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This thesis has been submitted in fulfilment of the requirements for a postgraduate degree (e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. THE UNIVERSITY of EDINBURGH School of Law THE ROLE OF THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION UNDER CHINA’S “ONE COUNTRY, TWO SYSTEMS” PRINCIPLE WANLI WANG Thesis submitted for the Degree of Doctor of Philosophy The University of Edinburgh 2010 Table of Contents Declaration …………………………………………………………………...... iv Acknowledgement …………………………………………………………….. v Abstract ………………………………………………………………………... vi Chapter 1 Introduction …………………………………………………………………… 1 Chapter 2 The Constitutional Context of the HKSAR within China: the Conditions for the Court’s Operation …………………………………………………….. 11 1 Introduction ……………………………………………………………... 11 2 A Brief History of Britain’s Acquisition and China’s Recovery of Hong Kong ……………………………………………………………………. 11 3 The “One Country, Two Systems” Policy and the Basic Law Enshrining It ………………………………………………………………………... 15 4 The Distinctiveness of the HKSAR Systems within China ...................... 19 5 China’s Constitutional Structure and Systems ………………………….. 23 6 The Intersections and Interactions Between the Two Systems …………. 31 7 A Comparison of the HKSAR’s Constitutional Arrangements with the EU and the UK …………………………………………………………. 36 8 Conclusion ………………………………………………………………. 44 Chapter 3 The Legitimate Role of Courts ……………………………………………….. 46 1 Introduction ……………………………………………………………... 46 2 Counter-Majoritarian Difficulty: Questioning the Legitimacy of Judicial Review …………………………………………………………………. 47 3 Waluchow’s Answer: the Living Tree Theory ………………………….. 51 4 Incompletely Theorised Agreements and Judicial Minimalism ……….... 57 5 Ely’s Representation Reinforcing Approach ……………………………. 61 6 From “Difficulty” to “Dialogue” ………………………………………... 64 7 Conclusion ………………………………………………………………. 68 Chapter 4 Jurisdictional Competence: Controversies over Constitutional Review, Basic Law Interpretation, and Acts of State ………………………………… 69 1 Introduction ……………………………………………………………... 69 2 Constitutional judicial review …………………………………………... 70 2.1 The practice before handover …………………………………….. 70 2.2 Are Hong Kong courts competent to review acts of the NPC and NPCSC? ………………………………………………………….. 72 2.3 Constitutional review of regional legislation and executive actions …………………………………………………………... 76 2.4 Implications ………………………………………………………. 81 3 Interpreting the Basic Law ……………………………………………… 83 3.1 The CFA’s approaches to interpretation …………………………. 85 3.2 The reference issue ……………………………………………….. 87 3.2.1 Rules for referring ………………………………………….. 87 Wanli Wang Table of Contents 3.2.2 The Chief Executive’s role ………………………………… 90 3.2.3 The Court’s retreat …………………………………………. 92 3.2.4 Lessons from the EU ……………………………………….. 92 4 Acts of State …………………………………………………………….. 97 5 Conclusion ………………………………………………………………. 102 Chapter 5 Protection and Promotion of Fundamental Rights and Freedoms ………… 105 1 Introduction ……………………………………………………………... 105 2 The Legal and Constitutional Framework ………………………………. 106 3 Generous Interpretation Approach ……………………………………… 110 4 Open-mindedness: Comparative Approach, Amicus Curiae, and Adaptation of Traditional Tests ………………………………………... 112 5 Freedom to Demonstrate ………………………………………………... 115 6 Freedom of Expression (Speech) ……………………………………….. 120 7 The Right to Equality and Non-Discrimination ………………………… 124 8 Conclusion ………………………………………………………………. 126 Chapter 6 Judicial Politics: At Regional Level and Beyond …………………………… 128 1 Introduction ……………………………………………………………... 128 2 The Relationship with the Regional Government and Legislature …....... 128 3 Impact on Public Policies ……………………………………………….. 138 4 The Court’s Role in Democratic Development …………………............. 144 4.1 Constitutional Reform ……………………………………………… 144 4.2 The Courts’ Impact ………………………………………………… 147 4.3 The Justiciability of Political Questions …………………………… 149 4.4 The Virtue of Modesty ……………………………………………... 152 5 Interaction with Mainland China’s Political Life ……………………….. 155 5.1 Influences from the Central Government ………………………....... 155 5.2 The Positive Impact of Hong Kong’s Experience on Mainland China ……………………………………………………………….. 158 6 Conclusion ………………………………………………………………. 162 Chapter 7 Conclusions ……………………………………………………………………. 164 Bibliography ………………………………………………………………….... 170 Wanli Wang DECLARATION Pursuant to The University of Edinburgh Postgraduate Assessment Regulations for Research Degrees, I hereby declare that this thesis has been composed by me alone and the research work is my own. It has not been submitted for any other degree or professional qualification. Signature: Print Name: Wanli Wang Date: 19th July 2010 Wanli Wang - iv - ACKNOWLEDGEMENT Above all, I would like to express my deepest and sincerest gratitude to my supervisor Professor Chris Himsworth for his continuous supports, understanding, encouragement, patience and personal supervision, which have been of great value to me in completing my research. Professor Himsworth strokes a good balance in between giving me sufficient advice to produce a competent and interesting piece of work and fostering my confidence as well as competence as an independent researcher. Without Professor Himsworth’s high standards, I would not have been able to accomplish this thesis so smoothly and happily – I honestly think that he deserves an award for the best research supervisor. Being his student is my great fortune and an honour indeed. I thank my assistant supervisor Mr Navraj Singh Ghaleigh for his invaluable comments on my work, especially on the draft of this thesis. My thanks also go to the Cheung Kong Group Scholarship Board for their generous support. Particularly, I thank Ms Eirene Yeung, Deputy Chairman of the Board, and her secretary Ms Eva Chan, for their kind assistance in handling my Scholarship application. I am thankful to Mr Anson Chen for proofreading my draft thesis. His work has helped to improve the language quality of this thesis greatly. I would also like to thank my colleagues in Beijing for their encouragement throughout the time in my study. Finally and most importantly, I am indebted to my wife. Without her continuous support and company, I would not have been able to spend so many years in Edinburgh on this PhD programme. Here I would like to mention my lovely daughter especially – she filled my heart with love and happiness during my study. I also thank my brother and sister in China. It should be noted that the views expressed in this thesis indicate merely the author’s personal academic opinions. They do not reflect or represent the view, opinion and/or stance of any institution or organisation the author worked or working for. I dedicate this thesis to my beloved parents. Edinburgh July, 2010 Wanli Wang - v - ABSTRACT This thesis examines the constitutional performance of Hong Kong’s Court of Final Appeal (the CFA or the Court), and explores the appropriate role it should play in Hong Kong’s new constitutional order defined by China’s “one country, two systems” principle. It includes a wider discussion of China’s political and constitutional structure within which the Court’s operational context is defined, a consideration of the legitimate role of senior courts, and an investigation of relevant UK and EU constitutional practices. It evaluates the Court’s part, inter alia, in constitutional judicial review, the interpretation of the Hong Kong Basic Law, human rights protection, and the resulting constitutional and political implications. The Court’s role mirrors questions in relation not only to the internal political and legal order of Hong Kong itself but also to the broader constitutional order as to the central-regional relationship in China. It is the only institutional connection between Hong Kong’s common law legal system and Mainland China’s communist civil law system. When exercising its power of constitutional review and Basic Law interpretation, the Court faces dilemmas and sensitive situations, in which it has to handle with care the relationships between individual freedoms and collective good, judicial independence and executive efficiency, judicial scrutiny and legislative authority, regional interests and national concerns, the region’s autonomy and the centre’s power. A tendency of judicial supremacy emerges in post- handover Hong Kong, with profound implications for Hong Kong’s political life. While playing a significant role in human rights protection, the maintenance of good governance, and the achievements in constitutionalism and the rule of law in Hong Kong, the Court may also make some positive contributions to Mainland China’s own development in these areas. It is suggested that the Court adopt a modest and restrained approach in deciding politically sensitive constitutional questions, defining itself not