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The ‘Invisible Constitution’ seen Realistically
425
As the result of accumulating civic dissents towards Beijing, the Occupy
Central Movement in fact raised harsh questions for both Hong Kong resi-
dents and the central authorities: do the people of Hong Kong have the right
to oppose the Basic Law? In 2014, the citizens’ discontent turned into the
Occupy Central Movement and then developed into the so-called Umbrella
Movement, which has received worldwide coverage.
101
In other words, if the
people of Hong Kong are deeply disappointed with certain articles in the Basic
Law of the Hong Kong SAR, how can they change it? Again, seeking a proper
answer to this question will reveal the fundamental limitations of the Hong
Kong SAR’s autonomy. Article 159 of the Basic Law of the Hong Kong SAR
confers the amending power on the NPC. The Hong Kong government has
the power to propose amending the Basic Law of the Hong Kong SAR to the
NPC in line with the Standing Committee of the NPC and the central gov-
ernment. However, such amendments must be approved by the Hong Kong
representatives of the NPC, a two-thirds majority of the legislative council and
the Chief Executive. Following this procedure, even if an amending proposal
went through the regional procedure in Hong Kong, it may not be passed
by the NPC. It is not surprising that the final say still belongs to the central
authorities according to the implicit logic of the unitary system.
In the winter of 2016, the Standing Committee of the NPC released a
new interpretation of Article 104 in the Basic Law of the Hong Kong SAR in
response to the separationist oath-taking of two members of the Legislative
Council when assuming office.
102
This interpretation clarifies both the con-
tent and procedure of the oath-taking. Once this procedure is violated, the
oath-taker will be disqualified forthwith from assuming the specified public
office. In addition, it also imposes legal consequences on oath-takers who
intentionally read out words incorrectly. Since the oath-taking interpreta-
tion was released before judicial decisions on the same issue, the Standing
Committee aims to bind the court and control the decision, which might
damage judicial authority in the Hong Kong SAR, which is guaranteed to be
independent according to the Basic Law of the Hong Kong SAR.
103
101
For an overview of the 2014 Hong Kong pro-democracy protests, see Jonathan Kaiman ‘Hong
Kong’s Umbrella Revolution: The Guardian briefing’ The Guardian (30 September 2014)
www.theguardian.com/world/2014/sep/30/-sp-hong-kong-umbrella-revolution-pro-democracy-
protests
.
102
The Standing Committee of National People’s Congress, ‘Interpretation of Article 104 of Basic
Law of Hong Kong SAR’
news.xinhuanet.com/english/2016-11/07/c_135811504.htm
.
103
Wilson Yuen, ‘The Crisis of Judicial Independence in Hong Kong’ (I·CONnet, 4 November
2016)
www.iconnectblog.com/2016/11/the-crisis-of-judicial-independence-in-hong-kong/
.
426
Han Zhai
14.4. Conclusion
The ‘invisible constitution’, as a methodological approach rather than a mere
metaphoric term, invites constitutional scholars to investigate constitutional
implications, practices and disharmonies more deeply. The special intellec-
tual link between the ‘invisible constitution’ and Chinese constitutional study
is a cause for caution in the methodological design of this study in the shar-
ing context of political constitutional scholarship. In general, what is invisible
in a written constitution has its own malleability that might blur the borders
between constitutional law scholarship and political studies. However, politi-
cal constitutional study should safeguard the written constitution as the prem-
ise for further inquiry into its invisible content. Even from the perspective of
constitutional realism, it is crucial to read the ‘invisible constitution’ out of a
written constitution, rather than to refer to more political factors that might be
only relevant to the written constitution.
The incomplete nature of the 1982 reforming Constitution of China drives
scholarly efforts to consider the whole picture of its unwritten but de facto
evolution in the reform and, more implicitly, the internal logic of the constitu-
tional unitary system. A general conclusion from the whole picture of China’s
sub-state decentralisation is that the implicit limitation of these decentral-
isation arrangements exists in the institutional design itself rather than the
written articles. In other words, they not only fall constitutionally under the
central authorities with their ‘visibly’ articulated central control; they are also
designed to fit within the unitary system, and the central authorities have the
final say on the central-local relationship in any case. This is exactly why sub-
state decentralisation arrangements are easily considered defective in compar-
ative studies that search for some ‘real’ autonomy.
Lacking a proper mechanism that can resolve the central-local disputes has
different results.
During early fiscal decentralisation in the 1980s, the provincial govern-
ments caused collusion against central policies even as they were, hopefully,
combined with the centralist norms. At the same time, the autonomous regu-
lations remained absent, for they might lead to vertical separation between the
national autonomous regions and the central authorities. A significant insti-
tutional feature is that the unitary system is reinforced by the newly amended
Lawmaking Law in 2015 after pragmatic practice during last three decades.
The new Lawmaking Law regulates local legislation more formally and rig-
idly, including the local legislation of ethnic autonomous areas. In the case
of the Hong Kong SAR, the central government has been displaying some
The ‘Invisible Constitution’ seen Realistically
427
self-restraint according to OCTS by growing its political governance through
the Chief Executive.
104
Notably, tightening central control can be blamed for
intervening in autonomous affairs even with a legal explanation from the cen-
tral authorities; however, it is still in accordance with the unitary system.
104
A new constitutional convention after 1997 is the annual work report of the Chief Executive
to top central officials. Both Chief Executives in person do this report from two SARs, which
started from the report meeting between the first HKSAR Chief Executive Mr Tung Chee-
hwa and the former State President Mr Jiang Zemin in Beijing in December 1997. In Decem-
ber 2015, when Mr Li Keqiang, the Premier of the State Council, met Mr Leung Chun-ying,
the current Chief Executive of HKSAR, the mass media noticed that during the meeting the
reception for Leung was the same as other top provincial officials for the first time.
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