Legal Points of Interest in Hong Kong: Past, Present, Future

by Meaghan Lim

Hong Kong has unique legal characteristics as both an ex-colony of Britain and a Special Administrative Region (SAR) in China. To provide background, first, a timeline.

TIMELINE1

1842 – China cedes Hong Kong island to Britain. 1984 – Britain and China sign a Joint Declaration2on the conditions under which Hong Kong will revert to Chinese rule in 1997. 1990 – Beijing formally ratifies Hong Kong’s Basic Law3

1992 October – Proposals for the democratic reform of Hong Kong’s institutions aimed at broadening the voting base in elections are announced. China is outraged at not being consulted, threatens to tear up business contracts and overturn the reforms after it has taken control.

1997 July – Hong Kong is handed back to the Chinese authorities.

2004 April – China rules that its approval must be sought for any changes to Hong Kong’s election laws, giving Beijing the right to veto any moves towards more democracy, such as direct elections for the territory’s chief executive.

2004 July – Britain accuses China of interfering in Hong Kong’s constitutional reform process in a manner inconsistent with self-governance guarantees agreed before the handover.

2007 July – Hong Kong plans for full democracy unveiled.

2007 December – Beijing says it will allow the people of Hong Kong to directly elect their own leader in 2017 and their legislators by 2020.

2008 September – Hong Kong’s pro-democracy camp wins more than a third of seats in legislative elections, retaining a key veto over future bills.

2012 September – Pro-democracy parties retain their power of veto over new laws in Legislative Council elections.

PAST

There were two points at which China and Britain had disagreements regarding the administration of Hong Kong. In October 1992, China was angry about not being consulted regarding democratic reform in Hong Kong. In 2004, Britain accused China of interfering in Hong Kong’s constitutional reform process in a manner inconsistent with self-governance guarantees. As a principle in law, “the King cannot be sued in his own court”. Likewise in international law, a foreign sovereign cannot be sued in court4. This was extended to governments of States5.

The exception is where the foreign State voluntarily submits to the court, as said in Matsuyama & Sano v The Republic of China (1928)6:

“It is beyond doubt under international law that, in as much as no State acknowledges the authorities of another State except as an act of voluntary submission, a foreign State, in principle, is not amenable to our jurisdiction under some peculiar ground, such as the fact of the proceedings being in rem exists. There may be an exception only when such a State deliberately accepts our jurisdiction; and this may comprise occasions provided for by a treaty or those in which it has expressed its willingness to abide by the decision of our courts in the particular instance, or in contemplation of certain specific cases. Concession of that nature, however, must always and necessarily be made between the States concerned… It is true that the view that upon the institution of any litigation against a foreign State, it is still the duty of the Court… to issue a writ of summons and cite the parties to appear at an appointed date, so that an opportunity may be afforded to ascertaining the intention of the defendant (in this Case, the Republic of China), is a plausible one. It must nevertheless be pointed out that such issue of the note of citation ex officio … is in itself an exercise of our authority and cannot be effected against a State which does not submit to our jurisdiction.”

These principles of respect for sovereignty and non-interference with another’s domestic affairs are also reflected in C 1, art 2 of the UN Charter7, s 18 and s 79 respectively. China and Britain, as ratified members of the UN since 194510, agreed with these principles before their issues with management of Hong Kong.

Ratification11 of the Joint Declaration legally binds Britain and China to the terms set out in the Joint Declaration. However, as the declaration is without provisions subjecting China or Britain to the other’s jurisdiction, there is no enforceable method for Britain or China to enforce their legal declaration12 except goodwill13.

There was the possibility of bringing the dispute to the International Court of Justice14. However, only contentious cases can be applied for unilaterally15. These mostly concern possible infringement of territorial or jurisdictional rights16, which would not be the case in either of the disagreements mentioned.

For disputes regarding interpretation of agreements, it is more likely that the States would submit an application for Advisory proceedings17. However, this type of application would require the consent and agreement of both States18. They are rare in comparison to Contentious cases19, indicating that China and Britain would not likely agree to such a method of dispute settlement.

CURRENTLY

General Principles20 of the Basic Law

The HKSAR has a high degree of autonomy in executive, legislative and independent judicial power, including that of final adjudication21. The socialist system and policies shall not be practised in the HKSAR, and the previous system shall remain unchanged for 50 years22. The laws previously in force in Hong Kong (common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, except for any that contravene the Basic Law and subject to any amendment by the legislature of the HKSAR23.

Relationship Between the Central Authority & the HKSAR24

The Central People’s Government (“CPG”) is responsible for the defence and foreign affairs relating to the HKSAR. The CPG authorises the HKSAR to conduct relevant external affairs and maintain public order in the Region on its own25. National laws are not applied in the HKSAR except for those listed in Annex III26, which are applied locally by way of promulgation or legislation by the HKSAR27. No body directly under the Central Government may interfere in the affairs which the HKSAR administers on its own in accordance with the Basic Law28.

Possible Point of Tension

There appears to be tension between the Basic Law principle of non-interference29 and its Annex I provision30 that requires amendments to election laws to be approved by Beijing. They are not technically contradictory as Art 22 on non-interference has the qualifier “in accordance with this Law”, and Annex I amends the Basic Law. Art 4531 on elections also had a qualifier of “in accordance with the principle of gradual and orderly progress”. The tension has been tentatively resolved as Beijing has stated that it will allow the people of Hong Kong to directly elect their own leader in 2017 and their legislators by 2020, showing that the approval is merely for speed, placing it under the qualifier of “gradual progress”. However, until the election laws of Hong Kong reach a state that no longer requires change, Beijing repeals the requirement of approval or the Basic Law expires, this tension in spirit will still exist.

LEGAL FUTURE

In 2047, the 50 year hold-off of mainland policies under the Basic Law will end. It is possible that Hong Kong’s common law system would be replaced altogether by mainland China socialist-civil law. This would have the benefit of consistency. However, it also means that Hong Kong would lose part of its legal heritage and identity. Precedents under Hong Kong’s common law structure would no longer be binding. On the other hand, the legal arrangement could be allowed to continue, effectively extending the legal system arrangement that existed under Basic Law. This means that there will not be any major overhaul of the system currently in place, though without the Basic Law, China would be able to impose laws to be effected through the common law system.

Effects

Whatever the direction decided for Hong Kong, it is likely to affect Macau. Macau is under a similar agreement under the 1999 Sino-Portuguese joint declaration32. Their Basic Law33 arrangement ends in 204934. Macau is somewhat different from Hong Kong as Portugal operates under civil law, which is more similar to China’s current legal system. There would be less change with the legal system itself. However, the general direction of completely replacing or extending their current legal system would be impacted from Hong Kong’s arrangement, as Macau is the only other SAR.

CONCLUSION

The disagreements concerning Hong Kong in the past illustrate principles in international law. The current “one country, two systems” shows slight tension in the spirit of the terms of the Basic Law, which can be resolved given enough time. When Hong Kong’s Basic Law agreement ends in 2047, the direction taken by China would be illuminating as well as important as the decision regarding Hong Kong may also affect Macau.


[1] BBC, Hong Kong Profile, online: BBC news Asia-Pacific <http://www.bbc.co.uk/news/world-asia-pacific-16526765 on 13 Dec 2013>.

[2] The Joint Declaration sets out, among other things, the basic policies of the People’s Republic of China (PRC) regarding Hong Kong. Under the principle of “One Country, Two Systems”, the socialist system and policies shall not be practised in the Hong Kong Special Administrative Region (HKSAR) and Hong Kong’s previous capitalist system and life-style shall remain unchanged for 50 years. The Joint Declaration provides that these basic policies shall be stipulated in a Basic Law of the HKSAR.

Basic Law Promotion Steering Committee, Some Facts about the Basic Law, online: The Basic Law

<http://www.basiclaw.gov.hk/en/facts/index.html>.

[3] The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China [Basic Law].

The Basic Law ensures that the legal system in the HKSAR will continue to give effect to the rule of law, by providing that the laws previously in force in Hong Kong (that is, the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, save for any that contravene the Basic Law, and subject to subsequent amendment by the HKSAR legislature.

Government of Hong Kong, Legal System in Hong Kong, online: Department of Justice <http://www.doj.gov.hk/eng/legal/>.

[4] Sompong Sucharitkul, “Jurisdictional Immunities in Contemporary International Law from Asian Perspectives” in Zou Keyuan & Jianfu Chen, eds, International Law in East Asia (England: Ashgate Publishing Limited, 2011) at 10.

[5] Ibid at 11.

[6] Judgement of December 1928, Great Court of Judicature, 7 Daihan Minchu, 1128 at 1135-1136; 4 Annual Digest of Public International Cases, 168 at 168-169.

[7] Charter of the United Nations, 26 June 1945, Can TS 1945 No 7.

[8] Ibid, art II, s 1. The Organization is based on the principle of the sovereign equality of all its Members.

[9] Ibid, art II, s 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.

[10] United Nations, Member States of the United Nations, online: United Nations Member States <http://www.un.org/en/members/>.

[11]Ratification legally binds a State to implement the Convention and/or Optional Protocol, subject to valid reservations, understandings and declarations.

United Nations, Chapter Four: Becoming a party to the Convention and the Optional Protocol, online: United Nations Enable <http://www.un.org/disabilities/default.asp?id=231>.

[12] Berkeley Journal of International Law , 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 with Annexes, 5 Int’l Tax & Bus Law, 424 (1987), online: Berkeley Journal of International Law <http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1073&context=bjil>.

[13] Charter of the United Nations, supra note 7, Art II, s 2.

All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

United Nations, Chapter 1: Purposes and Principles, online: Charter of the United Nations <http://www.un.org/en/documents/charter/chapter1.shtml>.

[14] The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

International Court of Justice, The Court, online: International Court of Justice <http://www.icj-cij.org/court/index.php?p1=1>.

[15] International Court of Justice, Cases, online: International Court of Justice <http://www.icj-cij.org/docket/index.php?p1=3>.

[16]International Court of Justice, List of Cases referred to the Court since 1946 by date of introduction, online: International Court of Justice <http://www.icj-cij.org/docket/index.php?p1=3&p2=2>.

[17] Ibid.

[18] International Court of Justice, Cases, online: International Court of Justice <http://www.icj-cij.org/docket/index.php?p1=3>.

[19] International Court of Justice, List of Cases referred to the Court since 1946 by date of introduction, online: International Court of Justice <http://www.icj-cij.org/docket/index.php?p1=3&p2=2>.

[20] Basic Law Promotions Steering Committee, Chapter I: General Principles, online: Basic Law Full Text<http://www.basiclaw.gov.hk/en/basiclawtext/chapter_1.html>.

[21]Basic Law, supra note 3, art 2.

[22] Ibid, art 5.

[23] Ibid, art 8.

[24] Basic Law Promotions Steering Committee, Chapter II: Relationship between the Central Authorities and the Hong Kong Special Administrative Region, online: Basic Law Full Text<http://www.basiclaw.gov.hk/en/basiclawtext/chapter_2.html>.

[25] Basic Law, supra note 3, art 13-14.

[26] Basic Law Full Text—Annex III: National Laws to be Applied in the Hong Kong Special Administrative Region (Personally compiled. All effective from 1 July 1997 unless indicated otherwise with brackets.)

1. Resolution on the Capital, Calendar, National Anthem and National Flag of the People’s Republic of China

2. Resolution on the National Day of the People’s Republic of China

3. Declaration of the Government of the People’s Republic of China on the Territorial Sea

4. Nationality Law of the People’s Republic of China

5. Regulations of the People’s Republic of China Concerning Diplomatic Privileges and Immunities

vi.            Law of the People’s Republic of China on the National Flag;

vii.           Regulations of the People’s Republic of China concerning Consular Privileges and Immunities;

viii.          Law of the People’s Republic of China on the National Emblem;

ix.            Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone;

x.             Law of the People’s Republic of China on the Garrisoning of the Hong Kong Special Administrative Region. Law of the People’s Republic of China on the Exclusive Economic Zone and the Continental Shelf [4 November 1998]

xi.            Law of the People’s Republic of China on Judicial Immunity from Compulsory Measures Concerning the Property of Foreign Central Banks [27 October 2005]

Note: The English translation is prepared by the Department of Justice, Government of the Hong Kong Special Administrative Region. It is for reference purposes and has no legislative effect.

Basic Law Promotions Steering Committee, Annex III: National Laws to be Applied in the Hong Kong Special Administrative Region, online: Basic Law Full Text<http://www.basiclaw.gov.hk/en/basiclawtext/annex_3.html>.

[27] Basic Law, supra note 3, art 18.

[28] Basic Law, supra note 3, art 22.

No department of the Central People’s Government and no province, autonomous region, or municipality directly under the Central Government may interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this Law. If there is a need for departments of the Central Government, or for provinces, autonomous regions, or municipalities directly under the Central Government to set up offices in the Hong Kong Special Administrative Region, they must obtain the consent of the government of the Region and the approval of the Central People’s Government. All offices set up in the Hong Kong Special Administrative Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region.

*For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People’s Government after consulting the government of the Region. The Hong Kong Special Administrative Region may establish an office in Beijing.

Basic Law Promotions Steering Committee, Chapter II: Relationship between the Central Authorities and the Hong Kong Special Administrative Region, online: Basic Law Full Text<http://www.basiclaw.gov.hk/en/basiclawtext/chapter_2.html>.

[29]Ibid.

[30] Basic Law, supra note 3, annex I.7.

If there is a need to amend the method for selecting the Chief Executives for the terms subsequent to the year 2007, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People’s Congress for approval.

Basic Law Promotions Steering Committee, Annex I: Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region, online: Basic Law Full Text <http://www.basiclaw.gov.hk/en/basiclawtext/annex_1.html>.

[31] Basic Law, supra note 3, art 45.

The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People’s Government.

The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.

The specific method for selecting the Chief Executive is prescribed in Annex I: “Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region”.

Basic Law Promotions Steering Committee, Chapter IV: Political Structure, online: Basic Law Full Text <http://www.basiclaw.gov.hk/en/basiclawtext/chapter_4.html>.

[32] “Decree of the President of the People’s Republic of China”, online: Basic Law Macau <http://www.umac.mo/basiclaw/english/main.html>.

[33] Basic Law of the Macao Special Administrative Region of the People’ s Republic of China.

[34]Ibid, Art 5.