public law,

A tale of two systems: separation or separability of Hong Kong common law and Chinese socialist legal system?


By Thomas Yeon Mar 07, 2019

Case note: Sixtus Leung v President of the Legislative Council  HCAL 1160, 1164, 1165, 1171 & 1178/20181

As a special administrative region of the People’s Republic of China (“PRC”), Hong Kong’s common law system is unique: it is not subordinate to the civil law system in PRC, but the Standing Committee of the National People’s Congress (“NPCSC”), as a legislative body, has the power to issue binding interpretations on the Hong Kong Basic Law (“BL”). This presents a peculiar scenario which flouts the traditional western understanding of separation of powers: a legislature is able to make binding interpretations on judicial organs. Given the recent increases in attention paid to the relationship between the Hong Kong judiciary and the Central Government,2 it is of topical interest to examine it in light of another legal controversy concerning the relationship between Hong Kong and the PRC: the “co-location” agreement  at the West Kowloon high-speed rail station (“WKS”), which saw, for the first time, PRC laws being directly applicable in Hong Kong territory. This case note analyses the judgement of Sixtus Leung v President of the Legislative Council,3 and the relationship between decisions reached by the Central Government and the Hong Kong legal system. Examining the judgement’s analysis on the status of the NPCSC Decision on approving the co-location agreement (“the Decision”) and the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance’s4 (“the Ordinance”) consistency with the BL, it will be argue that it fails to engage comprehensively and specifically with the legal and constitutional basis of the co-location agreement.

The Decision was delivered on 27 December 2017. For present purposes, the material parts of the Decision are as follows (as translated by the court in the judgement):

  • The NPCSC is of the view that the making of an appropriate arrangement through consultation on issues relating to the establishment of a port at the West Kowloon Station and the implementation of co-location arrangement thereat by the Government of the Hong Kong Special Administrative Region with the relevant parties of the Mainland is a clear demonstration of the exercise of a high degree of autonomy by the Hong Kong Special Administrative Region in accordance with law.

  • The establishment of the Mainland Port Area (…) does not affect the high degree of autonomy enjoyed by the Hong Kong Special Administrative Region in accordance with law. Out of the need to implement the co-location arrangement at WKS, it is appropriate that the Co-operation Arrangement makes provisions for the delineation of jurisdiction (including the jurisdiction of the courts).

  • The PRC authorities’ performance of duties and functions in accordance with PRC laws is different from the application of national laws in the entire region of Hong Kong under Article 18 of the BL.

The Ordinance formally came into force on 4 September 2018. Section 6(1) provides that, except for “reserved matters,” the Mainland Port Area (“MPA”) is to be regarded as an area lying outside Hong Kong but lying within the Mainland for the purposes of (i) application of applicable laws and (ii) delineation of jurisdiction (including the jurisdiction of courts within the area) over the MPA. Section 6(2) states that section 6(1) does not affect the administrative division of Hong Kong.

Five judicial review claims were brought. In summary, they concerned the constitutionality of the Ordinance under the BL and the effect of the NPCSC decision in determining the constitutionality of the Ordinance. For the purposes of the present case note, the following principles about the legal status of PRC laws in Hong Kong and an interpretation made by the NPCSC on the BL should be noted:-

  • PRC laws do not apply in Hong Kong except for those listed in Annex III: Article 18(1) and (2) BL. In the present case, Chow J noted that the applicability of PRC laws in Hong Kong is “fairly limited in scope.”5

  • Article 159(4) BL provides that amendments to the BL should not contravene the “established basic policies” of PRC regarding Hong Kong.

  • Hong Kong courts are bound by any relevant interpretation of the BL by the NPCSC, regardless of whether the provision in question falls within or outside the excluded provisions referred to in Article 158(3).6

The Judgement

Chow J began by stating the common law approach to the interpretation of BL - the court’s role is to construe the language used in the text of BL in order to ascertain the legislative intent as expressed in the language.7 It is necessary to identify the meaning borne by the language when considered in light of its context and purpose. He then noted the need to treat the BL as a “living instrument,” meeting the changing needs and circumstances of the society.8 He also referred to the Court of Appeal’s judgement in Leung Sze Ho Albert v Bar Council of the Hong Kong Bar Association (2015), where Poon JA noted that the court gives “due regard to its historical context but is not unduly restricted by it. The court always treats the BL as a living norm, rooted in the past but intended to be responsive to contemporaneous needs and circumstances, and gives it an interpretation that truly reflects firmly held modern views in the current social and legal landscape.”9

In terms of the legal status of the Decision under PRC laws, after noting that the Decision was not made pursuant to the procedure prescribed by Article 158(1), Chow J stated that “what is important is not whether it is appropriate (or inappropriate), or whether there are some other alternative methods, for the NPCSC to deal with the matter by issuing a decision, but whether the NPCSC has legal power to do so.”10 He also observed that the Court of Final Appeal has, on more than one occasion, confirmed that power of the NPCSC to interpret the BL under Article 67(4) of the PRC Constitution referred to Article 158(1) is free-standing and not qualified in any way by Article 158(2) and (3).11

Turning to the legal status of the Decision under Hong Kong law, the judge observed that, while the Decision might not necessarily be properly classified as made validly pursuant to Article 158(1), the Decision must “at least rank as ‘post-enactment materials’ which the Court of Final Appeal in Chong Fung Yuen did not exclude as being potentially admissible or relevant for the purpose of construing the BL where its meaning is not free from ambiguity.” He also, noted, that such materials must be approached “cautiously.”12 In relation to the Hong Kong courts’ power to determine the validity of the Decision under Hong Kong laws, Chow J stated that the courts have no power to determine whether the Decision is invalid under Hong Kong laws.13 He also noted that it would be unrealistic to believe that the NPCSC will or may reach a different conclusion after consultation with the Basic Law Committee, and therefore the Decision can be used as an aid to the interpretation of the BL.14

The consistency of the Ordinance with Basic Law

Chow J began by noting that the proper question to ask is “whether, upon a fair reading of the BL and having regard to its context and purpose, it is intended that the Co-location Arrangement as embodied in the Ordinance, involving the creation of a port subject to the jurisdiction and laws of the Mainland, is intended to the prohibited or excluded.”15 He then noted that, in order to answer the question, it is necessary to have regard to the context and purpose of the BL, particularly Articles 18(1) and (2), 19(2) and 80; he identified the aforementioned provisions as having the purpose to “give effect to the ‘two systems’ part of the ‘one country, two systems’ principle.”16 He then stated that the creation of the MPA does not appear to be inconsistent with the purpose of the BL.

Observing the emphasis of the Hong Kong courts on the nature of the BL as a “living instrument,” Chow J noted that “the Basic Law should be treated as being capable of growth and development over time to meet new social, economic and political realities, and construed and applied in a manner which is responsive to contemporaneous needs and circumstances over its entire life.” A reading of the BL as prohibiting the co-location agreement would involve a failure to recognise the BL as a living instrument.17 He also noted that the establishment of the MPA and the customs, immigration and quarantine controls is a manifestation of the exercise of a high degree of autonomy by Hong Kong and the recognition of the two distinct and separate systems being practiced in Hong Kong and Mainland.18 Recognising that mere expediency is not a sufficient reason to justify arrangement which is otherwise inconsistent with the BL, Chow J nevertheless noted that the arrangement is “beneficial to the overall interests of Hong Kong” is a relevant consideration when determining whether such arrangement is prohibited by the BL.19

Analysis of judgement and broader implications
Hong Kong Basic Law and common law in the shadow of the interpretive power of the NPCSC

The interplay between the Hong Kong legal system (in particular, in the area of constitutional law) and a legislative interpretation or decision made by the NPCSC is a unique arrangement. Despite being open to possible criticisms of a collapse of the doctrine of separation of powers,20 this should not be overemphasised in light of the designated role of the NPCSC under the BL. The BL is, after all, a creation of the PRC Constitution.21 That being said, it is unclear how “the will of the State”22 would be remotely relevant in statutory interpretation in the BL context. It may be suggested that the “will of the State” equates to the doctrine of parliamentary sovereignty, but it would be premature to equate the two without substantiating the reasons beneath so. While they both represent the intention of the highest legislative authority of a country, the notion of “will of the State” as reflected in the present judgement focuses sharply on interpreting the BL, while Parliamentary Sovereignty is more generally understood as the legislative, not interpretive, intention of the legislature.23

Chow J’s observation that the material consideration of the Decision under PRC laws should be “whether the NPCSC has the legal power to do so” is also problematic. It fails to justify why the significant emphasis should be on the legal power of NPCSC, and why the requirement to seek interpretation in accordance with the procedural requirements under Article 158 BL should play less weight. The fact that Chow J is only deciding on the legal status of the Decision itself and itself only would be of little avail to his defence. This is because he then supported his conclusion on the need for significant emphasis on the NPCSC’s legal power (and thus accepting the Respondent’s expert evidence) by referring to decisions of the Hong Kong Court of Final Appeal. The decisions cited, namely Lau Kong Yung v Director of Immigration24 and Chong Fung Yuen, both only noted that the power under Article 158(1) is in “general and qualified terms.” The court in Chong Fung Yuen has noted that this “extends to every provision of the Basic Law.” While it is true that the NPCSC does have an unlimited and general power to interpretive the substantive provisions of the BL, the case for procedural cautions and safeguards is not fully dealt with. The fact that it is unclear whether the term “general and unqualified terms” also entails the non-necessity of any procedural requirements renders Chow J’s argumentation and analysis problematic.

The actual grounds for the co-location arrangement are unclear from the BL itself. The Decision only made reference to Article 7 BL once, and it merely stated, without further elaboration, that the MPA is consistent with Article 7 BL.25 This position is, nevertheless, not devoid of academic support. Yap and Jiang, in arguing that co-location is constitutional under the BL, stated that Article 7 can serve as the basis for the relinquishment of legal control over land. They also noted that the Constitution needs to be flexible to some degree, and remain relevant beyond those foreseeable by the drafters. The use of “ample and general language” suggests an intention of constitutional clauses to take on meaning beyond the original expected meaning.26 While this analysis engages accurately with the “living instrument” analysis under the BL and the role of courts in interpreting the BL, it still fails to respond as to why it would authorise the government to “relinquish” control; the argument advanced only presented practical justifications, and does not provide a coherent theoretical basis. Nowhere in Article 7 suggests that the Hong Kong Government can give up control of the land and natural resources within the territory. Even if the alleged constitutional authority to set up an MPA and apply PRC laws there is said to be found under the “lease or grant” part of Article 7, it still does not explain how the Hong Kong government has authority to give up control of the territory in question. The purported “implied authority” is inconsistent with the express wording of Article 7. While Chow J is, strictly speaking, not required to examine the alleged validity of authority under Article 7, the crystal clear difficulty to reconcile the co-location arrangement and Article 7 BL demonstrates the possible effects of the binding interpretive validity of the NPCSC Decision, regardless of how unfounded it may be to a lawyer with a common law background.

The judge's interpretation of "living" instrument and implications27

It must first be borne in mind that Chow J’s observations from paragraph 70 onwards are very difficult to challenge on appeal, as they mainly concern findings of fact and the judge’s personal of the high-speed rail project at WKS. That being said, it does not mean it is immune from academic criticism; however, it would be inappropriate to criticise it from the Strasbourg perspective and jurisprudence on “living instrument,” as the notion as applied in Hong Kong and Strasbourg do not share similar considerations. It is submitted that, in Chow J’s judgement, the notion and view of “best interests” are not sufficiently unpacked.

To begin with, Chow J’s observations that the co-location is “designed to advance the overall best interests of Hong Kong”28 appears to have conflated the co-location agreement with the high-speed rail project. It was common ground between the parties that the project would be in the economic interests of Hong Kong (the question of to what extent this is true is not the scope of the present analysis), but it is clear that the co-location agreement is not strictly necessary to achieve that effect. Moving on, the interpretation of “living instrument” is very expansive. The crystal clear legal conundrums and political divisions caused by the co-location agreement (i.e. in summary, the uncertainty of the benefits of such arrangement, if any), should have certainly weighted, or at least factored, against interpreting “living instrument” broadly. None of those were taken into account, or at least into notice, in Chow J’s analysis. Last but not least, it may be criticised that Chow J’s analysis is influenced by the fact that the co-location has been implemented and already operating on a daily basis. To declare the co-location agreement unconstitutional at this point would, obviously, be impractical. This is mainly reflected in Chow J’s considerable observations on the “overall benefit” of the co-location arrangement to Hong Kong. The deeper and more important constitutional issues underlying therein, however, appears to remain unresolved.

The establishment of MPA and setting up of customs, immigration and quarantine control is also considered by Chow J as “itself a manifestation of the exercise of a high degree of autonomy by Hong Kong and the recognition of two distinct and separate systems.”29 A few comments can be made about this observation. Firstly, the observation is confusing as the Mainland Port Area is still Hong Kong territory, although it is now governed by Mainland law. The so-called distinction drawn between the two systems is (i) unrealistic, (ii) inconsistent with the previous analysis in the sense that it is Hong Kong herself only exercising a high degree of autonomy and (iii) confusing - in the sense that it conflates the principle-based concerns of the integrity of “one country, two systems” with the practicalities of implementation. The fact that something may be comparatively expedient to do so (compared to other solutions) does not mean it should be preferred without sufficient scrutiny.

Finally, a point should be made about the status of the Decision as “post-enactment materials” for the purpose of interpreting the BL. In the judgement, Chow J recognised that post-enactment materials are applicable in interpreting the BL where its meaning is not free from ambiguity.30 The consideration of such materials, moreover, must be “approached cautiously.”31 In the present case, however, it is not clear what and where the “ambiguity” is. It would be too quick for Chow J at paragraph 75 to proceed on the basis that it should immediately consider it as “post-enactment materials”. It turns on the following question: if the post-enactment material in question is merely endorsed without substantiating the reasons behind (adequately), should HK courts still adopt it without further analysis? If yes, this appears to defeat the very purpose of reasoning – to see arguments being substantiated sufficiently by relevant authorities. The requirement for comprehensive and watertight reasoning is particularly pertinent in the context of common law constitutional interpretation as it emphasises incremental development of reasoning, instead of reaching a conclusion based on ill-defined terms which serve ambiguous purposes.32 The role and weight of the broader political context in constitutional interpretation also should not be ignored.33

Conclusion

Sixtus Leung v President of the Legislative Council is another good example of the interaction of the relationship between the Hong Kong courts and the decisions of the NPCSC, and the roles played by the respective institutions. While Chow J’s analysis has followed comfortably with the precedents, the lack of particularity in the important areas of the judgement is regrettable. The judgement also, interestingly, potentially suggests the need for a more elaborate doctrine of “living instrument” in interpreting the BL. For the Hong Kong legal system, concise interpretation in constitutional matters is not only crucial in maintaining the rule of law, but more importantly, to delineate its relationship with decisions of the NPCSC, which, at least from a common law lawyer’s perspective, can generate questions as to whether the two systems are separated or separable.



[1] Many thanks to William Wong and Ines Chu on their insights on issues of constitutional interpretation under the Hong Kong Basic Law. Any errors or omissions remain my own.

[2] This is especially notable after the 2016 Legislative Council elections, when two successful candidates were “disqualified” as a result of their failure (which were adjudged to violate the BL: Chief Executive of the Hong Kong Special Administrative Region and Others v Leung Chung Hang and Yau Wai Ching HCAL 185/2016) to adhere to the rules of the oath-taking ceremony. The NPCSC has, unprecedented then, issued an interpretation of the BL in the absence of a request for interpretation from the Court of Final Appeal.

[3] HCAl 1160, 1164, 1165, 1171 and 1178/2018.

[4] Cap. 632.

[5] (n 3) [43].

[6] Chong Fung Yuen v Director of Immigration FACV 26/2000, (2001) 4 HKCFAR 211, 222F-223D.

[7] (n 3) [49].

[8] ibid, [51].

[9] CACV 246/2015, [60].

[10] (n 3) [56].

[11] ibid, [58].

[12] ibid, [61].

[13] ibid, [62].

[14] ibid, [75].

[15] ibid, [68].

[16] ibid, [69].

[17] ibid, [70].

[18] Ibid, [71].

[19] ibid, [72].

[20] The question of the structure of separation of powers in Hong Kong is a sophisticated topic which cannot be briefly summarised here. Interested readers may consider consulting B Tai, “One Country Two Systems: Two Perspectives” (2002) Macau Law Journal (Special Issue) 143 and A Chen, “The interpretation of Basic Law - common law and mainland Chinese perspectives” (2002) 30(3) Hong Kong Law Journal 380.

[21] The power of the NPCSC to supervise the implementation under Article 67(1) of the PRC Constitution includes its power to implement the “one country, two systems” framework, pursuant to Article 31 of the PRC Constitution.

[22] (n 3) Respondent’s expert evidence of Professor Wang Lei of Peking University, noted at [53(5)] of the judgement and accepted by Chow J at [58].

[23] For a general analysis of the nature of parliamentary sovereignty in relation to the court’s position in the British context (and in particular, in the context of the Human Rights Act 1998), see C Gearty, On Fantasy Island (Oxford; 2016), chapters 5-6.

[24] FACV 10 and 11/1999, at [57].

[25] (n 3) [19].

[26] P J yap and Z Jiang, “Co-location is Constitutional” (2018) 48 Hong Kong Law Journal 37.

[27] It should be flagged up here that the notion of “living instrument” here as applied by Hong Kong courts does not necessarily draw inspiration from Strasbourg jurisprudence. An example of the cautious approach of Hong Kong courts to Strasbourg jurisprudence can be found in ZN v Secretary of State for Justice and others CACV 41/2017, at [100]: “The present case, in my view, is a prime example where this court must approach the relevant jurisprudence from the European Court of Human Rights with great caution. Whilst the European court in Rantsev emphasised that human trafficking is a global phenomenon calling for measures to combat it and that the European Convention has to be construed as a living instrument accordingly, understandably, it looked at matters from the European prospective (paras 277 to 279)…”

[28] (n 3) [70].

[29] ibid, [71].

[30] ibid, [61].

[31] ibid, [62].

[32] The importance of language and the need to approach it holistically instead of in isolation was noted in Chong Fung Yuen (n 6) above, at 223-224.

[33] See D Feldman, “Statutory Interpretation and Constitutional Legislation” (2014) LQR 473.

Article by Thomas Yeon
LLM (Human Rights Law) (London School of Economics and Political Science) ‘19 and Public Law Notes Editor of LSE Law Review 2018-2019