It’s in Hong Kong’s best interests to make its unique constitutional system a success

There is no legal regime in the world that brings together two such very different systems. No matter how challenging, the legal and political communities have to bridge law and politics to advance Hong Kong’s long-term interests

Christine Loh

Published: 6:45am, 22 Aug 2020

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Hong Kong has a unique constitutional system that blends mainland practices with the common law system. The special administrative region has many powers under the Basic Law, the local constitution, but it has had to refer matters to Beijing on occasion, the latest of which led to the resolution on August 11 by the National People’s Congress Standing Committee to extend the current term of the Hong Kong legislature by a year.

While Hong Kong’s chief executive could have exercised local emergency powers to postpone the Legislative Council elections originally scheduled for September 6, citing public safety concerns arising from a surge in Covid-19 infections, she did not have the authority to extend the current term. She needed the State Council to put in a request to the NPC Standing Committee to resolve the issue.

The decision enables the current legislature to continue “for no less than one year”, and the next term is for four years. A supplementary document also allows for a potential delay of the election beyond a year should the Hong Kong government deem it necessary in light of the pandemic.

Another example was the NPC Standing Committee’s approval of the “co-location” checkpoint agreement between Hong Kong and the mainland in 2017, authorising mainland officials to perform exit and entry inspections within a designated area at West Kowloon station for the Guangzhou-Shenzhen-Hong Kong express railway, for the convenience of passengers.

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China’s top legislative body extends Legco by ‘not less than one year’

There have also been six Basic Law interpretations by the NPC Standing Committee. From the earliest days when “one country, two systems” was proposed by China, questions were raised about how the NPC Standing Committee would function as Hong Kong’s highest court.

Before 1997, Hong Kong’s highest appellate court was the judicial committee of the privy council in Britain, which deals with appeals from colonies and overseas territories. The judicial committee is made up of senior judges. Their judgments go into extensive legal reasoning based on common law principles and precedents.

The NPC Standing Committee is a totally different institution. It is part of the Chinese system, which is based on civil law and a Leninist tradition where law and politics are mixed.

Beijing has repeatedly emphasised that the concept of separation of powers between the executive, legislative and judicial branches, which operates in many jurisdictions, does not apply to either the mainland or Hong Kong.

This essential difference creates fundamental challenges in operating one country, two systems, as the operating model has to blend both systems. The examples noted above provide insights for reflection.

04:35

What does ‘one country, two systems’ mean?

The NPC Standing Committee is a busy and important institution in the mainland system with extensive powers. In dealing with Hong Kong issues since 1997, it has taken an expansive approach to the exercise of its powers, such as when it dealt with special problems like the co-location agreement and the extension of a legislative term, and when it interpreted Basic Law provisions on matters that are the central government’s responsibility, or concerning the relationship between the central authorities and Hong Kong.

In the first interpretation in 1999, triggered by a court ruling, the NPC Standing Committee reduced the number of people from the mainland who had right of abode in Hong Kong. The second case, in 2004, created a new process for amendments to Hong Kong’s election methods.

Can Beijing’s power to interpret Hong Kong’s Basic Law be questioned?

The third, in 2005, triggered by the chief executive’s resignation, filled a gap in the Basic Law. The fourth, in 2011, initiated by the courts, dealt with a form of diplomatic-commercial immunity; the fifth, in 2014, activated by the chief executive, dealt with election issues, and; the sixth, in 2016, set out when and how public officials need to swear an oath to uphold the Basic Law and pledge allegiance to it.

Critics have said the Standing Committee hasn’t followed the common law, did not provide legal reasoning, that it made decisions contrary to the Basic Law, or that were political rather than legal in nature. Such criticism arises from judging the system from the perspective of a common-law-cum-separation-of-powers system.

02:13

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As the NPC Standing Committee is a political-legislative body within a system that does not practise separation of powers, its purpose is to address specific problems that arise. Thus, its decisions only address the problem at hand on each occasion. The committee’s approach is that of a workmanlike problem-solver.

From the mainland’s perspective, Beijing respects Hong Kong courts’ day-to-day operations with judges practising the common law. However, Beijing has to play a legislative-political role in cases that concern sovereignty, that is, affairs that come under Beijing’s responsibility or the relationship between Beijing and Hong Kong.

It is through this lens that it has dealt with decisions on the direction, timelines and methods of election that included the pledge of allegiance and oath-taking. It is also through this lens that it legislated for Hong Kong on national security in July.

There is no legal regime in the world that brings together two such very different systems. Hong Kong has a pivotal interest in helping to make this interaction work well.

No matter how challenging, the legal and political communities have a special role to bridge law and politics to advance Hong Kong’s long-term interests. We should be aiming to develop an engaged, respectful dialogue between the NPC Standing Committee and Hong Kong’s superior courts.

Christine Loh, a former undersecretary for the environment, is an adjunct professor at Hong Kong University of Science and Technology

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