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The London School of Economics and Political Science the Constitutional The London School of Economics and Political Science The Constitutional Relationship between China and Hong Kong: A Study of the Status of Hong Kong in China’s System of Government under the Principle of ‘One Country, Two Systems’ Guoming Li A thesis submitted to the Department of Law of the London School of Economics for the degree of Doctor of Philosophy, London, June 2011 1 Declaration I certify that the thesis I have presented for examination for the PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without the prior written consent of the author. I warrant that this authorization does not, to the best of my belief, infringe the rights of any third party. 2 Abstract This thesis investigates the sustainability of constitutional review practised in the Hong Kong Special Administrative Region (HKSAR) within a broader political and legal system of the People’s Republic of China (PRC) in post- 1997 era. Theoretical questions regarding the compatibility and workability of this type of review have been raised, particularly with respect to the constitutional interpretation of the Hong Kong Basic Law. Setting the scene against the background of thirteen years of implementation of the Hong Kong Basic Law, this thesis examines the challenge presented both to the HKSAR and the Chinese authorities working within the frame of ‘one country, two systems’. It examines practical and theoretical aspects of the interpretation of the Basic Law and of the nature of this unique constitutional relationship between the HKSAR and the PRC. This thesis explores the constitutional relations between the PRC and the HKSAR through the lens of constitutional jurisdiction of the Hong Kong Basic Law, whose interpretation has triggered huge debate in both Hong Kong and mainland China. This thesis finds that the cause for the disparity over the interpretation issue has its origins in the understanding of the fundamental concepts of sovereignty and constitution. The thesis concludes that the Hong Kong Basic Law provides the frame for a new type of constitutional relationship between the PRC and the HKSAR. The Basic Law does not solve the constitutional questions raised but rather serves as 3 a basic framework through which the Central Authorities of the PRC and the HKSAR are enabled to evolve in an on-going process of constitutional norm- formation. My research also aims to contribute to the study on the special constitutional arrangements under the circumstances of Chinese political theory and legal system, and to offer reflections on the road towards constitutionalism in China. 4 Acknowledgements First I would like to thank my doctoral supervisors, Professor Martin Loughlin and Professor Tim Murphy in the Law Department of the London School of Economics and Political Science (LSE) for their insightful comments and continuous encouragements throughout the years of my study. I’m grateful indeed to the Cheung Kong Scholarship Board in Hong Kong for offering me financial support for years. During my final year of study, the London School of Economics awarded me a grant allowing me to conclude my research. Without their generosity, this research cannot possibly be done. My thanks are due to my colleagues in Beijing. Their patience reduced my pressure of leaving my work behind and pursuing the study abroad for years. I have benefited from Professor Albert Chen, Professor Rao Geping, Dr Sven- Michael Werner and Li Fei at various stages of this research. Dr Wu Qianlan had read and commented all the draft chapters. My friends, Dr Chu Xiaoli, Chih-hsing Ho, Zhu Chenwei, Liu Jiaobo, Dr Francesca Lessa, Dr Celine Kim and many others kindly offered me their generous friendship and encouragements. Most importantly, my family has provided me with the strongest and irreplaceable support for me. I want to express my deep gratitude to my parents, my brothers and sisters for being supportive over the years. 5 List of abbreviations BLDC Drafting Committee of the Basic Law of the HKSAR CA Court of Appeal CE Chief Executive (of the HKSAR) CDIC Central Discipline Inspection Committee of the CPC CFA Court of Final Appeal CFI Court of First Instance CPC Communist Party of China/Chinese Communist Party CPG Central People’s Government CPPCC Chinese People’s Political Consultative Conference ExCo Executive Council HK Hong Kong HKBL Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China HKMAO Hong Kong and Macao Affairs Office of State Council, PRC HKSAR Hong Kong Special Administrative Region HORO Human Rights Ordinance (Cap.383) ICCPR International Conventions of Civil and Political Rights JCPC Judicial Committee of Privy Council JD Joint Declaration of the government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong JLG Sino-British Joint Liaison Group LAO Legislative Affairs Office of the State Council 6 LegCo Legislative Council NPC National People’s Congress NPCSC Standing Committee of National People’s Congress OCTS One Country, Two Systems PLC Provisional Legislative Council, HKSAR PRC People’s Republic of China SAR Special Administrative Region SEZ Special Economic Zone S for J Secretary for Justice SPC Supreme People’s Court SPP Supreme People’s Procuratorate 7 Table of Contents Declaration Abstract Acknowledgements List of Abbreviations Table of Contents 1 Chapter I Introduction ...................................................................................... 13 1.1 Background ................................................................................................ 14 1.2 Scholarly debate over the status of the Hong Kong Basic Law ................. 19 1.3 Statement of thesis ..................................................................................... 24 1.4 Research method ........................................................................................ 27 1.5 Thesis structure .......................................................................................... 29 2 Chapter II The Constitutional Framework of the People’s Republic of China ......................................................................................................................... 35 2.1 The history of constitution-making in China ............................................. 36 2.1.1 The origin of the written constitution in China .............................. 36 2.1.2 Constitution-making in the People’s Republic of China (1949- ) .. 39 2.2 System of government in contemporary China .......................................... 46 2.2.1 People’s congress system ............................................................... 47 2.2.2 The National People’s Congress and its Standing Committee ...... 51 2.2.3 The judiciary in the system of government of the PRC .................. 59 2.2.4 Central-Local Relations in the PRC............................................... 65 2.3 The role of the Constitution in the Chinese governmental system ............ 68 3 Chapter III Constitutional Framework of the Hong Kong Special Administrative Region ............................................................................................. 76 8 3.1 A brief review of the settlement of the Hong Kong question .................... 78 3.2 Features of the system of government in Hong Kong before 1984 ........... 83 3.3 Hong Kong in transition: from 1985 to 1997 ............................................. 87 3.3.1 Democratization of Hong Kong ..................................................... 88 3.3.2 The Hong Kong Bill of Rights Ordinance ...................................... 93 3.4 Political system of the HKSAR (1997 onwards) ....................................... 97 3.4.1 General features ............................................................................. 97 3.4.2 Relations between the Chief Executive and the Legislative Council of the SAR ................................................................................................... 99 3.4.3 Recent developments .................................................................... 107 3.5 Institutional relationship between the HKSAR and the Central Authority of the PRC ............................................................................................................ 109 4 Chapter IV Constitutional Review in Hong Kong ....................................... 119 4.1 Jurisdiction of the courts in Hong Kong .................................................. 120 4.1.1 Institutional changes since the transfer of sovereignty ................ 121 4.1.2 The issue of the constitutional jurisdiction of the HKSAR courts 123 4.2 The practice of constitutional review in the HKSAR regarding the implementation of the Basic Law..................................................................... 127 4.3 Analysis of the case law ........................................................................... 132 4.3.1 Justification of the constitutional jurisdiction of the HKSAR courts ……………………………………………………………………………132 4.3.2 The role of the court in distribution of power between political institutions ...............................................................................................
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