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Johannes M. M. Chan
7.6. Conclusion
Hong Kong is not an independent state. Under the One Country, Two Systems
model, it has to operate within a country that has adopted a fundamentally dif-
ferent legal, social and political system. It is a precarious model that rests heav-
ily on the goodwill of the PRC. At the time of the Joint Declaration, Hong
Kong was already a modern metropolis with great economic success, and was
responsible for almost 90 per cent of foreign incomes of the PRC. Thirty years
later, China has emerged as the second largest economic power in the world,
with Hong Kong responsible for only less than 3 per cent of its GDP. Yet
economic progress in the Mainland is not matched by its development of the
rule of law, which still flourishes in Hong Kong. Over the years, Hong Kong
has been subject to increasing social, economic and political influences from
the Mainland. The rule of law, which embodies the independence of the
judiciary, is probably the only aspect that distinguishes the two systems now.
Thus, it is not surprising that the courts are trying very hard to preserve the
integrity of the common law system and in particular, the objective and per-
ceived independence of the judiciary, but at the same time, carefully restrain
the exercise of their power.
In preserving the integrity of the common law system, the courts also try to
preserve the previous systems, be it the health system, the education system,
regulations of civil service or the social welfare system. The promise of One
Country, Two Systems is to last for at least fifty years. This promise could only
be realised if the essence of the previous system is preserved. At the same time,
the courts have to ensure that this would not fossilise the previous systems and
allow them to evolve with changing social and economic conditions.
A challenging issue for the courts is the changing relationship of the
three branches of government. The rule of law mandates the subjection of
Government acts to the principle of legality. At the same time, the power of
constitutional review, which the Court of Final Appeal managed to claim,
requires the court to respect the sovereignty of the two other branches of gov-
ernment. In this sense, the doctrine of separation of powers goes hand in hand
with the power of constitutional review. The influences of the doctrine of
separation of powers under this new regime of constitutional review could
be seen, not only in delineating the relations between the judiciary and the
Legislature in judicial review of the functioning of the Legislative Council,
but also in the deference to the Government and the Legislature in reviewing
restrictions of social and economic rights.
None of these principles can be found explicitly in the text of the Basic Law.
Yet it is also clear that they have been in operation and influencing judicial
Behind the Text of the Basic Law
229
decisions. Whether they are just distinct constitutional principles or fixed stars
that punctuate the night sky that could form a pattern of constitutional con-
stellations remains to be seen.
88
It is probably too early to find an invisible
constitutional pattern behind the text in a constitution of barely twenty-five
years old. Yet it is clear that there are at least some fundamental principles
that lie behind the text. Preservation of the existing system is promised up to
the year 2047. The system thereafter remains an open question at this stage,
that will probably have to be decided at the latest in around the year 2030.
89
In
exploring the future in the not too distant future, there is a practical, if not also
imperative, dimension for Hong Kong to identify any invisible constitutional
fundamentals. This chapter provides a modest attempt to do so.
88
Tribe, Supra note 1, 72.
89
The negotiation on the future of Hong Kong was carried out in 1982, some seventeen years
before the changeover. This length of period is necessary for proper consultation and for the
banking sector to operate on matters regarding finance and mortgages, which were a crucial
factor that prompted the negotiation in the late 1970s and the 1980s.
230
8.1. Introduction
The last two decades of the twentieth century was not only an era of consti-
tution-making in the People’s Republic of China (‘PRC’), but also one of the
making of ‘mini-constitutions’ at the sub-national level in China. The PRC’s
new Constitution of 1982 made it possible for ‘Special Administrative Regions’
(‘SARs’) to be established within China that practised economic and social
systems different from those applicable in other parts of the PRC. This pro-
vision was designed to provide the constitutional foundation for the practice
of ‘One Country, Two Systems’ with regard to Hong Kong and Macau, and
possibly also Taiwan, upon their reunification with the Chinese mainland. In
1990 and 1993, the Basic Law of the Hong Kong SAR (HKSAR) and the Basic
Law of the Macau SAR (MSAR) were respectively enacted by the Chinese
National People’s Congress. These two ‘mini-constitutions’ came into full
force in 1997 and 1999, when the British handover of Hong Kong to China
and the Portuguese handover of Macau to China took place respectively.
8
The Constitutional Orders of ‘One Country, Two Systems’
A Comparative Study of the Visible and Invisible
Bases of Constitutional Review and Proportionality
Analysis in the Chinese Special Administrative Regions
of Hong Kong and Macau
Albert H. Y. Chen and P. Y. Lo
*
*
Earlier versions of this chapter were presented at the Roundtable of the International Associ-
ation of Constitutional Law, held at Melbourne University Law School on 2–3 May 2016, and
at the Conference on ‘Governance, Democratization and Constitutional Reform: Definition
of Political Structure of the HKSAR and its Reform’ organized by the Centre for Chinese and
Comparative Law, City University of Hong Kong Law School on 23–24 June 2016. The authors
thank the editors of this book and Cheng Jie, Paula Ling and Yang Xiaonan for their comments
on and assistance in the completion of this chapter.
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