A NEW CONSTITUTIONAL ORDER--- By Elsie Leung

ASIANOW - Asiaweek

A NEW CONSTITUTIONAL ORDER

Hong Kong can interface with the mainland on laws

By Elsie Leung
Secretary for Justice, Hong Kong SAR

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Hong Kong: One Law, Two Systems?

Elsie Leung Hong Kong should work with the Mainland Ronny K.W. Tong The SAR needs to keep the Common Law What it all means An Asiaweek Primer on reinterpretation, the right of abode and rule of law

THE HONG KONG GOVERNMENT'S recent decision to seek an interpretation of the Standing Committee of China's National People's Congress on a right of abode ruling has generated much debate here ["One Law, Two Systems?" THE NATIONS, July 9]. One issue of fundamental constitutional importance is the relationship between the legal systems of the mainland and the Special Administrative Region (SAR), and the interfacing role of the Basic Law. With the new constitutional order laid down in the Basic Law on July 1, 1997, the common-law system is preserved, except insofar it is inconsistent with the Basic Law. Therefore, some aspects of the common-law system have been modified. This is not a cause for concern. Common-law principles are regularly being modified by legislation in all common-law jurisdictions. The common-law system is a fundamental component in "one country, two systems." The Basic Law maintains the laws previously in force in Hong Kong as well as the institutions and values which underpin the common law system. But this position should not be viewed in isolation from the broader constitutional order established by the Basic Law. Hong Kong, while "enjoying a high degree of autonomy," has become "a local administrative region . . . directly under the Central People's Government." To suggest that the two legal systems should operate in complete isolation from each other is unjustified.
For example, a comprehensive adaptation of laws program is being implemented to bring previous laws into conformity with the Basic Law and with Hong Kong's changed status. Also, for the first time Hong Kong has a comprehensive written constitutional instrument covering a wide range of matters. As a result, the scope of the common-law system of judicial review has been significantly broadened. Furthermore, a limited number of mainland laws "relating to defense and foreign affairs as well as other matters outside the limits of the SAR's autonomy" as specified by the Basic Law apply to the SAR. Currently there are eleven such laws. Thus the SAR legal system is not completely quarantined from the mainland's.
Furthermore, the Basic Law - itself a national law - plays an interfacing role between the two legal systems. Under the common law, the ultimate power to interpret is vested in the judiciary. However, Hong Kong is part of China, which has a civil-law system, under which the ultimate power of interpretation is vested in the NPC's Standing Committee (SC). When the Basic Law was being drafted between 1985 and 1990, a solution was devised to cater to the different systems. Article 158 provides that: the power of final adjudication shall be vested in Hong Kong's Court of Final Appeal (CFA); the ultimate power to interpret the Basic Law shall be vested in the SC, which shall first consult the Basic Law Committee; the SC shall authorize the SAR courts to interpret provisions of the Basic Law in adjudicating cases, but in certain cases those courts must first seek its interpretation.
The SC's constitutional power to interpret the Basic Law, rooted in Article 67(4) of the PRC Constitution, may be exercised in the absence of any reference to it by the CFA. It is on the authority of the just-mentioned provisions that the SC's June 26 interpretation of the CFA's decision on right of abode was issued. (The Basic Law Committee, a working committee under the SC, consists of six mainland and six Hong Kong experts. It has provided valuable input since July1,1997 in the interface between the mainland and SAR legal systems and played an important role in the June 26 interpretation.)
It is natural for those familiar with the common-law system to object to a non-judicial body overturning an interpretation given by a final appellate court. However, distinction between interpretation and adjudication is not uncommon in the civil-law tradition. Both the Greek and Belgium constitutions empower their parliaments to issue legislative interpretation. The legislature in France has similar power. Indeed, since Britain joined the European Community in 1972, the House of Lords is obliged to seek a preliminary ruling concerning the interpretation of any relevant E.C. treaty provisions. The experience of the British courts, being the fountainhead of the common-law tradition, shows that they have adapted well to the new constitutional paradigm.
All this in no way suggests that the SC's power of interpretation is to be exercised arbitrarily. Indeed, the SC has exercised the power sparingly. Its June 26 interpretation testifies to the exceptional nature of the matter which could not have been resolved by Hong Kong itself unless the CFA were prepared to change its interpretation in another case at some unknown future date. As a matter of principle, the SC can only interpret the Basic Law and reverse the CFA's interpretation if it is inconsistent with the true legislative intent, not as a matter of expediency. That controversies like right of abode have arisen should come as no surprise; every new constitutional order must throw up such issues. Given efforts to improve mutual understanding of the two systems and good will on both sides, issues that arise can be satisfactorily resolved within one country in accordance with the Basic Law.