The Constitutional System of the Hong Kong SAR: A Contextual Analysis(Constitutional Systems of the World)

This book provides an account of the evolving constitutional arrangement known as “One Country, Two Systems”, as practised in the Hong Kong Special Administrative Region of the People’s Republic of China (PRC). The British colony of Hong Kong, one of the “Four Little Dragons” of East Asia, reverted to Chinese rule in 1997. Since then, Hong Kong has continued to be an international financial centre, a free market, and a cosmopolitan city. At the same time, the tensions and contradictions inherent in “One Country, Two Systems” have given rise to constitutional controversies and social movements, culminating in the Umbrella movement of 2014, the anti-extradition law movement of 2019, the enactment of a National Security Law in 2020, and the electoral overhaul of 2021. This book discusses the structure and operations of Hong Kong’s legal, judicial and political systems and their interactions with the national authorities of the PRC. The book provides a useful case study in comparative constitutional law, especially on autonomy and devolution issues within sovereign States. This comparative study is particularly interesting because Hong Kong is a common law jurisdiction within the PRC’s socialist legal system. It will therefore be of interest to students and scholars of Chinese law, Hong Kong law and comparative politics, as well as lawyers whose practice involves Hong Kong.

Table of Contents:
Preface Table of Cases Table of Legislation 1. Hong Kong’s Constitutional Journey I. Hong Kong before the 1980s II. Negotiation of the Sino-British Joint Declaration III. Drafting of the Basic Law IV. Developments in Colonial Hong Kong in the 1990s V. Major Constitutional and Legal Developments in the HKSAR A. Aborted Attempt to Implement Article 23 of the Basic Law, 2002–03 B. Interpretations of the Basic Law by the National People’s Congress Standing Committee, 1999–2016 C. Pace of Democratisation, 2003–15 D. Failed Attempt to Introduce an Extradition Bill, 2019 E. Beijing’s Interventions on National Security Law and Electoral Reform, 2020–21 VI. Conclusion Further Reading 2. The Autonomy of the HKSAR and the Powers of the Central Authorities I. The Concept of Autonomy II. The PRC Constitution and the Basic Law III. The Continuity of Laws IV. ‘Plenary Power’ and ‘Patriots Ruling Hong Kong’ V. The Powers of the HKSAR VI. The Powers of the Central Authorities A. The First Interpretation B. The Second Interpretation C. The Third Interpretation D. The Fourth Interpretation E. The Fifth Interpretation F. The ‘Decision-Making’ Power of the NPCSC G. The ‘Decision-Making’ Power of the NPC H. Application of National Laws to the HKSAR VII. Conclusion: An Analysis of ‘One Country, Two Systems’ Further Reading 3. The Political System: The Executive and the Legislature I. Hong Kong’s Political System: From Colony to SAR II. The Chief Executive A. Executive Orders B. Emergency Powers C. Dual Accountability III. The Executive Council IV. Principal Offi cials, Bureaux and Departments V. Access to Information VI. The Legislative Council A. The Legislature and the Executive B. ‘Separate Counting’ Mechanism and Private Members’ Bills C. Powers and Functions VII. Independent Agencies VIII. Conclusion Further Reading 4. The Political System: Electoral Politics and Constitutional Changes I. The Electoral System II. Political Polarisation in Hong Kong III. The ‘Ruling Coalition’ in the HKSAR IV. The Dynamics of Constitutional Reform V. The Electoral Overhaul of 2021 A. ‘Patriots Ruling Hong Kong’ B. The Policy Behind the Electoral Reform VI. Conclusion Further Reading 5. Constitutional Role of the Judiciary I. Structure, Organisation and Composition of Hong Kong’s Courts II. Constitutional Review of Local Legislation III. Judicial Review of the Central Authorities’ (NPC/NPCSC) Acts IV. Judicial Treatment of NPCSC Interpretations V. Retrospective Effect of NPCSC Interpretations VI. Constitutional Signifi cance of the NPCSC’s Power of Interpretation VII. ‘Separation of Powers’ or ‘Executive-Led Government’? VIII. Conclusion: Coexistence of ‘Separation of Powers’ and ‘Executive-Led Government’ Further Reading 6. Constitutional Rights I. The Basic Law and the Hong Kong Bill of Rights Ordinance A. Ng Kung Siu and Article 39 of the Basic Law B. Article 39 of the Basic Law Post-Ng Kung Siu II. Effect of ICCPR Reservations and Section 11 of the BORO III. Judicial Use of Comparative Law IV. Proportionality Analysis V. CFA During Chief Justice Andrew Li’s Tenure A. Central–HKSAR Constitutional Relations B. Law and Order C. Declarations of Invalidity VI. CFA During Chief Justice Geoffrey Ma’s Tenure A. Central-HKSAR Constitutional Relations B. Law and Order C. Express Findings of Unconstitutionality D. Constitutionality of Electoral Restrictions VII. CFA During Chief Justice Andrew Cheung’s Tenure VIII. Conclusion Appendix: List of CFA Cases with Express Findings of Unconstitutionality Further Reading 7. Constitutional Remedies I. Invalidation of Unconstitutional Laws II. Advisory Review or Provisional Determination III. Remedial Interpretation IV. Suspension Order V. Invalidation of Constitutional Law VI. Conclusion Further Reading 8. Conclusion I. A New Narrative for the ‘Hong Kong Story’ II. ‘Free Market Constitutionalism’ in Hong Kong III. Xi Jinping’s Speech on 1 July 2022 IV. Brief Overview of 25 Years of the HKSAR V. Conclusion Further Reading Index

About the Author :
Albert Hung-yee Chen is Professor of Law at the Centre for Chinese Law, The University of Hong Kong. Po Jen Yap is Professor at the Faculty of Law, The University of Hong Kong.