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The Constitutional Orders of ‘One Country, Two Systems’
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the enactment of the Basic Law of the HKSAR in 1990, the Basic Law of the
MSAR was enacted in 1993. We now turn to examine these Basic Laws.
8.2.3. The Basic Laws
There is a close relationship between the Basic Law of each of the two SARs
and the corresponding Joint Declaration, which expressly provides that the
basic policies set out in the Joint Declaration, shall be stipulated in the Basic
Law. A close examination of the text of each of the Basic Laws would reveal
that many provisions therein are derived from or even reproduced from the
relevant provisions in paragraph 3 of the main text of, and Annex I to, the
SBJD (in the case of the Hong Kong Basic Law (HKBL)) or paragraph 2 of
the main text of, and Annex I to, the SPJD (in the case of the Macau Basic
Law (MBL)). However, there also exist matters not covered by the Joint
Declaration but dealt with in the Basic Law. For example, the SBJD does not
prescribe the details of how the Chief Executive of the SAR is to be chosen,
or how its legislature is to be elected. Detailed provisions in this regard are
supplied by the Basic Law.
Both Basic Laws declare the relevant territory to be an inalienable part
of China, establish the SAR with a high degree of autonomy and enjoying
executive, legislative and independent judicial power (including that of final
adjudication), designate the SAR to be a local administrative region of China
coming directly under the Central People’s Government, provide that the
executive and legislative branches of the SAR shall be composed of perma-
nent residents of the HKSAR, require the SAR to protect the fundamental
rights and freedoms of its residents and other persons in the SAR and guar-
antee that the socialist system and policies shall not be practised in the SAR,
with the previous capitalist system and way of life to remain unchanged for
fifty years.
11
We now proceed to examine the relevant provisions of the Basic Laws on
the relationship between the Basic Law and other laws and on judicial power,
with a view to exploring the constitutional basis, if any, for constitutional judi-
cial review in the Hong Kong and Macau SARs. The relevant provisions of
HKBL and their counterparts in the MBL are first identified.
HKBL art. 8: Laws previously in force in Hong Kong shall be maintained,
except for any that contravene the Basic Law, and subject to amendment
by the legislature. Counterpart in MBL: art. 8.
11
See the Hong Kong Basic Law, arts. 1, 2, 3, 4, 5, 12; and the Macau Basic Law, arts. 1, 2, 3, 4, 5, 12.
236
Albert H. Y. Chen and P. Y. Lo
HKBL art. 11(2): No law enacted by the legislature shall contravene the
Basic Law. Counterpart in MBL: art. 11(2).
HKBL art. 17(3): National People’s Congress Standing Committee
(NPCSC) may invalidate a law enacted by the Hong Kong legislature
on the ground that it is ‘not in conformity with the provisions of this
Law regarding affairs within the responsibility of the Central Authorities
or regarding the relationship between the Central Authorities and the
Region’. Counterpart in MBL: art. 17(3).
HKBL art. 19(2): HKSAR courts ‘have jurisdiction over all cases in the
Region, except that the restrictions on their jurisdiction imposed by the
legal system and principles previously in force in Hong Kong shall be
maintained’. Counterpart in MBL: art. 19(2).
HKBL art. 39: (1) The provisions of the International Covenant on Civil
and Political Rights [ICCPR], the International Covenant on Economic,
Social and Cultural Rights, and international labour conventions as
applied to Hong Kong shall remain in force and shall be implemented
through the laws of the [HKSAR]. (2) The rights and freedoms enjoyed
by Hong Kong residents shall not be restricted unless as prescribed by
law. Such restrictions shall not contravene the provisions of the preced-
ing paragraph of this Article. Counterpart in MBL: art. 40.
HKBL art. 158: The NPCSC has the power to interpret the Basic Law.
The courts of the HKSAR may interpret the Basic Law ‘in adjudicating
cases’, except that if there is a ‘need to interpret the provisions of this Law
concerning affairs which are the responsibility of the Central People’s
Government, or concerning the relationship between the Central
Authorities and the Region’, the Court of Final Appeal (CFA) should
seek an interpretation of the relevant provision by the NPCSC before
making final judgment. Counterpart in MBL: art. 143.
HKBL art. 160(1): Upon the establishment of the [HKSAR], the laws pre-
viously in force in Hong Kong shall be adopted as laws of the Region
except for those which the [NPCSC] declares to be in contravention of
this Law. If any laws are later discovered to be in contravention of this
Law, they shall be amended or cease to have force in accordance with
the procedure as prescribed by this Law. Counterpart in MBL: art. 145(1).
It should be noted that the relevant provisions in the HKBL and MBL as
mentioned above are almost identical. Thus in both the Hong Kong and
Macau SARs, the Basic Law is a superior law relative to other laws in the
SAR. The NPCSC has the power to invalidate Hong Kong or Macau laws that
contravene the Basic Law in accordance with art. 17(3) of both the HKBL and
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