The Right of Abode Cases: The Basic Law on Trial (Part II)

Zhimin WEN

Perspectives, Vol. 2, No. 4

(Editor's Note: This is the second part of a two-part article. The first part was published in Perspectives, Vol.2, No. 3.)

II. An Evaluation of the Various Players Involved

The constitutional crisis over the right of abode has come to a dramatic but temporary end. On January 29, 1999, the CFA rendered its decision in the first right of abode case. The Court unanimously held that mainland-born children of Hong Kong permanent residents had the right to settle in Hong Kong and that the courts of Hong Kong had the power to interpret the Basic Law. Only ten months later, on December 3, 1999, the same judges upheld deportation orders against 17 similarly situated mainland-born children, confirming the "unqualified" power of the NPCSC to interpret the Basic Law, Hong Kong's constitution.

Of course, the Court could not ignore the reality that the NPCSC did have the ultimate right to interpret the Basic Law. But it is alarming that it chose to issue such an overly broad ruling, and one in such stark contrast to its earlier holding. By simply discarding the only provisions that conferred upon Hong Kong courts the sole power of interpretation, the Court appears to have intentionally limited its own jurisdiction. The December decision was a complete reversal of the January decision, and represented the culmination of a series of political miscalculations and judicial missteps--in short, a general constitutional debacle. Even though the government eventually won the case, and the business community and the public felt safe from a threatened wave of immigration, no one seemed very happy with the experience, and none could claim to have emerged a winner.

A. The Court of Final Appeal

As both Chinese national legislation and Hong Kong's primary constitutional document, the Basic Law defines the power structure the central and the region governments are part of, the institutional relationships between the executive, legislative and judicial branches, and the rights and status of individuals in relation to state authority. Under the common law regime retained under the "One Country Two Systems" formula, constitutional disputes fall within the jurisdiction of the CFA. The CFA therefore inevitably assumes tremendous responsibility in adjudicating certain disputes concerning, for example, the structural division of power, or major public policy questions. But constitutional review is not a purely adjudicative activity. Rather, it is a judicial act with political elements, as it may confirm or negate executive or legislative power. A court engaging in constitutional review also thrusts itself into the interplay between the judicial, legislative and executive branches. Thus statutory interpretation of general or vague constitutional provisions will necessarily include not only legal doctrines but also value judgments, policy choices and a weighing of the public interest. In the delicately-balanced arrangement under the still-experimental Basic Law, the CFA ought to take a measured approach in addressing constitutional challenges: on the one hand, the CFA should safeguard judicial independence and exercise its judicial authority to protect the rule of law and human rights; on the other hand, it should be cautious enough to avoid heavy-handed or controversial decisions and to prevent itself from being drawn into a politicized process. Without this measured approach, the CFA, along with the underlying rule of law (which is based upon a delicate institutional balance), would become vulnerable to attacks from political institutions such as the HKSAR government or the central government in Beijing. Thus, in navigating their way through a constitutional crisis, the judges of the CFA need not only legal expertise but also political savvy.

Instead of a measured approach, in its January decision the CFA took an aggressive and confrontational approach by declaring that it, rather than the NPCSC, had the power to interpret the Basic Law. The Court held that it had jurisdiction to examine whether any legislative acts of the NPC or NPCSC were consistent with the Basic Law and to declare them invalid if the CFA found such acts to be inconsistent with the Basic Law. "The courts of [Hong Kong] do have this jurisdiction and indeed the duty to declare invalidity if inconsistency is found. It is right that we should take this opportunity of stating so unequivocally." Ng Ka Ling v. The Director of Immigration In a bold attempt to defend Hong Kong's autonomy, the CFA unfortunately upset the delicately balanced relationship between mainland China and Hong Kong and aggravated the tension between the overarching civil law regime and the common law system. Apparently lacking a full appreciation of the fact that the institutional equilibrium under the Basic Law virtually relies on self-restraint by Beijing, the Court unnecessarily provoked the NPCSC and set itself on a collision course with the NPCSC by refusing to follow the Article 158 requirement to certify the right of abode question to the NPCSC.

The Court understandably had strong motives to establish its power to interpret the Basic Law, as there were potential ambiguities in the language of the Basic Law, but it should not have drawn a line in the sand over the right of abode cases. High courts in many countries are careful in picking cases on which to challenge other branches of government. The U.S. Supreme Court is particularly cautious when accepting cases in which it will need to take a stand on difficult political issues. For example, even though the U.S. Supreme Court had decided in 1955 in Brown v. Board of Education of Topeka, that school segregation was unconstitutional, it rarely intervened in the desegregation process, leaving this to the federal district courts and local politics and deliberately waiting until 1963 before beginning, in Goss v. Board of Education of the City of Knoxville, to set forth much more specific guidelines concerning what means were acceptable for implementing desegregation. Wise as the result of more than one bitter experience, the U.S. Supreme Court understood that a high court seeking respect and independence in the robust arena of a democratic polity should not decide more than it has to.

The Court of Final Appeal should have appreciated more fully what was at stake in rendering its decision. Even if it felt that it must decide as it did in the January decision, it should have issued a very narrow and strictly limited opinion that avoided a direct confrontation on the constitutional issues. The showdown should have been postponed for a future battle, perhaps on an obscure case involving a technical point of law, on which it would have been unreasonable for the Standing Committee to pick a fight.

Having been overly ambitious and exuberantly liberal in its January decision, the Court of Final Appeal went to the other extreme in the December decision, unnecessarily giving up ground to the NPCSC by making sweeping concessions. The question of the Standing Committee's power to interpret provisions that are within the limits of Hong Kong's autonomy is a matter of profound importance in realizing the high autonomy promised by the Basic Law. Such a significant question should have been left to a future case in which the CFA could not avoid reaching the issue. Instead, in an once-and-for-all approach, the Court left little room for alternative threads of reasoning to be developed in future cases, and seemed to have even gone beyond the NPCSC's June Interpretation (the "Interpretation") in proclaiming that the Standing Committee's power to interpret the Basic Law "is not restricted or qualified in any way."

Moreover, the Court of Final Appeal seems to have been largely ignorant of the potentially alarming consequences of its decision. Under the Court's January decision, all legitimate and illegitimate children, whether born or unborn, of parents who are permanent residents or may become permanent residents in the future would have automatically gained permanent residence themselves. Government estimates, albeit probably exaggerated, were that this decision would result in a flood of an additional 1.67 million immigrants to Hong Kong (at 6.8 million already one of the most densely populated cities in the world) over the next decade. Opinion surveys showed that more than 83% of the residents of Hong Kong opposed the Court's decision.

The second right of abode case marked the complete capitulation of the CFA and represented a failure both in jurisprudence and in imagination. Perhaps such judicial blunders arose from constitutional inexperience and political deafness, but in the decades to come they may lead to unintended negative consequences beyond the purely judicial realm.

B. The HKSAR Government

Facing the threat of mass immigration as a result of CFA's holding in the first abode case, the HKSAR government chose not to seek to change the law through the legislature-the normal common law process-but instead asked the NPCSC to hand down a ruling which essentially overturned the CFA holding. Such an expedited action might have brought about a quick fix, but its cost may take a long time to become fully clear. The government has tried to downplay the significance of the NPCSC ruling. But damage has been done to the ideal of the rule of law in Hong Kong society because the government and the NPCSC took the risk of undermining the image and standing of the courts by declaring that the CFA was wrong in its handling of the first right of abode case.

Politics is a relatively new phenomenon in Hong Kong, and the Basic Law includes a timetable for moving toward to democracy. The preservation of the legal system acted as a counterweight to that slow process, with the courts enjoying backing across the political spectrum, including, notably, the business community, which has often taken a suspicious view of democracy but knows the importance of maintaining the rule of law in Hong Kong. Moreover, the CFA was seen as the HKSAR's best safeguard of the autonomy promised by the Basic Law.

With a Provisional Legislative Council ("PLC") that is far from representative of the local populace, and a Chief Executive hand-picked by Beijing, the judiciary is the only potentially independent body in the political equation. But the NPCSC Interpretation was a public statement of where power lies. Now that independence appears to have been quashed, and with it, the hope for a real separation of powers within the Hong Kong system. Thus, by raising the public's expectations of autonomy under the Basic Law in the first right of abode case, and thus heightening the stakes of a constitutional challenge, but later deflating those expectations in a very politicized process, the CFA and HKSAR government made people experience a disillusionment that inevitably undermined the public perception of an independent judiciary. Technically the decision to ask the NPCSC to intervene and overrule the Court's judgment was done in a legally sound and constitutionally correct way, but that cannot alter the fact that the entire episode has seriously damaged public perceptions of Hong Kong's autonomy and cast a lasting shadow over the authority of the Hong Kong's judiciary. Moreover, it has apparently left the judiciary feeling that it has been victimized by a highly politicized process, as the government failed to defend judicial independence and criticized the January decision instead. One would hope that Hong Kong's judges would not be influenced by political pressure if they are confronted with difficult constitutional issues in future, but it would be naïve to expect them to be unaware that pressures exist. There is plenty of room for timid judges to yield to external pressures in future constitutional litigation by 1) claiming to avoid sensitive political issues; 2) too readily referring matters to the Standing Committee under Article 158; or 3) simply giving in to official political pressure or intimidation. Therefore, in order to uphold the independence of the judiciary and the rule of law, the HKSAR government in the current executive-led political structure should take a broad and long-term view in dealing with judicial decisions that unavoidably relate to the political process.

However, no one in the executive rules out following a similar procedure in other cases. Indeed, a senior legal official has said the government may seek intervention on any Basic Law questions it sees fit to raise before, during, or after a trial. In seeking the NPCSC Interpretation, the Chief Executive established his authority, under the vague provisions of Article 43 and Article 48(2), to request a constitutional interpretation equivalent to the CFA's Article 158 power of judicial reference. In the absence of express authorization in the Basic Law, would such an action have precedential effect? Such concerns have led to a growing movement for restrictions on the executive's discretion to seek future Standing Committee interpretations. Senior Hong Kong officials have insisted that the government only rarely request interpretations, claiming the "exceptional" threat posed by a potential influx of 1.6 million migrants prompted consultation over the right of abode. But the public's concern is unlikely to be eased simply by being told to trust the government's judgment.

It is unrealistic for Hong Kong to expect to dictate terms to the Standing Committee. But Hong Kong could start a dialogue by suggesting "rules of engagement" between the Hong Kong authorities and the central government. Detailed procedural and substantive rules could be established to govern circumstances in which interpretations will be sought. For instance, two preconditions for an executive request to interpret might be instituted: a) a procedural rule that the request must be supported by the majority of NPC local deputies and Legislative Councilor; and b) a substantive rule that the subject of interpretation is the relationship between the mainland and the HKSAR. It is in the defining of detailed ground rules that predictability and consistency can be achieved, thereby allaying the concerns of the people of Hong Kong and the international community. The government might impose restrictions upon itself, perhaps by making a public statement defining the circumstances in which it would seek interpretations in future. There is also a need to stop any "unhealthy developments" whereby influential litigants undermine the legal system by seeking rulings from Beijing rather than fighting in the courts. Both concerns might be addressed by new laws enacted by the Legislative Council. The people of Hong Kong may rightly suspect that the government would be not interested in restricting its powers. Where there are no requirements in the Basic Law, it may be difficult for the Legislative Council to impose limitations on the government by creating new laws, especially if the Basic Law implicitly gives the government such a right, as the Chief Executive claimed in May 1999.

C. The Central Government

It is always hard for outsiders to second-guess the decision process in Beijing. If one does not believe the conspiracy theories, throughout the right of abode saga we might conclude that the central government looked rather like a player drawn unwillingly onto the field. Eager to make the "one country two systems" experiment work, Beijing has strong motives to remain uninvolved in high-profile and controversial issues in Hong Kong and demonstrate its will in keeping its promises to Hong Kong and the international community. When challenged by a zealous CFA in the first abode right case, Beijing signaled its disagreement by unleashing criticism from mainland legal scholars, though it obviously did not prefer open conflict. Beijing later demonstrated that it was ready to put the issue behind it when Chinese legal scholars expressed satisfaction over the CFA's clarification that the Court has no intent to put itself above the NPC. The NPCSC did not join in the dispute until the HKSAR government, like a child with overdue homework assignments, suddenly realized that it would be overwhelmed by mainland immigration and chose to ask an intervention from the central government. This might explain why there has been more criticism of the HKSAR government than of Beijing.

The passion of those who have opposed the HKSAR government's motion for interpretation can largely be attributed to their lack of confidence in the NPCSC's interpretive process. The method and scope of the Interpretation are not convincing when compared to similar common-law processes. The NPCSC neither offered detailed discussion of the legal basis for its decision nor indicated the interpretive method it used. In the name of providing original legislative intent, it gave the strong impression that it simply reached the political conclusion it wanted. By ruling that the Article 24(3) right of abode is limited to mainland children born of Hong Kong parents who were Hong Kong residents at the time of the child's birth, the NPCSC actually modified law rather than interpreted it. As a consequence, the NPCSC Interpretation did not provide any ground rules for predicting how it might interpret the Basic Law in the future.

The way in which Standing Committee interpretations are made has also come under the microscope. The decisions of the NPCSC were not objectively arrived at after listening to all sides of the argument. The NPCSC instead rendered a quick decision giving effect to the partisan proposal recommended by the HKSAR government. If we must accept that there will be future interpretations, can we develop fairer procedures for rendering them?

A lot of attention has centered on the Basic Law Committee. In order to bolster confidence in the legal and deliberative quality of the Standing Committee's interpretations, Article 158 required the NPCSC to consult with the Basic Law Committee. Yet, in this saga, the Basic Law Committee's role has been very uncertain, if not limited. It followed up on the motion to the NPCSC by the Chief Executive and probably had the benefit of the "case stated," which presumably included a history of the litigation, the briefs of counsel and the CFA judgment. The Basic Law prescribes nothing about the Basic Law Committee apart from the fact that it must be comprised of twelve members, with six from the mainland and six from Hong Kong. Many questions remain unanswered, such as: how should the Basic Law Committee function and operate? how does it collect information and opinions from non-members? Can its procedure allow serious discussion among its members? The need for procedures is urgent, to ensure that the Basic Law Committee performs its duties in the proper way.

There have been many suggestions that aim to reform the structure and process of the Basic Law Committee to make it more effective, transparent and accountable. The Basic Law Committee might adopt procedures that would make it more like a court, such as holding public hearings, hearing argument from litigants and their lawyers, and giving detailed reasons for the advice it passes on to the Standing Committee. But there would need to be changes to the composition of the Basic Law Committee in order to ensure that it was truly independent and had sufficient legal expertise. Proposals for making it operate more like a court should be explored. Although rules were established for the Basic Law Committee in 1998, unfortunately the rulemakers have not been able to tackle the question of whether the Basic Law Committee may hold a hearing at which lawyers or other interested members of the public may appear. When the Basic Law Committee discussed the right of abode interpretation, it met in private and its report to the Standing Committee has not been published. But this matter has been left open as the rules did not exclude the possibility of a hearing being held.

The Basic Law Committee could play a role similar to that of the Privy Council (or to some extent the House of Lords) under British rule. It could operate like a court and make recommendations to the Standing Committee which, in practice, are always approved, just like the relationship between the Privy Council and the Queen. If this were the way forward, the Basic Law Committee should be judicialized immediately to make it more like a judicial entity. However, this judicialization would not necessarily make the HKSAR more autonomous if the central government were to use the Basic Law Committee as an institutional support for their narrow view of the scope of HKSAR autonomy and the primary responsibility of HKSAR courts for interpretation of the Basic Law.

Another approach would be to make the Standing Committee itself operate in a fairer, and more legal, fashion. This has been the subject of many debates on the mainland with scholars suggesting that a "constitutional committee" be formed: a certain kind of body would be established within the Standing Committee to handle legislative interpretation. Some scholars argue that it is unconstitutional for such a body, as part of the legislature, to handle individual cases. But if constitutional states such as the United States (Senate impeachment) and the United Kingdom (the House of Lords and the Privy Council) can incorporate certain judicial functions into the legislature, the NPC certainly could create a committee to handle constitutional issues that may have some connection to certain cases. In addition, the HKSAR courts could still examine an interpretation of the Standing Committee in relation to a Hong Kong matter (e.g. the abolition of the municipal councils). The CFA might listen to arguments, provide its own views, and then return the matter to Beijing for reconsideration. The Court would also have to examine the question and, if the Court thought the NPCSC's interpretation wrong, it would have to so state in its ruling. The Standing Committee, advised by the Basic Law Committee, would then take another look with the benefit of additional material and public reaction. However, the danger of developing more sophisticated procedures for Standing Committee interpretations is that it would turn the Standing Committee into a Court of Final Appeal in Beijing. Moreover, given the current Chinese political structure and policymaking process, such a significant reform of the NPCSC would likely be regarded by China as too ambitious, if not radical.

D. The General Public

The fallout from the right of abode cases has caused concern about the erosion of the rule of law in accordance with common law tradition. While most of attention has been focused on the threat from above, i.e. from the central government and the HKSAR government, little attention has been paid to the potential undermining of Hong Kong's constitutional order from below by the general public. Conflicts between the legal culture of the general public and the legal tenets enshrined in a constitution are familiar phenomena in many post-colonial societies. To a large degree, they reflect the incongruity between nonwestern cultures and western values. Under the colonial regime, these conflicts were often suppressed. In a post-colonial system, these conflicts can turn visible and cause subtle changes in the operation of legal system or the rule of law more generally. A functioning constitutional order not only defines the separation of power between various branches of government but also structures the relationship between individual and state to provide safeguards for human rights. One of the key functions of a constitution is to protect the rights of minorities. Therefore judicial interpretation might be a better means of construing the constitution than legislative interpretation, since legislatures generally respond to the majority while a relatively apolitical judiciary may interpret the constitution in a way more sensitive to minorities.

Unfortunately, in a bid to challenge the CFA's unfavorable holding in the first abode right case, the HKSAR government took a propagandistic approach by shaping public opinion using scare tactics. When people learned from governmental statistics that the ruling would result in an influx of a huge number of mainland immigrants, the public was up in arms. An opinion poll commissioned by the Faculty of Social Science of the Chinese University of Hong Kong in early May 1999 found that 78.5 percent of the those polled considered the CFA ruling wrong because they thought it would increase the social and economic burden on Hong Kong. When fielding various proposals to resolve the immigration crisis brought about by the CFA ruling, people were more concerned about the practicality of the possible solutions. In another poll organized by the Better Hong Kong Foundation in early May found that 70.1 percent of the respondents thought that, if Hong Kong had to wait until next March to have the Basic Law amended to resolve the right of abode issue, then the HKSAR government should not go the amendment route. As a result, the government's motion to seek a NPCSC interpretation as a quick fix immediately won general acceptance. An Oriental Daily News poll conducted on May 18 reported 52 percent for and 30 percent against the government's proposal. According to a survey carried out by the Hong Kong Policy Institute on May 6, 32.2 percent of respondents hoped for a NPCSC interpretation, while 47.5 percent preferred amendment of the Basic Law. But in a poll one day later, when time constraints were added, 60.1 percent of respondents supported an NPCSC interpretation if it could be done by June, while only 39.9 percent chose amendment if it could be completed by next March. In a poll conducted by the Chinese University in early June, 60.1 percent of respondents supported the government's move while 32.9 percent opposed it. When the respondents were asked about the principal factor in their opinion whether the right of abode should be given to mainland children of Hong Kong parents, the majority of them, 63.3 percent, chose "the collective interest of society." Only 12.2 percent picked "the legal viewpoint" and 11.7 percent went for "human rights."

Though far from conclusive, these data may indicate that the Hong Kong public adopts a legal instrumentalist view when faced with constitutional litigation involving the fundamental rights of a minority group. The data may also indicate that Hong Kong's legal culture is characterized by strong elements of legal instrumentalism. In other words, in contrast to the common law perspective, law is treated by the common people as a means to an end, and law is valued for its contribution to collective well-being. In such a culture, the public looks for substantive justice, as defined by dominant social values and collective needs, rather than the procedural justice fundamental to the rule of law. If law is largely seen as an instrument for achieving collective and individual ends but with limited intrinsic value, then public respect for law relies on the public perception of its performance in achieving those ends. Democracy advocates in Hong Kong argue that the rule of law will be strengthened by democratic development. However, if the public's attitudes towards the law do not change, democratization is likely to provide more room for legal instrumentalism to assert itself through political channels-particularly through the legislature. For example, with democratization, the judiciary would lose allies in the Legislative Council like the legal profession representatives, and would be subject to stronger political pressures to change the way it operates to narrow the gap between itself and the public. Ironically enough, democracy in Hong Kong would not necessarily be a blessing for the rule of law.

III. Conclusion

It has been ten years since the Basic Law was promulgated to institute a new constitutional order for a post-colonial Hong Kong. Now, two and half a years into implementation of the Basic Law, Hong Kong and China have learned a hard lesson from the right of abode cases. The experiment in constitutional structure has experienced its first serious trial as enormous legal, political and emotional resources have been taxed. The reality of "one country" has become immutable while the line between the "two systems" has been tested and has shifted. The fundamental rights of a minority group might be sacrificed for the sake of collective welfare; powers not expressly allocated by the letter of the Basic Law might be claimed by the administration and exercised without interference from a tame legislature; ultimate power to interpret the Basic Law might be separated from final power to adjudicate constitutional disputes; and the delicately arranged institutional balance might be disturbed by well-intentioned expediency.

There are some other points of concern over the Basic Law that have not yet been tested. For example, the exemption of "acts of state" from the Court's jurisdiction under Article 19, and the implication of Article 23 requiring Hong Kong to enact laws prohibiting acts of treason, subversion, sedition and secession against the central government as well as against theft of state secrets and links with foreign political organizations. Even right of abode litigation is now moving on to other subsections of Article 24. Various appeals are now pending which will further "clarify" the terms of the Basic Law, such as the rights of a Chinese citizen born in Hong Kong or adopted outside Hong Kong by parents who are settled in Hong Kong. The rights of foreigners are also in dispute, e.g., how to determine the seven-year residence period.

The right of abode cases show the dynamics of the development of Hong Kong's constitutional order to be the result of the internal tension between two different but closely intertwined systems. Although the NPCSC's general power to interpret the Basic Law was conceded in the CFA's December decision, concerns about whether there will be adequate constraints on the NPCSC in its interpretations of the ambit of HKSAR autonomy have become more urgent. As the CFA is no longer certain [about] the "predominant test" and the NPCSC Interpretation gives the reader no clue, then among all the 160 articles of the Basic Law, by what standard may one determine what should fall within the scope of high degree of autonomy and what without? A senior NPC official recently admitted that the scope of the NPC's power to interpret provisions in the Basic Law concerning local affairs would be difficult to define, demonstrating that the scope of NPC jurisdiction will have to be clarified through the process of implementing the Basic Law. Through the process of implementation, a consensus may gradually emerge.

More profound will be developments in the relationship between the central authorities and the HKSAR under the Basic Law. On the one hand, because China is a unitary state and the only sovereign, the HKSAR does not have inherent powers of its own; rather, it has only those conferred upon it by the central government. On the other hand, the central government may exercise self-restraint with respect to some of its powers. China's granting of autonomy to the HKSAR is in a way an act of sovereign self-restraint. The NPC derives its power from the Chinese constitution, but is able to limit its own power. For example, Article 158 requires the NPC to authorize HKSAR courts to interpret the Basic Law in adjudicating cases; and Article 159 provides that no amendment of the Basic Law shall contravene the established policies of the state regarding Hong Kong, namely "one country two systems," "Hong Kong people running Hong Kong" or "a high degree of autonomy." Therefore, the fact that the HKSAR's power is authorized under a unitary state system does not mean that the central government is under no constitutional constraint. Many constraints take the form of provisions in the Basic Law even though they may be described as the product of self-restraint. But the crucial question remains: can the sovereign's acts of self-restraint become institutional restraints on the central authorities? And how strong can such constitutional constraints be in a China that has no tradition of constitutionalism and in a China where constitutional principles are stronger in letter than in practice?

We might find reasons enough to be suspicious of the role of self-restraint in supporting Hong Kong's constitutional order, and this article is not supposed to identify the potential driving forces behind such a trend or demonstrate the probability of its success. However, in my opinion, a robust constitutional structure in Hong Kong is dependent upon developing sound rules of political practice that enjoy general acceptance and are followed as a matter of convention so as to uphold constitutional rules of self-restraint. In the United Kingdom, constitutional conventions have played an indispensable role in supporting the unwritten constitution. Of particular relevance are those rules that regulate the exercise of the sovereign's prerogatives or parliamentary supremacy. It may be possible to develop constitutional conventions that do not derogate from the NPCSC's legal powers but simultaneously underline the need for sovereign restraint. The NPCSC Interpretation of June 26, 1999 still leaves some room for future legal maneuvering, since the NPCSC did not intend to establish a precedent that the NPCSC would interpret provisions that the Basic Law authorizes the CFA to interpret. Instead, the NPCSC interpreted the relevant provisions to concern both the central government's responsibility and the relationship between the Central Government and the HKSAR. Thus NPCSC does not claim to interpret provisions that it regards as within the HKSAR's autonomy; it claims to be doing just the opposite. Of course the NPCSC could have taken another route. Just one "bad" precedent can obstruct, if not destroy, the chances of sound constitutional development. Sometimes unintended consequences play a role. In principle, a constitutional convention can be developed or undone by a single fact situation to which a given constitutional rule is intended to apply.

To make the development of such constitutional conventions possible, the various actors must develop more realistic expectations and strategies for integrating Hong Kong's legal system with that of the mainland. They must also recognize that constitutional progress takes a long time. The HKSAR government should help to develop the necessary procedural and other safeguards relevant to requests for, and the exercise of, the NPCSC's power (and that of the other authorities within the Central Government). After reflection on the CFA's assertive but ultimately unsuccessful attempt to reshape the delicate institutional balance, the HKSAR judiciary will hopefully come to appreciate the practical value of modest judgment as opposed to overly bold statements. The central government must continue in its low-key approach and accommodate efforts to establish a constitutional practice or convention of self-restraint. The sovereign imperatives of "one country" are often so powerful that the only way of being sovereign without undermining autonomy is to regulate the exercise of plenary power with the help of rules of self-restraint. Both "one country" and "two systems" would thereby be safeguarded and Hong Kong's constitutional order could thrive.

Now that the Basic Law has moved from words on paper to reality, its impact can be expected to extend far beyond HKSAR. One of the major challenges confronting China in the twenty-first century is the problem of how a constitutional system can combine the advantages of a strong central government with the advantages of high levels of autonomy for all of its provincial or regional governments. Hong Kong is an obvious starting point for any study of this area.

More immediately to the point is the Basic Law's relevance to the Taiwan problem. Since Chen Shui-bian, the candidate of the pro-independence Democratic Progressive Party, was elected to the presidency last March, Beijing has faced mounting pressure to take effective measures, either political or military, to resume sovereignty over Taiwan. Though the "one country two systems" formula was originally introduced by Deng Xiaoping in a bid to eventually reunify the mainland with Taiwan, an even more generous version of this formula holds little allure for this independent-minded island. However, the fact that the Basic Law has actually been implemented and respected by Beijing inevitably confers more credibility upon any future proposal Beijing might offer to Taiwan. The precedent set by the Basic Law and a functioning constitutional order in Hong Kong gives us at least some reason to hope that Chinese common sense and creativity will eventually prevail.

Author's Endnote:

This article is based on my third-year paper finished in mid-2000 in fulfillment of the graduation requirements for my degree. Since then, a twist of fate has added a personal dimension to what had previously been a purely academic effort. In July 2000, several desperate mainland immigrants committed a tragic arson in the Hong Kong Immigration Tower. Later, my application for a work permit in Hong Kong sponsored by a prominent U.S. law firm went through a rocky process and dragged on for almost half a year (though an American classmate in a similar situation waited only two months). I have no evidence to support an inference of improper behavior, but like many PRC nationals who have ever had difficulties with the Hong Kong immigration agency, I cannot but suspect that there might be institutional or cultural biases against mainland Chinese. Only after my half-year ordeal which brought many uncertainties to my personal life and much anguish to my family, my girlfriend and myself did I understand that the right of abode cases involved untold frustration, bitterness and pain for thousands of mainland immigrants who are far more helpless and underprivileged than I am. Though trained as a lawyer, I am forced to recognize the law's limitations in changing society, and I wonder: institutionally we have already been "one country", but in our hearts how soon can we really be "one family" and "one people?"

(Zhimin Wen is an attorney in the Hong Kong office of the American law firm Hunton & Williams.)