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As shown in the political twists and turns in the past decade, Hong Kong’s experience in implementing the OCTS policy reveals that the relationship between the central government and the SAR is hardly smooth. While most observers would agree that the first decade of OCTS has been largely successful, Hong Kong’s enjoyment of a “high degree of autonomy” is first and foremost dependent on Beijing’s restraint. A comprehensive assessment of Beijing-Hong Kong relations in its many aspects is impossible in this chapter, but an analysis of the key aspects of Hong Kong’s interactions with the central authorities in the constitutional, political, economic, and external dimensions will be attempted below.
13.4.1 Constitutional Dimension
13.4.1.1 Contending Interpretations over the Basic Law
The tensions in the constitutional relations between the central government and the Hong Kong SAR are best illustrated in the controversies concerning the authority of Hong Kong’s courts and the use of constitutional means, namely, the interpretation of the Basic Law and decisions of the NPCSC, to shape Hong Kong’s political development. According to Article 158 of the Basic Law, if the courts of the Hong Kong SAR have to interpret the Basic Law in adjudicating cases involving affairs concerning the central government, or concerning the relations between the Hong Kong SAR and the central government, and if such interpretation will affect their final judgments, they shall seek an interpretation from the NPCSC through the Court of Final Appeal of the SAR (the CFA), before making their final judgments, which are not appealable. The NPCSC only needs to consult its Committee for the Basic Law of the Hong Kong SAR before rendering an interpretation of the Basic Law. Further, the Mainland adopts the principle of legislative intent in interpreting laws, which many legal experts in Hong Kong would regard as an authorization to make new laws. A brief analysis of the three interpretations of the Basic Law by the NPCSC shows the limits of Hong Kong’s autonomy under OCTS. In each of these cases, the central government has asserted its constitutional authority in order to show that its authority as the central government should not be challenged.
The first interpretation concerns the right of abode of the children of Hong Kong residents who were born in the Mainland. A resident in Hong Kong can only achieve full permanent resident status after residing legally in Hong Kong for a continuous period of 7 years. The Chinese and Hong Kong authorities have also imposed administrative measures to regulate the entry of Mainland people to Hong Kong. Article 24 of the Basic Law provides a definition of permanent residents of the Hong Kong SAR, but the provisions about the right of abode of the children of Hong Kong residents who were born in the Mainland were not entirely clear. The CFA’s decision on January 29, 1999, ruled that children born of a permanent resident of Hong Kong in the Mainland, regardless of whether that parent had become a permanent resident before or after the birth of the child, should enjoy the right of abode and that the provisions in Hong Kong’s Immigration Ordinance requiring that a Certificate for Entitlement issued by the Hong Kong SAR government, which was necessary for Mainlander settlers to enter Hong Kong, to be affixed to a One-Way permit issued by the Mainland authorities, were inconsistent with the Basic Law. The CFA also stated that Hong Kong courts “have the jurisdiction to review the legislative acts of the NPC and the NPCSC, on whether such acts were inconsistent with the Basic Law and to declare such acts as invalid if they are determined to be so inconsistent (Chan, 2000).” In February 1999, senior Mainland scholars and officials severely criticized the CFA (South China Morning Post, February 9, 1999, p. 1). In response to such strong reactions, the Hong Kong SAR government requested “clarification” from the CFA. The CFA thus clarified that “the Hong Kong court’s power to interpret the Basic Law is derived
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from the NPC Standing Committee under Article 158 of the Basic Law, any interpretation made by the Standing Committee under Article 158 would be binding on the Hong Kong courts,” and the judgment of January 29, 1999, did not question “the authority of the NPC and its Standing Committee to do any act which is in accordance with the provisions of the Basic Law and the procedure therein (Chan, 2000).” The clarification was accepted by the central government, at least temporarily, because it reaffirmed the constitutional supremacy of the central government.
Nonetheless, on April 29, 1999, the Hong Kong SAR government warned that as a result of the CFA’s ruling, an estimated 1.67 million people from the Mainland would be entitled to the right of abode in Hong Kong (South China Morning Post, April 29, 1999, p. 1). In response to this perceived threat, the chief executive requested the NPCSC to interpret the relevant provisions of the Basic Law on May 21, 1999, stressing that the interpretation was the “quickest and most effective option” to resolve the issue (Hong Kong Commercial Daily, May 19, 1999, p. A1). On June 26, 1999, the NPCSC rendered the first interpretation of the Basic Law by reasserting the authority of the central government regarding the entry of people from other parts of China to the Hong Kong SAR. The NPCSC’s interpretation stated that the CFA’s ruling involved interpretations of provisions of the Basic Law that concerns the responsibility of the central government and its relationship with the SAR, an area which the CFA should have sought an interpretation from the Standing Committee before making a final judgment, and that the CFA ruling was inconsistent with the legislative intent. It ruled that for Mainland-born children of Hong Kong residents to qualify for the right of abode in the Hong Kong SAR, at least one of the parents must be a permanent resident of the SAR when the child was born. These children are also required to obtain the Certificate for Entitlement issued by the Hong Kong SAR government and the One-Way Permit issued by the Mainland public security authorities before they are allowed to take up residence in Hong Kong (Chan, 2000)14. Although the NPCSC interpretation did not reverse the CFA’s judgments already rendered or affected the right of abode of the people who benefited from the January ruling, this interpretation of the Basic Law shall be adopted by Hong Kong’s courts in future. The Hong Kong SAR government’s request for an interpretation by the central government is widely considered to be putting policy expediency above judicial autonomy because of the estimated inflow of a huge number of Mainland people, especially among the legal community in Hong Kong. Further, this first constitutional crisis after 1997 showed that the CFA is not really the final court in interpreting the Basic Law. The interpretation rendered by the NPCSC shows that it has “the ultimate authority to interpret the Basic Law” in accordance with Article 158 (Chen, 2006: 641). But many sectors in Hong Kong have serious concerns about the use of constitutional interpretation as a means of political intervention into Hong Kong’s affairs and judicial independence, because after all, not all the provisions in the Basic Law are unambiguous (see below).
13.4.1.2 Conflicts over the Political Arrangements of the Basic Law
Despite its earlier relatively “hands-off ” approach to Hong Kong affairs, Beijing’s concern over its politics was aggravated with the failure of the Hong Kong SAR in passing the national security legislation in 2003. In September 2002, the Hong Kong SAR government initiated the legislative process for Article 23 of the Basic Law. The popularity of Mr. Tung and his government reached a nadir in early and mid 2003 with the unfolding of political scandal, such as his financial secretary’s purchase of a new car before introducing higher taxes on new car purchase, and the serious economic downturn caused by the severe acute respiratory syndrome outbreak. There were deep
14 TA Kung Pao, June 15, 1999, p. A11
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divisions in public opinion and strong opposition against the legislation and the legislative process of Article 23. As a result, on July 1, 2003, half a million people marched to vent their anger against Mr. Tung for his indecisive and ineffective leadership and protested against the Article 23 legislation. This political crisis compelled the government to withdraw the bill on July 7, 2003. Following the protest, the pro-democracy groups stepped up their demands for democracy. The pro-democracy parties successfully highlighted their demands in the District Council elections in November 2003, and quite a number of pro-democracy candidates won over pro-Beijing or progovernment candidates.
The second interpretation of the Basic Law concerns the future election method of the chief executive and the legislature of the Hong Kong SAR because the massive protest erupted on July 1 2003 fuelled demands for more democracy. In order to dampen the calls for the universal suffrage of the chief executive and the LegCo from the pro-democracy camp in Hong Kong, the central government began to steer the political debate in the SAR. In December 2003, President Hu Jintao highlighted his concern over Hong Kong’s political development (Ta Kung Pao, December 4, 2003, p. A2). However, there are ambiguities in the Basic Law about whether Hong Kong could further democratize its political system after 2007. In December 2003, central officials took the initiative and reiterated that Hong Kong’s constitutional development shall abide by the principles of “gradual and orderly progress” and that constitutional development should proceed “in light of the actual situation” and “balanced participation.”
In January 2004, a task force on Hong Kong’s constitutional reform was set up by the Hong Kong SAR government to consult the people about political reform. The Hong Kong SAR government echoed Beijing’s claim that constitutional development was the responsibility of the central government, and that consensus among all three sides of the Hong Kong SAR government, LegCo, and the central government must be reached to start the process.15 In fact, the Basic Law has not clearly spelled out the sequence of actions that have to be taken in order to initiate amendments of the Basic Law regarding the selection of the chief executive and the formation of the LegCo and its voting method subsequent to 2007. Beijing proceeded to interpret Annex I and II of the Basic Law in late March 2003 (Wen Wei Po, March 27, 2004, p. A1). The interpretation made on April 6 stated that any amendments to the method regarding the selection of the chief executive and LegCo must start with a report by the chief executive to the NPCSC, which will then “make a determination in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress.”16 Further, the bills on the amendments to the method for selecting the chief executive and for forming the LegCo and its procedures for voting shall be introduced by the Hong Kong SAR government. Soon afterward, in mid April, C. H. Tung submitted a request to the NPCSC and sought its determination on whether Hong Kong could proceed with political changes in 2007 and 2008. In order to curb demands for a faster pace of democracy, the NPCSC quickly followed up with a decision on April 26, 2004, that the method for the selection of the chief executive in 2007 and the legislature in 2008 would not be universal suffrage.17 Nonetheless, the specific methods in choosing the third chief executive and forming the fourth LegCo could be amended as long as such changes conform to “the principle of gradual and orderly progress.”
15See the press release of the Hong Kong SAR Government, March 26 and March 30, 2004 (http://www.info.gov. hk/gia/general/200403/26/0326320.htm); (http://www.info.gov.hk/gia/general/200403/30/0330222.htm).
16http://www.cmab.gov.hk/cd/eng/basic/pdf/es22004080554.pdf
17http://www.cmab.gov.hk/cd/eng/basic/pdf/es5200408081.pdf
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The third interpretation of the Basic Law concerns whether the new chief executive of the Hong Kong SAR shall serve the remaining terms of the chief executive, or whether he/she shall serve a new 5-year term after C. H. Tung abruptly resigned on March 10, 2005. The Basic Law has no clear provision for this situation. The legal community in Hong Kong and even the government initially held the view that the new chief executive shall have a full 5-year term.18 However, Mainland legal scholars representing the views of the central government argued that the chief executive should only serve the remaining term of the outgoing chief executive. The Hong Kong SAR government then adopted the Mainland position and proceeded to amend the relevant ordinance accordingly. Facing the challenge of a judicial review over this amendment, the acting chief executive, Donald Tsang, requested the NPCSC to interpret the relevant provisions of the Basic Law. The interpretation by the NPCSC stipulated that should an incumbent chief executive fail to complete a full 5-year term, the successor could only serve the remaining term of his/her predecessor (Hong Kong Commercial Daily, April 28, 2005, p. A1). Hence, Tsang, who enjoyed more popular support than Tung, could only serve the remaining 2 years before the next chief executive election in 2007. As one constitutional scholar put it, by seeking an interpretation from the NPCSC, the Hong Kong SAR government can pre-empt the judiciary from “making any ruling on the constitutionality or legality of any law or any government acts” (Tai, 2007: 72). Each of these constitutional interpretations have aroused great controversy and divided the community in Hong Kong.
13.4.1.3 New Constitutional Order in the Making
The constitutional relationship between the central authorities and post-1997 Hong Kong has proved to be conflict-ridden as Hong Kong’s common law system is becoming embedded in the broader Mainland legal order. The assertive role played by the central government reveals the limited scope for Hong Kong over political and constitutional matters under OCTS. Whether the Hong Kong SAR government has served mainly as an agent for the central authorities or as an advocate in protecting Hong Kong’s political and judicial autonomy remains a contentious issue. In 1999 and 2005, it was the Hong Kong SAR government, not the courts as expected in Article 158 of the Basic Law, which requested the interpretation of the mini-constitution. In 2004, it was the NPCSC that took the initiative to render an interpretation on annexes of the Basic Law regarding the methods to select the chief executive and form the legislature and its voting procedures. In order to manage demands for immediate political change, the central government was also keen to take decisions on the denial of universal suffrage in 2004 and on setting a more gradual timetable for democratic reform in late December 2007, so that Hong Kong could introduce universal suffrage for the election of the chief executive in 2017 and the LegCo in 2020.19 While the overall rule of law in Hong Kong, including the protection of individual rights and civil liberties, has not suffered from major setbacks, judicial autonomy can become more precarious if the interpretation of the Basic Law by the NPCSC becomes more frequent.
Some scholars have explored the emergence of constitutional norms in guiding the interactions between the central authorities and the SAR (Chen, 2003; Lo, 2008). For instance, the central government has so far not nullified any Hong Kong laws that it considers to be beyond the SAR’s autonomy, nor has it set up a mechanism to examine systematically Hong Kong’s laws
18See the secretary for Constitutional Affairs’ reply to a legislator’s question, http://www.cmab.gov.hk/en/press/ press_204.htm).
19See http://www.cmab.gov.hk/cd/eng/basic/pdf/decision.pdf.
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