Speech by Solicitor General

***************************

Following is the speech on application of Article 158 of the Basic Law by the Acting Solicitor General, Mr Robert Allcock at the "Constitutional Law Conference on Implementation of the Basic Law: a Comparative Perspective" co-organised by the Department of Justice and the Faculty of Law, University of Hong Kong today (April 29):

In any country where constitutional powers may be exercised both by national and regional authorities, demarcation issues are bound to arise. For example, a litigant may challenge a statutory provision as being outside the authority of the particular legislature that enacted it. Those of you from countries with a long history of central and regional powers will be familiar with your own demarcation issues, and with your own mechanisms for resolving them. I welcome the opportunity provided by this Conference to learn from your experience.

At the same time, we must be aware of the differences that exist between the constitutional arrangements in Hong Kong and those in other jurisdictions. Let me briefly mention some of the special features of Hong Kong's arrangements.

Special features

First, the People's Republic of China is a unitary system. Under such a system, there is only one state, and powers enjoyed by local governments are conferred by that state. The Hong Kong SAR was established by the National People's Congress ('NPC') under Article 31 of the PRC constitution. It was the NPC that enacted the Basic Law, and thereby conferred upon the SAR its executive, legislative and judicial powers.

This contrasts with the position in federal jurisdictions where several individual states co-exist within another state. Within some (but not all) federations, specifically enumerated powers are assigned to the central government by the individual states - as in Australia and the USA. This is the reverse of the position in a unitary system.

Secondly, although the Basic Law concerns the Hong Kong SAR, it is a national, not a regional law - in two senses. First, it was made by the NPC and, secondly, other parts of China must comply with it.

The third special feature is the concept of 'one country, two systems'. Separate regions within other countries normally share the same, or similar, economic and legal systems. But Hong Kong's economic and legal systems are fundamentally different from those in the Mainland. The Basic Law preserves Hong Kong's different systems, and confers on the SAR an extraordinarily high degree of autonomy. Under the Basic Law, the Central People's Government is expressly responsible for the foreign affairs and defence of the Hong Kong SAR and for certain other matters, such as the appointment of the Chief Executive and the principal officials of the SAR Government. But most other matters are within Hong Kong's autonomy. The common law system continues to prevail, and national laws can only be applied to Hong Kong if they relate to defence, foreign affairs or other matters outside the limits of Hong Kong's autonomy. Only eleven national laws currently apply to the SAR.

These three special features of Hong Kong's constitutional arrangements should be kept in mind when demarcation issues are being considered. Let me turn now to the mechanisms for resolving such issues. One of the key provisions is Article 158 of the Basic Law. This relates to the interpretation of the Basic Law.

Article 158

I will start by quoting from the judgment of Sir Anthony Mason in last year's Court of Final Appeal case of Lau Kong Yung [1999] 3 HKLRD 778 at 820.

"As is the case with constitutional divisions of power, a link between the courts of the Region and the institutions of the People's Republic of China is required. In a nation-wide common law system, the link would normally be between the regional courts and the national constitutional court or the national supreme court. Here, however, there are not only two different systems, but also two different legal systems. In the context of "one country, two systems", art.158 of the Basic Law provides a very different link. That is because the article, in conformity with art.67(4) of the PRC Constitution, vests the general power of interpretation of the Basic Law, not in the People's Supreme Court or the national courts, but in the NPC Standing Committee."

I would add that this power of interpretation is different from judicial interpretation made in the course of litigation, and is described as legislative interpretation.

The Standing Committee's power of legislative interpretation is reflected in Article 158 of the Basic Law. Paragraph 1 of that article states that the power of interpretation of the Basic Law shall be vested in the Standing Committee. Paragraphs 2 and 3 of the article go on to deal with the powers of the SAR courts. In summary, they provide that the courts may, in adjudicating cases, interpret provisions in the Basic Law. However, if three criteria are satisfied, the courts must, according to Article 158(3), seek an interpretation of the relevant provision from the Standing Committee, and must follow that interpretation. The three criteria are -

(1) the provision concerns affairs which are the responsibility of the Central People's Government or the relationship between the Central Authorities and the Region (which I will call 'an excluded provision');

(2) the court needs to interpret the provision and such interpretation will affect the judgment in the case; and

(3) the court's final judgment is not appealable.

Given Hong Kong's high degree of autonomy, there are relatively few provisions in the Basic Law that satisfy the first of those criteria. As a result, the SAR courts are able to interpret most provisions on their own. Even if an excluded provision needs to be interpreted in order to resolve a demarcation issue, that issue could still be the subject of legal proceedings in the SAR courts. This is because decisions of the Court of First Instance and Court of Appeal are appealable. Those courts are therefore authorized by Article 158 to interpret the provision on their own. However, if the case reached the Court of Final Appeal ('CFA'), its decision would not be appealable. If the interpretation of the Basic Law provision would affect the judgment in the case, the CFA would therefore be required to seek a Standing Committee interpretation.

It is also possible that a demarcation issue could be resolved by an interpretation of the Basic Law made by the Standing Committee under Article 158(1) i.e. otherwise than when requested by the CFA to give an interpretation. The CFA has decided that the Standing Committee's power under that article applies to all provisions in the Basic Law. However, it is unlikely that the Standing Committee would exercise this power save in wholly exceptional circumstances, particularly in respect of provisions that are not excluded provisions.

Article 158 has given rise to much debate, both durign its drafting and since being implemented. Many commentators feel that it has the potential for undermining Hong Kong's autonomy. However, I would like to emphasize certain features of our new constitutional order that may help to allay that concern in respect of demarcation issues.

High degree of autonomy

The most important feature is Hong Kong's high degree of autonomy. The authority of the executive, legislative and judicial bodies in Hong Kong is much broader than that of regional organs in most other countries. This means that many of the demarcation issues that arise elsewhere are unlikely to arise in respect of Hong Kong. This can be demonstrated by looking at the powers conferred on the legislature, the executive authorities and the judiciary of the Hong Kong SAR.

(1) Legislature

I will start with the legislature. Professor Yash Ghai has commented that the 'legislative capacity of the HKSAR is vast'. The Basic Law does not enumerate the areas over which the SAR may legislate. Instead, laws may be enacted on any subject matter that is within Hong Kong's high degree of autonomy under the Basic Law.

This contrasts with the position in many federal jurisdictions, where the legislative powers of central government are broader, and the powers of the regions are more restricted. For example, the Australian Constitution gives the Commonwealth a long list of legislative powers over areas such as currency, immigration, divorce, and trade and commerce with other nations. Although the Australian States enjoy concurrent power in respect of most of these areas, they cannot legislate inconsistently with a Commonwealth law dealing with that topic. Such legislative powers in federal jurisdictions are a frequent source of demarcation issues.

Since Reunification, over 180 Ordinances have been enacted on a vast array of subject matters. So far no one has challenged any of these Ordinances on the basis that their subject matter falls outside Hong Kong's legislative powers. It is possible that such a challenge will arise in the future. For example, legislation might be enacted that appeared to conflict with a national law that applies in Hong Kong. If the SAR legislature's power to enact such legislation were challenged, the extent of that power could be determined through an interpretation of the Basic Law in the manner I have outlined.

On a related matter, Article 17 of the Basic Law provides that all laws enacted by the SAR legislature shall be reported to the Standing Committee for the record. If the Standing Committee considers that a law is not in conformity with the excluded provisions of the Basic Law it has the power to invalidate it. It can do this if, after consulting its Committee for the Basic Law, it returns the law on this ground. However, in almost three years since Reunification, it has not done so.

(2) Executive authorities

Turning to executive power, Hong Kong's high degree of autonomy means there are relatively few restrictions on its executive power. The SAR Government does not, of course, have authority over defence or foreign affairs, but it may conduct 'external affairs' as authorized by the Central People's Government under the Basic Law.

The provisions in the Basic Law dealing with external affairs distinguish between those agreements that the SAR may enter into on its own and those for which the authorization of the Central People's Government is required. This is an example of a situation in which there could, in theory, be a difference of opinion as to whether the SAR could act without authorization. However, as with legislative powers, the scope for such problems is relatively limited.

This situation again contrasts with that in many federal jurisdictions where demarcation issues concerning executive power can arise in many areas. For example, in Australia, there is no reference in the Constitution to the sharing of executive power, and I understand that executive power will usually follow the legislative power. An example of a demarcation issue that arose as a result is the case of Davis v Commonwealth (1988)166 CLR 79. This involved the question of the Commonwealth's executive power to commemorate the Australian Bicentenary. It is difficult to imagine any similar issue arising in Hong Kong or the Mainland over commemorations of Chinese anniversaries.

(3) Judicial power

I turn now to the judiciary. Judicial power in the SAR is far less problematic in Hong Kong than in other regional jurisdictions. For example, in some federations, some issues arising in a province or region are determined by the regional courts and others are determined by federal courts. This may give rise to demarcation issues. Take, for example, the landmark case of Marbury v Madison I Cranch 137, 2 L.Ed 60(1803), in which the US Supreme Court established its power to judicially review legislation. The decision in that case was based not on the substantive issue before the court, but on the question of the court's jurisdiction. It had been argued that the court had jurisdiction to hear the substantive issue by virtue of a statutory provision. However, the Supreme Court struck down that provision as being inconsistent with the Constitution. As a result, the court was unable to determine the substantive issue before it.

In contrast, Hong Kong's courts have jurisdiction over all cases in the Region, except for restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong. In particular, SAR courts have no jurisdiction over acts of state such as defence and foreign affairs. These restrictions are, however, comparatively minor when compared with those of regional courts in some federations.

Issues that have arisen

Since Reunification, a number of issues have arisen in respect of constitutional powers under the Basic Law. Before I deal with those issues, I will briefly mention the flags case, which was yesterday the subject of a detailed analysis by my colleague, Andrew Bruce SC. The Law of the PRC on the National Flag is one of the eleven national laws that apply in Hong Kong. That law was applied locally by way of an SAR Ordinance. It was argued that the Ordinance was inconsistent with Article 19 of the ICCPR (freedom of expression), and therefore contravened Article 39 of the Basic Law. Article 39 provides for the implementation of the ICCPR in Hong Kong. However, the CFA ruled that there was no such inconsistency. As a result, it was unnecessary for the court to rule on the extent of the SAR's power to enact legislation applying a national law to Hong Kong.

I turn now to the demarcation issues that arose in the context of the right of abode cases decided by the CFA last January.

(1) Acts of the NPC

The first issue was whether Hong Kong courts can review for consistency with the Basic Law acts of the NPC and its Standing Committee relating to Hong Kong. In its decision last January, the CFA stated that it could review such acts and, if they were found to be inconsistent with the Basic Law, could declare them to be invalid. It subsequently clarified its decision by stating that it did not question the authority of the NPC to do any act that is in accordance with the provisions of the Basic Law and the procedure therein.

(2) CFA's power of interpretation

The second issue was whether or not the CFA could interpret two Articles of the Basic Law on its own, or had to seek an interpretation from the Standing Committee. This question turned on the proper application of Article 158(3) of the Basic Law. As I explained earlier, if three criteria are satisfied, the CFA must seek a Standing Committee interpretation. The two articles in question were Articles 24(2)(3) and 22(4).

Article 24(2)(3) sets out one of the categories of persons who are entitled to the right of abode in Hong Kong. The CFA held that Article 24(2)(3) was not an excluded provision and so could be interpreted by the court on its own.

Article 22(4) provides that, for entry into the Hong Kong SAR, people from other parts of China must apply for approval. The CFA assumed that the article concerned the relationship between the Central Authorities and the Region (i.e. it was an excluded provision). However, it declined to seek an interpretation of the article from the Standing Committee on the basis that it was not the 'predominant provision' that needed to be interpreted in the case.

Subsequently, the Standing Committee, acting under Article 158(1), decided that both articles should have been referred to it for interpretation. Subsequently the Chief Justice commented (in Lau Kong Yung's case) that the court may need to revisit the predominant provision test in an appropriate case.

(3) Requesting an interpretation

The third issue was whether it was lawful and constitutional for the Chief Executive to request an interpretation by the Standing Committee of the two articles I have referred to, after the CFA had itself interpreted them. The Chief Executive requested such an interpretation on the basis that -

(1) the effect of the CFA's interpretation would have been to place unbearable pressure on the Hong Kong SAR;

(2) the issue was one of principle involving how the Basic Law should be interpreted;

(3) the control of entry of Mainland residents into Hong Kong had a bearing on the relationship between the Central Authorities and the Hong Kong SAR; and

(4) the Hong Kong SAR was not able to resolve the problem on its own.

The request of an interpretation was an exceptional act, and we all hope that the need for such an act will never arise in future. The SAR Government is however firmly of the view that the request was both lawful and constitutional. The Government relies in particular, on the Chief Executive's constitutional duties both to implement the Basic Law (Article 48(2)) and to be accountable to the Central People's Government (Article 43(2)).

(4) Standing Committee's power of interpretation

The fourth issue was whether the Standing Committee can interpret Basic Law provisions otherwise than when the CFA refers the provisions to it under Article 158(3). Three views have been expressed on this -

(1) it cannot interpret any such provisions in the absence of a CFA reference;

(2) it can only interpret excluded provisions in the absence of such a reference; and

(3) it can interpret any provision in the absence of a reference.

As I mentioned a moment ago, when the Standing Committee interpreted the two articles of the Basic Law, it stated that the CFA should have referred them both to the Standing Committee for interpretation. In other words, they were excluded provisions. The Standing Committee's interpretation did not touch on its power to interpret provisions that are not excluded provisions in the absence of a CFA reference.

However, in Lau Kong Yung's case, the CFA held that the Standing Committee has a free-standing power to interpret any provision in the Basic Law and, if it does so, Hong Kong courts are bound by that interpretation.

Conclusion

Those, then, are the demarcation issues that have arisen in Hong Kong since Reunification. They have been the subject of heated debate - and that debate continues. This is a healthy sign. Constitutional issues are inherently controversial, and Hong Kong cannot expect to escape from such controversies - particularly in the early years of the new constitutional order.

However, what I have tried to demonstrate today is that Hong Kong's high degree of executive, legislative and judicial power makes it unlikely that we will face many of the demarcation issues that exist in federal jurisdictions. Moreover, if such issues do arise, mechanisms exist under the Basic Law for their resolution.

The Basic Law reflects a unique vision for enabling two fundamentally different systems to exist within one country. The experience to date demonstrates that this vision can and is being faithfully implemented in practice.

End/Saturday, April 29, 2000

NNNN