The Beijing-Hong Kong Legislative Relationship

The Beijing-Hong Kong Legislative Relationship: A Constitutional Assessment

Yahong LI

(Author's note: this is an excerpt from a book chapter in Raymond Wacks (ed): The New Legal Order in Hong Kong, Hong Kong: Hong Kong University Press, 1999. Please refer to the book for full citation and notes.)

Under the Basic Law (BL) the Hong Kong Special Administrative Region (HKSAR) is vested with legislative powers. The HKSAR Legislative Council (Legco), the legislature of the region, enjoys a high degree of legislative autonomy. It may legislate on almost any matter that a national legislature is entitled to legislate except for foreign affairs and defense. Daniel Fung, Hong Kong's former Solicitor-General, once commented, "no federal state of which I am aware would tolerate a similar degree of separateness or autonomy on the part of any one region within the same country." No doubt, such separateness or autonomy presents special challenges to both China's central lawmaking practice in general and Hong Kong's in particular.

This essay sets out to address some of the more immediate issues that cry out for solutions. Central to my discussion is the question of when China's central legislature in Beijing may interfere with Hong Kong's legislative autonomy. This may happen, under the Basic Law, when the central legislature exercises its power to interpret and amend the Basic Law, to return a statute made by Legco on grounds that the statute conflicts with the Basic Law, to mandate that Legco adopt laws for carrying out national polices, or to apply national laws to the HKSAR in a "state of emergency." I shall also examine the possible recourses available under the Basic Law for the HKSAR to resist encroachment of its legislative powers, as well as the institutional mechanisms that China may develop to deal with potential conflicts in the Beijing-Hong Kong legislative relationship.

1. Theoretical and Legal Basis

Legislative power is an inherent part of the power structure of a polity. The allocation and distribution of legislative powers within a polity, including those of the center and a region, depend largely on the political system and the ideological basis on which the polity is established. The HKSAR was established as an autonomous and free capitalist polity under the central government on the principle of "one country, two systems." By default, Hong Kong's legislative system and its relationship with the central legislature are also premised on the same principle. The meaning of "one country" is self-explanatory. "Two systems," however, when applied to political aspects of the central government-HKSAR relationship, may mean different things to different interpreters. Has China changed from a unitary system to a pluralist or hybrid one, in which the nature, allocation and use of legislative powers can be compared to those of a federal state? Deng Xiaoping has been quoted as saying, "the design of 'one country, two systems' does have some characteristics of a federal system, but we cannot call it federalism because it can be easily interpreted as 'two Chinas' or 'one and a half Chinas' if we do." If we take this statement seriously, the chief architect of the "one country, two systems" principle may not have been against federalism in substance.

The Beijing-Hong Kong relationship may superficially resemble a type of federal arrangement, because the SAR is in many ways even more autonomous than a member state or confederate region of a federal state. However, the SAR's legislative powers, like all other powers it enjoys, remain derivative. The SAR was established directly under China's Central People's Government. Its powers can therefore be limited, altered, and even withdrawn by Beijing if deemed necessary. The key distinction between a federal system and a unitary system is not about how much power the center and member states or confederate regions each possesses, but about the origin of the various powers they enjoy. In fact, some federal states were created precisely for the purpose of establishing a strong national government. The tendency toward centralization in certain federal states, however, does not change the fact that the centralizing systems remain federal. Likewise, Hong Kong's high degree of autonomy does not change the fact that the SAR enjoys its powers under China's unitary system, powers that can be withdrawn by the center at any time, unless strict constitutional restraints are in place.

Unfortunately, the Chinese Constitution of 1982 offers little guidance on this point. As the supreme law of the land, the Constitution is generally said to serve as the ultimate source of the autonomy and powers vested in the HKSAR. Indeed, Article 31 of the Constitution provides that the National People's Congress (NPC) has the authority to establish a special administrative region and to decide on the system practiced therein. Hong Kong is not specified, however, for the article was reportedly drafted with reference to the reunification with Taiwan. It follows that the article is silent on the specific status and powers of the HKSAR government. In contrast, the Constitution at Articles 58, 89, 100 and 116 provides specific powers including legislative powers for all the Chinese provinces, municipalities and autonomous regions.

The status and powers of the HKSAR government therefore must be sorted out instead in Hong Kong's own "mini-constitution," the Basic Law. Under the Basic Law, Hong Kong is to maintain its own legal system including the common law and rules of equity. China's national laws are not applied in the SAR except the few listed in Annex III to the Basic Law, such as the Nationality Law. An interesting question arises as to the status of the Basic Law itself, namely whether it can be treated as part of the national Constitution, or at least an amendment thereto. Plausible academic arguments supporting this theory have been made in recent years. However, it is difficult to see how in terms of constitutional interpretation this "amendment theory" can make any difference in the status and powers of the HKSAR government.

Clearly, under the present constitutional arrangement, Hong Kong's legislative powers may encounter some potential challenges. However, from a practical point of view, the arrangement may be the only solution to the difficult task that Beijing and Hong Kong both must grasp: ensuring national unity while maintaining the SAR's high degree of autonomy within a fairly out-dated constitutional framework.

In fact, it is not without precedent that two or more different legal systems co-exist under a single basic norm in a unitary state. Professor Raymond Wacks argues that "the basic norm's supposed 'neutrality' suggests that there is no logical reason why the basic norm of, say, a socialist legal system cannot be the basic norm of a capitalist one," and Kelsen's basic norm is, by definition, unrelated to the political ideology of the legal system in question. In Louisiana, a civil law system coexists with the common law system of the United States, just as Quebec's civil law exists within the Canadian common law system, and Scottish laws alongside the laws of England and Wales.

2. Current Arrangement and Problems

The HKSAR Chief Executive, C. H. Tung, once said that the NPC will not make laws for Hong Kong; instead, Hong Kong will make laws for itself. This statement of course leaves out the Basic Law, which was adopted by the NPC for the SAR. However, the statement directs us to the important question of whether the SAR legislature can make laws on its own initiative, free from the pressure and instruction, express or implied, from Beijing or elsewhere.

(a) The Extent of the HKSAR's Legislative Powers

Under the Basic Law, the HKSAR enjoys extensive legislative powers, pursuant to Article 31 of the Chinese Constitution. However, these legislative powers are not granted without limitation. First, all laws enacted by the SAR legislature must be reported to NPC's Standing Committee (SCNPC) for recording. It is common for a national legislature to keep track of regional legislation, and the Chinese Constitution contains a similar recording provision for the legislation of the provinces, municipalities and autonomous regions. The unsettling question, however, is with the reserved veto power of the SCNPC over SAR legislation. Article 17 of the Basic Law stipulates that the SCNPC has the power to return any law deemed contravening the Basic Law. In determining a possible contravention the SCNPC will consult and seek the opinion of the Committee for the Basic Law (CBL).

This veto power was a much-debated issue during the drafting of the Basic Law. Opponents of the veto power argued that it would hamper the SAR in exercising its "high degree of autonomy," resulting in a situation of "one country, one system" rather than the promised "one country, two systems." They suggested that the veto power should be vested in the SAR Court of Final Appeal (CFA). Proponents of the veto power, on the other hand, emphasized the sovereignty and unity of China's legal system. The draft Basic Law, published in April 1988 for comments, adopted the proponents' view in providing that the SCNPC, after consulting and seeking the opinion of the CBL, should return or repeal any SAR law contravening the Basic Law. The SAR law thus returned would be invalidated. This draft provision provoked a great deal of criticism in Hong Kong and was later modified. The adopted text of the Basic Law added an important clause and deleted the words "repeal" and "any." The veto power now reaches only SAR laws determined to contravene the Basic Law "regarding affairs within the responsibility of the Central Authorities or regarding the relationship between the Central Authorities and the Region."

The legislative history of Article 17 shows that there was a tug-of-war in reaching the final text. Article 17 resulted from a compromise in balancing so-called national interests and SAR autonomy. However, the provision does not define what constitute the "affairs within the responsibility of Central Authorities" and the "relationship between the Central Authorities and the Region." Their scope therefore can be interpreted in different ways. Under Article 17 the CBL at the request of the SCNPC is to give an opinion on whether the SAR law in question contravenes the Basic Law and whether it should be returned. The CBL is supposed to be a neutral and fair panel of expert advisors. It consists of twelve advisors: six from the mainland and six from Hong Kong. It is not clear what kind of legal effect a CBL opinion will have on the SCNPC's decision to uphold or return an SAR law, as the CBL is neither a judicial organ nor a political decision-maker.

Another limitation on the SAR legislature is the SAR's own executive veto power. The SAR Chief Executive (CE) may in accordance with the Basic Law block a piece of legislation in Legco and even dissolve Legco under certain circumstances. This is generally explained by the traditional theory of checks and balances. Hong Kong's case, however, presents a more pragmatic issue, which concerns the role of the CE when he exercises executive veto power. The CE is appointed by the central government and is accountable to both the central government and the SAR, regardless how he is elected locally. It is not clear what will happen if the CE, after being popularly elected, is not approved by the central government; nor is it obvious on which side the CE should stand if a conflict of interest arises between the central government and the SAR. Will the CE be dismissed, unilaterally, by the central government if he acts solely for the interests of the SAR against the interests of the central government? Under Articles 48 and 49 of the Basic Law, the CE has the power to sign bills, promulgate laws and return a bill to the Legco for reconsideration if he deems the bill "not compatible with the overall interests of the Region." The vague language "overall interests of the Region" may leave room for possibly arbitrary interpretations and abuses of the executive power.

Finally, the SAR is also restricted in certain areas of lawmaking. This point is illustrated by Article 23 of the Basic Law. Under this article the SAR is required to enact laws to prohibit any act threatening national security such as treason, secession, sedition, subversion against the central government and theft of state secrets. This is intended more as a political message than a legal provision. In the wake of the "incident" of June 4, 1989, Hong Kong's colonial government and Legco introduced a bill to narrow the definition of some of Article 23's offenses in an attempt to preempt possible application of vague interpretations in the SAR after 1997. In the end, the effort was defeated by the central government.

In addition to the political implications, Article 23 also raises interesting legal and especially legislative issues. One example is the SAR's power and ability to enact laws on treason against the central government. In most countries, treasonous acts are a subject matter jurisdiction of the national legislature. It has been suggested that the unique "one country, two systems" design may allow such power and ability to the SAR. Even so, the question still remains as to the appropriate standards for the SAR to adopt in defining the offenses and setting the penalties. The vague language of Article 23 seems to imply that the SAR may define the offenses broadly, following the model of the Chinese Criminal Law.

Under the Chinese Criminal Law, for instance, intent to subvert or undermine state security can be imputed objectively. The Criminal Law, however, is not supposed to extend to the SAR, according to Article 18 of the Basic Law. It follows that the definition and constitutive elements of offenses in the Chinese Criminal Law may not be applied in Hong Kong. In any event, as discussed above, it is the SCNPC that has the final say, for it can return any Article 23-related enactment of the SAR on grounds that the enactment contravenes the Basic Law. The Basic Law is silent on what should happen afterwards. Procedures have yet to be developed for dispute resolution, modification, resubmission and other conflict of interest issues, so that the guarantee under Article 5, of 50 years of "one country, two systems," may not be jeopardized.

(b) Division of National and SAR Legislative Powers

From the very beginning, the division and allocation of legislative powers posed special challenges to the Basic Law drafters. For one thing, the drafting process was perhaps more democratic and open than any legislative efforts in the NPC's history. The drafters were from both the mainland and Hong Kong, and several drafts were circulated and published for public comments and suggestions. Never before in China had a draft law been subject to as many rounds of criticism and debates. For example, between the first draft (1988) and the second draft (1990), an important modification was made to the Basic Law concerning allocation of the national and SAR legislative powers.

In the first draft, national laws to be applied in the SAR were not specifically provided for. Article 17 of the draft stipulated generally that national laws on defense, foreign affairs, national unity and other matters outside the limits of the autonomy of the SAR shall be implemented through SAR legislation under the direction of the State Council. In the second draft, however, Annex III was added to specify which national laws were to be applied in the SAR. Two other changes were also made to the first draft after June 4, 1989. The first change was on the membership of the SAR Legco, and the second on the method of election of the first Legco after 1997.

The Basic Law devotes one chapter (Chapter II) to the relationship between the central authorities and the SAR. The chapter consists of twelve articles, among which Articles 13, 14, 17, 18, and 23 are relevant to the allocation of legislative powers. The chapter is significant not only for sharing some characteristics of a federalist constitution, but also as an indication that China is moving towards legalizing an important area of the relationship between the central government and regional governments. One may even argue that the Basic Law exemplifies a new formalized mode of dividing and allocating legislative powers, a mode achieved through consultation and negotiation between the center and a region with a view to ensuring that the results thereof are to be implemented by formal legal procedures. Chapter II also breaks ground when it defines both areas where the center is prohibited from legislating and areas where national laws are not applicable in a region. Presumably this historical experiment should have some impact on China's lawmaking practice, especially on the ongoing drafting of China's first Law on Legislation, a law intended for regulating, inter alia, the chaotic legislative relationship between the center and the provinces, municipalities and autonomous regions.

Viewed as a whole, the Basic Law was constructed in a way that favors the autonomy of SAR legislative powers. Chapter II limits the central authorities' exclusive legislative jurisdiction over the SAR to areas of foreign affairs (Article 13) and defense (Article 14). National laws are inapplicable in Hong Kong except those listed in Annex III. Although the center can add to or delete from the list of national laws in Annex III, the addition and deletion are confined to those matters relating to foreign affairs, defense and matters outside the limits of autonomy of the SAR (Article 18). Even in the sphere of foreign affairs Hong Kong shares some powers with the central government: for example, it can conduct relevant external affairs on its own in accordance with the Basic Law.

Thus the SAR enjoys a wide range of legislative powers encompassing almost any subject matter outside the enumerated central legislative powers. The SAR legislative powers are so broad that they give rise to an impression that the SAR enjoys a residuary power under the Basic Law. Some commentators even suggest that a clause could be inserted in the Basic Law explicitly to grant residuary power to the SAR. The main obstacle to this approach, as pointed out by some mainland Chinese scholars, is the prevailing interpretation of federalism in China discussed above. The residual power, a key concept of federalism, is not accepted in dealing with the center-region relationship within China's unitary system, in which local authorities hold derivative powers only. Indeed, in the case of Hong Kong, these scholars argue, the residuary power seems to belong to the center, for Article 20 of the Basic Law stipulates that the SAR may enjoy other powers granted to it by the central government.

Although many federal countries reserve their residuary powers to states, some of them also reserve the residuary power to the center. Canada is one such case. The Canadian Constitution allocates the residuary powers to the federal authorities. According to constitutional scholar Martha Field, residuary power usually goes to the side that is intended to play a stronger role although in reality the intention was often carried out in a contrary way. The anti-federalist position taken by some Chinese commentators on the allocation of residuary power shows a deeper constitutional dilemma. The outdated constitutional theory in China can no longer sustain the normal task of legitimizing and legalizing the government's various policy initiatives, in particular those connected with the Beijing-Hong Kong relationship.

Despite the sophistication showed in both the drafting process and final text of the Basic Law provisions for the allocation of legislative powers, Chapter II still contains some gray areas. For example, Article 18 provides that the addition or deletion of the list of national laws in Annex III by the SCNPC "shall be confined to those relating to defense and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law." The "matters outside the limits of the autonomy" are left unspecified. It has been suggested that this provision seems to qualify as a catch-all clause and will not mean very much for the local autonomy.

Another troublesome part of Article 18 is the power of the Central People's government to apply relevant national laws in Hong Kong after the SCNPC declares a state of emergency. There is an academic question as to the origin of this power, for such a power of the central government cannot come from a regional "mini-constitution." Only the national Constitution can establish such a power. There are two articles in the Chinese Constitution, which may have relevance to this power. Article 67(18) provides that the SCNPC has the power to declare a state of war, and Article 89(16) gives the State Council the power "to decide on the imposition of martial law in parts of provinces, autonomous regions, and municipalities directly under the Central Government." However, these two constitutional provisions do not go as far as the Basic Law to vest power in the SCNPC to declare a state of emergency when a "turmoil" occurs in the SAR which "endangers national unity or security and is beyond the control of the government of the Region." Nor do the provisions grant the State Council power to apply "relevant national laws" other than martial law in the SAR. Therefore, the powers of both the SCNPC and the State Council under Article 18 of the Basic Law may lack constitutional authority. Even if they do have authority by virtue of Article 31 of the Constitution, which provides for the establishment of the special administrative regions, the terms and phrases still need be defined.

Vague terms such as "turmoil," "endangers national unity or security" and "relevant national laws" can be variously interpreted. Even if these words and phrases are defined, there is still no limit on how long the "relevant national laws" should be applied in the SAR, nor is there clear procedure for declaring the state of emergency or turmoil and for applying and discontinuing the "relevant national laws."

3. The Final Arbiter on Conflicting Legislation

As discussed above, many provisions in the Basic Law concerning the division and allocation of legislative powers between the center and the HKSAR are still ambiguous and overly broad, which leaves ample room for flexible interpretation. Therefore, it is crucial to examine who holds the real and final power to interpret the Basic Law and SAR laws against the backdrop of the Basic Law, and where the ultimate authority rests in settling a legislative jurisdictional dispute between the center and the SAR.

In most federal states, a constitution spells out clearly which law shall prevail where inconsistencies arise between national and local laws. A constitutional tribunal or court decides whether there is an inconsistency and if so which law shall prevail. The Chinese Constitution provides only that local regulations must be made in accordance with the Constitution and other national laws. It is silent on what happens if there is a conflict between national laws and local regulations. China has thus far resisted adopting a full judicial review system, which would include constitutional review. The people's court therefore does not pronounce on matters of constitutionality even if it faces a constitutional issue in deciding a case.

The constitutional interpreter of the Constitution is the SCNPC, though it has never really attempted the politically sensitive task. As the Constitution becomes increasingly out of pace with the nation's social and economic reality, Chinese local legislatures routinely make laws in areas that constitutionally belong to the central legislative jurisdiction. Theoretically, if a local law conflicts with a national law, the former must be amended to conform to the latter. Otherwise it can be nullified by the constitutional interpreter.

The case of Hong Kong is more complicated. National laws generally do not apply to the SAR, as discussed above. This means that the SAR legislature does not need to worry about consistency with national laws so long as rules are made according to the Basic Law. Nevertheless, the SAR legislature is subject to a degree of control by the central legislature because the SCNPC holds the power of interpreting and amending the Basic Law. According to Article 158 of the Basic Law, matters "concerning affairs which are the responsibility of the Central People's government, or concerning the relationship between the Central Authorities and the Region" are not subject to review by the SAR judiciary. When presented with such a matter, the SAR's Court of Final Appeal (CFA) should seek an interpretation from the SCNPC on which to base its own interpretation. This procedure is required only if the judgment of the court will be affected by the interpretation and if the judgment is final and not appealable. So the SAR's lower courts cannot submit a request for an SCNPC interpretation themselves; the issue must reach the CFA whose judgment is final and not appealable. The judgments previously rendered are not affected by the SCNPC interpretation thus requested. As mentioned above, before giving its interpretation, the SCNPC will seek an opinion of the CBL, its advisory body on the interpretation of the Basic Law.

Thus there are four players in this two-track interpretation game: the SCNPC, the CBL, the lower courts and the CFA of the SAR. This complex system is designed to strike a balance between the interests of the central authorities and the SAR in a constitutional structure where there is no independently functioning supreme constitutional arbiter, such as a special constitutional court. Despite the much-appreciated efforts to maintain the system, there are legitimate questions on its workability and fairness. As many people may suspect, in interpreting the Basic Law, the SCNPC as the ultimate arbiter may choose to act in the national rather than in the SAR's interest. Even if the CBL acts as a neutral advisor and intervenes, as mentioned above, it has no legal authority to bind the SCNPC. As to the role of SAR judiciary, Dean Albert Chen argues for a more positive role for the SAR courts because they can decide whether a case belongs to the realm of central-regional relationship or national affairs, and they have the power to adjudicate the case. Nevertheless this positive role might become very vulnerable when confronted with conflict with either SAR government or the Central Authority. Because of unclear definitions on what constitutes the matters concerning center-region relationship, the CFA may have difficulties deciding when to apply to the SCNPC for interpretation, or may simply make a wrong (from the center's point of view) judgment on whether or not to apply for such interpretation.

This last hypothetical question has in fact been materialized in recent highly controversial case on the right of abode. Central to the debate is who has the right to interpret the Basic Law Article 22(4) which is vague on the immigration control scheme for eligibility to the right of abode in the SAR by some mainland-born Chinese. The CFA, without referring to the SCNPC for interpretation, rendered its judgment, which later was attacked by Beijing as ultra vires. As a result, the CFA made self-rectification upon the request of the SAR government confirming the unquestionable authority of the SCNPC to make interpretations under Article 158 of the Basic Law.

Whether the CFA's ruling is voidable due to its "ultra vires" interpretation deserves another chapter of in-depth legal analysis. What on the surface attracts our immediate attention is the interplay between the center and the SAR and between the executive and judicial branches of the Region. The curious part of this interplay is not that how eager the SCNPC is to interpret the Basic Law, rather it is how much the SAR government is willing to invite the center to intervene in order to achieve its own administrative expediency. Hence, with the strong presence of the SAR government backed by the central authorities, the CFA's role in the "two-track" interpretation game will be largely undermined.

4. Federalism: the Way to the Future?

There is no indication at the moment that the current constitutionally ambiguous arrangement for the legislative powers of the SAR will change course soon. Many aspects of the arrangement are yet to be tested. Hence I will not argue for the likelihood of any specific development. I would emphasize, however, the feasibility of a type of federal system for institutionalizing the division and allocation of powers between the central authorities and the SAR.

As mentioned earlier, "one country, two systems" was designed primarily as a political strategy for national reunification rather than as a permanent institutional arrangement. A political guarantee can become institutionalized only through the operation of a competent legal system. So far, Hong Kong's common law system seems able to sustain reasonable prospects for the institutionalization of the SAR's legislative powers vis-a-vis the central legislative powers. The process of institutionalization, however, would no doubt face unprecedented challenges because, as Yash Ghai points out, "the Basic Law contains within itself two models of law" and the SAR may easily shift itself from the common law model to the mainland model "where inconvenient laws or judgments can be set aside using patently political means." When conflict arises between state sovereignty and SAR autonomy, "one country" may always prevail over "two systems." Maintaining centralized political powers has been a long-standing policy of the Chinese Communist Party. The return of Hong Kong to Chinese sovereignty did not change the political, social and economic premises on which this policy stands.

Nevertheless, the premises may change, as China embarks on the road to national reunification with Taiwan, and establishing and practicing a type of federal arrangement may become a practical option. Thus ironically the instrumentality of "one country, two systems" may in a way facilitate the incorporation of elements of federalism into the current arrangement on center-region relationship.

(The author is Research Fellow at the Faculty of Law, the University of Hong Kong.)