Hong Kong’s Two Constitutional “Outsiders”

–Dr. P. Y. Lo, Visiting Fellow, Centre of Comparative and Public Law, Faculty of Law, The University of Hong Kong.

Rosalind Dixon and Vicki Jackson’s upcoming article (available here and reviewed on this blog on 4 November 2012 here) on the phenomenon of “extraterritorial” actors interpreting a country’s constitution in the course of conducting international affairs or intervening in the deliberations of domestic institutions involving the interpretation of that country’s constitution rings different bells in Hong Kong. This is because the Basic Law, the constitutional instrument governing Hong Kong, a special administrative region of the People’s Republic of China (PRC), admits two “outsiders” in the process(es) for its authoritative interpretation in Hong Kong. How these two “outsiders” feature in the exercise of constitutional interpretation defines the identity or character of Hong Kong’s legal system under the Basic Law.

The Basic Law was enacted in 1990 by the National People’s Congress of the PRC pursuant to Article 31 of the PRC Constitution. The Basic Law provides that the Hong Kong Special Administrative Region (HKSAR) shall have a high degree autonomy, including executive, legislative and independent judicial power, including the power of final adjudication. The Basic Law also provides for the continuation of Hong Kong’s legal system which has been based on the common law under and in accordance with the Basic Law, operating as the higher law (Basic Law, Articles 8, 11, 18). The courts of the HKSAR shall exercise the judicial power of the HKSAR and may in the adjudication of cases refer to precedents of other common law jurisdictions (Basic Law, Articles 80, 84). The power of final adjudication shall be exercised by a Court of Final Appeal (CFA), which may invite judges from other common law jurisdictions to sit on the Court (Basic Law, Article 82). For an account of the CFA’s constitutional adjudication, see Lo, P Y, ‘An Internationalist, Consequentialist and Non-progressive Court: Constitutional Adjudication in Hong Kong (1997-2009)’ (2010) 2(2) City University of Hong Kong Law Review 215-235 (available at: http://ssrn.com/abstract=1627682).

The overseas Non-Permanent Judge (NPJ), as the invited judge from another common law jurisdiction comes to be called, has become a regular feature in the CFA, which sits in a bench of five, with four being local judges and the fifth the overseas NPJ, in the adjudication of cases, including constitutional and public law cases where the CFA exercises a constitutional jurisdiction of review of legislation interpreting and enforcing the Basic Law as a check on the executive authorities and the legislature of the HKSAR. The overseas NPJs have all been eminent jurists from the common law jurisdictions of Australia, England and New Zealand, including some English judges who were and are at the time of appointment serving judges of the House of Lords or the Supreme Court of the United Kingdom. They function, as one overseas NPJ, Lord Cooke of Thorndon, observed in 2000 when adjudicating whether judgments of a Taiwanese court should be recognized and enforced by the HKSAR courts, “to give particular consideration to whether a proposed decision of [the CFA] is in accord with generally accepted principles of the common law”; see Chen Li Hung v Ting Lei Miao (2000) 3 HKCFAR 9 (available at: http://legalref.judiciary.gov.hk/doc/judg/word/vetted/other/en/1999/FACV000002_1999.doc).

The Hong Kong legal profession have regarded the overseas NPJ as a vital link with the common law world and essential for the continuity of the common law in Hong Kong, given that Hong Kong is the only common law jurisdiction in China. The arrangement for having the overseas NPJ to sit in the CFA was made in full recognition and accommodation of the historical and practical circumstances of capitalist Hong Kong’s reunification with socialist China, “involving two systems with different social, ideological and legal traditions as well as a different outlook towards the Rule of Law”; see Statement of the Hong Kong Bar Association on the Judiciary of the HKSAR (9 November 2012) (available at: http://hkba.org/whatsnew/press-release/Press%20Statement%20of%20HKBA%20on%20Judiciary%20of%20HKSAR9-11-2012.pdf). On the other hand, overseas NPJs sitting in the CFA had attracted criticisms from some Hong Kong politicians, who regarded them as “parachute judges” having little or no experience or understanding of local conditions and circumstances. More serious concern has come from Beijing. Cheng Jie, an associate professor of law of Tsinghua University, wrote in 2009 that it had become troubling to the Central Authorities to find overseas NPJs, ie foreign nationals, partaking in the governance of Hong Kong under the Basic Law, thus subjecting Hong Kong continuously to international influence. Cheng indicated: ‘This unique arrangement may have been a great mistake of the Basic Law, but the center can only make policies consistent with the Basic Law’s provisions’; see Cheng, Jie, ‘The Story of a New Policy’ (2009) 15 Hong Kong Journal (http://www.hkjournal.org/archive/2009_fall/1.htm).

Having the overseas NPJ, an “outsider”, sitting in the CFA interpreting with his colleagues in the CFA the Basic Law, a national law of China, according to principles of constitutional interpretation in the common law tradition, can produce an outcome that the Central Authorities in Beijing, applying the centralist and more policy-oriented approach of socialist legality in the interpretation of laws (which is capable of encompassing supplementation of the original legislative text), would regard as different, if not inconsistent and wrong. Both the design and the actual operation of the Basic Law have ensured that the Central Authorities will have the final say in the authoritative interpretation of the Basic Law, one that will bind the HKSAR courts (Basic Law, Article 158).  This includes a mechanism whereby the CFA is obliged to refer for interpretation by the Standing Committee of the National People’s Congress (NPCSC), the standing body of China’s highest organ of state power (including law-making power), a provision of the Basic Law that concern the responsibility of the Central People’s Government or the relationship between the Central Authorities and the HKSAR before final adjudication of a case if the interpretation of that provision will affect judgment in the case, as well as a provision that: “When the Standing Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee.”

Lawyers in Hong Kong trained in the tradition of the common law had reacted with dismay and even anger over an NPCSC Interpretation in 1999 of provisions of the Basic Law that the CFA had interpreted in the final adjudication of cases concerning the permanent resident status and right of abode of children born in Mainland of a HKSAR permanent resident parent. They marched in silent protest. Although the CFA accepted that the 1999 NPCSC Interpretation was binding on the HKSAR courts, it gave in 2001 a reading of the 1999 NPCSC Interpretation that narrowed the binding effect of the NPCSC Interpretation to “[centre] on the specific provision to which it is directed. The expression of other views depends upon the circumstances. These views may well be persuasive but not to the point of affecting the language of a provision of the Basic Law which is clear and unambiguous when read in the light of its context and purpose. This accords with the well-understood common law principle of interpretation”: Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 (available at: http://legalref.judiciary.gov.hk/doc/judg/word/vetted/other/en/2000/FACV000026_2000.doc). This reading sought to insulate the Hong Kong system from the Mainland approach of interpretation of laws, since the 1999 NPCSC Interpretation did mention that the “legislative intent” of the string of Basic Law provisions dealing with permanent resident status was “reflected” in a document adopted in 1996 by the Preparatory Committee for the HKSAR, a working committee of the NPCSC, as opinions to the yet to be established HKSAR for the implementation of those provisions (For a recent discussion, see Mason, Anthony, ‘The Rule of Law in the Shadow of the Giant: The Hong Kong Experience’ (2011) 33(4) Sydney Law Review 623-644 (available at: http://sydney.edu.au/law/slr/slr_33/slr33_4/SLRv33no4Mason.pdf)).

This explains why the recent request by the Secretary for Justice in Hong Kong to ask the CFA, when it comes to finally adjudicate in February 2013 a case concerning the permanent resident status and right of abode of foreign domestic helpers, to make a reference under Article 158 of the Basic Law to the NPCSC for clarification of the effect of that statement on “legislative intent” in the 1999 NPCSC Interpretation was considered by many legal academics and lawyers in Hong Kong as stirring up a “ferocious storm” over the Rule of Law in Hong Kong. As Benny Tai, an associate professor in the Faculty Law, The University of Hong Kong, states to the South China Morning Post on 20 December 2012, if the CFA accedes to the request of the Secretary and an NPCSC interpretation ensues, “it may change not only the final interpretation of a provision of the Basic Law but the interpretation approach on the Basic Law developed by the court on the basis of the common law spirit”. At stake therefore seems to be the judicial autonomy of the HKSAR courts and the common law based identity of Hong Kong’s legal system that they have constructed through the interpretation of the Basic Law according to common law principles of constitutional interpretation.

The Basic Law of the HKSAR has often been said to be a unique constitutional instrument. This article identifies one more dimension of its uniqueness. The paradox of the policy of “One Country, Two Systems” that underlie the Basic Law is revealed by the two “outsiders” institutionally involved in the interpretation of the Basic Law. From the perspective of the practitioners of the Hong Kong’s separate and largely autonomous legal and judicial systems, the influence of the overseas NPJ is favoured but that of the NPCSC’s legis-prudence is not. From the perspective of the Central Authorities, the dialectical emphasis of “One Country” as the prerequisite of “Two Systems” perhaps enures the strict compliance of the provisions of the Basic Law as interpreted by the NPCSC without autonomy-minded selection by foreigners and foreign-minded locals. But as the first Chief Justice of the HKSAR, Andrew Li, recently advised, the continued enjoyment of Hong Kong’s own separate system with its core value of the Rule of Law with an independent Judiciary depends on the full recognition, presumably by all sides, that “One Country” as well as “Two Systems” are essential and integral parts of the formula (Li, Andrew, Speech at the Dedication Ceremony for Cheng Yu Tung Tower at the University of Hong Kong (8 November 2012), available at: http://www.cpao.hku.hk/media/121108_LiSpeech_E.pdf).

Suggested Citation: P. Y. Lo, Hong Kong’s Two Constitutional “Outsiders”, Int’l J. Const. L. Blog, February 1, 2013, available at: http://www.iconnectblog.com/2013/02/hong-kongs-two-constitutional-outsiders.