The Constitutional System of the Hong Kong SAR

A Contextual Analysis
Erscheinungsjahr 2024
ISBN: 978-1-5099-5633-3
Verlag: Hart Publishing

Buch, Englisch, 264 Seiten, Paperback, Format (B × H): 136 mm x 214 mm, Gewicht: 333 g

This book provides an account of the evolving constitutional arrangement known as "One Country, Two Systems", as practised in the Hong Kong Special Administrative Region of the People's Republic of China (PRC).

The British colony of Hong Kong, one of the "Four Little Dragons" of East Asia, reverted to Chinese rule in 1997. Since then, Hong Kong has continued to be an international financial centre, a free market, and a cosmopolitan city. At the same time, the tensions and contradictions inherent in "One Country, Two Systems" have given rise to constitutional controversies and social movements, culminating in the Umbrella movement of 2014, the anti-extradition law movement of 2019, the enactment of a National Security Law in 2020, and the electoral overhaul of 2021. This book discusses the structure and operations of Hong Kong's legal, judicial and political systems and their interactions with the national authorities of the PRC.

The book provides a useful case study in comparative constitutional law, especially on autonomy and devolution issues within sovereign States. This comparative study is particularly interesting because Hong Kong is a common law jurisdiction within the PRC's socialist legal system. It will therefore be of interest to students and scholars of Chinese law, Hong Kong law and comparative politics, as well as lawyers whose practice involves Hong Kong.

Autoren/Hrsg.

Chen, Albert H Y

Yap, Po Jen

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Asien (inkl. Türkei und Naher Osten)
• Rechtswissenschaften Öffentliches Recht Staats- und Verfassungsrecht Verfassungsgeschichte, Verfassungsvergleichung

Inhaltsverzeichnis

Preface

Table of Cases

Table of Legislation

1. Hong Kong's Constitutional Journey

I. Hong Kong before the 1980s

II. Negotiation of the Sino-British Joint Declaration

III. Drafting of the Basic Law

IV. Developments in Colonial Hong Kong in the 1990s

V. Major Constitutional and Legal Developments in the HKSAR

A. Aborted Attempt to Implement Article 23 of the Basic Law, 2002-03
B. Interpretations of the Basic Law by the National People's Congress Standing Committee, 1999-2016

C. Pace of Democratisation, 2003-15

D. Failed Attempt to Introduce an Extradition Bill, 2019

E. Beijing's Interventions on National Security Law and Electoral Reform, 2020-21

VI. Conclusion

Further Reading

2. The Autonomy of the HKSAR and the Powers of the Central Authorities

I. The Concept of Autonomy

II. The PRC Constitution and the Basic Law

III. The Continuity of Laws

IV. 'Plenary Power' and 'Patriots Ruling Hong Kong'

V. The Powers of the HKSAR

VI. The Powers of the Central Authorities

A. The First Interpretation

B. The Second Interpretation

C. The Third Interpretation

D. The Fourth Interpretation

E. The Fifth Interpretation

F. The 'Decision-Making' Power of the NPCSC

G. The 'Decision-Making' Power of the NPC

H. Application of National Laws to the HKSAR
VII. Conclusion: An Analysis of 'One Country, Two Systems'

Further Reading

3. The Political System: The Executive and the Legislature

I. Hong Kong's Political System: From Colony to SAR
II. The Chief Executive

A. Executive Orders

B. Emergency Powers

C. Dual Accountability

III. The Executive Council

IV. Principal Offi cials, Bureaux and Departments

V. Access to Information

VI. The Legislative Council

A. The Legislature and the Executive

B. 'Separate Counting' Mechanism and Private Members' Bills

C. Powers and Functions

VII. Independent Agencies

VIII. Conclusion

Further Reading

4. The Political System: Electoral Politics and Constitutional Changes

I. The Electoral System

II. Political Polarisation in Hong Kong

III. The 'Ruling Coalition' in the HKSAR

IV. The Dynamics of Constitutional Reform

V. The Electoral Overhaul of 2021

A. 'Patriots Ruling Hong Kong'

B. The Policy Behind the Electoral Reform

VI. Conclusion

Further Reading

5. Constitutional Role of the Judiciary

I. Structure, Organisation and Composition of Hong Kong's Courts
II. Constitutional Review of Local Legislation
III. Judicial Review of the Central Authorities' (NPC/NPCSC) Acts

IV. Judicial Treatment of NPCSC Interpretations

V. Retrospective Effect of NPCSC Interpretations

VI. Constitutional Signifi cance of the NPCSC's Power of Interpretation

VII. 'Separation of Powers' or 'Executive-Led Government'?

VIII. Conclusion: Coexistence of 'Separation of Powers' and 'Executive-Led Government'

Further Reading

6. Constitutional Rights

I. The Basic Law and the Hong Kong Bill of Rights Ordinance

A. Ng Kung Siu and Article 39 of the Basic Law

B. Article 39 of the Basic Law Post-Ng Kung Siu

II. Effect of ICCPR Reservations and Section 11 of the BORO

III. Judicial Use of Comparative Law
IV. Proportionality Analysis

V. CFA During Chief Justice Andrew Li's Tenure

A. Central-HKSAR Constitutional Relations

B. Law and Order

C. Declarations of Invalidity

VI. CFA During Chief Justice Geoffrey Ma's Tenure

A. Central-HKSAR Constitutional Relations

B. Law and Order

C. Express Findings of Unconstitutionality
D. Constitutionality of Electoral Restrictions

VII. CFA During Chief Justice Andrew Cheung's Tenure

VIII. Conclusion

Appendix: List of CFA Cases with Express Findings of Unconstitutionality

Further Reading

7. Constitutional Remedies

I. Invalidation of Unconstitutional Laws

II. Advisory Review or Provisional Determination

III. Remedial Interpretation

IV. Suspension Order

V. Invalidation of Constitutional Law

VI. Conclusion

Further Reading

8. Conclusion

I. A New Narrative for the 'Hong Kong Story'

II. 'Free Market Constitutionalism' in Hong Kong

III. Xi Jinping's Speech on 1 July 2022

IV. Brief Overview of 25 Years of the HKSAR

V. Conclusion

Further Reading

Index

Über Autor(innen)

Chen, Albert H Y
Albert Hung-yee Chen is Professor of Law at the Centre for Chinese Law, The University of Hong Kong.

Yap, Po Jen
Po Jen Yap is Professor at the Faculty of Law, The University of Hong Kong.