Table of Contents
I. A Brief History of Hong Kong
1. Hong Kong as a British colony
2. Hong Kong after 1997
II. Hong Kong Autonomy as HKSAR
1. Different definitions of autonomy
2. The Sino-British Joint Declaration and the Basic Law
3. “One Country, Two Systems”
a) The Common Law legal system
b) China's socialist civil law system
c) A complex fusion
III. The Occupy Central Movement
1. Origins and social context
2. Methods and Objectives
3. Resolution and results
IV. The Legal Reactions to the Occupy Movement
1. The case for unlawful assembly
a) Context and charges
b) Trial and sentence
c) Legal consequences of the case
2. The oath-taking case
a) Context and charges
b) Trial and sentence
c) The NPCSC's Interpretation and its legal consequences
3. New laws and legislation projects
a) Article 23
b) Modification of the Legislative Council's House Ruling
c) National anthem and Joint checkpoint
V. The Impact on Hong Kong's Autonomy
1. The Rule of Law, “One Country, Two Systems” and the independence of the judiciary
a) The impact on the Rule of Law
b) “One Country, Two Systems” and the case for oath-taking
c) The impact on Hong Kong's independent judiciary and legislative
2. The legal reactions to the Occupy Central movement and their impact on Hong
List of Abbreviations
Abbildung in dieser Leseprobe nicht enthalten
When first hearing of Hong Kong, most people might think about the financial center or the former British Colony. Others might have the image of a multicultural megacity or of a once small fishers' village sold after the Opium War. Actually, Hong Kong is all of that together, and even much more. The city and its unique past have formed quite an exceptional society, government, and urban lifestyle. It is a mixture of East-Asian and Western culture, Rule of Law and Chinese tradition, Cantonese, and English languages. After more than a century of colonization, the time came in 1997 for Hong Kong to go back to its roots and reunite with China. Both Great Britain and the People's Republic of China (PRC) worked together to make sure that the transition happened as smoothly as possible. Through the Sino-British Joint Declaration (SBJD) as well as the Basic Law, both countries agreed to grant Hong Kong a 50 year transition period so as to safeguard not only its economic and political stability, but also its unique lifestyle and freedoms. As a bipolar type of city, what is today known as “Hong Kong Special Administrative Region” (HKSAR) has a much-divided population. The strong political division was highly visible to the world's eye in the Fall of 2014 and was indeed the latest peak of a long fight for universal suffrage in Hong Kong. The so-called Umbrella Revolution has been the biggest civil disobedience protest in Hong Kong since the Sino-British handover, and most probably in Hong Kong's history.
The Occupy movement (also called Umbrella movement or Umbrella revolution) further pushed forward political reform and the democratization process in the HKSAR. Politicians, scholars, and activists have been writing and debating on various issues concerning the Chief Executive (CE) and Legislative Council (LegCo) elections and the governance organization of the city for more than 30 years now. The Occupy movement gained momentum through civic participation and street protests, despite the fact that after May 2014 Beijing had made clear there would be no universal suffrage for the next CE elections of 2015. To show the Beijing and HKSAR governments that a significant part of the Hong Kong population wanted to see the promises of the Joint Declaration and the Basic Law become reality, the Occupy movement took to the streets and joined student protests. In reaction to these protests, several legal cases arose showing that Beijing has its way of interfering in the legal system of the HKSAR. Since both the PRC and Hong Kong have very different legal systems, many jurists, lawyers, and legal scholars have observed and analyzed the development of these events with regards to the constitutional situation of the HKSAR and its unique relationship to the Mainland government.
According to the Basic Law and the Joint Declaration, the city should maintain independent and separate executive, legislative and judicial systems, which are the pillars of the Rule of Law system known in Hong Kong. Nevertheless, the Standing Committee of the National People's Congress (SCNPC or NPCSC) continues using its power to interpret the Basic Law, thus interfering with Hong Kong's granted independent judiciary. The events of October 2014 also brought a new perspective to the “One country, two systems” principle that Deng Xiaoping initiated, first for Taiwan, then for Hong Kong. Some question the Hong Kong court's ability to interpret the Basic Law, while others question the conditions of applicability of the NPCSC's interpretations. In other words, merging both systems while keeping two separate entities has given rise to many uncertainties and conflicts. Moreover, after seeing the PRC's sovereignty grip over Hong Kong get tighter with each passing year, many are concerned about how the rest of the transition period will evolve over the 50 year period until 2047. Beijing interests supported by Pro-Beijing parties and politicians in the Legislative Council, as well as by the business sector, often clash against the pro-democracy camp standing as opposition. From the legal perspective, taking into account that the PRC and the HKSAR have significantly different legal systems, it is interesting to see how both can apprehend legal procedures and the Rule of Law and how these differences manifest in daily politics and justice in Hong Kong.
In this dissertation, we will present the different legal responses that have been made in reaction to the Occupy movement in the form of lawsuits, Basic Law Interpretation1, and new legislation. These reactions to the Occupy movement are an opportunity for us to measure the degree of autonomy that the PRC is ready to give to the HKSAR and its level of involvement in certain issues. Similarly, such a sensitive matter concerning Chinese sovereignty as well as the politics of democracy make it a very lively and up to date debate. First, we will present Hong Kong's history before and after the handover. Second, we will lay out its autonomous status as a Special Administrative Region of the PRC, the foundation principle of the “One country, two systems” and the differences between Mainland and Hong Kong legal systems. Third, the Occupy movement, its background, and purpose will be explained. Fourth, the legal reactions to the Occupy movement will be listed and analyzed and finally, they will be put into legal perspective in order to find out if these reactions actually represent a threat to the HKSAR's autonomy. The objective of this paper is to determinate if the legal interference of the PRC has an effective influence on the autonomy of the HKSAR and if so, how this influence is visible through legal reactions over the Occupy movement.
I. A Brief History of Hong Kong
1. Hong Kong as a British colony
The Qing dynasty reigning over the Chinese empire did not have a chance to fight off the British navy and its advanced military. Backed by an aggressive foreign and imperial policy, Britain reacted to the destruction of British owned Opium by what would later become the first Anglo-Chinese War.2 After the ratification of what the Chinese later called the “unequal treaties” or the Nanking treaty, and the Tientsin treaty, the British received sovereignty over Hong Kong.3 In 1842 the Hong Kong island was ceded to Britain “for perpetuity”4, then in 1843 declared a British Colony. The Kowloon Peninsula and the New Territories were later respectively annexed to Hong Kong in 1860 and 1898 via the Peking Convention. This was done because Hong Kong itself was not viable on its own since it had no natural resources.5 However, it did possess a good harbor, which later would act as the foundation leading to a prosperous future and becoming a dynamic international metropolis.6 During its colonial beginnings, Hong Kong profited immensely financially from the Opium trade. Although aware of the harmful influence of the drug, colonial governments of the Commonwealth were very reluctant to stop its trade as it was a major source of their revenues.7 Chinese emigration, although illegal in China, also was a very important source of income for the city which connected China and Southeast Asia to India, Europe, and America.8
As for government and administration, Hong Kong got its first ever Constitution in 1843, named the Letters Patent and laying out the governor's appointment and the assistance of Executive and Legislative Council.9 The very first issues over political representation arose as early as 1845 when merchants protested for lower taxes and more representation in the Legislative Council - without success.10 With respect to the legal system, the British opted for a combination of “English common law, British statutory law, and local customary law” . This mixed system was the answer to the first legal question in Hong Kong as to whether the city should be ruled by Chinese or English law, and in effect was a compromise between the Qing's demands and the belief that non-British should be ruled by their own legal system.11 12
After the Second World War and the short Japanese occupation, important constitutional reforms were put in place to give more political participation to Chinese citizens in the Legislative and Executive Councils. Governor Mark Young hoped for Hong Kong to become a city-state in the future and wanted to entice the colonial identity by giving Chinese voters a voice and representation in the government.13 Unfortunately, a change of governor in 1947, along with lack of British support and civil war in Mainland China were enough to abort the idea of democratic reforms. Not only were these reforms harmful to the power in place at the time, but some also feared it would allow the nationalists to have a stronger influence on Hong Kong's politics.14 Nevertheless, the government agreed on a few constitutional changes to lessen official racial discrimination against non-Europeans i.e. Chinese and to allow Chinese members in the Executive Council, leading to the first appointment of an ethnic Chinese as a cadet officer.15
The end of the Second World War also brought great economic changes to the city, which grew of importance and saw more Chinese industrials and entrepreneurs invest and rebuild Hong Kong. Moreover, due to the political changes on the Mainland, many firms moved from Chinese cities like Shanghai to Hong Kong, thus transferring more modern factories and technologies.16
Even though the establishment of the People's Republic of China in 1949 might seem contradictory to the continuity of the colonial British Empire at the communists' doorstep, the compromise would later turn out to be worth the wait. Hong Kong had so far proved to be a valuable political outpost in south China and later a great source of foreign goods and currencies for a Chinese economy stifled by war and occupation.17 Even though the question of Hong Kong's status was asked as early as 1946, when the island was supposed to be returned to Chiang Kai-Shek after the Japanese surrender, Mao's interest in regaining the British colony was rather non-existent at the time of the communist's arrival.18 Although there was already the suspicion that the issue would have to be handled in future, the British administration used the lower concern of the PRC to avoid raising the problem.19
Due to the strong waves of migration as a result of the civil war and the communist revolution, Hong Kong saw its population grow very rapidly between the mid-40s and mid-50s.20 Despite several embargoes imposed on the city, its new focus on manufacturing coupled with the increasing workforce allowed it to experience its post-1949 industrial boom, which was bolstered by its good harbor and international financial and banking network.21 The economic take-off of the 60's also allowed Hong Kong's government to invest more in social policies such as health and education as well as in infrastructure projects.22 The domestic market and property market also increased very quickly due to blooming prosperity and the important rise of Hong Kong's per capita GDP.23
Approaching the end of the New Territories' lease in 1997, Hong Kong became more concerned about its future. As the PRC was admitted to the United Nations in 1972, it required that Hong Kong and Macao be removed from the list of colonial territories.24 Regardless of the fact that the Chinese government had turned down Portugal's offer to return Macao in 1974, Hong Kong knew that it was only a matter of time before China would openly discuss its intentions over the harbor city. By 1982, the PRC had made provisions to settle Special Administrative Regions and Deng Xiaoping was about to receive Margaret Thatcher in Beijing.25 It became obvious that China wanted to recover Hong Kong, that Britain could not defend it militarily and furthermore, that the island was not as much of an economic asset anymore.26
Negotiations between China and Britain took two years and it was clear that the main aim of the PRC was to recover complete sovereignty over Hong Kong, regardless of the opinion of Hong Kong's population.27 Premier Zhao Ziyang and Margaret Thatcher signed the SBJD on May 28, 1985. The declaration laid out the status of Hong Kong as a Special Administrative Region (SAR) of the PRC with a high level of autonomy and unchanged social, economic and legal systems. The areas of defense and foreign affairs were the only exceptions withheld by the Beijing government.28
Following the ratification of the Joint Declaration, Mainland China, and Hong Kong legal experts joined to work on the Basic Law whose drafting took almost five years. The nature of this text is very close to a mini-constitution which validates per law the status and institutions of the soon to be SAR and legally defines the principle of “One country, Two Systems” for the relationship between Mainland China and the Hong Kong Special Administrative Region.29 The Basic Law was passed by the National People's Congress (NPC) of the PRC in April 1990 and since then constitutes the pillar of Hong Kong's Rule of Law and independent judiciary which will be further described in a later section.30
2. Hong Kong after 1997
On July 1st, 1997, China officially recovered complete sovereignty over Hong Kong. For Britain to let go of its colony, was not only synonymous for the end of an imperial era, but also the pride in leaving a former colony that had developed so well both economically and socially.31 For the PRC, it was a long-awaited moment of reunification and the end of a deep national humiliation.32 While both Britain and the PRC had worked on the reunification and the transition process, it became noticeable almost immediately that Hong Kong people had a very small part to play and that the PRC was now in charge:
“With the SAR flag visibly smaller and raised half a pace slower than the PRC flag in the ceremony, the people of Hong Kong were shown quite clearly that the SAR was created with a ‘high degree of authority' by the grace of the PRC”.33
A new chapter has begun for the city of Hong Kong, albeit it an unstable one. Hong Kong's system was to be heavily challenged in the first years after the handover. The right of abode cases34 started a heated debate over the Rule of Law system; Hong Kong media were thought to make use of self-censorship, endangering the cherished freedom of expression of Hong Kongers; the bird flu plague and airport opening chaos shattered the reputation of the Hong Kong government and administration.35 The state-business alliance that was so predominant in colonial rule and characterized Hong Kong governance also started to dislocate. After 1997, the growing influence of Chinese businesses and rising competition between firms put the government to the test.36 The SAR's government was “caught in the crossfire of conflicting demands and interests”37 while criticism by the public grew. Authors like Chiu and Lui call this period a “postcolonial governance crisis”38 exacerbated by the lack of legitimacy the HKSAR government suffered for not being directly voted in. Mass protests multiplied and public dissatisfaction of the government continued to sharpen as showed by several mobilizations on July 1st, 2003, January 1st and July 1st, 2004 during and against the Tung administration.39 At the same time, the city underwent a massive restructuring of its economic assets, with manufacturers moving to the Mainland and competition rising against major Asian global cities.40 Public protests reached an unprecedented high in 2014 when Hong Kongers attempted to assert their right to choose their Legislative Council and Chief Executive per universal suffrage, a promise that had been made in the Basic Law.
After more than 150 years under colonial governance, Hong Kong's society had been shaped by the British Empire in many ways. Its liberal economy strongly oriented to financial markets and banking networks as well as its efficient trading port had made of Hong Kong one of the four Asian Tigers. Based on a Western Common Law inspired legal system, the Hong Kong courts also had experience in implementing its colonial constitution, the Letters Patent, under a Rule of Law doctrine. Its society became a vibrant multicultural community that had overcome many difficulties and accommodated to a laborious and crowded urban lifestyle. As the handover became the new reality of the HKSAR, its residents and administration were confronted with many new problematics. The combination of Chinese sovereignty and autonomous status raised a whole new kind of problems that were present in academic circles, in the government institutions as well as in daily life. The many arrangements made in the Sino-British Joint Declaration and the Basic Law were challenged repeatedly, dividing opinions and beliefs over the One Country, Two Systems principle. Hong Kong was slowly getting a taste of the limitations of its autonomy and of the Central Government's power as a sovereign.
II. Hong Kong Autonomy as HKSAR
Hong Kong's history has now been briefly presented from its encounter with the British Empire to its post-handover transformation. In this section, the autonomy conferred to Hong Kong will be observed more in details. A theoretical frame will be given to the term “autonomy” and applied to the case of Hong Kong. Then, in order to understand the scope of Hong Kong's autonomy, the Basic Law and the Sino-British Joint Declaration and its related legal provisions will be examined more precisely. At last, the concept of One Country, Two Systems will be explained, through former as well as actual statements of official institutions and politicians. Moreover, a short comparison of the PRC's and Hong Kong's legal systems will be made in order to better grasp the several conflicts that will later be assessed.
1. Different definitions of autonomy
First and foremost, let's clarify the term “autonomy”. In more general terms and under international law, autonomy can be traditionally defined as follow:
“An autonomy is a territorially circumscribed singular entity in what otherwise would be a unitary State, introducing thereby an asymmetrical feature in the State, through transfer of exclusive law-making powers on the basis of provisions, which often are of a special nature, so that the State level remains with the residual powers, while the sub-State level relies on enumerated powers. At the same time, the State level contains no institutional representation of the sub-State entity. Furthermore, in relation to the most developed forms of territorial autonomy, the State level does not rely on a doctrine of pre-emption or supremacy to make possible the exercise of law-making powers of the State within the jurisdiction of the sub-State entity.”41
This definition is quite restricted to territorial autonomy but outlines the existence of two entities: one is a State and the other one a sub-State that has different capacity to administer its own territory than might have other regions of the same State. This definition also includes the law-making aspect of autonomy as well as the relations between State level and sub-State entity. National and international laws can protect certain aspects of autonomy to guarantee their application:
“More often than not, territorial autonomy is based solely on constitutional documents. Public international law is hence not the primary source of norms that create autonomy arrangements. Because the constitutions of the different countries are not tied to any specific terminology that would, in all instances, feature the word ‘autonomy', the constitutional norms may refer to autonomy, but also to selfgovernment, special administrative region, or territory. Although an autonomy arrangement is normally defined in the constitutional norms of the State, it is possible, from the point of view of entrenchment, to hold that an autonomy arrangement may be entrenched in an international treaty (eg South Tyrol), in a particular decision by an international body (eg the Aland Islands), and, provided that the population can be regarded as a people, in the principle of self-determination (eg Greenland, New Caledonia). Such international entrenchment is intended to protect the autonomy arrangements at the national level.”42
Through constitutional documents, international treaties, and international body decisions, the agreements made by both the State and the sub-State are legally protected and thus binding on all concerned parties.
In the case of Hong Kong, autonomy is granted and restricted by the sovereign state of the PRC since the handover of 1997. Under the earlier definition, the People's Republic of China is the State and the Hong Kong Special Administrative Region is the sub-State. As explicitly stated in Article 1 of the Basic Law, Hong Kong is “an inalienable part of the People's Republic of China”43, which leaves the question of independence unequivocally answered. Concerning Hong Kong's autonomy, the Basic Law and the SBJD of 1984 have very similar definitions:
Sino-British Joint Declaration provisions:
“(2) The Hong Kong Special Administrative Region will be directly under the authority of the Central People's Government of the People's Republic of China. The Hong Kong Special Administrative Region will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People's Government.
(3) The Hong Kong Special Administrative Region will be vested with executive, legislative and independent judicial power, including that of final adjudication. The laws currently in force in Hong Kong will remain basically unchanged.”44
Basic Law provision :
The National People's Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law.”45
Accordingly, the HKSAR is an autonomous region of the PRC that owns a “high degree of autonomy” and is vested with executive, legislative and judicial power, while its Common Law legal system remains unchanged. Through the constitutional instrument of the Basic Law and the Sino-British Joint Declaration international agreement, legal provisions protect the autonomy of Hong Kong. Both Great Britain and the PRC committed to these arrangements making them biding to both parties vis-à-vis Hong Kong.46
Ambiguously, the GB's position has been rather passive in relation to the PRC-Hong Kong relationship and commitments as the Central Government has drawn a clear line by stating that any Hong Kong issue is an internal one after the handover.47 The UK Foreign and Commonwealth Affairs Office issues reports to the Parliament on Hong Kong twice a year that illustrate the “continuing interest in developments in Hong Kong and [our] commitment to the faithful implementation of the 1984 Sino-British Joint Declaration”48. Nevertheless, whether the SBJD will still apply after the 50-year time-frame officially stated remains a delicate question although the UK Government seems clear about the issue:
“As we said in our last report, the year 2047 marks the end of the 50-year period specifically guaranteed by the Sino-British Joint Declaration, although the Basic Law and ‘One Country, Two Systems' framework is not subject to a time limit or expiry date. The UK Government is encouraged by these indications from the Hong Kong authorities that ‘One Country, Two Systems' will not come to an end after 2047.”49
While these statements seem determined to protect the SBJD, it is hard to grasp their actual impact on the Central Government. Some see the PRC's position as using the Declaration as an instrument for the sole purpose of the transition period, while others see the treaty as binding with no termination date since it is registered at the United Nations.50 While the relationship between Hong Kong and the PRC can only be seen as a national one since the handover, both entities have very different lifestyles and modern cultures, as well as different official languages, legal systems, style of governance, economic doctrine etc.51 Due to this special autonomous but not independent status, the HKSAR can make agreements with other states and has indeed already signed several treaties since 1997.52 These features give Hong Kong the status as an international legal person subordinate to a sovereign state, in between governed and self-governed.
2. The Sino-British Joint Declaration and the Basic Law
As the handover solution approached and in an effort to solve the sovereignty question of Hong Kong in a peaceful manner, the PRC and Britain worked on an agreement to secure Hong Kong's future as a part of China. The Sino-British Joint Declaration (also called Sino-British Agreement) is an international treaty which was agreed to and signed by both countries in 1984. It has been registered at the United Nations and is thus legally binding under international law.53 Both the SBJD and the Basic Law were ratified and drafted by Britain and the PRC, and both contain ideas that cover liberal human rights, the Rule of Law as well as a democratic political system for Hong Kong.54 The Declaration sets the necessary legal basis to form a constitutional democracy that also includes international norms and secure the application of the Common Law with an independent judiciary, judicial review, and separation of powers.55 It also transferred sovereignty over Hong Kong from Britain to the PRC on July 1st, 1997, while allowing Britain to stay in charge of city administration in order to preserve social and economic stability until the handover.56
The Basic Law has been created not only to “ensure continuity in Hong Kong's social, economic and political systems”57 but to also give the people confidence in the transition period between the colonial era and Chinese sovereignty. The Basic Law would be the guardian of Hong Kong's system resting on the Rule of Law, personal freedom, and competent bureaucracy.58
“What gives the Hong Kong Basic Law its quasi-constitutional character is that it establishes and defines a core feature of China's emerging constitutional order—one country, two systems.”59
The text was adopted by the National People's Congress (NPC) on April 4th, 1990 and made effective as of July 1st, 1997. Although it might legally rank under the PRC's Constitution, Article 5 explicitly mentions that Mainland laws and policies cannot be practiced in the HKSAR, giving Hong Kong a very different status as a Chinese territory.60 The mini-constitution defines the political system of the HKSAR by separating the powers of the legislative, the executive and the judiciary.61 It also promises to protect the rights and freedoms of the HKSAR residents and to allow executive, legislative, and judicial power to function independently from the Mainland. Laws in force in Hong Kong and the Common Law system are to be maintained according to the Basic Law.62 All these conditions were meant to be fulfilled in the hope of giving Hong Kong a smooth transition and to sustain its economic and social stability. Now, while being a rather independent entity, the HKSAR still is under PRC sovereignty, as clearly stated under Article 158 of the Basic Law: “The power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress”63. This power of interpretation has been used on several occasions since the handover. The last known case of interpretation of the Basic Law by the Standing Committee of the NPC was on November 6th, 2016, giving more details to Article 104 on the oath-taking method of government officials of the Legislative Council. This case will be further discussed in a later section.
3. “One Country, Two Systems”
In the same way the Basic Law and the Sino-British Joint Declaration protect the arrangements between the Central Government and the HKSAR, the “One Country Two Systems” (OCTS) principle is another conceptual tool that shapes the practice of governance between the two entities and determines Hong Kong's autonomous status. While it is no legal document, the PRC often makes use of this concept to explain how the sovereign and the autonomous regions should operate with one another and the nature of their relationship. This concept or principle was originally proposed by Ye Jianying.64 Deng Xiaoping applied it later to Hong Kong, although it was initially intended for a PRC reunification with Taiwan.65 The idea of OCTS first came up in the 1980s when China started to open up to the world and as reunification with Taiwan or Hong Kong was becoming more of a reality. But in order for it to happen, a compromise had to be made between preserving Hong Kong as a successful city and safeguarding socialism in China.66 Through the OCTS principle, the status quo could be preserved while allowing China to recover sovereignty over Hong Kong and maintaining its economic stability.67
This fusion has direct consequences in the actual functioning of Hong Kong, especially from a legal standpoint, since the British Common Law of Hong Kong and the Soviet- inspired legal system of the PRC are very different from one another. In an article analyzing the application of the OCTS principle, Wong describes how both systems have clashed with each other through legal decisions and public debates.68 Two of the relevant aspects of litigation between Hong Kong and the PRC's legal systems are the position of the Rule of Law in state governance and the judicial review of higher courts. The Rule of Law in Hong Kong has, for example, been defied in the past by the Xinhua News Agency legal case. In 1998, the media state organization finally was determined as being above the Basic Law as The Ordinance was passed, exempting state organizations from legal prosecutions.69 In the much-covered right of abode cases70, the power of final adjudication of the Hong Kong's courts and, their ability to exercise judicial review and interpret provisions of the Basic Law, have been challenged by the Central Government.71 Since both legal systems have different visions and functioning of the law, the line between “One Country” and “Two Systems” has been harder to draw over the past two decades. But OCTS is a notion, a thought, and as slowly revealed by the PRC, it is not an irreversible or never-ending promise.
The Central Government recently gave it a new definition in the June 2014 White Paper:
“'One country, two systems' is a holistic concept. The ‘one country' means that within the PRC, HKSAR is an inseparable part and a local administrative region directly under China's Central People's Government. As a unitary state, China's central government has comprehensive jurisdiction over all local administrative regions, including the HKSAR. The high degree of autonomy of HKSAR is not an inherent power, but one that comes solely from the authorization by the central leadership. The high degree of autonomy of the HKSAR is not full autonomy, nor a decentralized power. It is the power to run local affairs as authorized by the central leadership. The high degree of autonomy of HKSAR is subject to the level of the central leadership's authorization. [...] The most important thing to do in upholding the ‘one country' principle is to maintain China's sovereignty, security and development interests, and respect the country's fundamental system and other systems and principles.
The ‘two systems' means that, within the ‘one country' the main body of the country practices socialism, while Hong Kong and some other regions practice capitalism. The ‘one country' is the premise and basis of the ‘two systems,' and the ‘two systems' is subordinate to and derived from ‘one country.' But the ‘two systems' under the ‘one country' are not on a par with each other. The fact that the mainland, the main body of the country, embraces socialism will not change. With that as the premise, and taking into account the history of Hong Kong and some other regions, capitalism is allowed to stay on a long-term basis. Therefore, a socialist system by the mainland is the prerequisite and guarantee for Hong Kong's practicing capitalism and maintaining its stability and prosperity. [.] Only by respecting and learning from each other can the ‘two systems' in the ‘one country' coexist harmoniously and achieve common development. ”72
According to the Central Government, the autonomy of Hong Kong only originates from “the authorization of the Central leadership”73. The upholding of “One Country” concentrates mainly on the PRC's unity, its development and the maintaining of its socialist system. As for the “Two Systems” part, it is the acceptance of Hong Kong's capitalist system which is in turn subject to the steady existence of socialism in the Mainland. This definition of the OCTS principle puts a greater emphasis on the “One Country” part and accentuates the subordinate position of Hong Kong. It is a statement worth remembering while observing the relationship between State and sub-State and understanding the Central Government's perspective and behavior.
a) The Common Law legal system
One important aspect of the legacy of the British colony in Hong Kong has been its legal system. The Common Law has its home in England and is rooted in the Rule of Law, the separation of powers, and the power of interpretation held by the judiciary. According to legal scholar Jordan, the Common Law legal system derives from a “Western epistemology based upon notions of rationality, scientific thinking and truth”74. Under the Common Law system, no state organ is above the law.75 The constitution is the highest law which deserves supremacy over all ordinary laws and can be applied by the judiciary.76 For Hongkongers, the Common Law legal system in use in Hong Kong is inherent to the Rule of Law and its approach of the application and purpose of the law :
“The system sets out objective legal procedures that, under a rule of law system, are applied equally to everyone, including rulers. The rule of system has been accepted by the majority of Hong Kong people, who respect the power of the law and common law legal institutions. [...] Above all, Hong Kong people expect the law to protect them from abuses of political power.”77
Considering the complex question of judicial and constitutional review, in the eyes of the Common Law legal system as it is used, for example in the USA, constitutional laws are there to protect fundamental rights from the mistakes of politics.78 As a British colony, Hong Kong has been gathering experience in legal matters and made use of the Common Law legal system since it has been part of the colonial British empire. The courts of Hong Kong share the Common Law values and principles that the sovereign state of Britain introduced. Their jurisdiction was autonomous, however limited to local matters of the colony.79
b) China's socialist civil law system
Legal culture in China has been less influenced by “a set of beliefs in the primacy of law as an instrument of social control and legal institutions as the appropriate forum for enforcing correct social behaviour”80 as commonly understood in Western democracies. Traditional legal culture in China was more affected by Confucianism, its rituals, practices and a rigid code of behavior based on gender, class and filial piety.81 Since the Communist Revolution, the PRC has developed a socialist civil law system that vests the power in the people which are represented by the NPC. By being the highest state organ in the PRC government, the NPC can enact as well as interpret laws.82 In respect to the socialist legal tradition, all organs of the state in the PRC are accountable to the National People's Congress.83 According to Chen, the constitutions of socialist countries function “more like political- philosophical declarations than as legally binding norms” which would explain the doctrine of legislative interpretation that gives the NPC power to interpret and enact laws.84 Furthermore, constitutional review is quite alien to the PRC. Although in theory, Article 67 of the PRC Constitution gives this power to the NPC, the practice is lacking due to the missing procedures and no independent constitutional body.85 The NPCSC has been empowered to use legislative interpretation by the 1982 Constitution of the PRC.86 This legal system has been named “Rule by Law” in opposition to the Rule of Law.87 It also is a tool used to serve the political interests of the Chinese Communist Party:
“Socialist law, however, is an instrument of the people because the party, which represents and protects the interests of the masses, controls the law. As a result of the socialist distrust of law, some notable aspects of the Chinese system are legal flexibility, lack of procedural regularity and the supremacy of Chinese Communist Party (CCP) policy.”88
c) A complex fusion
The fundamental differences between these two legal systems are critical when observing the case of Hong Kong's autonomy. After the handover, Hong Kong is facing a crucial contradiction where it has been granted judicial autonomy while resting under the sovereignty of the PRC, which legally obliges it to abide by the NPC's decisions. This ambiguity enshrined in the Basic Law has been well captured by legal expert Albert Chen as he explains:
“And the paradox of the Basic Law lies in its dual nature. It is at once a national law and the constitutional instrument of the Hong Kong Special Administrative Region (HKSAR). It was enacted by the National People's Congress in accordance with Chinese constitutional principles and legislative procedures, and yet it serves as the foundation of the common law in the post-1997 legal system of Hong Kong and is enforced by the courts of Hong Kong's common law based legal system.”89
There lies the complexity of the application of the “One Country, Two Systems” principle. Under the Joint Declaration, constitutionalism in the form of the Common Law should be maintained in the HKSAR, as well as an independent judiciary.90 However, as a sovereign, China and its socialist legal system hold the right to interpret the Basic Law not only when requested, but also when it sees fit (as stated in Article 158). This privilege understood by the Chinese legal system is non-negotiable and grants the NPCSC with utter final adjudication over Hong Kong. Moreover, it might be the only instrument that ties both legal systems to one another, hence their ideological gap.91
1 The “Interpretation” refers to the one case of November 7th, 2016. Other general terms and interpretations of the NPCSC will be mentioned as “interpretation”.
2 See Tsang 2004, 9-10.
3 Ibid., 12.
4 Carroll 2007, 239-240.
5 Ibid., 1-2.
7 Ibid., 34-35.
8 See Carroll 2007, 35.
9 See Tsang 2004, 18.
10 Carroll 2007, 46-47, 50.
11 Ibid., 47.
13 Carroll 2007, 131.
14 Ibid., 132.
15 Ibid., 133-134. Tsang 2004, 146.
16 See Carroll 2007, 134.
17 See Tsang 2004, 153-155.
18 Ibid., 153.
19 Ibid., 159.
20 See Carroll 2007, 140.
21 Ibid., 144.
22 See Tsang 2004, 170-171.
23 Ibid., 172-173.
24 See Carroll 2007, 178.
25 Ibid. Tsang 2004, 216-217.
26 See Carroll 2007, 179.
27 Ibid., 180.
28 Ibid., 181.
29 Ibid., 185.
30 Ibid., 187.
31 See Tsang 2004, 269.
33 Ibid., 271.
34 Ng Ka Ling & Anor v. Director of Immigration; Tsui Kuen Nang v. Director of Immigration; Director of Immigration v. Cheung Lai Wah, (1999) 2 HKCFAR 4,  1 HKLRD 315,  1 HKC 291 (Jan. 29, 1999) [hereinafter Ng Ka Ling].
35 Chiu, Lui 2009, 107.
36 Ibid., 125-126.
38 Ibid., 124.
39 See Chiu, Lui 2009, 105.
40 Ibid., 137.
41 Suksi 2013.
43 XIANGGANG JIBEN FA (H.K.) [hereinafter Basic Law] (Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Adopted on April 4, 1990 by the Seventh National People's Congress of the People's Republic of China at its Third Session)), art. 1.
44 Sino-British Joint Declaration on the Question of Hong Kong [hereinafter Sino-British Joint Declaration], Dec. 19, 1984, art. 3(1)-(2), China-Eng., 1399 U.N.T.S 23391.
45 Basic Law, supra note 42, art. 2.
46 See Crawford 2006, 247.
48 The Six-Monthly Report on Hong Kong, 1st July to 31st December 2016, 2017, https://www.gov.uk/government/publications/six-monthly-report-on-hong-kong-july-to-december-2016, visited 09.05.2018.
50 See Crawford 2006, 247. See also The Six-Monthly Report on Hong Kong, 1st January to 30th June 2017, 2017, https://www.gov.uk/government/publications/six-monthly-report-on-hong-kong-january-to-june-2017, visited 09.05.2018.
51 Ibid., 249.
52 Ibid., 249-250.
53 See Tsang 2004, 227.
54 See Davis 2007, 77.
55 See Davis in: Fu, Harris, Young 2007, 84.
56 See Tsang 2004, 226.
57 Chui, Liu 2009, 107.
59 Dowdle in: Fu, Harris, Young 2007, 71.
60 Basic Law, supra note 42, art. 5.
61 See Chen 2000, 420.
62 Basic Law, supra note 42, art. 2, 3, 18.
63 Basic Law, supra note 42, art. 158.
64 See Yeung, Huang 2015, 197.
65 See Carroll 2007, 179.
66 See Tsang 2004, 268.
67 See Wong 2004, 9.
68 Ibid., 10-11.
69 Ibid., 13.
70 Ng Ka Ling, supra note 34.
71 See Kam 2001, 616-617.
72 The Practice of the ‘One Country, Two Systems' Policy in the Hong Kong Special Administrative Region, 2014, http://english.gov.cn/archive/white_paper/2014/08/23/content_281474982986578.htm, visited 16.04.2018; later cited as PRC White Paper, June 2014.
74 Jordan 1997, 337.
75 See Kam 2001, 633.
76 See Chen 2000, 382.
77 Jordan 1997, 337
78 See Chen 2000, 383.
79 See Tai 2010, 297.
80 Jordan 1997, 338.
82 See Kam 2001, 632.
83 See Chen 2000, 409-410.
85 See Li, in: Yu 2010, 210.
86 See Chen 2000, 412.
87 See Kam 2001, 632. See also Jordan 1997, 338.
88 Jordan 1997, 338.
89 Chen 2000, 381.
90 Sino-British Joint Declaration, supra note 44, Annex I - III.
91 See Tai 2010, 305.
- Quote paper
- Maude N'Diaye (Author), 2018, Legal Reactions to the Occupy Movement and Their Impact on Hong Kong's Autonomy, Munich, GRIN Verlag, https://www.grin.com/document/511859