China is appropriately described as a One Party State (OPS). It is an authoritarian rather than a pluralistic state. The Communist Party of China (CPC) is the ruling party and it has retained this position for almost 70 years since the founding of the People’s Republic of China (PRC) on October 1, 1949. Given that the CPC has superintended the greatest poverty relief project the world has ever seen over the last 40 years — some 740 million lifted from abject poverty, making up 70 percent of total global poverty reduction — it is fair to say, also, this is the most successful OPS ever.
China may not accept the doctrine of Separation of Powers distinctively elaborated by Montesquieu (which dates back to Aristotle conceptually) but it still has one of the largest judicial systems in the world, according to a 2016 International Bar Association report.
The National People’s Congress is the PRC parliament. At the top of China’s political-legal hierarchy lies the Standing Committee of the National People’s Congress (SCNPC). The SCNPC is both a legislative body and arguably, the supreme judicial institution in China (there is some resonance here with the way in which the House of Lords in England used to function for many years until the establishment of the United Kingdom Supreme Court (UKSC) on October 1, 2009).
One very important responsibility of the SCNPC, since July 1, 1997, has been to issue Interpretations of the Basic Law of the Hong Kong Special Administrative Region (HKSAR). Article 158 of the Basic Law provides, inter alia, that:
The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress…
Interpreting Article 158 of the Basic Law
In almost 22 years there have been five Article 158 Interpretations. In the case of each Interpretation, the focus of the SCNPC has been on solving perceived and rather immediate practical, policy problems: controlling anticipated, excessive migration to the HKSAR from the Mainland; taking a tighter grip over the initiation of political reforms in Hong Kong; applying a Mainland principle to the novel problem of replacing a Chief Executive of the HKSAR, mid-term; resolving a commercial Conflict of Laws dispute with finality; and vigilantly stipulating the elements of an acceptable oath of office in the HKSAR.
The SCNPC has not, in its Interpretations, typically concerned itself with spelling out wider principles of Public Law to apply in the HKSAR. This is not part of the problem solving thrust evident in SCNPC use of Article 158 over the last two decades. Thus, broad, definitive statements from the Court of Final Appeal (CFA) of the HKSAR about: the constitutional status of the Basic Law; the importance of purposive (or generous) interpretation; and the CFA, Article 158 referral test, have not been specifically contradicted within any of the Interpretations.
In late 2017, however, the SCNPC issued what can fairly be called an Advisory Interpretation for the very first time. This innovation by the SCNPC arose from the intense debate, which surfaced that year, about establishing joint Hong Kong and Mainland immigration facilities (“co-location”) at the new Hong Kong High Speed Rail (HSR) station in Kowloon which connects Hong Kong to the now vast (around 25,000 kilometers) HSR network in Mainland China.
Supporters of the co-location arrangement relied significantly on this SCNPC Statement of Validity issued in December, 2017. This perspective stressed the sovereign authority of the SCNPC within the One Country-Two Systems (OCTS) political-legal hierarchy governing the status of the HKSAR as a special region in the PRC. What we need to be clear about is that this was not an Article 158 Interpretation but, rather, a stand-alone Statement of Validity. Critics focused on the claimed lack of Basic Law foundations to support co-location — and the unorthodox reliance on this SCNPC Statement. These critical assessments used an interpretive emphasis derived from Hong Kong’s Common Law system. Yet a broad examination of Public Law interpretive methods in Common Law jurisdictions reveals a visibly expansive approach.
The Living Constitution theory was developed in the US around 100 years ago by constitutional scholars, judges and political leaders who stressed that a Constitution is notably more akin to a living organism than to a complex machine. Australia presents an informing case study of how a Common Law jurisdiction may set about adapting its fundamental Public Law to fit significantly changed circumstances — in keeping with the spirit of this Living Constitution theory.
Australia arose as a new nation on January 1, 1901. The Australian Federal Constitution created a new, central, Commonwealth Government and converted the then six colonies into six new Australian States. Section 128 (the prescribed amendment provision) made it very difficult to amend the Constitution in a formal way. The original Australian drafters of the Constitution envisioned a set of relatively powerful State Governments coexisting with the new Commonwealth Government, which would largely confine itself to looking after matters such as, defense, foreign affairs, a new monetary union and maintaining free trade within Australia.
Within 20 years, the High Court of Australia, in the Engineers case, began to turn this political order on its head through a constitutional interpretation handing extensive powers over industrial relations to the Commonwealth Government. That process has continued almost without let-up ever since. The Commonwealth now dominates public policy making in areas such as: taxation; public borrowing; corporate regulation; competition law; labor regulation; welfare; education; healthcare; and major infrastructure development.
Australia is, consequently, a profoundly different political entity today compared to the Australia which endured until 1920. Almost all of this massive change has been secured through decisions of the High Court of Australia relying on adaptive, constitutional interpretations. Meanwhile, the formal wording of the Australian Constitution has remained largely intact. This remarkable constitutional transformation was set running by events never foreseen by the original drafters, including the outbreak of World War 1.
Some 20 years ago, the CFA laid down a set of primary principles designed to shape the interpretation of the Basic Law by courts in the HKSAR. In the Right of Abode Litigation, Chief Justice Li stipulated that, with the Basic Law, a purposive approach is needed as gaps and ambiguities are bound to arise in such an instrument given its necessary generality. He also cautioned against using a technical, narrow or rigid approach when considering the language of the Basic Law. These CFA formulations are in harmony with Living Constitution theory.
This Common Law tradition lends significant weight to arguments made in favour of the organic evolution of the Basic Law to address new circumstances — a view which underpins the SCNPC advice on the validity of co-location. Li Fei, a leading PRC expert on the Basic Law and Chair of the Basic Law Committee established under the SCNPC, confirmed that a Chinese version of adaptive constitutionalism applied to the Basic Law when he said that there was no single article that the SCNPC had relied on to make its co-location decision, as the Basic Law, drafted over 20 years earlier, could not have envisaged future developments such as the HSR. He went on to say that:
“[T]he ‘one country two systems’ principle was unprecedented [and] the Basic Law … cannot be so clear as to explain everything, and to foresee everything that could happen.”
The feasibility study for the first HSR line in China did not commence until several years after the promulgation of the Basic Law and well after its drafting had been concluded. There was, thus, zero consideration given in the Basic Law to the linkage of the HKSAR to this HSR network.
These fresh facts on the ground are different in their particular nature to those rapid economic, technical and political factors which have driven such massive, interpretative change to Australia’s fundamental Public Law over the last 100 years. But they share the quality of changing, unforeseen circumstances applying pressure for rational, organic constitutional evolution.
Those arguments which say that co-location has not been shown to be permitted by the Basic Law rely, above all, on a lack of explained particular authority in the Basic Law for co-location (a previously unforeseen need) and the Basic Law protections against the general application of Mainland Law in the HKSAR. These arguments are serious but they are, when viewed within a Living Constitution context (coupled with the cautionary words from the CFA), narrow and quite technical. In fact, although there are no provisions in the Basic Law which explicitly authorize a co-location initiative, neither are there any explicit prohibitions. Had similar narrow arguments prevailed (and they were made) in Australia about 100 years ago, this would have conspicuously restrained Australia’s development and adaptation to a constantly changing World.
The SCNPC has taken a view of the Basic Law which resonates with the Living Constitution theory. This is quite a significant step. But potentially even more far-reaching is the fact that this SCNPC statement on co-location was, in effect, an Advisory Interpretation. The SCNPC was quite clear about the weight to be given to this special Statement. Li Fei said that:
“The co-location arrangement, which complies with the Constitution and the Basic Law, carries constitutional authority … it is an important constitutional judgment which cannot be challenged”
From a Common Law perspective, this SCNPC Statement looks most like an Advisory Opinion. The Common Law developed a general doctrine that precluded courts from giving any sort of advance opinions. A Common Law court, it was argued, should, by its nature, not decide abstract questions, but should only adjudicate where there was a justiciable dispute between two or more contesting parties.
In fact, this general prohibition on Advisory Opinions has been measurably reduced in Common Law jurisdictions in more recent years. The Court of Appeal the HKSAR confirmed, in 2006 (in Leung’s case) that the courts could hear what it termed “academic cases” in certain exceptional circumstances. In Britain the UKSC has arguably become even more radically open to providing advance opinions.
Fresh interpretations are most likely to arise when Beijing perceives real direct or indirect threats to national security — or national sovereignty risks — arising out of significant political contestation within the HKSAR.
In 2016, Lady Hale, then the Deputy President (now the President) of the UKSC, indicated in a public lecture, what her view would likely be in the ongoing, Brexit litigation, a month before that litigation reached the UKSC. That is, she spoke publicly about a case she was about to hear.
In the Northern Ireland Abortion case, in mid-2018, the UKSC found, by a majority that the Northern Ireland Human Rights Commission did not have standing (the necessary authority) to bring the particular case – which argued that certain abortion-related legislation in Northern Ireland was not compatible with the UK, Human Rights Act (HRA). Normally, following a no-standing decision, that would be the end of judicial discussion on the particular matter. In this case, however, a majority of the UKSC went on to offer a view on the substance of the case, namely that the relevant Northern Ireland legislation did not look to be compatible with the HRA.
Five applications were lodged seeking judicial review (with some legal-aid assistance) of the constitutionality of the co-location arrangement. The HKSAR High Court (Court of First Instance) held, in December, 2018, that the arrangements, by then operating, were constitutional. The court found that none of the aspects of the co-location arrangement were prohibited by the Basic Law and that it was open to LegCo to pass the relevant supporting legislation. The court also admitted the SCNPC Statement as an aid to its elucidation of the Basic Law.
As a practical matter, the co-location system provides a far better mode of transiting between the HKSAR and the Mainland than had previously been available. Hong Kong passengers can now complete all formal immigration and customs procedures for both the HKSAR and the Mainland at a single entry-exit point. Passengers leaving Hong Kong by HSR can now travel to any point in the Mainland without need of further border-crossing procedures and their return to the HKSAR from anywhere in the Mainland (by HSR) is made equally more straightforward. These are options not open to air or bus travelers to and from the Mainland. Operationally, the system is like that applied to trains running in the English Channel Tunnel and at certain airports handling flights between Canada and the US, for example. The co-location policy has enjoyed wide public support.
It was expected, prior to 1997, that there may well be conflicts between the two legal traditions. After more than two decades, the pattern which has emerged from these interpretations can be summarized as follows:
1. The SCNPC, acting as the Basic Law constitutional umpire, can employ Article 158 at the request of the CFA; at the request of the HKSAR government; or on its own initiative.
2. The SCNPC’s power to interpret the Basic Law (confirmed by the CFA in the Lau Kong Yung case in 1999) is unqualified and can be used to clarify and supplement laws and is binding on HKSAR courts.
3. There are significant differences in how the SCNPC functions within the Mainland system and how superior courts operate in Common Law jurisdictions.
a. In the Common Law world, there is a deep understanding (i.e. custom) which accepts that supreme courts typically enjoy powers to reconstruct primary legal principles by applying new interpretations in particular leading cases. In a range of jurisdictions, they regularly use such powers to change how constitutions operate in fundamental ways (such interpretations are typically set out in lengthy, carefully written judgments). The constitutional text is not changed – but the courts give fresh meaning to existing words – often with long-term dramatic consequences, in light of changing political-economic circumstances.
b. The SCNPC, as the principal legislative-judicial organ within a civil law OPS has no such comparable role. Its interpretations do have long-term impact but interpretations are typically short and have a narrow focus – the primary task is to solve immediate, practical, policy problems, (it is fair to identify this as a constitutional convention in China).
c. The Article 158 interpretations to date reflect this essential distinction. This custom applies a certain measure of control over the NPCSC interpretation power (compared to superior Common Law courts).
4. SCNPC interpretations are a part of the wider Mainland political-legal tradition. They are employed with other Mainland laws (under Article 67(4) of the Constitution of the PRC), though Article 158 interpretations are the most significant.
5. The arguments favoring some form of Living Constitution, interpretive approach to the Basic Law are consistent with the use of this approach (however named) in certain major Common Law jurisdictions and with CFA comments on the Basic Law.
6. The creation and use of an Advisory Interpretation to help resolve the co-location disputation is consistent with the relaxation in major Common Law jurisdictions (including the HKSAR) of the earlier Common Law rejection of Advisory Opinions.
7. The fact remains, however, that Article 158, not least, as understood by the CFA, confers very great powers over the Basic Law (and therefor over the HKSAR) on the SCNPC. The chief risk that Article 158 may be used both more radically and more frequently arises from any heightened perceptions in Beijing that events in the HKSAR present significant dangers to PRC sovereignty – especially to Chinese National Security. Experience shows that the law can be used to regulate, sometimes comprehensively, the political and social space in economically advanced jurisdictions. One can see how Article 158 might be used to deploy more of that approach within the HKSAR, if Beijing feels that need. Moreover, the Advisory Interpretation option used to resolve the co-location dispute could also be used to assist in such a project.
The OCTS model under which the HKSAR has been established within the PRC is a unique constitutional innovation. Accordingly, the process of negotiating its operation over time has no direct precedents to rely on. Moreover, the framework for mediating this relationship has all been loaded into the Basic Law. That framework is constitutionally well-crafted, concise but comprehensive and, now, time-tested. It remains the fact, however, that the Basic Law is a product of a superior law, the PRC Constitution of 1982.
When the Federation of Australia was being created in the late 19th century, some consideration was given to New Zealand joining. This did not happen — and the idea has never gained currency since. But, if New Zealand were to join as a new State within the Australian Federation today in a way comparable to how Hong Kong has become the HKSAR, this would require: the creation of an extensive, newly written Constitution for New Zealand to govern its relationship within Australia; combined with zero amendment of the Australian Constitution.
One can immediately see a range of complex legal issues such an arrangement would generate. And one can see how Hong Kong’s unique (though now joined by Macau) arrangement is equally guaranteed to generate special constitutional challenges.
In fact, OCTS and the Basic Law have worked remarkably well for over two decades despite many sometimes-intense stress-tests. The development, by the SCNPC, of the particular new Basic Law jurisprudence discussed in this article is quintessentially a product of a fresh set of significant constitutional relationship challenges pivoting around the practical and sound decision to establish a special co-location system for immigration and customs for the Hong Kong terminus of the new HSR rail line into China.
Although the HKSAR has a number of independent Extradition Agreements with a range of overseas jurisdiction (including the US) it still, after more than 21 years, has no institutional mechanisms facilitating the rendition of criminals within Greater China (that is, amongst the Mainland, the HKSAR, the MacauSAR and Taiwan). To a degree, the HKSAR has become a haven for fugitive offenders of different stripes.
The HKSAR Government has recently drafted a Bill to remedy this long-standing loophole which employs significant safeguards (but which is still most controversial within particular sectors). It aims to amend the existing Fugitive Offenders Ordinance (FOO) to allow the case-by-case, judicially reviewable, possible rendition of certain claimed fugitives.
Recent events in the HKSAR Legislative Council (LegCo) suggest that there is cause for continuing concern about political steadiness within the HKSAR. Pan-Democrat LegCo members insisted, with significant physical force, on the right to maintain a filibuster within a Bills Committee (looking at the proposed FOO amendments) after the LegCo Secretariat established, in effect, a replacement Bills Committee in order to move review of the relevant Bill forward.
The chaotic, very forceful and physical scenes within LegCo were unprecedented. Members were pushing and shoving with much vigor, snatching at a microphone, climbing over the top of other members, shouting critical comments and abuse using portable loudspeaker systems and so on. Repeated, shocking behavior was evident. It was also dishonorable: one of LegCo’s oldest members was continually intimidated as he tried to carry out his appointed tasks.
It is timely to reflect on the oath which all LegCo members must take under the Oaths and Declarations Ordinance:
“I swear that, being a member of the Legislative Council of the Hong Kong Special Administrative Region of the People's Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China and serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity.”
The last time meaningful political reform was achieved in the HKSAR was in 2010 (in time for the 2012 LegCo elections). All attempts at reform since have been thwarted. These recent disruptions in LegCo will almost certainly have left the reform door still more firmly closed. It currently is hard to envisage any meaningful reform discussions being restarted for 5-10 years.
Moving from the macro to a lower, but still important level, like many jurisdictions, the HKSAR is working to try and control a significant growth in school-level bullying. Some estimates of this are very serious. The very wide availability of social media is amplifying the problem. The recent awful example given in LegCo will tend to do so, also.
We can expect further instances where the SCNPC, in essence, takes the view that the Basic Law has a Living Constitution element within its DNA. This could happen when certain future Article 158 Interpretations are delivered or possibly when new Advisory Interpretations are provided. As discussed above, fresh interpretations are most likely to arise when Beijing perceives real direct or indirect threats to national security — or national sovereignty risks — arising out of significant political contestation within the HKSAR. Tempering this will be: (a) the constitutional norm of narrowly focused interpretations; combined with (b) comparative initiating-impulse-control; both evident in the limited reliance by Beijing on SCNPC Interpretations of Article 158 to date.
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