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Durham E-Theses Durham E-Theses Constitutional Review in Hong Kong under the `One Country, Two Systems' Framework: An Inquiry into its Establishment, Justication and Scope LI, GUANGXIANG How to cite: LI, GUANGXIANG (2013) Constitutional Review in Hong Kong under the `One Country, Two Systems' Framework: An Inquiry into its Establishment, Justication and Scope, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/6966/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 Constitutional Review in Hong Kong under the ‘One Country, Two Systems’ Framework: An Inquiry into its Establishment, Justification and Scope Guangxiang Li A Thesis submitted for the degree of Doctor of Philosophy Durham Law School Durham University April 2013 Constitutional Review in Hong Kong under the ‘One Country, Two Systems’ Framework: An Inquiry into its Establishment, Justification and Scope Guangxiang Li Abstract This thesis enquires into the establishment, justification and scope of constitutional review in Hong Kong against the unique constitutional order of ‘One Country, Two Systems’ established in Hong Kong after its return to China in 1997. Constitutional review had emerged in Hong Kong in the pre-handover judicial enforcement of the Bill of Rights. But its establishment was in the CFA’s decision in Ng Ka Ling . The central question concerning constitutional review in Hong Kong is that the text of the Basic Law does not expressly provide for this authority. In light of the theories on the law of constitution and constitutional review advocated by Kelsen, Dworkin and Cappelletti, this thesis argues that the higher law status of the Basic Law , understood in both positive and normative senses, makes constitutional review not only scientifically necessary but morally desirable. Further, it is argued that given the common law legal system and the checks and balances in the political structure of present Hong Kong, it is most appropriate for the courts to exercise the power of constitutional review. However, constitutional review under the Basic Law is an intra-jurisdictional issue, involving not only the operation of the Hong Kong legal system, but also the legal system in mainland China. The Hong Kong courts’ jurisdiction of constitutional review is therefore a limited one. In that sense and to that extent, there is what might be called the ‘counter-Beijing difficulty’ in the Hong Kong courts’ exercise of the power of constitutional review. Nonetheless, the power of constitutional review has made the CFA a powerful court. It is the unwritten Basic Law formulated by the courts that is shaping OCTS. It is argued that to maintain the workability of the OCTS framework, due judicial restraint seems sensible and desirable. List of Abbreviations BLC Basic Law Committee BLDC Basic Law Drafting Committee BORO Bill of Rights Ordinance BPnPR children Children both of whose parents are not Hong Kong permanent residents CA Court of Appeal CDTF Constitutional Development Task Force CEship The office of the Chief Executive CFA Court of Final Appeal CFI Court of First Instance CPG Central People’s Government ECHR European Convention on Human Rights ECJ European Court of Justice ECtHR European Court of Human Rights ExCo Executive Council EU European Union HKSAR Hong Kong Special Administrative Region HMO Hong Kong and Macao Affairs Office of the State Council HRA Human Rights Act 1998 ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights LegCo Legislative Council LPO Legal Practitioners Ordinance NPC National People’s Congress (China) NPCSC Standing Committee of the National People’s Congress OCMFA Office of the Commissioner of the Ministry of Foreign Affairs OCTS One Country, Two Systems PLC Provisional Legislative Council POO Public Order Ordinance PRC People’s Republic of China SNP Scottish National Party UK United Kingdom of Great Britain and Northern Ireland US United States of America Declarations The product of this thesis is the author’s own research. Where there is citing of other people’s work, due references have been made. The copyright of this thesis rests with the author. No quotation from it should be published without the author's prior written consent and information derived from it should be acknowledged. Acknowledgements To do a Ph. D degree at a relatively advanced age might not be as challenging as climbing Mount Everest, but it is certainly not an easy task. The old saying — ‘the older, the wiser’ — is not necessarily true when it comes to reading books, articles and cases, most of which are not written in one’s own tongue, not to say writing some serious legal stuff in a foreign language. For the older, the mind is naturally not as quick and the memory not as strong as when they were younger. Very often, the unfortunate situation is ‘the spirit is willing but the body is weak’. When asked why he climbed Mount Everest, the English mountaineer George Mallory famously answered: because it is there. I wish I could reply in the same way if asked why I did this Ph. D research in my advanced years. Nonetheless, I have to say that I am certainly proud of myself that I made it. But I could not have made it, had I not been fortunate enough to have the patient, timely and insightful supervisions from both of my supervisors: Professor Ian Leigh and Dr. James Sweeney. My heartfelt gratitude therefore goes first to them both. It is by their guidance that I moved step by step forward. Supervision meetings with them were always fruitful and inspiring. They spotted with their experienced academic eyes everything in my drafts that was academically poor or insufficient: from points of substance to points of grammar, spelling, or the footnote page numbers. And then they would kindly comment on what might be missing, what might be added, which part of argumentation should be sharpened, which sentence needed to be re-worded, etc. Indeed, both Professor Leigh and Dr. Sweeney are super supervisors in that they always supervise in a positive and encouraging way. ‘Keep on with the good work’, wrote Professor Leigh in one of his feedbacks on my early draft-writings. ‘Don’t worry, it will click’, said Professor Leigh again when I told him that I got stuck somewhere. Dr. Sweeney kindly arranged a mini-mock-VIVA just in time before my VIVA was due. He wanted to make sure that I was well-prepared for the oral examination. Truly, I am dearly indebted to both my supervisors for their encouragements, inspiration and guidance, and I will always remain grateful for all the kindness and help they had given me. Nor could I have done this doctoral research without the generous scholarship offered by Cheung Kong Scholarship Board (Hong Kong). Indeed, without their financial support I might not have embarked on this journey in the first place. Cheung Kong Scholarship Board has long been enthusiastic in supporting academic research, not for a selfish purpose of promoting the own good of its funding company Cheung Kong (Holdings) Limited, but for the promotion of public good in general. I greatly admire Cheung Kong’s general broadmindedness, and I am genuinely grateful, and will always remain so, for the generous support I had received from them. My sincere thanks must also go to my colleagues in Beijing, for their understandings and supports in general, and in particular, for not keeping the pressure on me by, for example, asking when I am returning to work. Finally, I am most grateful for the love of my wife Cui Liping and my daughter Li Xianyue (also known as Marina, and she is 10 years old in 2013) and indeed the love and support of other family members. It is their enduring love that supports and uplifts me through these years of living away from home. If life without love is meaningless, life without love and yet frequently burdened with deadlines would be an unbearable yoke. I am truly blessed that I am free from that yoke. Marina has always been, as kids are always to their parents, a genuine joy. Instead of complaining in a straightforward way about my long absence from home, she once said: ‘why not just write ‘the end’ and then give your homework to your teacher and come home?’ Alas, a Ph. D degree would certainly become more easily attainable if one remains childlike but not childish. ‘Love is patient, love is kind’, writes Paul in the New Testament (1 Corinthians 13:4). That is the kind of love I enjoy from my wife and my daughter. Without their love, it would have been utterly meaningless for me to do this research. Nor could it have been completed at all. Abstract List of Abbreviations Declarations Acknowledgments Table of Contents Page Introduction……………………………………………………………………………………………………………..1 1. A new constitutional order in Hong Kong: One Country, Two Systems…………1 2. Question and thesis……………………………………………………………………………………..8 3. Methodology and content………………………………………………………………………….12 I. Constitutional Review: Its Justification, Nature and Scope…………………………………..19 Introduction………………………………………………………………………………………………………19 1.
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