Sunday, July 7, 2019

Symposium: 20 Years of the Basic Law (HKLJ)

Hong Kong Law Journal marks 20 years of the Basic Law with a set of Symposium articles published in the first issue of volume 49 (2019).  Professor Po Jen Yap, who convened the special issue, introduces the symposium contributions and authors his own article on the constitutional law developments in the Court of Final Appeal, especially under the stewardship of Chief Justice Geoffrey Ma.  The other articles are written by prominent scholars of constitutional law from Hong Kong, Mainland China and the United States including Albert Chen, Johannes Chan, Hualing Fu, Yu Xingzhong, Benny Tai, Eric Ip, Michael Ramsden, Nancy Yang, Han Zhu and Danny Gittings.  The titles and abstacts of the contributions are printed below.

Symposium: 20 Years of the Basic Law
Introduction  Po Jen Yap183
Separation of Powers in Hong Kong: Inching Towards a More Flexible Judicial Interpretation  Danny Gittings
Separation of powers is not an area where courts in a number of common law jurisdictions have displayed a great deal of consistency, and the Hong Kong judiciary proved no exception during the early decades of the Special Administrative Region. Faced with a doctrine enshrined in the Basic Law, which they had virtually no prior experience of interpreting during Hong Kong’s colonial era, the courts resorted to a simplistic and formalist approach during some early cases, drawing on rigid overseas precedents to enforce the prophylactic barriers between executive, legislature and judiciary so beloved by separation of powers purists. But influenced by the writings of Sir Anthony Mason, the courts began inching towards a more flexible interpretation of separation of powers during the second decade of the Special Administrative Region. Yet this quasi-functionalist approach remains a work very much in progress, with the courts preferring to blur the boundaries between the three branches rather than embrace the full breadth of the separation of powers doctrine by directly acknowledging that the work of the executive, legislature and even judiciary must sometimes overlap.
Twenty Years of the Basic Law: Continuity and Changes in the Geoffrey Ma Court   Po Jen Yap
The Court of Final Appeal (CFA) with Chief Justice Geoffrey Ma at its helm has wisely upheld the Central People’s Government’s core interests in Hong Kong. On the other hand, the Court’s most confrontational and liberal constitutional decisions pertain only to issues that Beijing cares little for — the CFA’s supervisory control over the lower courts, Lesbian, Gay, Bisexual, and Transgender (LGBT) rights, bankruptcy reform, and welfare entitlements — but are of immense constitutional significance in Hong Kong. On domestic law and order issues, there have been modest liberal developments. Instead of openly declaring that the impugned governmental practice is outright unconstitutional, the CFA now more regularly enforces constitutional rights in a way that leaves sufficient decisional space to the legislature or allows the legislature to respond in disagreement using the ordinary political process. Furthermore, the CFA — very attentive to potential governmental backlash — regularly strategically blunts the force of their liberal decisions ex ante so as to secure ex post compliance from the government.
Dualism in the Basic Law: The First 20 Years  Michael Ramsden
Over the past 20 years there have been a number of interesting points of interaction between public international law and the Basic Law. These have included the use of international norms in the interpretation of Basic Law provisions, the relevance of British treaty ratifications to the scope of domestic constitutional guarantees in Hong Kong, the constitutional significance of treaties referenced in Art 39 of the Basic Law, the continuing scope and effect of the common law doctrine of incorporation, and the influence of international norms on the common law grounds of judicial review. This article surveys these developments, considers the proper scope of dualism as a constitutional principle in Hong Kong and evaluates the future relationship between Basic Law and public law norms, on the one hand, and international norms, on the other.
Proportionality after Hysan: Fair Balance, Manifestly without Reasonable Foundation and Wednesbury Unreasonableness  Johannes Chan
While the recent decision of the Court of Final Appeal in Hysan Development Ltd v Town Planning Board has provided a useful analytical framework for the proportionality analysis, it is argued that the court’s suggestion that the fair balance test in the 4th step which is normally unlikely to change the outcome, if a restriction satisfies the first three steps, is unwarranted. It is unsound in principle, as the 3rd and 4th stages serve different purposes, and has a tendency to turn the fair balance test into one of secondary importance such that the courts may not apply the test as rigorously as they should. A distinction should be drawn between a legislative encroachment and an executive/discretionary encroachment. The secondary importance of the 4th stage may be justified only when consideration of the fair balance test would have already been exhausted in the first three stages, such as when the issue pertains to the constitutionality of a legislative provision, whereas in the latter case of an executive/discretionary encroachment, notably in the context of town planning or social security scheme where there is a resource-distribution issue, the mere fact that a legislative scheme may satisfy the first three steps does not warrant the suggestion that the 4th step should not be an independent enquiry, as its purpose is to address the resource-distribution issue. In the second part of the article, it is argued that, with the development of the principle of margin of discretion in the proportionality analysis in Hysan, there is now little difference between the proportionality test and the traditional Wednesbury rationality test in common law judicial review, and that a single test of proportionality to replace Wednesbury rationality test should be adopted.
Constitutional Finance: The Role of the Hong Kong Basic Law during the Global Financial Crisis  Eric C Ip
The global financial crisis of 2007–2009 inflicted an unprecedented catastrophe on Hong Kong amongst many other economies. And yet the constitutional framework set out in the Basic Law performed quite satisfactorily in supporting financial stability. The collapse of multiple financial institutions and the domino effect which it threatened in the United States, the United Kingdom and continental Europe did not overtake Hong Kong or resulted in any permanent loss of gross domestic product or required a rehabilitation of the financial or macroeconomic infrastructure of the former British dependency. The crisis left the Basic Law completely intact as well: not a single provision had to be amended in consequence. Hong Kong’s aggressive regulation in times of emergency was part and parcel of its constitutional ideology of “positive non-interventionism”. That stability, however, hinges on widespread beliefs held by all the interested parties about the uncompromisingness of the government’s commitment to private property protection and contract enforcement, its self-interest in conserving Hong Kong’s status as an international financial centre and China’s aversion to the breakdown of the Basic Law paradigm, all of which together constituted a self-fulfilling prophecy, that of a self-enforcing economic constitution.
Subsidiarity, Authority and Constitutional Experimentalism in Hong Kong Yu Xingzhong
Hong Kong’s historical background, its unique cultural characteristics and the purposeful fusion of the legal systems since the handover have provided valuable resources for developing a constitutional model noticeably different from the existing ones. Constitutional conflicts in Hong Kong since 1997 can be understood as a manifestation of the conflict between two major constitutional principles: authority and subsidiarity. As a result of constitutional experimentalism that celebrates constructivism and pragmatism, characterised by momentarity and temporality, the dynamic constitutional development in Hong Kong since 1997 has greatly increased Hong Kong people’s constitutional consciousness. The unintended outcome of this dynamic constitutional development is the emergence of the constitutional identity of Hong Kong, marked by the constitutional ideal of “One Country, Two Systems”, constitutional interpretation shared by Hong Kong courts and the Standing Committee of the National People’s Congress, centralised and decentralised constitutional review and the integration of a written constitution with an unwritten common law constitutional tradition.
Round Three of Hong Kong’s Constitutional Game: From Semi-Democracy to Semi-Authoritarianism  Benny YT Tai
A game-analytical framework is used to understand the constitutional development of Hong Kong. The constitutional game of Hong Kong has entered into Round Three. The theme for Round Three is “from semi-democracy to semi-authoritarianism”. The existing game-field is neither genuinely democratic nor totally authoritarian. The Civil Society of Hong Kong, a key game player, adopted a new strategy to put pressure on the Central Government (CG) aiming to transform the game-field from semi-democratic to genuinely democratic. A large-scale civil disobedience movement by occupying main streets at the heart of the city was organised in 2014. The CG, the most powerful and resourceful game player, responded by blocking Hong Kong’s road to democracy. The CG worries that Hong Kong could be used as a subversive base to threaten its rule in the Mainland if democratic elections were to be fully implemented. The game-field is further transformed by the CG from semi-democratic to semi-authoritarian. The Opposition, the Legislative Council, the Courts and the Civil Society of Hong Kong are weakened so that the Chief Executive under the direction of the CG could have a free hand to gain legitimacy through implementing policies to improve people’s livelihood. The voices demanding for democracy might then be silenced. This article analyses how these changes happened and illustrates how these changes may affect all the players in the next round of the constitutional game.
Revisiting Legislative Interpretations in China and the Implications for Hong Kong Yang Xiaonan and Fu Hualing
The Standing Committee of the National People’s Congress (NPCSC) has the power both to interpret the Basic Laws in the Hong Kong and Macau and to promulgate legislative interpretation in Mainland China. This article aims to provide an update on legislative interpretation in China. The NPCSC has gradually improved legislative interpretations by standardising its interpretation procedure and by ensuring substantive conformity within a broader legal scheme. Nevertheless, the NPCSC still lacks necessary elaboration on the conditions and methodologies of its interpretations. Upon closer examination of the history of legislative interpretation, it may be found that its practice has evolved and continues to change. Therefore, this may require Hong Kong courts to follow its process closely and understand its institutional function in a better way.
The Oath-taking Cases and the NPCSC Interpretation of 2016: Interface of Common Law and Chinese Law Han Zhu and Albert HY Chen
The oath-taking cases involving the disqualification of six Legislative Councillors in Hong Kong and the National People’s Congress (NPCSC) Interpretation in 2016 on oath taking were highly controversial. This article traces the origins of the oath-taking law in Hong Kong to its English roots and explains the difference today between the consequences of failure to comply with the oath-taking requirements by Hong Kong legislators on the one hand and by British Members of Parliament on the other hand. It analyses the distinction between interpretation, supplementation and amendment of the Basic Law in the context of NPCSC interpretations. It also considers the circumstances in which an NPCSC interpretation should have retrospective effect.

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