const. L. Blog, Apr. 14, 2019, at: http://www.iconnectblog.com/2019/04/hong-kong’s-quasi-constitutionalities:-part-2

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[1] i.e. the Decision of the Standing Committee of the National People’s Congress Concerning the Handling of the Laws Previously in Force in Hong Kong in Accordance with Article 160 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the 24th Meeting of the Standing Committee of the Eighth National People’s Congress on 23 February 1997).

[2] HKSAR v Lam Kwong Wai & Anor (2006) 9 HKCFAR 574 (CFA); Secretary for Justice v Wong Sau Fong [1998] 2 HKLRD 254 (CA).

[3] HKSAR v Ng Kung Siu & Anor (1999) 2 HKCFAR 442 (CFA); Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 (CFA); Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 (CFA).

[4] See, for example, Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237 (CFA), relying on the fair hearing before an independent, impartial and competent tribunal guarantee in the HKBOR (based on Article 14 of the ICCPR) as it was understood by the application of the jurisprudence of the European Court of Human Rights.

[5] GA & Ors v Director of Immigration (2014) 17 HKCFAR 60 (CFA).

[6] Hai Ho Tak v Director of Immigration [1994] 2 HKLR 202 (CA).

[7] Ubamaka v Secretary for Security & Anor (2012) 15 HKCFAR 743 (CFA).

[8] Ghulam Rbani v Director of Immigration (2014) 17 HKCFAR 138 (CFA).

[9] Comilang & Ors v Director of Immigration [2019] HKCFA 10 (4 April 2019).