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7
Behind the Text of the Basic Law
Some Constitutional Fundamentals
Johannes M. M. Chan*
*
I am grateful to my colleague Ms Cora Chan for her insightful comments on an earlier draft
of this article. Any mistake remains, of course, my sole responsibility.
Every constitution is shaped by its unique history and the social and political
circumstances of the country in which it operates. Our understanding and
interpretation of the constitution cannot be divorced from the social, politi-
cal and historical contexts of the jurisdiction in which the constitution is to
operate. At the same time, constitutions, by their very nature, can only con-
tain general principles. While they prescribe a general framework for assess-
ing the constitutionality of executive acts and in some jurisdictions, statutory
provisions, a literal reading of the constitutional text in most cases does not
provide an obvious answer to many constitutional issues before the courts.
By interpreting the constitution, the courts give life to the constitution. Yet
interpretation is rarely a neutral process. It always involves judicial choices
among a number of plausible solutions. In making these choices and giving
meaning to the general text of a constitution, the courts are from time to time
guided by various fundamental values in our constitutional system. Such
fundamental values may not be readily visible from the text of the consti-
tution. They are extra-textual, and hence ‘invisible’, and are shaped by the
social, political and historical contexts of the society in which the constitution
operates. Professor Lawrence Tribe, in his inspiring work, coined the term ‘The
Invisible Constitution’.
1
While this term is capable of different interpretations,
it does convey a central message that a constitution could not be understood
without taking into account these extra-textual dimensions. This chapter tries
to identify the content and contours of this layer of invisible constitution in
the context of Hong Kong. The approach of this chapter is sociological: it
focuses on how judicial choices are made in giving effect to a written constitution,
and argues that these choices are guided by some fundamental values, which
1
Lawrence Tribe, The Invisible Constitution (Oxford: Oxford University Press, 2008).
194
Johannes M. M. Chan
I would call ‘Constitutional Fundamentals’. These principles exist behind the
text; they are interstitial, vague and far from being coherent or structured, and
may sometimes even be in conflict with one another. Nonetheless, they exist,
guide and influence the development of the constitution, and constitute a
deeper layer of constitutional principles. It is not the purpose of this chapter
to argue whether these principles are desirable or not, but simply to contend
that they exist and are discernible.
Section
7.1
of this chapter sets out the social, political and historical context
of the Basic Law. A unique feature of the Basic Law of Hong Kong is that it has
to operate in a common law system within a larger socialist/civil law system –
the so-called ‘One Country, Two Systems’ model. It is an asymmetrical model
in terms of both economic and political powers. The conflict between the two
systems is most intense when it comes to the interpretation of the Basic Law,
which serves simultaneously as the constitution of Hong Kong and a domestic
statute in Mainland China. Section
7.2
of this chapter outlines this systemic
conflict, and argues that the approach adopted by the Court of Final Appeal
was guided by the principle of preserving the integrity of the common law
system. This principle operated almost in a paradoxical manner in the Congo
case, when the court was faced with the stark choice of insisting on the com-
mon law principles and facing an overrule by the Standing Committee of the
National People’s Congress, or twisting the common law principles in return
for establishing some constitutional convention. Section
7.3
turns to another
type of conflict of preserving the past and meeting the future. Given that the
promise of One Country, Two Systems is to last for fifty years only, with the
position beyond fifty years completely open, preserving the previous system is
a rational way to dictate the future. At the same time, the court has to guard
against fossilising the system. In the Kong Yunming case, the court had to go
so far as to twist the meaning of legality in order to preserve the previous social
welfare system, and then immediately turned it around by adopting the level
of benefits at the point of change of sovereignty as the baseline for measuring
progress or retrogression in social welfare rights. Section
7.4
examines briefly
the principle of separation of powers, particularly in relation to challenges
against the internal operation of the Legislature. Section
7.5
continues the
exploration of the theme of separation of powers in the context of proportion-
ality, and shows how the principle of separation of powers leads to an oscillat-
ing approach by the court, notably in dealing with social and economic rights.
The last part tries to bring together some of the invisible principles.
