'Apres Moi Le Deluge'? Judicial Review in Hong Kong Since Britain Relinquished Sovereignty

Posted: 7 Nov 2000

See all articles by Tahirih V. Lee

Tahirih V. Lee

Florida State University College of Law

Abstract

One of the burning questions stemming from China's promise that the Hong Kong Special Administrative Region (HKSAR) would enjoy a "high degree of autonomy" is whether the HKSAR's courts have the authority to review issues of constitutional magnitude and whether their decisions on these issues would stand free of interference by the PRC. The Sino-British Joint Declaration of 1984 promulgated in PRC law and international law a guaranty that implied a positive answer to this question:

"the judicial system previously practised in Hong Kong shall be maintained except for those changes consequent upon the vesting in the courts of the Hong Kong Special Administrative Region of the power of final adjudication."

The PRC further promised in the Joint Declaration that the "judicial power" that was to "be vested in the courts" of the SAR was to be exercised "independently and free from any interference." The only limit upon the discretion of judicial decisions mentioned in the Joint Declaration was "the laws of the Hong Kong Special Administrative Region and [to a lesser extent] precedents in other common law jurisdictions." Despite these promises, however, most of the academic and popular discussion about Hong Kong's judiciary in the United States, and much of it in Hong Kong, during the several years leading up to the reversion to Chinese sovereignty, revolved around a fear about its decline after the reversion. The source of concern was China's lack of respect for judicial independence and its predisposition against courts as enforcers of rights. Litigants may not challenge the constitutionality of legislation or administrative acts in the courts of the People's Republic of China (PRC), and under the Administrative Litigation Law, may under only limited circumstances challenge the legality of administrative acts in PRC courts. Only the National People's Congress (NPC) may interpret the PRC constitution in the PRC.

Britain's relative lack of concern for the people of Hong Kong in the years leading up to the transfer of sovereignty only compounded these fears. The British officials who governed Hong Kong during the last two decades of British colonial rule over the city did little to ensure that the PRC would maintain the scope of judicial review present in Hong Kong at the transfer of sovereignty. Nor did the United Kingdom do as much as it might have to include Hong Kong residents in the negotiations about the terms of the transition of power. The few dozen locals who participated in drafting the constitution for Hong Kong after the transfer were known to be carefully chosen by China's leaders, who considered loyalty to Beijing to be the paramount qualification for participation. Members of Hong Kong's Democratic Party in particular feared that, without the input of a more rights-conscious group of Hong Kong citizens, conditions were ripe for China to take away from Hong Kong's judiciary the power to review governmental acts. These Democrats criticized even Governor Christopher Patten's pro-democracy government for caving in to China on the terms of the judicial review for Hong Kong courts that the PRC enacted in 1995. One American law student has concluded in a law review note, that with limitations on judicial review enacted in the Basic Law and in the Hong Kong ordinance establishing Hong Kong's Court of Final Appeal, China eviscerated it.

Contrary to these dire predictions, however, judicial review in Hong Kong after its transfer to China did not disappear. It survived the transfer, though with uncertainty about its parameters. Uncertainty about such parameters is not unusual in legal systems and does not itself diminish its health. In fact, a state of uncertainty can lead to a state of flux, which provides opportunities to enlarge the scope of judicial review. Just like much of the rest of Hong Kong society, its judiciary stands at a juncture of great possibility for defining the boundaries of judicial review. Now embarked on its fourth year under Chinese rule, Hong Kong is being shaken to its foundations, with academic freedom being questioned in protests and in the press, the reputation of the Chief Executive and the courts under attack, and 47 people being stabbed or injured by fire in a riot staged by about 20 mainland Chinese in Hong Kong's Immigration Department after they were refused local identity cards. It is a situation which, because of the change it is inviting, can just as easily bode well as ill. The key for the judiciary of Hong Kong if it wants to help move the trajectory toward well and away from ill is prudence in the exercise of its review power.

Judicial review in Hong Kong's British tradition encompasses three types of authority. One is the power to invalidate statutes because they conflict with the constitution. In colonial Hong Kong, courts could invalidate Hong Kong statutes if they contravened British legislation and constitutional law for Hong Kong, namely, the Letters Patent and the Orders in Council. In the Hong Kong Special Administrative Region (HKSAR), there are potentially two types of constitutional issues, those arising under the PRC constitution and those arising under the Basic Law. Another kind of judicial review is the power to declare administrative acts either contrary to the enabling statute or unconstitutional. In colonial Hong Kong courts exercised this power, and they continue to do so under Chinese rule, although this power is complicated by the two-tiered structure of government in the Hong Kong SAR, in which Hong Kong is subject to the administrative decisions of both a local administration and a national administration, and it is unclear whether Hong Kong courts may review PRC administrative acts. A third sense of judicial review is the power to review acts in general, or, in other words, the jurisdiction of the court.

Under this scheme, courts reach the zenith of their powers when they invalidate statutes, because this puts them on a virtually equal footing with the legislature, and in a legal system where the executive is primarily responsible for the bills that the legislature enacts, as is the case in Hong Kong, because this puts them on a virtually equal footing with the executive. The clearest gauge, then, of whether judicial review lost ground in Hong Kong under Chinese rule is whether the Hong Kong courts lost the power to declare local statutes unconstitutional. I argue in this article that Hong Kong courts have not lost the power to declare local statutes unconstitutional. Rather, at the start of the fourth year of the Hong Kong SAR, its courts enjoy power to invalidate statutes that is encumbered by few legal constraints.

My argument follows four lines. First, the National People's Congress Standing Committee [NPCSC], when it handed down on June 26, 1999 an interpretation of the constitutional provisions at issue in the landmark constitutional cases Ng Ka Ling v. Director of Immigration and Chan Kam Nga v. Director of Immigration, did not for all affected parties restore the portions of the Hong Kong statute invalidated by the Court of Final Appeal. Thus, to the extent that this decision interfered with the Court of Final Appeal's power to invalidate local law, the degree of its interference was limited in its application. Second, the NPCSC did not nullify the power of Hong Kong courts to invalidate local statutes in that decision, nor did the Court of Final Appeal in its application of the decision nullify this power. While the NPCSC decision restored the statute that the court declared unconstitutional, it refrained from vacating any of the court's language in these two opinions which asserted that it had broad power to review constitutional issues. Third, the Standing Committee decision did not necessarily set a precedent for procedures whereby constitutional review is not final in the HKSAR. Fourth, Hong Kong courts have not yet refused to take jurisdiction over any administrative act by either Hong Kong or PRC government bodies on the ground that these are acts of state which are not reviewable under Article 19 of the Basic Law. Therefore, the door is still open to Hong Kong courts reviewing the constitutionality not just of Hong Kong statutes, but also PRC statutes.

Suggested Citation

Lee, Tahirih Victoria, 'Apres Moi Le Deluge'? Judicial Review in Hong Kong Since Britain Relinquished Sovereignty. Available at SSRN: https://ssrn.com/abstract=223730

Tahirih Victoria Lee (Contact Author)

Florida State University College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States
850-644-3833 (Phone)
850-644-5487 (Fax)

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